UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported)
February 3, 2014
W. R. GRACE & CO.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
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1-13953
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65-0773649
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(Commission File Number)
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(IRS Employer Identification No.)
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7500 Grace Drive
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Columbia, Maryland
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21044
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(Address of Principal Executive Offices)
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(Zip Code)
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(410) 531-4000
(Registrant’s Telephone Number, Including Area Code)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (
see
General Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
W. R. GRACE & CO.
FORM 8-K
CURRENT REPORT
Item 1.01. Entry into a Material Definitive Agreement
Item 2.01. Completion of Acquisition or Disposition of Assets
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Item 2.03.
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
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Item 3.02. Unregistered Sales of Equity Securities
Preliminary Note
On February 3, 2014 (the
“
Effective Date
”
), the joint plan of reorganization of W. R. Grace & Co. (
“
Grace
”
) and its debtor subsidiaries (as amended to date, the “Joint Plan”) became effective. For additional information regarding the Joint Plan, see Item 1.03 of this Report. In connection with the effectiveness of the Joint Plan, Grace and/or its principal subsidiary W. R. Grace & Co.
-
Conn. (
“
Grace
-
Conn.
”
) entered into the following agreements:
Credit Agreement
On February 3, 2014, Grace entered into the Credit Agreement (the “Credit Agreement”), by and among W. R. Grace & Co., a Delaware corporation, W. R. Grace & Co.-Conn., a Connecticut corporation (the “Borrower”), and Grace GmbH & Co. KG, a limited partnership under the laws of the Federal Republic of Germany (the “German Borrower”), each lender from time to time party thereto, and Goldman Sachs Bank USA, as administrative agent. The Credit Agreement provides for:
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(a)
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a $250 million revolving facility due 2019 (the “U.S. Revolving Facility”);
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(b)
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a $150 million multicurrency revolving facility due 2019 (the “Multicurrency Revolving Facility” and together with the U.S. Revolving Facility, the “Revolving Facilities”);
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(c)
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a $700 million term loan due 2021 (the “U.S. Term Facility”);
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(d)
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a EURO 150 million term loan due 2021 (the “Euro Term Facility”); and
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(e)
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a $250 million delayed draw term loan facility due 2021 (the “Delayed Draw Term Facility” and together with the U.S. Term Facility and the Euro Term Facility, the “Term Facilities,” and the Term Facilities together with the Revolving Facilities, the “Credit Facilities”).
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The Term Facilities will amortize in equal quarterly installments in aggregate annual amounts equal to 1.00% of the original principal amount thereof. The Borrower will use the proceeds of the U.S. Term Facility and the Euro Term Facility to fund payments under the Joint Plan, pay costs in connection with the same and the Credit Facilities and for general corporate purposes. The Delayed Draw Term Facility is available to the Borrower for borrowings within one year after the Effective Date for general corporate purposes, including a settlement of the warrant described below under the captions “-Warrant Agreement” and -[Warrant] Implementation Letter. The Revolving Facilities are available to the Borrower (or the German Borrower, as applicable) for working capital, capital expenditures and general corporate purposes.
U.S. Dollar denominated Loans in respect of the Credit Facilities may be borrowed in LIBOR and Base Rate. Base Rate is the greatest of: the prime rate published in the Wall Street Journal; the federal funds rate plus ½ of 1%; and one month LIBOR plus 1% (which, in respect of the U.S. Term Facility only, shall have a 0.75% LIBOR floor). Multicurrency Loans in respect of the Credit Facilities may be borrowed in LIBOR, EURIBOR and CDOR (the “Adjusted Eurocurrency Rate”) depending on borrowed currency. Loans in respect of the Revolving Facilities will accrue interest at a rate per annum equal to the Adjusted Eurocurrency Rate plus 1.75%, and Base Rate plus 0.75%. Loans in respect of the U.S. Term Facility and the Delayed Draw Term Facility will accrue interest at a rate per annum initially equal to LIBOR plus 2.25%, with a 0.75% LIBOR floor. Loans in respect of the Euro Term Facility will accrue interest at a rate per annum initially equal to EURIBOR plus 2.50%, with a 0.75% EURIBOR floor. In addition, the margins in respect of the Term Facilities will be subject to step-downs determined by reference to a first lien leverage-based pricing grid. The Borrower’s obligations under the Credit Agreement are
guaranteed on a secured basis by Grace and Alltech Associates, Inc., a material U.S. subsidiary of the Borrower (collectively, with the Borrower, the “Loan Parties”). The obligations and guarantees of the Loan Parties are secured by a first-priority security interest in substantially all of the assets of the Loan Parties.
The Credit Agreement contains customary affirmative covenants, including, but not limited to (i) maintenance of legal existence and compliance with laws and regulations; (ii) delivery of consolidated financial statements and other information; (iii) payment of taxes; (iv) delivery of notices of defaults and certain other material events; and (v) maintenance of adequate insurance. The Credit Agreement also contains customary negative covenants, including but not limited to restrictions on (i) dividends on, and redemptions of, equity interests and other restricted payments; (ii) liens; (iii) loans and investments; (iv) the sale, transfer or disposition of assets and businesses; (vi) transactions with affiliates; and (vii) a maximum total leverage ratio.
Events of default under the Credit Agreement include, but are not limited to: (i) failure to pay principal, interest, fees or other amounts under the Credit Agreement when due, taking into account any applicable grace period; (ii) any representation or warranty proving to have been incorrect in any material respect when made; (iii) failure to perform or observe covenants or other terms of the Credit Agreement subject to certain grace periods; (iv) a cross-default and cross-acceleration with certain other material debt; (v) bankruptcy events; (vi) certain defaults under ERISA; and (vii) the invalidity or impairment of security interests.
The foregoing summary description of the Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 4.01 to this Current Report on Form 8-K and is incorporated herein by reference.
WRG Asbestos PI Trust Agreement
On the Effective Date, Grace, in accordance with the Joint Plan and on behalf of itself and the other Debtors (as specified in the Joint Plan), entered into the WRG Asbestos PI Trust Agreement (the “PI Trust Agreement”) with the Asbestos PI Future Claimants’ Representative, the Official Committee of Asbestos Personal Injury Claimants
;
,
the Asbestos PI Trustees, the Wilmington Trust Company, and the members of the Trust Advisory Committee establishing the WRG Asbestos PI Trust (the “PI Trust”).
As provided by the Joint Plan, the PI Trust is to be funded as described in Item 1.03 of this Report. Pursuant to and in accordance with the Joint Plan, the
PI Trust will assume liability for and resolve asbestos personal injury claims, and the Debtors’ present and future liability for these asbestos personal injury claims will be discharged and channeled to the PI Trust
.
The foregoing summary description of the PI Trust Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 10.01 to this Current Report on Form 8-K and is incorporated herein by reference.
WRG Asbestos PD Trust Agreement
On the Effective Date, Grace, in accordance with the Joint Plan and on behalf of itself and the other Debtors (as identified in the Joint Plan), entered into the WRG Asbestos Property Damage Settlement Trust Agreement (the “PD Trust Agreement”) with the Asbestos PD Future Claimants’ Representative, the Official Committee of Asbestos Property Damage Claimants, the Asbestos PD Trustees, the Wilmington Trust Company, and the members of the Zonolite Attic Insulation Trust Advisory Committee establishing the WRG Asbestos PD Trust (the “PD Trust”).
As provided by the Joint Plan, the PD Trust is funded as described in Item 1.03 of this Report. Pursuant to and in accordance with the Joint Plan, the
PD Trust will assume liability for and resolve asbestos property damage claims. The PD Trust contains two accounts, the “PD account,” in respect of asbestos property damage claims (typically associated with commercial and public buildings) but excluding claims related to Grace
’
s former attic insulation product (
“
ZAI
”
), and the “ZAI PD account,” in respect of asbestos property damage claims related to ZAI (typically found in residential buildings). Non-ZAI asbestos property damage claims are to be paid from the PD account and U.S. ZAI asbestos property damage claims are to be paid from the ZAI PD account. Each account has a separate trustee and the assets of the accounts are not to be commingled. Canadian ZAI PD Claims are to be paid by a separate fund established in Canada.
Grace will be responsible for funding the PD Trust with additional amounts following the Effective Date. See Deferred Payment Agreement Obligation - Property Damage below and Item 1.03 of this Report under the caption “Joint Plan of Reorganization
--
Asbestos-Related Property Damage Claims” for a description of Grace’s obligations to the PD Trust after the Effective Date.
The foregoing summary description of the PD Trust Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 10.02 to this Current Report on Form 8-K and is incorporated herein by reference.
Warrant Agreement
On the Effective Date, Grace entered into the Warrant Agreement (the “Warrant Agreement”) by and among Grace, the
PI Trust and Computershare Limited. Under the Warrant Agreement, on the Effective Date, Grace will issue to the PI Trust warrants to acquire 10 million shares of Grace common stock at an exercise price of $17.00 per share, expiring one year from the Effective Date. The number of shares of Grace common stock for which the warrant is exercisable and the exercise price therefor are
subject to customary anti-dilution adjustments in the event of certain actions by Grace. Under the Warrant Agreement, the warrants are freely transferable by the holder thereof, however, the Warrant Agreement and the terms applicable to the warrants were modified in certain respects by the [Warrant] Implementation Letter (described below). Computershare has agreed to act as warrant agent under the Warrant Agreement.
The foregoing summary description of the Warrant Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 4.09 to this Current Report on Form 8-K and is incorporated herein by reference.
Grace has relied, based on the Joint Plan and the confirmation order it received from the Bankruptcy Court, on Section 1145 of the Bankruptcy Code to exempt from the registration requirements of the Securities Act of 1933 (the “Securities Act”) the issuance and distribution of the warrants pursuant to the Warrant Agreement.
Section 1145 of the Bankruptcy Code exempts the offer and sale of securities under a plan of reorganization from registration under Section 5 of the Securities Act of 1933 as amended, and state laws if three principal requirements are satisfied: the securities must be offered and sold under a plan of reorganization and must be securities of the debtor, of an affiliate participating in a joint plan of reorganization with the debtor or of a successor to the debtor under a plan of reorganization; the recipients of the securities must hold claims against or interests in the debtor; and the securities must be issued in exchange for the recipient’s claim against or interest in the debtor or principally in such exchange and partly for cash or property.
[Warrant] Implementation Letter
On the Effective Date, the [Warrant] Implementation Letter (the “Warrant Settlement”) dated as of October 25, 2012, by and among Grace and the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative and the Official Committee of Equity Security Holders
,
became effective. The Warrant Settlement modifies the Warrant Agreement by providing for the settlement of the warrant in cash during the one-year period after the Effective Date. Under the terms of the Warrant Settlement, Grace may repurchase the warrant issued to the PI Trust for a price equal to the average of the daily closing prices of Grace common stock during the period commencing one day after the Effective Date and ending on the day prior to the date the
PI Trust elects to sell the warrant back to Grace, multiplied by 10 million (the number of shares issuable under the warrant), less $170 million (the aggregate exercise price of the warrant), provided that if the average of the daily closing prices is less than $54.50 per share, then the aggregate repurchase price would be $375 million, and if the average of the daily closing prices exceeds $66.00 per share, then the aggregate repurchase price would be $490 million. In the event a tender offer, or certain other proposed transactions that would result in a change in control of Grace, is announced during the one-year period after the Effective Date, the PI Trust may, in its sole discretion, elect to participate in such acquisition transaction as a stockholder and exercise the warrants in accordance with the terms of the Warrant Agreement, or by sale of the warrants to the prospective acquirer. Other than in connection with such an acquisition transaction, the PI Trust is prohibited from transferring or exercising the warrants, notwithstanding the terms of the Warrant Agreement.
The foregoing summary description of the Warrant Settlement does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 4.10 to this Current Report on Form 8-K and is incorporated herein by reference.
Warrant Registration Rights Agreement
On the Effective Date, in connection with the Warrant Agreement and the issuance of the warrants, Grace and the PI Trust entered into a registration rights agreement (the “Warrant Registration Rights Agreement”). The Warrant Registration Rights Agreement requires Grace to register with the Securities and Exchange Commission the warrants or the shares of Grace common stock issued thereunder upon a request of the PI Trust, in accordance with the terms and conditions set forth in the Warrant Registration Rights Agreement.
The foregoing summary description of the Warrant Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 4.11 to this Current Report on Form 8-K and is incorporated herein by reference.
Deferred Payment Agreement - Personal Injury (PI)
On the Effective Date, Grace-Conn. entered into the Deferred Payment Agreement (the “Deferred Payment Agreement (PI)”) by and between Grace-Conn. and the PI Trust. The Deferred Payment Agreement (PI) provides for deferred payments to the
PI Trust by Grace-Conn. of $110 million per year for five years beginning in 2019, and $100 million per year for 10 years beginning in 2024, that would be subordinate to any bank debt or bonds outstanding.
The Deferred Payment Agreement (PI) contains customary affirmative covenants, including, but not limited to (i) maintenance of legal existence and qualifications; (ii) delivery of financial statements and other information under certain circumstances; and (iii) delivery of notices of defaults and certain other material events. The Deferred Payment Agreement (PI) also contains negative covenants that include certain restrictions on dividends and other distributions and the sale, transfer or disposition of assets and businesses.
Events of default under the Deferred Payment Agreement (PI) include, but are not limited to: (i) failure to pay any deferred payment or interest when due, taking into account any applicable grace period; (ii) failure to perform or observe covenants of the Deferred Payment Agreement (PI) or the Guarantee Agreement (PI) (as described below) subject to certain grace periods; (iii) any assertion that the Deferred Payment Agreement (PI), the Guarantee Agreement (PI), the Share Issuance Agreement (as described below) or any material term thereof is not legal, valid and binding; (iv) a cross-default and cross-acceleration with the Deferred Payment Agreement (PD) (as described below) and the Deferred Payment Agreement (PD-ZAI) (as described below); and (v) bankruptcy events.
The foregoing summary description of the Deferred Payment Agreement (PI) does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 4.02 to this Current Report on Form 8-K and is incorporated herein by reference.
Guarantee Agreement (PI)
On the Effective Date, Grace entered into the Guarantee Agreement (the “Guarantee Agreement (PI)”) by and between Grace and the PI Trust. The Guarantee Agreement (PI) provides a guarantee by Grace of Grace-Conn.’s obligations to the PI Trust under the Deferred Payment Agreement (PI).
The Guarantee Agreement (PI) contains customary affirmative covenants, including, but not limited to (i) maintenance of legal existence and qualifications; (ii) delivery of financial statements and other information under certain circumstances; and (iii) delivery of notices of defaults and certain other material events. The Guarantee Agreement (PI) also contains negative covenants that include certain restrictions on dividends and other distributions and the sale, transfer or disposition of assets and businesses. Events of default under the Guarantee Agreement (PI) are defined as the events of default under the Deferred Payment Agreement (PI).
The foregoing summary description of the Guarantee Agreement (PI) does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 4.03 to this Current Report on Form 8-K and is incorporated herein by reference.
Deferred Payment Agreement - Property Damage (PD)
On the Effective Date, Grace-Conn. entered into the Deferred Payment Agreement (the “Deferred Payment Agreement (PD)”) by and between Grace-Conn. and the PD Trust. The Deferred Payment Agreement (PD) provides for a payment to the PD Trust by Grace-Conn. in respect of the PD account every six months in the amount of non-ZAI asbestos property damage claims that were allowed during the preceding six months (plus interest, if applicable) and, except for the first six months, the amount of PD Trust expenses for the preceding six months. The aggregate amount to be paid under the deferred payment obligation in respect of the PD account is not capped. Grace has the right to conduct annual audits of the books, records and claim processing procedures of the PD Trust.
The Deferred Payment Agreement (PD) contains customary affirmative covenants, including, but not limited to (i) maintenance of legal existence and qualifications; (ii) delivery of financial statements and other information under certain circumstances; and (iii) delivery of notices of defaults and certain other material events. The Deferred Payment Agreement (PD) also contains negative covenants that include certain restrictions on dividends and other distributions and the sale, transfer or disposition of assets and businesses.
Events of default under the Deferred Payment Agreement (PD) include, but are not limited to: (i) failure to pay any deferred payment or interest when due, taking into account any applicable grace period; (ii) failure to perform or observe covenants of the Deferred Payment Agreement (PD) or the Guarantee Agreement (PD) (as described below) subject to certain grace periods; (iii) any assertion that the Deferred Payment Agreement (PD), the Guarantee Agreement (PD), the Share Issuance Agreement or any material term thereof is not legal, valid and binding; (iv) a cross-default and cross-acceleration with the Deferred Payment Agreement (PI) and the Deferred Payment Agreement (PD-ZAI) (as described below); and (v) bankruptcy events.
The foregoing summary description of the Deferred Payment Agreement (PD) does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 4.04 to this Current Report on Form 8-K and is incorporated herein by reference.
Guarantee Agreement (PD)
On the Effective Date, Grace entered into the Guarantee Agreement (the “Guarantee Agreement (PD)”) by and between Grace and the PD Trust. The Guarantee Agreement (PD) provides a guarantee by Grace of Grace-Conn.’s obligations to the PD Trust in respect of the PD account under the Deferred Payment Agreement (PD).
The Guarantee Agreement (PD) contains customary affirmative covenants, including, but not limited to (i) maintenance of legal existence and qualifications; (ii) delivery of financial statements and other information under certain circumstances; and (iii) delivery of notices of defaults and certain other material events. The Guarantee Agreement (PD) also contains negative covenants that include certain restrictions on dividends and other distributions and the sale, transfer or disposition of assets and businesses. Events of default under the Guarantee Agreement (PD) are defined as the events of default under the Deferred Payment Agreement (PD).
The foregoing summary description of the Guarantee Agreement (PD) does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 4.05 to this Current Report on Form 8-K and is incorporated herein by reference.
Deferred Payment Agreement (PD-ZAI)
On the Effective Date, Grace-Conn. entered into the Deferred Payment Agreement (the “Deferred Payment Agreement (PD-ZAI)”) by and between Grace-Conn. and the PD Trust. Grace is obligated to make a payment of $30 million in cash to the ZAI PD account on the third anniversary of the Effective Date. The Deferred Payment Agreement (PD-ZAI) also provides for up to 10 contingent deferred payments of $8 million per year to the PD Trust by Grace-Conn. in respect of the PD-ZAI account during the 20-year period beginning on the fifth anniversary of the Effective Date, with each such payment due only if the assets of the PD Trust in respect of the PD-ZAI account fall below $10 million during the preceding year.
The Deferred Payment Agreement (PD-ZAI) contains customary affirmative covenants, including, but not limited to (i) maintenance of legal existence and qualifications; (ii) delivery of financial statements and other information under certain circumstances; and (iii) delivery of notices of defaults and certain other material events.
The Deferred Payment Agreement (PD-ZAI) also contains negative covenants that include certain restrictions on dividends and other distributions and the sale, transfer or disposition of assets and businesses.
Events of default under the Deferred Payment Agreement (PD-ZAI) include, but are not limited to: (i) failure to pay any deferred payment or interest when due, taking into account any applicable grace period; (ii) failure to perform or observe covenants of the Deferred Payment Agreement (PD-ZAI) or the Guarantee Agreement (PD--ZAI) (as described below) subject to certain grace periods; (iii) any assertion that the Deferred Payment Agreement (PD-ZAI), the Guarantee Agreement (PD--ZAI), the Share Issuance Agreement or any material term thereof is not legal, valid and binding; (iv) a cross-default and cross-acceleration with the Deferred Payment Agreement (PI) and the Deferred Payment Agreement (PD); and (v) bankruptcy events.
The foregoing summary description of the Deferred Payment Agreement (PD-ZAI) does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 4.06 to this Current Report on Form 8-K and is incorporated herein by reference.
Guarantee Agreement (PD-ZAI)
On the Effective Date, Grace entered into the Guarantee Agreement (the “Guarantee Agreement (PD-ZAI)”) by and between Grace and the PD Trust. The Guarantee Agreement (PD-ZAI) provides a guarantee by Grace of Grace-Conn.’s obligations to the PD Trust in respect of the PD-ZAI account under the Deferred Payment Agreement (PD-ZAI).
The Guarantee Agreement (PD-ZAI) contains customary affirmative covenants, including, but not limited to (i) maintenance of legal existence and qualifications; (ii) delivery of financial statements and other information under certain circumstances; and (iii) delivery of notices of defaults and certain other material events. The Guarantee Agreement (PD-ZAI) also contains negative covenants that include certain restrictions on dividends and other distributions and the sale, transfer or disposition of assets and businesses. Events of default under the Guarantee Agreement (PD-ZAI) are defined as the events of default under the Deferred Payment Agreement (PD-ZAI).
The foregoing summary description of the Guarantee Agreement (PD-ZAI) does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 4.07 to this Current Report on Form 8-K and is incorporated herein by reference.
Share Issuance Agreement
On the Effective Date, Grace entered into the Share Issuance Agreement (the “Share Issuance Agreement”) by and among Grace, the
PD Trust and the
PI Trust. Under the Share Issuance Agreement, Grace’s obligations under the Guarantee Agreement (PI), Guarantee Agreement (PD) and Guarantee Agreement (PD--ZAI) are secured by Grace's obligation to issue 77,372,257 shares of Grace common stock to the PI Trust and the PD Trust, in the event of default of its obligations under such agreements. The number of shares of Grace common stock that Grace is obligated to issue under the Share Issuance Agreement is subject to customary anti-dilution adjustments in the event of certain actions by Grace.
The foregoing summary description of the Share Issuance Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 4.08 to this Current Report on Form 8-K and is incorporated herein by reference.
Grace intends to rely, based on the Joint Plan and the confirmation order it received from the Bankruptcy Court, on Section 1145 of the Bankruptcy Code to exempt from the registration requirements of the Securities Act any issuance and distribution of shares of Common Stock pursuant to the Share Issuance Agreement.
Asbestos Insurance Transfer Agreement
On the Effective Date, Grace entered into the Asbestos Insurance Transfer Agreement (the “Insurance Transfer Agreement”) by and between Grace, Grace-Conn. and the other the Insurance Contributors identified therein and the PI Trust. Under the Insurance Transfer Agreement, Grace, Grace-Conn. and the other Insurance Contributors
transfer rights to all proceeds under all of their insurance policies that are available for payment of PI Claims to the PI Trust.
The foregoing summary description of the Asbestos Insurance Transfer Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 2.03 to this Current Report on Form 8-K and is incorporated herein by reference.
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Item 1.02.
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Termination of a Material Definitive Agreement
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Prepetition Credit Facilities
On May 14, 1998, Grace and Grace-Conn. entered into that certain Credit Agreement with The Chase Manhattan Bank (now JPMorgan Chase Bank, N.A.), as administrative agent and certain lenders party thereto, as well as certain related documents and on May 5, 1999, Grace and Grace-Conn. entered into that certain 364-Day Credit Agreement with Bank of America National Trust and Savings Association, as document agent, The Chase Manhattan Bank (now JPMorgan Chase Bank, N.A.), as administrative agent, Chase Securities, Inc. as bank manager and certain lenders party thereto, as well as certain related documents (collectively, the “Prepetition Credit Facilities”). Pursuant to the Joint Plan, on the Effective Date, the obligations under the Prepetition Credit Facilities have been satisfied in full on the terms and conditions of the Joint Plan.
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Item 1.03.
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Bankruptcy or Receivership
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On February 3, 2014 (the
“
Effective Date
”
), the joint plan of reorganization of W. R. Grace & Co. (
“
Grace
”
) and its debtor subsidiaries (as amended to date, the "Joint Plan") became effective, resulting in the conclusion of Grace
’
s status as a debtor in the Chapter 11 cases
.
Since April 2, 2001, Grace had been operating under the protection of Chapter 11 of the U.S. Bankruptcy Code in order to resolve its asbestos-related liabilities in a fair and equitable manner and to protect the long-term value of its businesses for the benefit of its stakeholders. See Grace
’
s most recent periodic reports for a detailed history of Grace
’
s Chapter 11 cases
.
In September 2008, Grace and other parties filed the Joint Plan with the Bankruptcy Court to address all pending and future asbestos-related claims and all other pre-petition claims as outlined therein. On January 31, 2011, the U.S. Bankruptcy Court for the District of Delaware issued an order (the
“
Confirmation Order
”
) confirming the Joint Plan. On January 31, 2012, the U.S. District Court for the District of Delaware (the "District Court") issued an order affirming the Confirmation Order and confirming the Joint Plan in its entirety. On February 3, 2014, the U.S. Court of Appeals for the Third Circuit (the "Third Circuit") dismissed the sole remaining appeal challenging the Confirmation Order, resulting in the Confirmation Order becoming a final order and satisfying a key condition to the effectiveness of the Joint Plan.
Under the Joint Plan, two asbestos trusts have been established under Section 524(g) of the Bankruptcy Code. The Confirmation Order contains a channeling injunction which provides that all pending and future asbestos-related personal injury claims and demands (“PI Claims”) are to be channeled for resolution to an asbestos personal injury trust (the
”
PI Trust
”
) and all pending and future asbestos-related property damage claims and demands (
“
PD Claims
”
), including PD Claims related to Grace
’
s former attic insulation product (
“
ZAI
”
), are to be channeled to a separate asbestos property damage trust (the “PD Trust”). Canadian ZAI PD Claims are channeled to a separate Canadian claims fund. The trusts are the sole recourse for holders of asbestos-related claims; the channeling injunctions prohibit them from asserting such claims directly against Grace
.
Joint Plan of Reorganization
The following is a summary of the material terms of the Joint Plan as it was confirmed by the Bankruptcy Court and the District Court and implemented on the Effective Date. This summary highlights only certain provisions of the Joint Plan and is not a complete description of that document. Therefore, this summary is qualified in its entirety by reference to the Joint Plan. Under the terms of the Joint Plan, claims under the Chapter 11 Cases are to be satisfied as follows:
Asbestos-Related Personal Injury Claims
All PI Claims have been channeled to the PI Trust for resolution. The PI Trust will use specified trust distribution procedures to satisfy allowed PI Claims.
On the Effective Date, the PI Trust was funded with:
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$557.75 million in cash from Grace;
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A warrant to acquire 10 million shares of Grace common stock at an exercise price of $17.00 per share, expiring one year after Effective Date (the
“
PI Warrant
”
) (this obligation is expected to be settled in cash with the PI Trust as discussed below);
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Rights to all proceeds under all of the Grace’s insurance policies that are available for payment of PI Claims;
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$42.13 million in cash from a subsidiary of Fresenius AG, pursuant to the terms of a settlement agreement resolving asbestos-related, successor liability and fraudulent transfer claims against Fresenius; and
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$856.82 million in cash and 18 million shares of Sealed Air Corporation common stock paid by Cryovac, Inc., a wholly owned subsidiary of Sealed Air Corporation, pursuant to the terms of a settlement agreement resolving asbestos-related, successor liability and fraudulent transfer claims against Cryovac and Sealed Air
.
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Grace is obligated to make deferred payments to the PI Trust of $110 million per year for five years beginning in 2019, and $100 million per year for 10 years beginning in 2024, which obligation is secured by Grace's obligation to issue 77,372,257 shares of Grace common stock to the asbestos trusts in the event of default.
The amounts that Grace will be obligated to pay to the PI Trust under the Joint Plan are fixed amounts. Grace is not obligated to make additional payments to the PI Trust beyond the payments described herein.
Asbestos-Related Property Damage Claims
All PD Claims have been channeled to the PD Trust for resolution. The PD Trust contains two accounts, the PD account and the ZAI PD account. U.S. ZAI PD Claims are to be paid from the ZAI PD account and non-ZAI PD Claims are to be paid from the PD account. Canadian ZAI PD Claims are to be paid by a separate fund established in Canada. Each account has a separate trustee and the assets of the accounts are not to be commingled.
PD Account
On the Effective Date, the PD account of the PD Trust was funded with $39.85 million in cash from Grace, CDN$8.6 million in cash from Grace and $111.38 million in cash from Cryovac and Fresenius to pay allowed non-ZAI PD claims settled as of the Effective Date.
Following the Effective Date, unresolved and future non-ZAI PD Claims are to be litigated pursuant to procedures to be approved by the Bankruptcy Court and, to the extent such PD claims are determined to be allowed claims, are to be paid in cash by the PD Trust. Grace is obligated to make a payment to the PD Trust every six months in the amount of any non-ZAI PD Claims allowed during the preceding six months plus interest and, except for the first six months, the amount of PD Trust expenses for the preceding six months (the "PD Obligation"). The aggregate amount to be paid under the PD Obligation is not capped and Grace may be obligated to make additional payments to the PD account of the PD Trust in respect of the PD Obligation.
On the Effective Date, the PD Trust contributed CDN$8.6 million to a separate Canadian ZAI PD Claims fund through which Canadian ZAI PD Claims are to be resolved. There are no continuing or contingent obligations to make additional payments into this fund.
ZAI PD Account
On the Effective Date, the ZAI PD account of the PD Trust was funded with approximately $34.36 million in cash from Cryovac and Fresenius.
Grace is obligated to make a payment of $30 million in cash to the ZAI PD account on the third anniversary of the Effective Date and Grace is obligated to make up to 10 contingent deferred payments of $8 million per year to the ZAI PD account during the 20-year period beginning on the fifth anniversary of the Effective Date, with each
such payment due only if the assets of the ZAI PD account fall below $10 million during the preceding year. The amounts that Grace will be obligated to pay to the ZAI PD account under the Joint Plan are capped amounts. Grace is not obligated to make additional payments to the PD Trust in respect of the ZAI PD account beyond the payments described herein.
The PD Trust is to resolve U.S. ZAI PD Claims that qualify for payment by paying 55% of the claimed amount, but in no event is the PD Trust to pay more per claim than 55% of $7,500 (as adjusted for inflation each year after the fifth anniversary of the Effective Date).
All payments to the PD Trust that are not to be paid on the Effective Date are secured by the Grace's obligation to issue 77,372,257 shares of Grace common stock to the asbestos trusts in the event of default. Grace has the right to conduct annual audits of the books, records and claim processing procedures of the PD Trust.
Other Claims
The Joint Plan also provides that all other allowed pre-petition claims will be paid in full on or within 10 days after the Effective Date, or when they otherwise become due. All allowed administrative claims are to be paid in cash and all allowed priority claims are to be paid in cash with interest as provided in the Joint Plan. Secured claims are to be paid in cash with interest or by reinstatement. Allowed general unsecured claims are to be paid in cash, including post-petition interest in accordance with the Joint Plan. Employee-related claims such as pension, retirement medical obligations and workers compensation claims are to be reinstated. Disputed claims that have not been resolved will be resolved in the Bankruptcy Court or another court, where appropriate. If it is ultimately determined that any amounts are owed on these disputed claims, they are to be paid in full, with interest as required. Grace has paid or expects to pay on or within 10 days after the Effective Date $1,361.60 million in respect of other allowed pre-petition or other claims.
After the Effective Date, all persons and entities generally are forever barred from asserting against Grace any claims or demands that are based upon any act or omission, transaction, or other activity, event or occurrence that occurred prior to the Effective Date, except as expressly provided in the Joint Plan.
PI Warrant Settlement
In October 2012, Grace entered into an agreement with the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative and the Official Committee of Equity Security Holders to settle the PI Warrant in cash during the one-year period after the Effective Date. The terms and conditions of the PI Warrant settlement are described in Item 1.01 of this Report under the caption
“
[Warrant] Implementation Letter
.”
Effect on Grace Common Stock
Under the Joint Plan holders of Grace common stock as of the Effective Date retained their shares, but the interests of shareholders are subject to dilution in the event of default with respect to the deferred payment obligations to the PI Trust or the PD Trust under Grace's security obligation.
Funding for Emergence
Grace funded payments under the Joint Plan and its working capital needs through cash on hand and the Credit Facilities pursuant to the Credit Agreement described in Item 1.01 of this Report. The Credit Facilities are comprised of $700 million and EUR 150 million of funded term loan, $250 million in unfunded delayed-draw term loan, and a $400 million revolving credit facility, of which approximately $300 million is unfunded.
Other Matters
As of December 31, 2013, and prior to giving effect to the Joint Plan, Grace estimated its consolidated assets to be $5,398.4 million and its consolidated liabilities to be $4,827.2 million with a stockholders’ equity of $571.2 million.
As of February 3, 2014, 77,063,385 shares of Grace common stock were issued and outstanding, 10,000,000 shares were reserved for future issuance pursuant to the PI Warrant and 77,372,257 shares were reserved for future issuance pursuant to the Share Issuance Agreement (as described in Items 1.01 and 3.02 of this
Report). An aggregate of 87,372,257 shares of Grace common stock are reserved for future issuance in respect of claims and interests filed and allowed under the Joint Plan.
The foregoing summary description of the Joint Plan and the Confirmation Order does not purport to be complete and is qualified in its entirety by reference to the full text of such documents, copies of which are filed as Exhibits 2.01 and 2.02, respectively, to this Current Report on Form 8-K and are incorporated herein by reference. A copy of the press release announcing the effectiveness of the Joint Plan is furnished herewith as Exhibit 99.01.
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Item 5.02.
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
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2014 Stock Incentive Plan
On February 3, 2014, the Grace 2014 Stock Incentive Plan (the “Stock Plan”) became effective
.
As part of the Joint Plan, the Stock Plan was approved by the U. S. Bankruptcy Court for the District of Delaware and supported by the Official Committee of Equity Security Holders.
The Stock Plan provides for the grant of stock awards, stock options, net exercise options, performance based units and any combination of stock awards, stock options, net exercise options and performance based units to eligible employees, including executive officers, and directors (“Key Persons”). The Compensation Committee of the Board of Directors determines which Key Persons will participate in the Stock Plan and the terms of any awards. An aggregate of six million shares have been authorized for issuance as awards over the term of the Plan subject to adjustment only to reflect stock splits and similar events.
For each share issued under the Stock Plan: (i) as a stock award to any Director, one share shall be regarded as utilized; and (ii) as a stock award to settle performance based units, one share shall be regarded as utilized.
Stock options and net exercise options granted under the Stock Plan may not have a term longer than five years and one month from the date of grant. The Stock Plan limits awards to any participant, who is subject to Section 162(m) of the U.S. Internal Revenue Code of 1986, as amended, in any single calendar year to no more than one million shares, subject to adjustment only to reflect stock splits and similar events. Awards under the Stock Plan may be conditioned on continued employment, the passage of time or the satisfaction of performance vesting criteria, which criteria may be based on financial and business performance. Vesting requirements are determined by the Compensation Committee. The Stock Plan can be amended or terminated by the Compensation Committee; provided however, Grace will not, without stockholder approval, reduce the purchase price of an outstanding stock option, subject to adjustment only to reflect stock splits and similar events.
The foregoing summary description of the Stock Plan does not purport to be complete and is qualified in its entirety by reference to the full text of such document, a copy of which is filed as Exhibit 10.03 to this Current Report on Form 8-K and is incorporated herein by reference.
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Item 5.03.
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
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Effective as of February 3, 2014 as part of the Joint Plan, Grace has amended and restated its certificate of incorporation and by-laws.
Amended and Restated Certificate of Incorporation
The Amended and Restated Certificate of Incorporation (the “Amended and Restated Certificate of Incorporation”) amends the certificate of incorporation previously in effect (the “Prior Certificate of Incorporation”). The information set forth in this Current Report on Form 8-K regarding the Amended and Restated Certificate of Incorporation is qualified in its entirety by reference to the full text thereof, a copy of which is attached hereto as Exhibit 3.01 and is incorporated herein by reference. References below to Articles and Sections are to the Articles and Sections of the Amended and Restated Certificate of Incorporation, unless otherwise indicated.
The provisions adopted or changed by amendment include, among other things:
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(a)
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Grace has changed its registered office in the State of Delaware. (Article II)
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(b)
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Grace shall not issue nonvoting equity securities to the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. § 1123(a)(6)). (Article IV, Section 6)
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(c)
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Articles V (authorization to create and issue certain rights to purchase securities) and VI (authorizations regarding by-laws and rights of inspection) of the Prior Certificate of Incorporation have been removed.
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(d)
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Article VII (stockholder actions) of the Prior Certificate of Incorporation has been amended and restated by new Article VIII.
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(e)
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Article VIII (director elections) of the Prior Certificate of Incorporation has been amended and restated by new Article VI, including the Classes of Directors provisions set forth in Section 2 thereof.
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(f)
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Article X (director liability) of the Prior Certificate of Incorporation has been amended and restated by new Article VII, which includes limitations of liability and provisions for indemnification to the fullest extent authorized by the General Corporation Law of the State of Delaware (the “DGCL”), as well as delineating procedures for indemnification. Article VII also contains a new Delaware “Exclusive Forum” provision.
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(g)
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Article X (regarding the right to impose trading restrictions in connection with the provisions of Section 382 of the Internal Revenue Code of 1986, as amended, and the Treasury regulations promulgated thereunder) has been newly added.
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(h)
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Article XI (rights and voting power required to amend, alter, change or repeal provisions of the certificate of incorporation) of the Prior Certificate of Incorporation has been replaced by new Article IX, which sets forth new voting power requirements regarding the Amended and Restated Certificate of Incorporation and by-laws
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Bylaws
The Amended and Restated By-laws of (the “Amended and Restated By-laws”) amend the by-laws previously in effect (the “Prior By-laws”). The information set forth in this Current Report on Form 8-K regarding the Amended and Restated By-laws is qualified in its entirety by reference to the full text thereof, a copy of which is attached hereto as Exhibit 3.02 and is incorporated herein by reference. References below to Articles and Sections are to the Articles and Sections of the Amended and Restated By-laws, unless otherwise indicated.
The provisions adopted or changed by amendment include, among other things:
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(a)
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Notices of stockholder meetings may be made by email or other electronic delivery. (Section 2.4)
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(b)
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The tenure and classification of the Board of Directors has been amended. (Section 3.2)
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(c)
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Grace will be transitioning to uncertificated shares commencing on April 1, 2014. (Section 5.1)
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(d)
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The Indemnification and Insurance provisions have been amended and restated, consistent the Amended and Restated Certificate of Incorporation, and include, among other things, provisions for indemnification to the fullest extent authorized by the DGCL, as well as delineating procedures for indemnification and relevant defined terms. (Section 6.7)
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(e)
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Article VIII consists of a new Delaware “Exclusive Forum” provision, consistent with the Amended and Restated Certificate of Incorporation.
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Share Repurchase Program
On February 4, 2014, Grace issued a press release announcing a share repurchase program. A copy of the press release is furnished herewith as Exhibit 99.02.
Item 9.01. Financial Statements and Exhibits
(c)
Exhibits
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Exhibit No.
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Description
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2.01
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Joint Plan of Reorganization of W. R. Grace & Co. and its Debtor Subsidiaries*
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2.02
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Order Confirming Joint Plan of Reorganization
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2.03
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Asbestos Insurance Transfer Agreement dated as of February 3, 2014, by and between W. R. Grace & Co., W. R. Grace & Co.-Conn. and the other insurance contributors identified therein and the Asbestos PI Trust.
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3.01
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Amended and Restated Certificate of Incorporation
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3.02
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Amended and Restated Bylaws
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4.01
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Credit Agreement dated as of February 3, 2014 by and among W. R. Grace & Co., W. R. Grace & Co.-Conn., Grace GmbH & Co. KG, a Federal Republic of Germany limited partnership, each lender from time to time party thereto, and Goldman Sachs Bank USA, as Administrative Agent.
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4.02
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Deferred Payment Agreement (PI) dated as of February 3, 2014 by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust.
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4.03
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Guarantee Agreement (PI) dated as of February 3, 2014 by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
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4.04
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Deferred Payment Agreement (PD) dated as of February 3, 2014 by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
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4.05
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Guarantee Agreement (PD) dated as of February 3, 2014 by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
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4.06
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Deferred Payment Agreement (PD-ZAI) dated as of February 3, 2014 by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust, the WRG Asbestos PI Trust.
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4.07
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Guarantee Agreement (PD--ZAI) dated as of February 3, 2014 by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
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4.08
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Share Issuance Agreement dated as of February 3, 2014 by and among W. R. Grace & Co., the WRG Asbestos PD Trust and the WRG Asbestos PI Trust.
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4.09
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Warrant Agreement dated as of February 3, 2014 by and among W. R. Grace & Co., the WRG Asbestos PI Trust and Computershare.
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4.10
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[Warrant] Implementation Letter dated as of October 25, 2012 by and between W. R. Grace & Co., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative and the Official Committee of Equity Security Holders.
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4.11
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[Warrant] Registration Rights Agreement dated as of February 3, 2014 by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
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10.01
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WRG Asbestos PI Trust Agreement dated as of February 3, 2014 by and between W. R. Grace & Co., the Asbestos PI Future Claimants’ Representative, the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Trustees, the Wilmington Trust Company, and the members of the Trust Advisory Committee.
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10.02
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WRG Asbestos Property Damage Settlement Trust Agreement dated as of February 3, 2014 by and between W. R. Grace & Co., the Asbestos PD Future Claimants’ Representative, the Official Committee of Asbestos Property Damage Claimants, the Asbestos PD Trustees, Wilmington Trust Company, and the members of the Zonolite Attic Insulation Trust Advisory Committee.
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10.03
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2014 Omnibus Stock Plan
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99.01
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W. R. Grace & Co. press release dated February 3, 2014 (Emergence from Chapter 11)
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99.02
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W. R. Grace & Co. press release dated February 4, 2014 (Share Repurchase Program)
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*
The Debtors filed with the Bankruptcy Court the following attachments to the Joint Plan, which, as permitted by Item 601(b)(2) of Regulation S-K, have been omitted from this Report:
Asbestos PI Trust Agreement
Asbestos PD Trust Agreement
Asbestos PI Trust Distribution Procedures
Schedule of Settled Asbestos Insurers Entitled to 524(g) Protection
Asbestos Insurance Transfer Agreement
Best Interests Analysis
CDN ZAI Minutes of Settlement
Cooperation Agreement
Asbestos PI Deferred Payment Agreement
Financial Information
Fresenius Settlement Agreement
Fresenius Settlement Order
Grace PI Guaranty
Non-Debtor Affiliate Schedule
Plan Registration Rights Agreement
Rejected Executory Contracts and Unexpired Leases Schedule
Retained Causes of Action Schedule
Share Issuance Agreement
Unresolved Asbestos PD Claims Schedule
Sealed Air Settlement Agreement
Sealed Air Settlement Order
Warrant Agreement
Case Management Order for Class 7A Asbestos PD Claims
Asbestos PI/PD Inter-Creditor Agreement
Deferred Payment Agreement (Class 7A PD)
Deferred Payment Agreement (Class 7B ZAI)
W. R. Grace & Co. Guarantee Agreement (Class 7A PD)
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI)
Stock Incentive Plan
Stock Trading Restrictions Term Sheet
ZAI Trust Distribution Procedures
Amended and Restated CDN ZAI Minutes of Settlement
Amendment to the Amended and Restated CDN ZAI Minutes of Settlement
This report, including the exhibits hereto, contains forward-looking statements, that is, information related to future, not past, events. Such statements generally include the words “believes,” “plans,” “intends,” “targets,” “will,” “expects,” “suggests,” “anticipates,” “outlook,” “continues” or similar expressions. Forward-looking statements include, without limitation, expected financial positions; results of operations; cash flows; financing plans; business strategy; budgets; capital and other expenditures; competitive positions; growth opportunities for existing products; benefits from new technology and cost reduction initiatives, plans and objectives; and markets for securities. For these statements, Grace claims the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. Like other businesses, Grace is subject to risks and uncertainties that could cause its actual results to differ materially from its projections or that could cause other forward-looking statements to prove incorrect. Factors that could cause actual results to differ materially from those contained in the forward-looking statements include, without limitation: developments affecting Grace's bankruptcy, proposed plan of reorganization and settlements with certain creditors, the cost and availability of raw materials (including rare earth) and energy, developments affecting Grace's underfunded and unfunded pension obligations, risks related to foreign operations, especially in emerging regions, acquisitions and divestitures of assets and gains and losses from dispositions or impairments, the effectiveness of its research and development and growth investments, its legal and environmental proceedings, costs of compliance with environmental regulations and those factors set forth in Grace's most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q and Current Reports on Form 8-K, which have been filed with the Securities and Exchange Commission and are readily available on the Internet at
www.sec.gov
. Reported results should not be considered as an indication of future performance. Readers are cautioned not to place undue reliance on Grace's projections and forward-looking statements, which speak only as the date thereof. Grace undertakes no obligation to publicly release any revision to the projections and forward-looking statements contained in this report, or to update them to reflect events or circumstances occurring after the date of this report.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed by the undersigned, thereunto duly authorized.
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W. R. GRACE & CO.
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(Registrant)
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By
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/s/ Mark Shelnitz
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Mark Shelnitz
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Secretary
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Dated: February 7, 2014
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EXHIBIT INDEX
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Exhibit No.
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Description
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2.01
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Joint Plan of Reorganization of W. R. Grace & Co. and its Debtor Subsidiaries
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2.02
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Order Confirming Joint Plan of Reorganization
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2.03
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Asbestos Insurance Transfer Agreement dated as of February 3, 2014, by and between W. R. Grace & Co., W. R. Grace & Co.-Conn. and the other insurance contributors identified therein and the Asbestos PI Trust.
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3.01
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Amended and Restated Certificate of Incorporation
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3.02
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Amended and Restated Bylaws
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4.01
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Credit Agreement dated as of February 3, 2014 by and among W. R. Grace & Co., W. R. Grace & Co.-Conn., Grace GmbH & Co. KG, a Federal Republic of Germany limited partnership, each lender from time to time party thereto, and Goldman Sachs Bank USA, as Administrative Agent.
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4.02
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Deferred Payment Agreement (PI) dated as of February 3, 2014 by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust.
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4.03
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Guarantee Agreement (PI) dated as of February 3, 2014 by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
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4.04
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Deferred Payment Agreement (PD) dated as of February 3, 2014 by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
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4.05
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Guarantee Agreement (PD) dated as of February 3, 2014 by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
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4.06
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Deferred Payment Agreement (PD-ZAI) dated as of February 3, 2014 by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust, the WRG Asbestos PI Trust.
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4.07
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Guarantee Agreement (PD--ZAI) dated as of February 3, 2014 by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
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4.08
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Share Issuance Agreement dated as of February 3, 2014 by and among W. R. Grace & Co., the WRG Asbestos PD Trust and the WRG Asbestos PI Trust.
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4.09
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Warrant Agreement dated as of February 3, 2014 by and among W. R. Grace & Co., the WRG Asbestos PI Trust and Computershare.
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4.10
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[Warrant] Implementation Letter dated as of October 25, 2012 by and between W. R. Grace & Co., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative and the Official Committee of Equity Security Holders.
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4.11
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[Warrant] Registration Rights Agreement dated as of February 3, 2014 by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
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10.01
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WRG Asbestos PI Trust Agreement dated as of February 3, 2014 by and between W. R. Grace & Co., the Asbestos PI Future Claimants’ Representative, the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Trustees, the Wilmington Trust Company, and the members of the Trust Advisory Committee.
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10.02
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WRG Asbestos Property Damage Settlement Trust Agreement dated as of February 3, 2014 by and between W. R. Grace & Co., the Asbestos PD Future Claimants’ Representative, the Official Committee of Asbestos Property Damage Claimants, the Asbestos PD Trustees, Wilmington Trust Company, and the members of the Zonolite Attic Insulation Trust Advisory Committee.
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10.03
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2014 Omnibus Stock Plan
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99.01
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W. R. Grace & Co. press release dated February 3, 2014 (Emergence from Chapter 11)
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99.02
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W. R. Grace & Co. press release dated February 4, 2014 (Share Repurchase Program)
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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
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W.
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R. GRACE & CO., et al., ) Case No. 01-01139 (JKF)
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) (Jointly Administered)
Debtors. )
)
Re: Docket Nos. 26154 and 26155
)
NOTICE OF SUBMISSION OF CONFORMED JOINT PLAN OF REORGANIZATION
AS OF DECEMBER 23, 2010
Please take notice that the above-captioned debtors (the “Debtors”), together with the Official Committee of Asbestos Personal Injury Claimants, the Official Committee of Equity Security Holders, and the Asbestos PI Future Claimants’ Representative (collectively the “Plan Proponents”), hereby submit this conformed copy of the Plan Proponents’ First Amended Joint Plan of Reorganization as of December 23, 2010 and related Plan Documents contained in the Exhibit Book filed on February 27, 2009 [Dkt. No. 20874], as amended (hereinafter, the “Joint Plan”), and respectfully state as follows:
1.
The Plan Proponents filed their First Amended Joint Plan of Reorganization on February 27, 2009 (the “Joint Plan”) [Dkt. No. 20872].
Thereafter, the Plan Proponents filed a series of plan document modifications -- first set of plan document modifications to the Joint Plan, dated September 4, 2009 [Dkt. No. 23177], second set of plan document modifications to the Joint Plan, dated October 12, 2009 [Dkt. No. 23474], the third set of plan document modifications to the Joint Plan, dated December 16, 2009 [Dkt. No. 24016], the fourth set of plan document modifications to the Joint Plan, dated March 19, 2010 [Dkt. No. 24477], and the fifth set of plan document modifications to the Joint Plan, dated December 8, 2010 [Dkt. No. 25881]. Those modifications were either technical in nature,
e.g.
, correcting typographical or similar errors, or resolved specific objections to confirmation of the Joint Plan.
3.
The Plan Proponents filed a conformed copy of the Joint Plan on December 8, 2010 [Dkt. No. 25881 at Exhibit G], which included all plan modifications through the fifth set of plan document modifications.
4.
On December 23, 2010, the Plan Proponents filed a Certification of Counsel Regarding Amendment to Section 3.1.9 of the Joint Plan (the “COC”) [Dkt. No. 25956]. The COC was signed by counsel for all of the Plan Proponents, counsel for certain holders of General Unsecured Claims arising from the Pre-petition Credit Facilities (the “Bank Lenders”), and counsel for the Official Committee of Unsecured Creditors. The COC related to agreed-to language in Section 3.1.9 of the Joint Plan regarding the timing of interest payments to the Bank Lenders.
6.
On January 19, 2011, the Plan Proponents filed a Notice of Amendment to Amended CDN ZAI Minutes of Settlement and Definition 69 to the First Amended Joint Plan of Reorganization [Dkt. No. 26087]. The amended Joint Plan terms covered by this Notice arose pursuant to an agreement by the parties to the Amended and Restated CDN ZAI Minutes of Settlement (“the Amendment to the Amended and Restated CDN ZAI Minutes of Settlement”) that the Amended and Restated CDN ZAI Minutes of Settlement would continue in full force and effect and not be considered null and void so long as the Confirmation Order was entered by the Bankruptcy Court on or before January 31, 2011. The Joint Plan is thus changed in two respects: definition 69 in the Joint Plan now includes a reference to the Amendment to the Amended and Restated CDN ZAI Minutes of Settlement, and the Amendment to the Amended and Restated CDN ZAI Minutes of Settlement has been added to the Joint Plan as Exhibit 35.
1
7.
On January 31, 2011, the Court entered an Order Confirming the First Amended Joint Plan of Reorganization as Modified Through December 23, 2010, and Recommending that the District Court Enter an Order Issuing and Affirming this Order and Adopting Findings of Fact and Conclusions of Law (the “Confirmation Order”) [Dkt. No. 26155] and the Memorandum Opinion Regarding Objections to Confirmation of First Amended Joint Plan of Reorganization and Supplemental Findings of Fact and Conclusions of Law (“Mem. Op.”) [Dkt. No. 26154]. On February 15, 2011, the Court entered an Order Clarifying Memorandum Opinion and Order Confirming the Joint Plan as Amended Through December 23, 2010 [Dkt. No. 26289].
8.
The attached version of the Joint Plan, at
Exhibit A
hereto, includes the agreed-to changes set forth in the COC and the changes regarding amended definition 69 and new Exhibit 35 discussed above.
9.
In addition, certain typographical errors were corrected in Sections 7.7(ll) and (mm) of the Joint Plan to conform to the language in the Confirmation Order involving references to certain sections of the Sealed Air Settlement Agreement.
10.
Finally, Exhibits 5 and 6 to the Joint Plan have been updated to include accurate information regarding insurance settlements through the date on which the Confirmation Order
was entered. Exhibit 5 to the Joint Plan -- the Schedule of Settled Asbestos Insurance Companies Entitled to § 524(g) Protection -- has been updated to include the names of insurers who have entered into Court-approved settlements since December 8, 2010 that, under the Joint Plan, would entitle them to protection under § 524(g) of the Bankruptcy Code. Exhibit 5 has also been updated so that the names of certain insurers conform to the actual names of those insurers as stated in the settlement agreements.
10.
Schedule 2 to Exhibit 6 to the Joint Plan has been updated to reflect all Asbestos Insurance Settlement Agreements approved by the Court since the filing of the fifth set of modifications to the Joint Plan on December 8, 2010. Schedule 3 to Exhibit 6 has been updated to reflect that certain
_______________________________________
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1
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While the Notice of Amendment to CDN ZAI Minutes of Settlement was filed after December 23, 2010, the Amendment to the Amended CDN ZAI Minutes of Settlement was approved by the Canadian Court and Notice of the Amendment was filed with this Court prior to entry of the Confirmation Order. Amended definition 69 and new Exhibit 35 thus became part of the confirmed Joint Plan, which was referred to in the Confirmation Order as the “First Amended Joint Plan of Reorganization as Modified Through December 23, 2010.”
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pre-petition Asbestos Insurance Reimbursement Agreements have been superseded by Court-approved settlements.
11.
Accordingly, the Plan Proponents submit that the attached Joint Plan with all of its exhibits is the conformed copy of the First Amended Plan of Reorganization as of December 23, 2010, as referenced in the Confirmation Order.
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Dated: February 21, 2011
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Respectfully submitted,
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KIRKLAND & ELLIS LLP
John Donley Adam Paul
300 North LaSalle
Chicago, IL 60654
Telephone: (312) 862-2000
Facsimile: (312) 862-2200
Deanna D. Boll
601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800
Facsimile: (212) 446-4900
and
BAER HIGGINS FRUCHTMAN LLC
Janet S. Baer
111 East Wacker Drive, Suite 2800
Chicago, IL 60601
Telephone: (312) 836-4022
Facsimile: (312) 577-0737
and
/s/ James E. O’Neill_
PACHULSKI, STANG, ZIEHL & JONES LLP
Laura Davis Jones (Bar No. 2436) James E. O’Neill (Bar No. 4042) Timothy Cairns (Bar No. 4228)
919 North Market Street, 16th Floor
P.O. Box 8705
Wilmington, DE 19899-8705
(Courier 19801)
Telephone: (302) 652-4100
Facsimile: (302) 652-4400
Counsel for the Debtors and Debtors in Possession
CAMPBELL & LEVINE, LLC
_/s/ Mark T. Hurford
Mark T. Hurford (No. 3299) 800 N. King Street, Suite 300
Wilmington, DE 19801
Telephone: (302) 426-1900
Facsimile: (302) 426-9947
and
CAPLIN & DRYSDALE, CHARTERED
Elihu Inselbuch
375 Park Avenue, 35th Floor New York, NY 10152-3500
Telephone: (212) 319-7125
Facsimile: (212) 644-6755
Peter Van N. Lockwood Jeffrey A. Liesemer Kevin Maclay
One Thomas Circle, N.W. Washington, D.C. 20005
Telephone: (202) 862-5000
Facsimile: (202) 429-3301
Counsel for the Official Committee of Asbestos Personal Injury Claimants
PHILLIPS, GOLDMAN & SPENCE, P.A.
/s/ John C. Phillips
John C. Phillips (Bar No. 110) 1200 North Broom Street Wilmington, DE 19806
Telephone: (302) 655-4200
Facsimile: (302) 655-4210
and
ORRICK, HERRINGTON & SUTCLIFFE LLP
Roger Frankel Richard H. Wyron Debra L. Felder
1152 15th Street, NW Washington, DC 20005
Telephone: (202) 339-8400
Facsimile: (202) 339-8500
Counsel for David T. Austern, Asbestos PI Future Claimants’ Representative
SAUL EWING LLP
/s/ Teresa K.D. Currier
Teresa K.D. Currier (Bar No. 3080) 222 Delaware Avenue, Suite 1200
P.O. Box 1266 Wilmington, DE 19899 Telephone: (302) 421-6800 Facsimile: (302) 421-6813
and
KRAMER LEVIN NAFTALIS & FRANKEL LLP
Philip Bentley Gregory Horowitz Douglas Mannal David Blabey
1177 Avenue of the Americas New York, NY 10022 Telephone: (212) 715-9100
Facsimile: (212) 715-8000
Counsel for the Official Committee of Equity Security Holders
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
In re:
) Chapter 11
)
W. R. GRACE & CO.,
et al.
) Case No. 01-1139 (JKF)
) Jointly Administered
Debtors.
)
)
FIRST AMENDED JOINT PLAN OF REORGANIZATION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE OF W. R. GRACE & CO., ET AL., THE OFFICIAL COMMITTEE OF ASBESTOS PERSONAL INJURY CLAIMANTS, THE ASBESTOS PI FUTURE CLAIMANTS’ REPRESENTATIVE, AND THE OFFICIAL COMMITTEE OF
EQUITY SECURITY HOLDERS AS MODIFIED THROUGH DECEMBER 23, 2010
John Donley
Adam Paul
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, IL 60654
Telephone: (312) 862-2000
-- and --
Deanna D. Boll
601 Lexington Avenue
New York, NY 10022
Telephone: (212) 446-4800
Janet S. Baer
BAER HIGGINS FRUCHTMAN LLC
111 East Wacker Drive, Suite 2800
Chicago, IL 60601
Telephone: (312) 836-4022
Laura Davis Jones (#2436)
James E. O’Neill (#4042)
Timothy Cairns (#4228)
PACHULSKI STANG ZIEHL & JONES LLP
919 North Market Street, 17th Floor
P.O. Box 8705
Wilmington, DE 19899-8705 (Courier 19801)
Telephone: (302) 652-4100
Counsel for the Debtors and Debtors in Possession
Philip Bentley
Douglas Mannal
David E. Blabey, Jr.
KRAMER LEVIN NAFTALIS & FRANKEL LLP
1177 Avenue of the Americas
New York, NY 10036
Telephone: (212) 715-9100
Teresa K.D. Currier (#3080)
SAUL EWING LLP
222 Delaware Avenue, Suite 1200
Wilmington, DE 19801
Telephone: (302) 421-6800
Counsel for the Official Committee of Equity Security Holders
Elihu Inselbuch
CAPLIN & DRYSDALE, CHARTERED
375 Park Avenue, 35th Floor
New York, NY 10152-3500
Telephone: (212) 319-7125
Peter Van N. Lockwood
Ronald Reinsel
Jeffrey Liesemer
CAPLIN & DRYSDALE, CHARTERED
One Thomas Circle, NW
Washington, DC 20005
Telephone: (202) 862-5000
Marla R. Eskin (#2989)
Mark T. Hurford (#3299)
CAMPBELL & LEVINE, LLC
800 King Street, Suite 300
Wilmington, DE 19801
Telephone: (302) 426-1900
Counsel for the Official Committee of Asbestos Personal Injury Claimants
Roger Frankel
Richard H. Wyron
Debra L. Felder
ORRICK, HERRINGTON & SUTCLIFFE LLP
Columbia Center
1152 15th Street, NW
Washington, DC 20005-1706
Telephone: (202) 339-8400
John C. Phillips, Jr. (#110)
PHILLIPS, GOLDMAN & SPENCE, P.A.
1200 North Broom Street
Wilmington, DE 19806
Telephone: (302) 655-4200
Counsel for David T. Austern,
Asbestos PI Future Claimants’ Representative
ii
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Page
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ARTICLE 1 DEFINITIONS, CONSTRUCTION OF TERMS, EXHIBITS AND ANCILLARY DOCUMENTS.
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2
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1.1
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DEFINED TERMS
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2
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1.2
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OTHER TERMS/INTERPRETATION
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42
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1.3
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THE PLAN DOCUMENTS
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43
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1.4
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ANCILLARY DOCUMENTS
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43
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ARTICLE 2 PROVISIONS FOR PAYMENT OF ADMINISTRATIVE EXPENSES AND PRIORITY TAX CLAIMS
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43
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2.1
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UNCLASSIFIED CLAIMS
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43
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2.1.1
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PAYMENT OF ALLOWED ADMINISTRATIVE EXPENSE CLAIMS
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44
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2.1.2
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PRIORITY TAX CLAIMS
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45
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ARTICLE 3 CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS
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45
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3.1
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SUMMARY
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45
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3.1.1
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Class 1. Priority Claims
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46
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3.1.2
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Class 2. Secured Claims
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46
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3.1.3
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Class 3. Employee Benefit Claims
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46
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3.1.4
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Class 4. Workers' Compensation Claims
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47
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3.1.5
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Class 5. Intercompany Claims
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48
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3.1.6
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Class 6. Asbestos PI Claims
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48
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3.1.7
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Class 7. Asbestos PD Claims
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49
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3.1.8
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Class 8. CDN ZAI PD Claims
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51
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3.1.9
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Class 9. General Unsecured Claims
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51
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3.1.10
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Class 10. Equity Interests in the Parent
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56
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3.1.11
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Class 11. Equity Interests in teh Debtors other than the Parent
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56
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ARTICLE 4 MODIFICATION OR WITHDRAWAL OF THIS PLAN
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57
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4.1
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MODIFICATION OF THE PLAN; AMENDMENT OF PLAN DOCUMENTS.
|
57
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4.1.1
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Modification of the Plan
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57
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4.1.2
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Post-Effective Date Amendment of Other Plan Documents
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57
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4.2
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WITHDRAWAL OF THIS PLAN
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58
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4.2.1
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Right to Withdraw this Plan
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58
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4.2.2
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Effect of Withdrawal
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58
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ARTICLE 5 PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS AND ASBESTOS CLAIMS GENERALLY
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58
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5.1
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OBJECTION TO CLAIMS (OTHER THAN ASBESTOS PI CLAIMS, ASBESTOS PD CLAIMS, AND CDN ZAI PD CLAIMS); PROSECUTION OF DISPUTED CLAIMS
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58
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5.2
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RESOLUTION OF ASBESTOS PI CLAIMS
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59
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5.3
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RESOLTUION OF ASBESTOS PD CLAIMS
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59
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5.4
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RESOLUTION OF CDN ZAI PD CLAIMS
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59
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ARTICLE 6 ACCEPTANCE OR REJECTION OF THIS PLAN
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59
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6.1
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IMPAIRED CLASSES TO VOTE
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59
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6.2
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ACCEPTANCE BY IMPAIRED CLASSES OF CLAIMS
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59
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6.3
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ORESYNED ACCEOTABCE IF TGUS OKAB
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60
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TABLE OF CONTENTS
(Continued)
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Page
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6.4
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ACCEPTANCE PURSUANT TO SECTION 524(G) OF THE BANKRUPTCY CODE
|
60
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6.5
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NONCONSENSUAL CONFIRMATION
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60
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6.5.1
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Cram Down
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60
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6.5.2
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General Reservation of Rights
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60
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ARTICLE 7 IMPLEMENTATION OF THIS PLAN
|
61
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7.1
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CORPORATE GOVERNANCE
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61
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7.1.1
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Amendment of Certificates of Incorporation of the Debtors
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61
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7.1.2
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Amendment of By-Laws of the Parent
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61
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7.1.3
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Precedence of Share Issuance Obligations
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61
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7.1.4
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Warrants
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62
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7.2
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THE ASBESTOS PI TRUST
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63
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7.2.1
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Creation of the Asbestos PI Trust
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63
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7.2.2
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Funding of the Asbestos PI Trust
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63
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7.2.3
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Transfer of Claims and Demands to the Asbestos PI Trust
|
65
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7.2.4
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Assignment and Enforcement of Asbestos PI Trust Causes of Action
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65
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7.2.5
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Appointment and Termination of Asbestos PI Trustees
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65
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7.2.6
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Creation and Termination of the Asbestos PI TAC
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65
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7.2.7
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Cooperation Agreement
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66
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7.2.8
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Institution and Maintenance of Legal and other Proceedings
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66
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7.2.9
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Authority of Asbestos PI Trust to Extend Asbestos PI Channeling Injunction to Asbestos Insurance Entities After the Effective Date
|
66
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7.3
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THE ASBESTOS PD TRUST
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66
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7.3.1
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Creation of the Asbestos PD Trust
|
66
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7.3.2
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Funding of the Asbestos PD Trust
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67
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7.3.3
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Transfer of Claims and Demands to the Asbestos PD Trust
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68
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7.3.4
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Assignment and Enforcement of Asbestos PD Trust Causes of Action
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68
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7.3.5
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Appointment and Termination of Asbestos PD Trustees
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68
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7.3.6
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Creation and Termination of the Zonolite Attic Instulation TAC
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69
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7.4
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PAYMENTS AND DISTRUBUTIONS UNDER THIS PLAN
|
69
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7.4.1
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Asbestos PI Trust Payments, Asbestos PD TRust Payments and Plan Distributions
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69
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7.4.2
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Timing of Plan Distributions
|
70
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7.5
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DELIVERY OF DISTRIBUTIONS AND UNDELIVERABLE OR UNCLAIMED DISTRIBUTIONS
|
70
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7.5.1
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Delivery by the Reorganized Debtors of Distributions in General
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70
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7.5.2
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Undeliverable Distributions by the Reoganized Debtors
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70
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7.6
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PAYMENTS UNDER THIS PLAN
|
71
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7.6.1
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Manner of Cash Payments under this Plan
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71
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7.6.2
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Fractional Payments under this Plan
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71
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7.7
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CONDITIONS TO OCCURRENCE OF THE CONFIRMATION DATE
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71
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7.8
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CONDITIONS TO OCCURRENCE OF THE EFFECTIVE DATE
|
83
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7.9
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MANAGEMENT OF THE REORGANIZED DEBTORS
|
87
|
TABLE OF CONTENTS
(Continued)
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Page
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7.10
|
CORPORATE ACTION
|
87
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7.11
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EFFECTUATING DOCUMENTS AND FURTHER TRANSACTIONS
|
87
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7.12
|
ALLOCATION OF PLAN DISTRIBUTIONS BETWEEN PRINCIPAL AND INTEREST
|
87
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|
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7.13
|
NO SUCCESSOR LIABILITY
|
88
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|
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7.14
|
DEEMED CONSOLIDATION OFTHE DEBTORS FOR PLAN PURPOSES ONLY
|
89
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|
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7.15
|
INSURANCE NEUTRALITY
|
89
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ARTICLE 8 INJUNCTIONS, RELEASES & DISCHARGE
|
93
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8.1
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DISCHARGE
|
93
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8.1.1
|
Discharge of the Debtors and Related Discharge Injunction
|
93
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8.1.2
|
Discharge of Liabilities to Holders of Asbestos PI Claims
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94
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8.1.3
|
Discharge of Liabilities to Holders of Asbestos PD Claims
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94
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8.1.4
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Discharge of Liabilities to Holders of CDN ZAI PD Claims
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94
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8.1.5
|
Disallowed Claims
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94
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8.1.6
|
Non-Rechargeable ERISA Liability
|
95
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|
|
8.2
|
THE ASBESORS PI CHANNELING INJUNCTION
|
95
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|
|
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8.2.1
|
Asbestos PI Channeling Injunction
|
95
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|
|
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8.2.2
|
Reservations from Asbestos PI Channeling Injunction
|
97
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|
|
8.3
|
THE ASBESORS PD CHANNELING INJUNCTION
|
99
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|
|
|
8.2.1
|
Asbestos PD Channeling Injunction
|
99
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|
|
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8.2.2
|
Reservations from Asbestos PD Channeling Injunction
|
100
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|
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8.4
|
ASBESTOS INSURNACE ENTITY INJUNCTION
|
102
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8.4.1
|
Asbestos Insurance Entity Injunction
|
102
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8.5
|
SUCCESSOR CLAIMS INJUNCTION
|
104
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|
|
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8.5.1
|
Injunction
|
104
|
|
|
|
8.5.2
|
Reservations from the Injunction for the Benefit of Holders of Grace-Related Claims
|
105
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8.5.3
|
Reservations from the Injunction for the Benefit of OneBeacon and CNA
|
106
|
|
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8.6
|
INJUNCTIONS AND RELEASES RELATED TO THE SEALED AIR INDEMNIFIED PARTIES ADN FRESENIUS INDEMNIFIED PARITIES
|
107
|
|
|
8.7
|
TERM OF CERTAIN INUUNCTIONS AND AUTOMATIC STAY
|
107
|
|
|
|
8.7.1
|
Injunctions and/or Automatic Stays in Existence Immediately prior to Confirmation
|
107
|
|
|
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8.7.2
|
Injunctions Provided for this Plan
|
107
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|
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8.8
|
ADDITIONAL RELEASES ADN INDEMNIFICATION
|
107
|
|
|
|
8.8.1
|
Release of Sealed Air Indemnified Parities
|
107
|
|
|
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8.8.2
|
Reservation of Rights With Respect to Cryovac Transaction Contractual Obligations
|
107
|
|
|
|
8.8.3
|
Release of Fresenius Indemnified Parties
|
109
|
|
|
|
8.8.4
|
Assumption of 1998 Tax Sharing Agreement and Section 4.04 of the TSIA
|
110
|
TABLE OF CONTENTS
(Continued)
|
|
|
|
|
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|
|
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Page
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8.8.5
|
Effect of the Fresenius Settlement Agreement, the Fresenius Settlement Order and the Sealed Air Settlement Agreement
|
110
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|
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8.8.6
|
Release of Avoidance Actions
|
111
|
|
|
|
8.8.7
|
Specific Releases by Holders of Claims or Equity Interests
|
111
|
|
|
|
8.8.8
|
Release by Debtors and Estate Parities
|
111
|
|
|
|
8.8.9
|
Indemnification of Representatives of the Debtors and Non-Debtor Affiliates
|
112
|
|
|
|
8.8.10
|
Indemnification of Reorganized Debtors and Their Representatives by the Asbestos PI Trust
|
112
|
|
|
|
8.8.11
|
Indemnification of Reorganized Debtors and Their Representatives by the Asbestos PD Trust
|
113
|
|
ARTICLE 9 EXECUTORY CONTRACTS, UNEXPIRED LEASES, LETTERS OF CREDIT, SURETY BONDS, COMPENSATION, INDEMNITY AND BENEFIT PROGRAMS
|
114
|
|
|
9.1
|
ASSUMPTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
|
114
|
|
|
|
9.1.1
|
Assumption Generally
|
114
|
|
|
|
9.1.2
|
Assumption Procedures
|
114
|
|
|
|
9.1.3
|
Rejection of Certain Executory Contracts and Unexpired Leases
|
115
|
|
|
9.2
|
LETTERS OF CREDIT ADN SURETY BONDS
|
117
|
|
|
9.3
|
COMPENSATION, INDEMNITY AND BENEFIT PROGRAM
|
117
|
|
|
|
9.3.1
|
Employee Benefits
|
117
|
|
|
|
9.3.2
|
Retiree Benefits
|
118
|
|
|
|
9.3.3
|
Workers' Compensation Benefits
|
118
|
|
ARTICLE 10 RETENTION OF JURISDICTION
|
118
|
|
|
10.1
|
PLAN DOCUMENTS
|
118
|
|
|
10.2
|
EXECUTORY CONTRACTS ADN UNEXPIRED LEASES
|
118
|
|
|
10.3
|
DISPUTED CLAIMS ALLOWANCE/DISALLOWANCE
|
119
|
|
|
10.4
|
ENFORCEMENT/MODIFICATION OF THIS PLAN ADN THE RELEASES, INJUCTIONS ADN DISCHARGE PROVIDED UNDER THE PLAN
|
119
|
|
|
10.5
|
COMPENSATION OF PROFESSIONALS
|
120
|
|
|
10.6
|
SETTLEMENTS
|
120
|
|
|
10.7
|
TAXES
|
120
|
|
|
10.8
|
SPECIFIC PURPOSES
|
120
|
|
|
10.9
|
INSURANCE MATTERS
|
120
|
|
|
10.10
|
EXCLUSIVE JURISDICTION OF DISTRICT COURT
|
121
|
|
ARTICLE 11
|
121
|
|
MISCELLANEOUS PROVISIONS
|
121
|
|
|
11.1
|
AUTHORITY OF THE DEBTORS
|
121
|
|
|
11.2
|
AUTHORITY OF THE REORGANIZED DEBTORS TO GRANT NEW STOCK INCENTIVE PLAN AND IMPOSE STOCK TRADING RESTRICTIONS
|
121
|
|
|
11.3
|
PAYMENT OF STATUTORY FREES
|
121
|
TABLE OF CONTENTS
(Continued)
|
|
|
|
|
|
|
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|
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Page
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11.4
|
RETAINED CAUSES OF ACTION
|
121
|
|
|
|
11.4.1
|
Maintenance of Causes of Action
|
121
|
|
|
|
11.4.2
|
Preservation of All Causes of Action not Expressly Settled of Released
|
122
|
|
|
11.5
|
THIRD-PARTY AGREEMENTS
|
123
|
|
|
11.6
|
REQUIREMENTS OF THE FRESENIUS SETTLEMENT AGREEMENT
|
123
|
|
|
11.7
|
REQUIREMENTS OF THE SEALED AIR SETTLEMENT AGREEMENT
|
123
|
|
|
11.8
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DISSOLUTION OF THE UNSECURED CREDITORS' COMMITTEE, THE ASBESTOS PI COMMITTEE, THE ASBESTOS PD COMMITTEE AND THE EQUITY COMMITTEE; CONTINUED RETENTION OF THE ASBESTOS PI FUTURE CLAIMANTS’ REPRESENTATIVE AND THE ASBESTOS PD
FUTURE CLAIMANTS’ REPRESENTATIVE
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120
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11.9
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EXCULPATION
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124
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11.10
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TITLE TO ASSETS; DICHARGE OF LIABILIIES
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125
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11.11
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ENTIRE AGREEMENT
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125
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11.12
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NOTICES
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125
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11.13
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HEADINGS
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129
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11.14
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GOVERNING LAW
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129
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11.15
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FILING OF ADDITIONAL DOCUMENTS
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129
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11.16
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COMPLIANCE WITH TAX REQUIREMENTS
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129
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11.17
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EXEMPTION FROM TRANSFER TAXES
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129
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11.18
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FURTHER ASSURANCES
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129
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11.19
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FURTHER AUTHORIZATIONS
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130
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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
In re:
) Chapter 11
)
W. R. GRACE & CO.,
et al.
) Case No. 01-1139 (JKF)
) Jointly Administered
Debtors.
)
)
FIRST AMENDED JOINT PLAN OF REORGANIZATION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE OF W. R. GRACE & CO., ET AL, THE OFFICIAL COMMITTEE OF ASBESTOS PERSONAL INJURY CLAIMANTS, THE
ASBESTOS PI FUTURE CLAIMANTS’ REPRESENTATIVE, AND THE OFFICIAL COMMITTEE OF EQUITY SECURITY HOLDERS AS MODIFIED THROUGH
DECEMBER 23, 2010
THIS PLAN
1
PROVIDES, AMONG OTHER THINGS, FOR THE ISSUANCE OF INJUNCTIONS THAT (A) RESULT IN THE CHANNELING OF ALL ASBESTOS PERSONAL INJURY CLAIMS, ASBESTOS PROPERTY DAMAGE CLAIMS, AND CDN ZAI PD CLAIMS (INCLUDING ALL RELATED SUCCESSOR CLAIMS) AGAINST W. R. GRACE & CO. AND THE ASBESTOS PROTECTED PARTIES (AS DEFINED HEREIN) INTO TRUSTS AND/OR A CLAIMS FUND AND (B) ENJOIN ALL SUCCESSOR CLAIMS BASED ON OR ARISING FROM, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, THE CRYOVAC TRANSACTION OR FRESENIUS TRANSACTION AGAINST
W. R. GRACE & CO. AND THE ASBESTOS PROTECTED PARTIES (AS DEFINED HEREIN), EACH AS MORE FULLY DESCRIBED HEREIN.
This Plan constitutes a settlement of all Claims and Demands against the Debtors on, and subject to, the terms described herein and the other Plan Documents. Nothing in the Plan Documents constitutes an admission by the Debtors as to the existence, merits, or amount of the Debtors’ actual present or future liability on account of any Claim or Demand except to the extent that such liability is specifically provided for in the Plan or the other Plan Documents in accordance with the Confirmation Order effective as of the Effective Date.
This Plan is not an offer with respect to any securities or a solicitation of acceptances of this Plan; any such offer or solicitation will only be made in compliance with applicable law, including applicable provisions of securities laws and the Bankruptcy Code. This Plan has not been filed with or reviewed by the Securities and Exchange Commission or any securities regulatory authority of any state under the Securities Act of 1933, as amended, or under any state securities or “blue sky” laws. This Plan has not been approved or disapproved by any court or
________________________
1
Unless otherwise indicated, capitalized terms shall have the meanings ascribed to them in Article 1 of this Plan.
the Securities and Exchange Commission. Any representation to the contrary is a criminal offense.
The Debtors, the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders hereby jointly propose the following Plan of Reorganization pursuant to the provisions of chapter 11 of title 11 of the United States Code for W. R. Grace & Co. and the other Debtors in these Chapter 11 Cases. Reference is made to the Disclosure Statement distributed contemporaneously herewith for, among other things, a discussion of the history, businesses, properties, and results of operations of the Debtors, and risks associated with this Plan.
ARTICLE 1
DEFINITIONS, CONSTRUCTION OF TERMS, EXHIBITS AND ANCILLARY DOCUMENTS
Definitions
Terms defined in this Section 1 apply to the Plan, the Disclosure Statement and the other Plan Documents (unless specifically provided otherwise in any such Plan Document).
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1.
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“1996 CU Agreement”
shall mean that particular Settlement Agreement and Release entered into between W. R. Grace & Co.-Conn., a Connecticut corporation, W. R. Grace
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& Co., a New York corporation which has changed its name to Fresenius National Medical Care Holdings, Inc., W. R. Grace & Co.-Del., a Delaware corporation, American Employers’ Insurance Company, and Employers Commercial Union Insurance Company, dated as of December 17, 1996.
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2.
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“1996 Unigard Agreement”
shall mean that particular Settlement Agreement, Release and Indemnification/Hold Harmless Agreement between W. R. Grace & Co-Conn., W.
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R. Grace & Co., and Unigard Security Company, dated as of July 11, 1996.
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3.
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“1998 Tax Sharing Agreement”
means the Tax Sharing Agreement by and among Old Grace Delaware, Grace-Conn., and Old Sealed Air Corporation, dated as of March 30, 1998.
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4.
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“Administrative Expense Claim”
shall mean: (i) any Claim constituting a cost or expense of administration in the Chapter 11 Cases, on or after the Petition Date but prior to the Effective Date, under Bankruptcy Code §§ 503(b), 507(a)(1), 507(b) or 1114(e)(2), including: (a) any actual and necessary costs and expenses of preserving the estates of the Debtors, (b) any actual and necessary costs and expenses of operating the businesses of the Debtors, (c) any indebtedness or obligation incurred or assumed by the Debtors (including any executory contracts of the Debtors assumed pursuant to Bankruptcy Code § 365 by order of the Bankruptcy Court or the Plan) in connection with the conduct of their businesses or for the acquisition or lease of property or the rendition of services, and (d) any allowed compensation or reimbursement of expenses awarded or allowed under Bankruptcy Code §§ 330(a), 331 or 503, and (ii) any fees or charges assessed against the estates of the Debtors under 28 U.S.C. § 1930.
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5.
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“Affiliate”
shall mean as to any specified Entity: (i) any other Entity that, directly or indirectly through one or more intermediaries or otherwise, controls, is controlled by, or is under common control with, the specified Entity, and (ii) any Entity that is an “affiliate” (within the meaning of Bankruptcy Code § 101(2)) of the specified Entity. As used in clause (i) of this definition, “control” shall include the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an Entity (whether through ownership of Capital Stock of that Entity, by contract, or otherwise).
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(a)
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With respect to Asbestos PD Claims in Class 7A, such Asbestos PD Claim in such amount as is set forth (i) in any PD Settlement Agreement and subject to the terms set forth in the Asbestos PD Trust Agreement, or (ii) after the Effective Date, as set forth in any stipulation, order, judgment, decree, or agreement approved by a Final Order of the Bankruptcy Court or such other United States District Court as is authorized to determine the liability of the Asbestos PD Trust on account of such Asbestos PD Claims as set forth in the Class 7A CMO;
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(b)
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With respect to any Plan Claim other than an Administrative Expense Claim or an Asbestos Claim, as to which a proof of claim was Filed within the applicable period of limitation fixed in accordance with Bankruptcy Rule 3003(c)(3) by the Court, (i) as to which no objection to the allowance thereof has been interposed within the applicable period of limitations fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules, or a Final Order of the Bankruptcy Court, (ii) as to which an objection to the allowance thereof has been interposed within such time as is set by the Bankruptcy Court pursuant to the Plan, the Bankruptcy Code, the Bankruptcy Rules, or a Final Order of the Bankruptcy Court, such Plan Claim to the extent that such objection has been (A) overruled in whole or in part by a Final Order of the Bankruptcy Court, (B) resolved by agreement of the Debtors and the Claimant which is approved by a Final Order of the Bankruptcy Court,
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(C) resolved by agreement of the Reorganized Debtors and the Claimant pursuant to Section 5.1 of the Plan, or (D) determined by Final Order in the Chapter 11 Cases, or (iii) as to which such Claim is listed on an Undisputed Claims Exhibit indicating allowance thereof, which has been Filed pursuant to Section 5.1 of the Plan;
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(c)
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With respect to any Plan Claim other than an Administrative Expense Claim or Asbestos Claim, as to which no proof of claim was Filed within the applicable period of limitation fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules, or a Final Order of the Bankruptcy Court, such Plan Claim to the extent that it has been listed by the Debtors in their Schedules as liquidated in amount and not disputed or contingent and not otherwise subject to an objection Filed
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within such time as is set by the Bankruptcy Court pursuant to the Plan, the Bankruptcy Code, the Bankruptcy Rules, or a Final Order of the Bankruptcy Court;
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(d)
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With respect to any Equity Interest in Parent, any Equity Interest registered in the stock register maintained by or on behalf of the Debtors as of the Confirmation Date; and
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(e)
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With respect to any Administrative Expense Claim:
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(i)
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that represents a Claim of a Professional, such a Claim to the extent it is allowed in whole or in part by a Final Order of the Bankruptcy Court; or
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(ii)
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other than with respect to a Claim of a Professional, (X) a Claim to the extent that the Debtors or the Reorganized Debtors determine it to constitute an Administrative Expense Claim, or (Y) a Claim to the extent it is allowed in whole or in part by a Final Order of the Bankruptcy Court and only to the extent that such allowed portion is deemed, pursuant to a Final Order of the Bankruptcy Court, to constitute a cost or expense of administration under Bankruptcy Code §§ 503 or 1114.
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7.
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“Allowed Amount”
shall mean the dollar amount of an Allowed Plan Claim (other than an Asbestos PI Claim).
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8.
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“Asbestos Claims”
shall mean any and all Asbestos PI Claims (including Indirect PI Trust Claims, CDN ZAI PI Claims, and Asbestos Medical Monitoring Claims), CDN ZAI PD Claims, Workers’ Compensation Claims that are SA Asbestos Personal Injury Claims, Asbestos PD Claims (including US ZAI PD Claims and Indirect PD Trust Claims), SA Asbestos Personal Injury Claims, and SA Asbestos Property Damage Claims, and any and all Demands related thereto.
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9.
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“Asbestos In-Place Insurance Coverage”
means any insurance coverage issued to any Insurance Contributor to the extent available to be utilized for the payment or reimbursement of liability, indemnity, or defense costs arising from or related to Asbestos PI Claims or Asbestos PI Trust Expenses under any Asbestos Insurance Policy or Asbestos Insurance Settlement Agreement;
provided, however
, that the term “Asbestos In-Place Insurance Coverage” shall not include any Asbestos Insurance Reimbursement Agreement.
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10.
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“Asbestos Insurance Action”
shall mean any claim, cause of action, or right of any Insurance Contributor, under the laws of any jurisdiction, against any Asbestos Insurance Entity, arising from or based on: (i) any such Asbestos Insurance Entity’s failure to provide coverage for, or failure to pay or agree to pay, any claim under any Asbestos Insurance Policy, Asbestos In-Place Insurance Coverage, Asbestos Insurance Reimbursement Agreement, or Asbestos Insurance Settlement Agreement; (ii) the refusal of any such Asbestos Insurance Entity to compromise or settle any claim under or pursuant to any Asbestos Insurance Policy, Asbestos In-Place Insurance Coverage, Asbestos Insurance Reimbursement Agreement, or Asbestos Insurance Settlement Agreement; (iii) the interpretation or enforcement of the terms of any Asbestos Insurance Policy, Asbestos In-Place Insurance Coverage, Asbestos Insurance Reimbursement Agreement, or Asbestos Insurance Settlement Agreement; or (iv) any conduct of any Asbestos Insurance Entity constituting “bad faith” or other wrongful conduct under applicable law with respect to any Asbestos Insurance Policy, Asbestos In-Place Insurance Coverage, Asbestos Insurance Reimbursement Agreement, or Asbestos Insurance Settlement Agreement.
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11.
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“Asbestos Insurance Entity”
shall mean any Entity, including any insurance company, broker, or guaranty association, that has issued, or that has or had actual or potential liability, duties or obligations under or with respect to, any Asbestos Insurance Policy.
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12.
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“Asbestos Insurance Entity Injunction”
shall mean the injunction described in Section
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8.4 of the Plan.
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13.
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“Asbestos Insurance Policy”
shall mean any insurance policy under which any Insurance Contributor has or had insurance coverage with a policy period incepting prior to June 30, 1985, whether known or unknown, that actually or potentially provides insurance coverage for any Asbestos Claim, including the policies listed on schedule 1 attached to Exhibit 6 in the Exhibit Book;
provided
that an Asbestos Insurance Policy shall not include any rights or obligations under any insurance policy or settlement agreement to which any of the Debtors are a party to the extent, but only to the extent, that such rights or obligations pertain solely to coverage for Workers’ Compensation Claims.
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14.
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“Asbestos Insurance Reimbursement Agreement”
means any agreement entered into prior to the Petition Date between the Debtors or Non-Debtor Affiliates, or any of them or their predecessors, on the one hand, and any Asbestos Insurance Entity, on the other hand, pursuant to which the Asbestos Insurance Entity agreed to reimburse the Debtors or the Non-Debtor Affiliates, or any of them or their predecessors, for certain liability, indemnity, or defense costs arising from or related to asbestos-related claims, including Asbestos PI Claims. The known Asbestos Insurance Reimbursement Agreements are listed on Schedule 3 to the Asbestos Insurance Transfer Agreement.
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15.
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“Asbestos Insurance Rights”
shall mean any and all rights, titles, privileges, interests, claims, demands or entitlements of the Insurance Contributors to any proceeds, payments, escrowed funds, initial or supplemental dividends, scheme payments, supplemental scheme payments, causes of action, and choses in action of any Insurance Contributor with respect to any Asbestos Insurance Policy, Asbestos Insurance Settlement Agreement, Asbestos In-Place Insurance Coverage, or Asbestos Insurance Reimbursement Agreement, including all Asbestos Insurance Actions, whether now existing or hereafter arising, accrued or unaccrued, liquidated or unliquidated, matured or unmatured, disputed or undisputed, fixed or contingent, including:
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(a)
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any and all rights of any Insurance Contributor to pursue or receive payments or proceeds under any Asbestos Insurance Policy, whether for liability, defense, or otherwise;
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(b)
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any and all rights of any Insurance Contributor to pursue or receive payments made or proceeds received on or after April 6, 2008, pursuant to any Asbestos Insurance Settlement Agreement or Asbestos In-Place Insurance Coverage, together with all interest earned thereon;
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(c)
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any and all proceeds of the settlement with Lloyd’s Underwriters, together with all interest earned thereon;
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(d)
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any and all proceeds of all settlements with Asbestos Insurance Entities under Asbestos In-Place Insurance Coverage or installment payment agreements, to the extent payment of the proceeds occurred on or after April 6, 2008;
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(e)
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any and all rights of any Insurance Contributor to pursue or receive payments from any insolvent Asbestos Insurance Entity, whether in receivership, liquidation, rehabilitation, run-off, or scheme of arrangement, or any other form of proceeding, or from any insolvent insurer’s estate, and the proceeds of all payments received by any Insurance Contributor from any such insolvent Asbestos Insurance Entity or such insolvent insurer’s estate on or after April 6, 2008, together with all interest earned on such proceeds;
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(f)
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any and all rights of any Insurance Contributor to pursue or receive payments with respect to Asbestos PI Claims from any insurance guaranty association; and
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(g)
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any and all rights of any Insurance Contributor to pursue or receive payments pursuant to an exception to a workers’ compensation exclusion in any Asbestos Insurance Policy;
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provided
that, other than the rights identified in Section 1.1.12(g) above, Asbestos Insurance Rights shall not include any rights or obligations under any insurance policy, settlement agreement, or coverage-in-place agreement to which any Insurance Contributor is a party to the extent, but only to the extent, that such rights or obligations pertain solely to coverage for Workers’ Compensation Claims; and
provided, further,
that, for the avoidance of doubt, Asbestos Insurance Rights shall not include any rights, titles, privileges, interests, claims, demands, or entitlements of the Insurance Contributors against any of the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties.
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16.
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“Asbestos Insurance Settlement Agreement”
shall mean any settlement agreement between or among any of the Debtors, the Reorganized Debtors, the Non-Debtor Affiliates, or any of them or their predecessors, and any Asbestos Insurance Entity involving any Asbestos Insurance Policy,
provided, however
, that the term “Asbestos Insurance Settlement Agreement” shall not include any Asbestos Insurance Reimbursement Agreement, and further provided that the parties to an Asbestos
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Insurance Reimbursement may agree to modify such agreement to become an Asbestos Insurance Settlement Agreement.
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17.
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“Asbestos Insurance Transfer Agreement”
shall mean the Asbestos Insurance Transfer Agreement substantially in the form included as Exhibit 6 in the Exhibit Book.
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18.
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“Asbestos Medical Monitoring Claim”
shall mean: a Claim, Canadian Claim, SA Claim, Grace-Related Claim, or Demand against, or present or future debt, liability, or obligation of, any of the Debtors or the Asbestos Protected Parties, including (x) all related claims, debts, obligations, liabilities or remedies for compensatory (including general, special, and consequential damages) and punitive damages, and (y) all cross- claims, contribution claims, subrogation claims, reimbursement claims or indemnity claims (whether or not such Claim, Canadian Claim, SA Claim, Grace-Related Claim, Demand, remedy, debt, liability, or obligation is reduced to judgment, liquidated, unliquidated, fixed, settled, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; whether or not the facts of or legal bases therefor are known or unknown; and whether in the nature of or sounding in tort, or under contract, warranty, guarantee, contribution, joint and several liability, subrogation, reimbursement or indemnity, or any other theory of law, equity, or admiralty), in each case for, based on, or arising out of, resulting from, or attributable to, directly or indirectly, personal injuries or damages by or on behalf of those who have not, as of the Petition Date, suffered any personal injury but who are alleging that:
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(i)
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the Debtors (or (x) any of their respective predecessors, successors, or assigns, or any current or former Affiliate of any of the foregoing (including any of the Non-Debtor Affiliates), but only to the extent that any liability is asserted to exist as a result of it being such a predecessor, successor, assign, or current or former Affiliate, or (y) any other Entity for whose products or operations any of the Debtors allegedly has liability or is otherwise liable) wrongfully caused them to be significantly exposed to hazardous asbestos fibers,
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(ii)
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this exposure significantly increased the Claimant’s risk of contracting a serious latent disease,
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(iii)
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medical monitoring could reasonably be expected to result in early detection of the onset and mitigation of the severity of such disease, and
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(iv)
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because of this exposure it is necessary for the Claimant to be examined by a physician or receive medical testing more often that he or she otherwise would.
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Asbestos Medical Monitoring Claims are included within Asbestos PI Claims.
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19.
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“Asbestos PD Claim”
shall mean:
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(i)
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a Claim, Canadian Claim, Indirect PD Trust Claim, SA Claim, Grace-Related Claim, or Demand, if any, against, or present or future debt, liability, or obligation of, any of the Debtors or the Asbestos Protected Parties, including (x) all related claims, debts, obligations, liabilities, and remedies for compensatory (including general, special, and consequential damages) and punitive damages, and (y) all cross-claims, contribution claims, subrogation claims, reimbursement claims, and indemnity claims (whether or not such Claim, Canadian Claim, Indirect PD Trust Claim, SA Claim, Grace-Related Claim, Demand, if any, remedy, debt, liability, or obligation is reduced to judgment, liquidated, unliquidated, fixed, settled, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; whether or not the facts of or legal bases therefor are known or unknown; and whether in the nature of or sounding in tort, or under contract, warranty, guarantee, contribution, joint and several liability, subrogation, reimbursement or indemnity, or any other theory of law, equity, or admiralty):
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(a)
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arising from acts or omissions of one or more of the Debtors (or any of their respective predecessors, successors, or assigns, or any current or former Affiliate of any of the foregoing (including any of the Non-Debtor Affiliates), or any other Entity for whose products or operations any of the Debtors allegedly has liability or is otherwise liable); and
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(b)
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for, based on, or arising out of, resulting from, or attributable to, directly or indirectly, the cost of removal, abatement, operations and maintenance activities and programs, diminution of property value, environmental damage, economic loss, or property damage (including the cost of inspecting, maintaining, encapsulating, abating, repairing, decontaminating, removing, or disposing of asbestos or asbestos containing materials or products in buildings or other structures, or other property) caused or allegedly caused by, based on, arising out of, or attributable to, directly or indirectly, in whole or in part:
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(1)
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the installation in, presence in, or removal of asbestos or asbestos- containing materials or products mined, processed, consumed, used, stored, manufactured, designed, sold, assembled, distributed, supplied, produced, specified, selected, disposed of, installed by, or in any way marketed by, or on behalf of, one or more of the Debtors (or (x) any of their respective predecessors, successors, or assigns, or any current or former Affiliate of any of the foregoing (including any of the Non-Debtor Affiliates), but only to the extent that any liability is asserted to exist as a result of it being such a predecessor, successor, assign, or current or former Affiliate, or (y) any other Entity for whose products or operations any of the Debtors allegedly has liability or is otherwise liable); or
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(2)
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asbestos-containing vermiculite mined, milled, or processed by the Debtors (or (x) any of their respective predecessors, successors, or assigns, or any current or former Affiliate of any of the foregoing (including any of the Non-Debtor Affiliates), but only to the extent that any liability is asserted to exist as a result of it being such a predecessor, successor, assign, or current or former Affiliate, or (y) any other Entity for whose products or operations any of the Debtors allegedly has liability or is otherwise liable);
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(ii)
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any and all SA Asbestos Property Damage Claims (other than CDN ZAI PD Claims) and related Demands, if any, against any of the Debtors, the Sealed Air Indemnified Parties, or the Fresenius Indemnified Parties; and
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(iii)
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any and all US ZAI PD Claims against any of the Debtors or the Asbestos Protected Parties.
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Notwithstanding the foregoing or anything else to the contrary, “Asbestos PD Claim” as defined herein does not include CDN ZAI PD Claims. For the avoidance of doubt, and notwithstanding the foregoing or anything else to the contrary, nothing in the Plan is intended or shall be interpreted, to exclude CDN ZAI PD Claims from, or to otherwise change, the definition of “Asbestos Property Damage Claims” as that term is defined in the Sealed Air Settlement Agreement.
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20.
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“Asbestos PD Claimant”
shall mean the Holder of an Asbestos PD Claim.
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21.
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“Asbestos PD Committee”
shall mean the Official Committee of Asbestos Property Damage Claimants appointed in the Chapter 11 Cases.
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22.
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“Asbestos PD Channeling Injunction”
shall mean the order(s) entered or affirmed by the District Court, in accordance with and pursuant to Bankruptcy Code § 524(g), permanently and forever staying, restraining, and enjoining any Entity from taking any action against any Asbestos Protected Party (except as may be specifically provided in such order(s)) for the purpose of, directly or indirectly, collecting, recovering, or receiving payment of, on, or with respect to (i) any Asbestos PD Claims in Class 7A, all of which shall be channeled to the Asbestos PD Trust for resolution as set forth in the Class 7A Case Management Order (other than actions brought to enforce any right or obligation under the Plan or any agreement or instrument between the Debtors or the Reorganized Debtors, on the one hand, and the Asbestos PD Trust, on the other hand, entered into pursuant to the Plan); including, (A) Unresolved Asbestos PD Claims, and
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(B) Asbestos PD Claims that were Allowed by PD Settlement Agreements that became final prior to the Effective Date, for which the Asbestos PD Trust shall pay such claims as provided in such PD Settlement Agreements from the proceeds of the Class 7A Initial Payment, (ii) any US ZAI PD Claims in Class 7B, all of which shall be channeled to the Asbestos PD Trust for resolution as set forth in the ZAI TDP, and (iii) any CDN ZAI PD Claims, the provision for payment of which shall be made to the Asbestos PD Trust to be
disbursed to the CDN ZAI PD Claims Fund. The Asbestos PD Channeling Injunction is further described in Section 8.3 of the Plan.
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23.
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“Asbestos PD FCR”
shall mean the Asbestos PD Future Claimants’ Representative.
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24.
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“Asbestos PD Future Claimants’ Representative”
shall mean Alexander M. Sanders, Jr. (or any Court-appointed successor), appointed as the legal representative for future asbestos-related property damage (including property damage related to ZAI) Claimants in the Chapter 11 Cases for the purpose of protecting the interests of persons that may subsequently assert Demands, if any, channeled to the Asbestos PD Trust.
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25.
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“Asbestos PD Initial Payment”
shall mean collectively, the Class 7A Initial Payment and the Class 7B Initial Payment.
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26.
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“Asbestos PD Trust”
shall mean the WRG Asbestos Property Damage Settlement Trust, a Delaware statutory trust, established pursuant to section 524(g) of the Bankruptcy Code and in accordance with the Asbestos PD Trust Agreement.
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27.
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“Asbestos PD Trustees
” shall mean the Entities confirmed by the Court to serve as trustees of the Asbestos PD Trust pursuant to (a) the terms of the Plan, (b) the Confirmation Order, and (c) the Asbestos PD Trust Agreement, or who subsequently may be appointed pursuant to the terms of the Asbestos PD Trust Agreement.
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28.
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“Asbestos PD Trust Agreement”
shall mean the WRG Asbestos PD Trust Agreement, effective as of the Effective Date, substantially in the form included as Exhibit 3 in the Exhibit Book, to be entered into by and among the Debtors, the Asbestos PD Future Claimants’ Representative, and the Asbestos PD Trustees in connection with the formation of the Asbestos PD Trust.
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29.
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“Asbestos PD Trust Assets”
shall mean the payments pursuant to (a) the Class 7A Asbestos PD Deferred Payment Agreement and all rights of the Asbestos PD Trust under the Class 7A Asbestos PD Deferred Payment Agreement; (b) the Class 7B Asbestos PD Deferred Payment Agreement and all rights of the Asbestos PD Trust under the Class 7B Asbestos PD Deferred Payment Agreement; (c) the Share Issuance Agreement and all rights of the Asbestos PD Trust pursuant to the Share Issuance Agreement; (d) the Asbestos PI/PD Inter-Creditor Agreement and all rights of the Asbestos PD Trust pursuant to the Asbestos PI/PD Inter-Creditor Agreement; (e) the Asbestos PD Initial Payment; (f) the Grace PD Guarantee Agreement for Class 7A and all rights of the Asbestos PD Trust under the Grace PD Guarantee Agreement for Class 7A; (g) the Grace PD Guarantee Agreement for Class 7B and all rights of the Asbestos PD Trust under the Grace PD Guarantee Agreement for Class 7B; and (h) the Asbestos PD Trust Causes of Action.
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30.
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“Asbestos PD Trust Causes of Action”
shall mean any and all of the actions, claims, rights, defenses, counterclaims, suits and causes of action of the Debtors and the other Asbestos Protected Parties, whether known or unknown, in law, at equity or otherwise, whenever and wherever arising under the laws of any jurisdiction attributable to: (a) all defenses to any Asbestos PD Claim other than Asbestos PD Claims that have been Allowed by PD Settlement Agreements, (b) with respect to any Asbestos PD Claims, all rights of setoff, recoupment, contribution, reimbursement, subrogation or indemnity (as those terms are defined by the non-bankruptcy law of any relevant jurisdiction) and any other indirect claim of any kind whatsoever, whenever and wherever arising or asserted, and (c) any other claims or rights with respect to Asbestos PD Claims that any of the Debtors and the other Asbestos Protected Parties would have had under applicable law if the Chapter 11 Cases had not occurred and the holder of such Asbestos PD Claim had asserted it by initiating civil litigation against any such Debtor and the other Asbestos Protected Parties. Notwithstanding the foregoing, Asbestos PD Trust Assets and Asbestos PD Trust Causes of Action shall not include any claim, cause of action, or right of the Debtors or any of them, under the laws of any jurisdiction, against any party (including the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties) for reimbursement, indemnity, contribution, breach of contract or otherwise arising from or based on any payments made by the Debtors on account of Asbestos PD Claims prior to the Effective Date. In addition, for the avoidance of doubt, Asbestos PD Trust Causes of Action do not include any rights of the Debtors, the Reorganized Debtors, or the other Asbestos Protected Parties arising under the Asbestos PD Channeling Injunction or any of the other injunctions, releases, or the discharge entered into in connection with the Plan and the Confirmation Order.
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31.
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“Asbestos PD Trust Expenses”
means any liabilities, costs, taxes, or expenses of, or imposed upon, or in respect of, the Asbestos PD Trust or, on and after the Effective Date, the Asbestos PD Trust Assets (except for payments to holders of Asbestos PD Claims on account of such Asbestos PD Claims).
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32.
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“Asbestos Personal Injury Claim”
shall mean an Asbestos PI Claim.
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33.
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“Asbestos PI Channeling Injunction”
shall mean the order(s) entered or affirmed by the District Court, in accordance with and pursuant to Bankruptcy Code § 524(g), permanently and forever staying, restraining, and enjoining any Entity from taking any action against any Asbestos Protected Party (except as may be specifically provided in such order(s)) for the purpose of, directly or indirectly, collecting, recovering, or receiving payment of, on, or with respect to any Asbestos PI Claims, all of which shall be channeled to the Asbestos PI Trust for resolution as set forth in the Asbestos PI TDP (other than actions brought to enforce any right or obligation under the Plan or any agreement or instrument between the Debtors or the Reorganized Debtors, on the one hand, and the Asbestos PI Trust, on the other hand, entered into pursuant to the Plan). The Asbestos PI Channeling Injunction is further described in Section 8.2 of the Plan.
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34.
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“Asbestos PI Claim”
shall mean:
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(ii)
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a Claim, Canadian Claim, Indirect PI Trust Claim, SA Claim, Grace-Related Claim, or Demand against, or any present or future, debt, liability, or obligation of, any of the Debtors or the Asbestos Protected Parties, including (x) all related claims, debts, obligations, liabilities, and remedies for compensatory (including general, special, and consequential damages) and punitive damages, and (y) all cross-claims, contribution claims, subrogation claims, reimbursement claims, and indemnity claims (whether or not such Claim, Canadian Claim, Indirect PI Trust Claim, SA Claim, Grace-Related Claim, Demand, remedy, debt, liability, or obligation is reduced to judgment, liquidated, unliquidated, fixed, settled, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; whether or not the facts of or legal bases therefor are known or unknown; and whether in the nature of or sounding in tort, or under contract, warranty, guarantee, contribution, joint and several liability, subrogation, reimbursement or indemnity, or any other theory of law, equity, or admiralty), in each case for, based on, arising out of, resulting from, or attributable to, directly or indirectly:
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(a)
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death, wrongful death, personal or bodily injury (whether physical, emotional, or otherwise), sickness, disease, loss of consortium, survivorship, medical monitoring, or other personal injuries (whether physical, emotional, or otherwise) or other damages (including medical, legal, and other expenses, caused, or allegedly caused, based on, arising or allegedly arising from or attributable to, directly or indirectly, in whole or in part, acts or omissions of one or more of the Debtors (or any of their respective predecessors, successors, or assigns, or any current or former Affiliate of any of the foregoing (including any of the Non-Debtor Affiliates), or any other Entity for whose products or operations any of the Debtors allegedly has liability or is otherwise liable); and
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(b)
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the presence of or exposure at any time to:
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(1)
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asbestos or any products or materials containing asbestos that were mined, processed, consumed, used, stored, manufactured, designed, sold, assembled, supplied, produced, specified, selected, distributed, disposed of, installed by, or in any way marketed by, or on behalf of, one or more of the Debtors (or (x) any of their respective predecessors, successors, or assigns, or any current or former Affiliate of any of the foregoing (including any of the Non-Debtor Affiliates), but only to the extent that any liability is asserted to exist as a result of it being such a predecessor, successor, assign, or current or former Affiliate, or (y) any other Entity for whose products or operations any of the Debtors allegedly has liability or is otherwise liable); or
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a.
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asbestos-containing vermiculite mined, milled or processed by the Debtors (or (x) any of their respective predecessors, successors, or assigns, or any current or former Affiliate of any of the foregoing (including any of the Non-Debtor Affiliates), but only to the extent that any liability is asserted to exist as a result of it being such a predecessor, successor, assign or current or former Affiliate, or (y) any other Entity for whose products or operations any of the Debtors allegedly has liability or is otherwise liable);
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(ii)
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any and all SA Asbestos Personal Injury Claims (other than Workers’ Compensation Claims) and related Demands against any of the Debtors, the Sealed Air Indemnified Parties, or the Fresenius Indemnified Parties;
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(iii)
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any and all CDN ZAI PI Claims and related Demands against any of the Debtors or the Asbestos Protected Parties; and
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(iv)
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any and all Asbestos Medical Monitoring Claims and related Demands against any of the Debtors or the Asbestos Protected Parties.
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Notwithstanding the foregoing or anything else to the contrary, “Asbestos PI Claim” as defined herein does not include Workers’ Compensation Claims;
provided, however
, for the avoidance of doubt, that nothing in the Plan is intended to change the definition of “Asbestos Personal Injury Claims” as that term is defined in the Sealed Air Settlement Agreement.
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35.
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“Asbestos PI Claimant”
shall mean the Holder of an Asbestos PI Claim.
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36.
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“Asbestos PI Committee”
shall mean the Official Committee of Asbestos Personal Injury Claimants appointed in the Chapter 11 Cases.
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37.
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“Asbestos PI Deferred Payment Agreement”
shall mean the agreement setting forth the obligation of Reorganized Grace-Conn to make deferred payments to the Asbestos PI Trust over a 15-year period, consisting of five annual payments of $110 million commencing on January 2, 2019 and ten annual payments of $100 million commencing on January 2, 2024, in the form included as Exhibit 11 in the Exhibit Book or such other substantially similar form as shall have been agreed to by each of the Plan Proponents. As provided therein and in the Share Issuance Agreement, the payments made pursuant to the Asbestos PI Deferred Payment Agreement shall be secured by Parent’s obligation to issue to the Trusts’ Representative, on behalf of the Asbestos PI Trust and the Asbestos PD Trust, 50.1% of Parent Common Stock as of the Effective Date.
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38.
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“
Asbestos PI FCR
” shall mean the Asbestos PI Future Claimants’ Representative.
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39.
|
“Asbestos PI Future Claimants’ Representative”
shall mean David T. Austern (or any Court-appointed successor), appointed as the legal representative for future asbestos- related personal injury Claimants in the Chapter 11 Cases for the purpose of protecting the interests of persons that may subsequently assert Demands channeled to the Asbestos PI Trust.
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40.
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“Asbestos PI/PD Inter-Creditor Agreement”
shall mean the inter-creditor agreement substantially in the form included at Exhibit 26 in the Exhibit Book.
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41.
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“Asbestos PI TAC”
shall mean the Asbestos PI Trust Advisory Committee.
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42.
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“Asbestos PI TDP”
shall mean the WRG Asbestos PI Trust Distribution Procedures.
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43.
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“Asbestos PI Trust”
shall mean the WRG Asbestos PI Trust, a Delaware statutory trust
,
established pursuant to section 524(g) of the Bankruptcy Code and in accordance with the Asbestos PI Trust Agreement.
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44.
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“Asbestos PI Trustee
” shall mean any Entity confirmed by the Court to serve as a trustee of the Asbestos PI Trust pursuant to (1) the terms of the Plan, (2) the Confirmation Order, or (3) the Asbestos PI Trust Agreement, or who subsequently may be appointed pursuant to the terms of the Asbestos PI Trust Agreement.
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45.
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“Asbestos PI Trust Advisory Committee”
shall mean the Asbestos PI Trust Advisory Committee established pursuant to the terms of the Plan and having the powers, duties and obligations set forth in the Asbestos PI Trust Agreement.
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46.
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“Asbestos PI Trust Agreement”
shall mean the agreement, effective as of the Effective Date, substantially in the form included as Exhibit 2 in the Exhibit Book, to be entered into by and among the Debtors, the Asbestos PI Future Claimants’ Representative, the Asbestos PI TAC and the Asbestos PI Trustees in connection with the formation of the Asbestos PI Trust.
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47.
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“Asbestos PI Trust Assets”
shall mean (a) $250 million in Cash plus interest thereon from January 1, 2009 until (and including) the Effective Date at the same rate applicable to the Debtors’ senior debt; (b) the Warrant Agreement, the Warrant, and all rights of the Asbestos PI Trust under the Warrant Agreement and the Warrant; (c) the Asbestos PI Deferred Payment Agreement and all rights of the Asbestos PI Trust under the Asbestos PI Deferred Payment Agreement; (d) the Share Issuance Agreement and all rights of the Asbestos PI Trust pursuant to the Share Issuance Agreement; (e) the Asbestos PI/PD Inter-Creditor Agreement and all rights of the Asbestos PI Trust pursuant to the Asbestos PI/PD Inter-Creditor Agreement, (f) the Grace PI Guaranty and all rights of the Asbestos PI Trust pursuant to the Grace PI Guaranty; (g) the Plan Registration Rights Agreement;
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(h) the Asbestos Insurance Rights; (i) the Cryovac Payment reduced by the total aggregate amount of Cryovac, Inc.’s transfers to the Asbestos PD Trust as part of the Class 7A Initial Payment and the Class 7B Initial Payment; (j) the Fresenius Payment reduced by the total aggregate amount of Fresenius’ transfers to the Asbestos PD Trust as part of the Class 7A Initial Payment and the Class 7B Initial Payment; (k) an amount in Cash contributed by the Parent equal to the Asbestos PD Initial Payment; (l) the Asbestos PI Trust Causes of Action, and (m) the Asbestos Insurance Transfer Agreement and all rights of the Asbestos PI Trust under the Asbestos Insurance Transfer Agreement, and, following the transfer or vesting of the foregoing to or in the Asbestos PI Trust, any proceeds thereof and earnings and income thereon.
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42.
|
“Asbestos PI Trust Causes of Action”
shall mean any and all of the actions, claims, rights, defenses, counterclaims, suits and causes of action of the Debtors and the other Asbestos Protected Parties, whether known or unknown, in law, at equity or otherwise, whenever and wherever arising under the laws of any jurisdiction attributable to: (a) all
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defenses to any Asbestos PI Claims, (b) with respect to any Asbestos PI Claims, all rights of setoff, recoupment, contribution, reimbursement, subrogation or indemnity (as those terms are defined by the non-bankruptcy law of any relevant jurisdiction) and any other indirect claim of any kind whatsoever, whenever and wherever arising or asserted, and
(c) any other claims or rights with respect to Asbestos PI Claims that any of the Debtors and the other Asbestos Protected Parties would have had under applicable law if the Chapter 11 Cases had not occurred and the holder of such Asbestos PI Claim had asserted it by initiating civil litigation against any such Debtor and the other Asbestos Protected Parties. Notwithstanding the foregoing, except for the Asbestos Insurance Rights, Asbestos PI Trust Assets and Asbestos PI Trust Causes of Action shall not include any claim, cause of action, or right of the Debtors or any of them, under the laws of any jurisdiction, against any party (including the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties) for reimbursement, indemnity, contribution, breach of contract or otherwise arising from or based on any payments made by the Debtors on account of Asbestos PI Claims prior to the Effective Date. In addition, for the avoidance of doubt, Asbestos PI Trust Causes of Action do not include any rights of the Debtors, the Reorganized Debtors, or the other Asbestos Protected Parties arising under the Asbestos PI Channeling Injunction or any of the other injunctions, releases, or the discharge entered into in connection with the Plan and the Confirmation Order.
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49.
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“Asbestos PI Trust Distribution Procedures”
shall mean the procedures, substantially in the form included as Exhibit 4 in the Exhibit Book, to be implemented by the Asbestos PI Trustees pursuant to the terms and conditions of the Plan and the Asbestos PI Trust Agreement, to liquidate, determine, and pay (if entitled to payment) Asbestos PI Claims as and to the extent set forth in such procedures.
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50.
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“Asbestos PI Trust Expenses”
means any liabilities, costs, taxes, or expenses of, or imposed upon, or in respect of, the Asbestos PI Trust or, on and after the Effective Date, the Asbestos PI Trust Assets (except for payments to holders of Asbestos PI Claims on account of such Asbestos PI Claims).
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51.
|
“Asbestos Protected Party”
shall mean any of the following parties:
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(b)
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the Reorganized Debtors;
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(c)
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the Non-Debtor Affiliates;
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(d)
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the Settled Asbestos Insurance Companies;
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(f)
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the Sealed Air Indemnified Parties;
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(g)
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the Fresenius Indemnified Parties;
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(h)
|
Montana Vermiculite Company;
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(i)
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any Entity that, pursuant to the Plan or otherwise on or after the Effective Date, becomes a direct or indirect transferee of, or successor to, any of the Debtors, the Reorganized Debtors, the Non-Debtor Affiliates, the Sealed Air Indemnified Parties, or the Fresenius Indemnified Parties, or any of their respective assets (but only to the extent that any liability is asserted to exist as a result of its becoming such a transferee or successor);
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(j)
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any Entity that, pursuant to the Plan or otherwise on or after the Effective Date, makes a loan to any of the Reorganized Debtors, the Non-Debtor Affiliates, the Asbestos PI Trust, the Asbestos PD Trust, or to a successor to, or transferee of any of the respective assets of, the Debtors, the Reorganized Debtors, the Non- Debtor Affiliates, the Asbestos PI Trust, or the Asbestos PD Trust (but only to the extent that any liability is asserted to exist as a result of its becoming such a lender or to the extent that any Encumbrance of assets made in connection with such a loan is sought to be invalidated, upset or impaired in whole or in part as a result of its being such a lender);
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(k)
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each of the respective present and future Affiliates of each of the Debtors, the Reorganized Debtors, the Non-Debtor Affiliates, the Sealed Air Indemnified Parties, and the Fresenius Indemnified Parties (but only to the extent that any liability is asserted to exist as a result of its being or becoming such an Affiliate); or
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(l)
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each of the respective Representatives of each of the Debtors, the Reorganized Debtors, the Non-Debtor Affiliates, the Sealed Air Indemnified Parties, and the Fresenius Indemnified Parties.
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52.
|
“Asbestos-Related Claims”
shall mean any and all SA Claims, SA Debts, SA Damages, or Grace-Related Claims based on or arising from, in whole or in part, directly or indirectly: (i) Asbestos Claims or (ii) Successor Claims based on or arising from, in whole or in part, directly or indirectly, the Cryovac Transaction or the Fresenius Transaction.
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53.
|
“Ballot”
shall mean the form or forms distributed to certain Holders of Plan Claims or Equity Interests by which such parties may indicate acceptance or rejection of the Plan.
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54.
|
“Bankruptcy Code”
shall mean title 11 of the United States Code, as set forth in §§ 101
et seq
., and applicable portions of titles 18 and 28 of the United States Code, each as in effect on the Petition Date or as thereafter amended to the extent such amendment is applicable to the Chapter 11 Cases.
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55.
|
“Bankruptcy Court”
shall mean the United States Bankruptcy Court for the District of Delaware.
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56.
|
“Bankruptcy Rules”
shall mean the Federal Rules of Bankruptcy Procedure, as amended, as applicable to the Chapter 11 Cases, including the Local Rules of the Bankruptcy Court.
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57.
|
“BNSF”
shall mean BNSF Railway Company, The Great Northern Railway Company, Burlington Northern, Inc., Burlington Northern Railway Company, The Burlington Northern and Santa Fe Railway Company, and any successor to any of the preceding.
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58.
|
“Board of Directors”
shall mean the Board of Directors of any of the Debtors, or any of the Reorganized Debtors, as the case may be, as it may exist from time to time.
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59.
|
“Business Day”
shall mean any day other than a Saturday, Sunday or legal holiday (as defined in Bankruptcy Rule 9006(a)) in the United States of America.
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60.
|
“By-Laws”
shall mean the by-laws of any of the specified Debtors, as amended as of the Effective Date or thereafter.
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61.
|
“Canadian Claim”
shall mean any Claim, SA Claim, or Demand, if any, against any of the Debtors, the Canadian Entities, or the Sealed Air Indemnified Parties based on, arising from, or attributable to exposure to asbestos from the Debtors’ asbestos containing products in Canada or the use in Canada of the Debtors’ asbestos containing products, including any such Claim, SA Claim, or Demand that seeks reimbursement, contribution, or indemnification (contractual or otherwise).
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62.
|
“Canadian Court”
shall mean the Ontario Superior Court of Justice, Ontario Court of Appeal or the Supreme Court of Canada.
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63.
|
“Canadian Entities”
shall mean Grace Canada, Inc. and Sealed Air (Canada) Co./CIE, and each of their predecessors.
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64.
|
“Canadian Order”
shall mean the Order of the Canadian Court granted within Grace Canada’s proceedings (Court File Number 01-CL-4081) and pursuant to Section 18.6 of the
Companies’ Creditors Arrangement Act
recognizing the Confirmation Order and specifically providing for,
inter alia
, the approval of the Plan and granting the Asbestos PI Channeling Injunction, the Asbestos PD Channeling Injunction, the Successor Claims Injunction, and all of the Plan releases with respect to the Debtors and the other Asbestos Protected Parties, including the Canadian Entities, and declaring that such Confirmation Order be effective in Canada in accordance with its terms.
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65.
|
“Canadian Settlement Approval Order”
shall mean the Final Order of the Canadian Court approving the settlement of CDN ZAI PD Claims and CDN ZAI PI Claims as set forth in the CDN ZAI Minutes of Settlement.
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66.
|
“Capital Stock”
shall mean, with respect to: (i) any corporation, any share, or any depositary receipt or other certificate representing any share, of equity interest in that corporation; and (ii) any other Entity, any share, membership, or percentage interest, unit
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of participation, or other equivalent (however designated) in or of equity interest in that Entity.
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67.
|
“Cash”
shall mean lawful currency of the United States of America.
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68.
|
“CCAA Representative Counsel”
shall mean Lauzon Belanger S.E.N.C.R.L. and Scarfone Hawkins LLP in their respective capacities as representative counsel to the Canadian ZAI PD Claimants and the CDN ZAI PI Claimants pursuant to an Order of the Canadian Court made on February 8, 2006.
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69.
|
“CDN ZAI Minutes of Settlement”
shall mean the minutes of settlement included as Exhibit 9 in the Exhibit Book, the Amended and Restated CDN ZAI Minutes of Settlement included as Exhibit 34 in the Exhibit Book, and the Amendment to the Amended and Restated CDN Minutes of Settlement included as Exhibit 35 in the Exhibit Book.
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70.
|
“CDN ZAI PD Claim”
shall mean a Canadian Claim against, or any present or future, debt, liability, or obligation of, any of the Debtors or the Asbestos Protected Parties, including (x) all related claims, debts, obligations, liabilities, and remedies for compensatory (including general, special, and consequential damages) and punitive damages, and (y) all cross-claims, contribution claims, subrogation claims, reimbursement claims, and indemnity claims (whether or not such Canadian Claim, remedy, debt, liability, or obligation is reduced to judgment, liquidated, unliquidated, fixed, settled, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; whether or not the facts of or legal bases therefor are known or unknown; and whether in the nature of or sounding in tort, or under contract, warranty, guarantee, contribution, joint and several liability, subrogation, reimbursement or indemnity, or any other theory of law, equity, or admiralty), for, based on, or arising out of, resulting from, or attributable to, directly or indirectly property damage located in Canada, including the cost of removal, abatement, or diminution in the value thereof, or environmental damage or economic loss caused or allegedly caused, by the ZAI sold, manufactured, supplied, produced, specified, selected, distributed, or in any way marketed by one or more of the Debtors (or any of their respective predecessors, successors, or assigns, or any current or former Affiliate of any of the foregoing (including any of the Non-Debtor Affiliates), but only to the extent that any liability is asserted to exist as a result of it being such a predecessor, successor, assign, or current or former Affiliate, or any other Entity for whose products or operations any of the Debtors allegedly has liability or is otherwise liable). CDN ZAI PD Claims are not included within Asbestos PD Claims
provided, however
, that notwithstanding the foregoing or anything else to the contrary, nothing in the Plan is intended, or shall be interpreted, to exclude CDN ZAI PD Claims from, or otherwise change, “Asbestos Property Damage Claims” as that term is defined in the Sealed Air Settlement Agreement.
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71.
|
“CDN ZAI PD Claims Fund”
shall mean the fund established to administer and make payments in respect of CDN ZAI PD Claims as set forth in the CDN ZAI Minutes of Settlement.
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72.
|
“CDN ZAI PI Claim”
shall mean a Canadian Claim, SA Claim, or Demand against, or any present or future debt, liability, or obligation of, any of the Debtors or the Asbestos Protected Parties, including (x) all related claims, debts, obligations, liabilities or remedies for compensatory (including general, special, and consequential damages) and punitive damages, and (y) all cross-claims, contribution claims, subrogation claims, reimbursement claims, and indemnity claims (whether or not such Canadian Claim, SA Claim, Demand, remedy, debt, liability, or obligation is reduced to judgment, liquidated, unliquidated, fixed, settled, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; whether or not the facts of or legal bases therefor are known or unknown; and whether in the nature of or sounding in tort, or under contract, warranty, guarantee, contribution, joint and several liability, subrogation, reimbursement or indemnity, or any other theory of law, equity, or admiralty), in each case for, based on, or arising out of, resulting from, or attributable to, directly or indirectly from:
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(a)
death, wrongful death, personal or bodily injury (whether physical, emotional, or otherwise), sickness, disease, loss of consortium, survivorship, medical monitoring, or other personal injuries (whether physical, emotional, or otherwise) or other damages (including medical, legal, and other expenses, caused, or allegedly caused, and arising or allegedly arising, from acts or omissions of one or more of the Debtors (or any of their respective predecessors, successors, or assigns, or any current or former Affiliate of any of the foregoing (including any of the Non-Debtor Affiliates), or any other Entity for whose products or operations any of the Debtors allegedly has liability or is otherwise liable); and
(b)
the presence of or exposure at any time to ZAI that was mined, processed, consumed, used, stored, manufactured, designed, sold, assembled, supplied, produced, specified, selected, distributed, disposed of, installed by, or in any way marketed by, or on behalf of, one or more of the Debtors in Canada (or (x) any of their respective predecessors, successors, or assigns, or any current or former Affiliate of any of the foregoing (including any of the Non-Debtor Affiliates), but only to the extent that any liability is asserted to exist as a result of it being such a predecessor, successor, assign or current or former Affiliate, or (y) any other Entity for whose products or operations any of the Debtors allegedly has liability or is otherwise liable). CDN ZAI PI Claims are included within the Class of Asbestos PI Claims.
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73.
|
“Certificate of Incorporation”
shall mean the Certificate or Articles of Incorporation or equivalent document of any of the Debtors, as applicable, as amended as of the Effective Date or thereafter.
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74.
|
“Chapter 11 Cases”
shall mean the cases commenced by the Filing, on the Petition Date, by the Debtors of voluntary petitions for relief under chapter 11 of the Bankruptcy Code.
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75.
|
“Claim”
shall mean a claim (as defined in Bankruptcy Code § 101(5)) against a Debtor including any right to: (i) payment from any of the Debtors, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
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disputed, undisputed, legal, equitable, secured or unsecured; or (ii) an equitable remedy for breach of performance if such breach gives rise to a right to payment from any or all of the Debtors, whether or not such right to an equitable remedy is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured.
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76.
|
“Claimant”
shall mean the Holder of a Plan Claim.
|
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77.
|
“Class”
shall mean a group of Plan Claims or Equity Interests classified by the Plan pursuant to Bankruptcy Code § 1122(a).
|
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78.
|
“Class 7A Asbestos PD Deferred Payment Agreement”
shall mean the “Deferred Payment Agreement (Class 7A PD),” substantially in the form included as Exhibit 27 in the Exhibit Book, executed by Parent pursuant to which the Parent shall commit to pay the Asbestos PD Trust on January 1 and July 1 of each year, a dollar amount equal to (i) the amount of the Asbestos PD Claims in Class 7A that were Allowed against the Asbestos PD Trust during the preceding six-month period, plus interest thereon accruing at the then applicable federal judgment rate per annum from the date of allowance of each such Asbestos PD Claim in Class 7A; and (ii) the Asbestos PD Trust Expenses for the next succeeding six-month period following the Asbestos PD Trust Expenses paid as part of the Asbestos PD Initial Payment. As provided therein, and in the Share Issuance Agreement, the payments made pursuant to the Class 7A Asbestos PD Deferred Payment Agreement shall be secured by Parent’s obligation to issue to the Trusts’ Representative, on behalf of the Asbestos PI Trust and the Asbestos PD Trust, 50.1% of Parent Common Stock as of the Effective Date.
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79.
|
“Class 7A Case Management Order” or “Class 7A CMO”
shall mean the Case Management Order for Class 7A Asbestos PD Claims and Exhibit A to such Order (the Amended Order Setting Various Deadlines Regarding Asbestos Property Damage Claims) substantially in the form included at Exhibit 25 of the Exhibit Book or such other substantially similar form as shall have been agreed to by each of the Plan Proponents and entered by the Bankruptcy Court.
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80.
|
“Class 7A Initial Payment”
shall mean (a) an amount in Cash sufficient for the Asbestos PD Trust to pay, in full, all obligations required to be paid on the Effective Date to Holders of Claims in Class 7A as set forth in the PD Settlement Agreements, and (b) an amount agreed to by the Parent, Sealed Air Corporation, Cryovac, Inc., Fresenius, and the Asbestos PD FCR, constituting an estimate of the first six months of the Asbestos PD Trust Expenses for Claims in Class 7A, to be transferred equally by Cryovac, Inc. and Fresenius directly to the Asbestos PD Trust on the Effective Date;
provided, however,
that Cryovac, Inc.’s transfer to the Asbestos PD Trust as part of the Class 7A Initial Payment when aggregated with Cryovac, Inc.’s transfer to the Asbestos PD Trust as part of the Class 7B Initial Payment shall not exceed 50% of the Cash component of the Cryovac Payment; and
provided, further,
that the Fresenius transfer to the Asbestos PD Trust as part of the Class 7A Initial Payment when aggregated with Fresenius’ transfer as part of the Class 7B Initial Payment shall not exceed 65% of the Fresenius Payment.
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81.
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“Class 7B Asbestos PD Deferred Payment Agreement”
shall mean the “Deferred Payment Agreement (Class 7B ZAI),” substantially in the form included as Exhibit 28 in the Exhibit Book, executed by the Parent pursuant to which the Parent shall commit to pay the Asbestos PD Trust for the benefit of claims in Class 7B and make certain future payments as set forth therein. As provided therein, and in the Share Issuance Agreement, the payments made pursuant to the Class 7B Asbestos PD Deferred Payment Agreement shall be secured by Parent’s obligation to issue to the Trusts’ Representative, on behalf of the Asbestos PI Trust and the Asbestos PD Trust, 50.1% of Parent Common Stock as of the Effective Date.
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82.
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“Class 7B Initial Payment”
shall mean an amount in Cash equal to $30 million plus interest from April 1, 2009 to the Effective Date, accrued at the same rate applicable to the Debtors’ senior Exit Financing, to be transferred equally by Cryovac, Inc. and Fresenius directly to the Asbestos PD Trust on the Effective Date for the benefit of holders of Claims and Demands in Class 7B;
provided, however,
that Cryovac, Inc.’s transfer to the Asbestos PD Trust as part of the Class 7B Initial Payment when aggregated with Cryovac, Inc.’s transfer to the Asbestos PD Trust as part of the Class 7A Initial Payment shall not exceed 50% of the Cash component of the Cryovac Payment; and
provided, further,
that the Fresenius transfer to the Asbestos PD Trust as part of the Class 7B Initial Payment when aggregated with Fresenius’ transfer as part of the Class 7A Initial Payment shall not exceed 65% of the Fresenius Payment.
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83.
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“CNA”
shall mean Continental Casualty Company and Continental Insurance Company, on their own behalf and on behalf of their predecessor companies, affiliates and subsidiaries which issued insurance policies to the Debtors.
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84.
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“CNA/Old Grace Delaware 5/30/97 Settlement Agreement”
shall mean that certain Settlement Agreement and Release, dated May 30, 1997, by and among Grace-Conn., Old Grace Delaware, Grace New York, and Continental Casualty Company (CNA Confirmation Hearing Ex. 38).
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85.
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“CNA/Old Grace Delaware Settlement Agreements” s
hall mean (a) that certain Settlement Agreement and Release, dated February 13, 1997, by and between Grace- Conn., Old Grace Delaware, Grace New York, and Continental Casualty Company (CNA Confirmation Hearing Ex. 32B), (b) that certain Settlement Agreement, dated May 22, 1997, by and among Old Grace Delaware, Grace-Conn., Grace New York, and Continental Casualty Company (CNA Confirmation Hearing Ex. 32C), and (c) the CNA/Old Grace Delaware 5/30/97 Settlement Agreement.
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86.
|
“CNA Post-Trial Brief”
shall mean the Phase II Post-Trial Brief for the CNA Companies, dated November 2, 2009, and filed in the Chapter 11 Cases at Docket No. 23644.
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87.
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“Common Parent”
shall mean the common parent, as defined in Treasury Regulation section 1.1502-77, of those corporations that joined, or hereafter join in filing a
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Consolidated Tax Return under section 1501 of the IRC, and the Treasury Regulations thereunder, or a Consolidated Tax Return under comparable provisions of law for FSA Taxes or other jurisdictions (domestic or foreign).
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88.
|
“Confirmation Date”
shall mean the date the clerk of the Court enters on the docket the Confirmation Order.
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89.
|
“Confirmation Hearing”
shall mean the hearing that the Court conducts to consider confirmation of the Plan pursuant to Bankruptcy Code § 1129, as such hearing may be adjourned or continued from time to time.
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90.
|
“Confirmation Order”
shall mean the order(s) entered by the Court on the Confirmation Date confirming the Plan.
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91.
|
“Confirmation Procedures Order”
shall mean the order(s) of the Bankruptcy Court (i) approving procedures relating to the solicitation and tabulation of votes with respect to the Plan; and (ii) providing or establishing the basis for calculating the amount of any Plan Claim for voting purposes.
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92.
|
“Consolidated Tax Return”
shall mean (i) a federal consolidated income Tax Return, within the meaning of section 1501 of the IRC and the Treasury Regulations under section 1502 of the IRC, and (ii) any combined, joint, consolidated, or other Tax Return respecting FSA Taxes under the laws of any jurisdiction (domestic or foreign).
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93.
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“Contingent Claim”
shall mean any Plan Claim, the liability for which attaches or is dependent upon the occurrence or happening of, or is triggered by, an event, which event has not yet occurred, happened, or been triggered, as of the date on which such Plan Claim is sought to be estimated or an objection to such Plan Claim is Filed, whether or not such event is within the actual or presumed contemplation of the Holder of such Plan Claim and whether or not a relationship between the Holder of such Plan Claim and a Debtor now or hereafter exists or previously existed.
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94.
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“
Court
” shall mean either the Bankruptcy Court or the District Court, as appropriate.
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95.
|
“Crown”
shall mean the Attorney General of Canada (Her Majesty the Queen in Right of Canada).
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96.
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“Cryovac, Inc.”
shall mean Cryovac, Inc., taxpayer identification number 13-2830262, a Delaware corporation, formerly named Grace Communications, Inc.
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97.
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“Cryovac Payment”
shall mean (i) five hundred twelve million five hundred thousand dollars ($512,500,000) in Cash, plus interest thereon from December 21, 2002 until the Effective Date, at a rate of 5.5% per annum compounded annually and (ii) eighteen million (18,000,000) shares of Sealed Air Common Stock (as adjusted for a two-for-one stock split on March 16, 2007), each of (i) and (ii) subject to further adjustment to the extent provided in the Sealed Air Settlement Agreement.
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98.
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“Cryovac Transaction”
shall mean the transfers of assets, the distribution of stock, the merger, and all predecessor, related, and ancillary transactions, agreements, transfers, and distributions relating to the transactions described in, referred to, or contemplated by Form S-4 Registration Statement filed by Old Grace Delaware with the SEC under the Securities Act, on or about February 13, 1998, SEC File No. 333-46281, including all attachments, exhibits, and schedules thereto.
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99.
|
“Debtor in Possession”
or
“Debtors in Possession”
shall mean one or more of the Debtors, each in its capacity as a debtor in possession pursuant to Bankruptcy Code §§ 1107(a) and 1108.
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100.
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“Debtors
” or “
Grace
” shall mean, collectively, W. R. Grace & Co. (f/k/a Grace Specialty Chemicals, Inc.), W. R. Grace & Co.-Conn., A-1 Bit & Tool Co., Inc., Alewife Boston Ltd., Alewife Land Corporation, Amicon, Inc., CB Biomedical, Inc. (f/k/a Circe Biomedical, Inc.), CCHP, Inc., Coalgrace, Inc., Coalgrace II, Inc., Creative Food ‘N Fun Company, Darex Puerto Rico, Inc., Del Taco Restaurants, Inc., Dewey and Almy, LLC (f/k/a Dewey and Almy Company), Ecarg, Inc., Five Alewife Boston Ltd., G C Limited Partners I, Inc. (f/k/a Grace Cocoa Limited Partners I, Inc.), G C Management, Inc. (f/k/a Grace Cocoa Management, Inc.), GEC Management Corporation, GN Holdings, Inc., GPC Thomasville Corp., Gloucester New Communities Company, Inc., Grace A-B Inc., Grace A-B II Inc., Grace Chemical Company of Cuba, Grace Culinary Systems, Inc., Grace Drilling Company, Grace Energy Corporation, Grace Environmental, Inc., Grace Europe, Inc., Grace H-G Inc., Grace H-G II Inc., Grace Hotel Services Corporation, Grace International Holdings, Inc. (f/k/a Dearborn International Holdings, Inc.), Grace Offshore Company, Grace PAR Corporation, Grace Petroleum Libya Incorporated, Grace Tarpon Investors, Inc., Grace Ventures Corp., Grace Washington, Inc., W. R. Grace Capital Corporation, W. R. Grace Land Corporation, Gracoal, Inc., Gracoal II, Inc., Guanica-Caribe Land Development Corporation, Hanover Square Corporation, Homco International, Inc., Kootenai Development Company, L B Realty, Inc., Litigation Management, Inc. (f/k/a GHSC Holding, Inc., Grace JVH, Inc., Asbestos Management, Inc.), Monolith Enterprises, Incorporated, Monroe Street, Inc., MRA Holdings Corp. (f/k/a Nestor-BNA Holdings Corporation), MRA Intermedco, Inc. (f/k/a Nestor-BNA, Inc.), MRA Staffing Systems, Inc. (f/k/a British Nursing Association, Inc.), Remedium Group, Inc. (f/k/a Environmental Liability Management, Inc., E&C Liquidating Corp., Emerson & Cuming, Inc.), Southern Oil, Resin & Fiberglass, Inc., Water Street Corporation, Axial Basin Ranch Company, CC Partners (f/k/a Cross Country Staffing), Hayden-Gulch West Coal Company, and H-G Coal Company.
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101.
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“Demand
” shall mean a “demand” as defined in section 524(g)(5) of the Bankruptcy Code, including any present or future demand for payment against a Debtor that (i) was not a Claim in the Chapter 11 Cases prior to the Effective Date; (ii) arises out of the same or similar conduct or events that gave rise to the Claims addressed by the Asbestos PI Channeling Injunction or the Asbestos PD Channeling Injunction; and (iii) pursuant to the Plan, shall be dealt with by the Asbestos PI Trust, the Asbestos PD Trust, or the CDN ZAI PD Claims Fund.
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102.
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“Disallowed
” shall mean, with respect to a Plan Claim (other than an Asbestos PI Claim and US ZAI PD Claim) or Equity Interest, disallowed in its entirety by a Final Order of the Bankruptcy Court, District Court, or another court of competent jurisdiction.
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103.
|
“Disclosure Statement”
shall mean the disclosure statement relating to the Plan, including all exhibits, appendices and schedules thereto, approved by order of the Bankruptcy Court in connection with the Plan pursuant to Bankruptcy Code § 1125, together with any amendments and supplements thereto.
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104.
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“Disputed Claim”
shall mean a Plan Claim (other than an Asbestos PI Claim or US ZAI PD Claim) that is neither Allowed nor Disallowed.
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105.
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“Distribution”
shall mean the payment, distribution, or assignment under the Plan by the Reorganized Debtors of property or interests in property to: (i) any Holder of an Allowed Plan Claim (other than an Asbestos PI Claim, an Asbestos PD Claim, or a CDN ZAI PD Claim) or Allowed Equity Interest; (ii) the Asbestos PI Trust; or (iii) the Asbestos PD Trust.
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106.
|
“District Court”
shall mean the United States District Court for the District of Delaware.
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107.
|
“Effective Date”
shall mean the first Business Day after the date on which all of the conditions precedent to the effectiveness of the Plan specified in Section 7.8 hereto shall have been satisfied or waived or, if a stay of the Confirmation Order is in effect on such date, the first Business Day after the expiration, dissolution, or lifting of such stay.
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108.
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“Employee Benefit Claims”
shall mean all Claims, including accrued but unpaid pension Claims from the Petition Date, for compensation or benefits arising out of the Claimants’ employment with the Debtors, but only to the extent and amount provided for under a written benefit plan sponsored by the Debtors. Workers’ Compensation Claims, Asbestos Claims, and other Claims asserted by current or former employees are not Employee Benefit Claims. Further, any Claim for damages or other relief asserted by a current or former employee that is not for compensation or benefits in an amount permitted pursuant to the Debtors’ written benefit plans is not an Employee Benefit Claim.
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109.
|
“Encumbrance
” shall mean with respect to any property or asset (whether real or personal, tangible or intangible), any mortgage, lien, pledge, charge, security interest, assignment as collateral, or encumbrance of any kind or nature in respect of such property or asset (including any conditional sale or other title retention agreement, any security agreement, and the filing of, or agreement to give, any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction) to secure payment of a debt or performance of an obligation.
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110.
|
“Entity
” shall mean any person, individual, corporation, company, limited liability company, firm, partnership, association, joint stock company, joint venture, estate, trust,
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business trust, unincorporated organization, any other entity, the United States Trustee or any Governmental Unit or any political subdivision thereof.
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111.
|
“Environmental Claim”
shall mean any Claim, other than an Asbestos Claim, asserted by any Entity, arising out of, related to, or based upon any Environmental Law. Under the Plan, Environmental Claims are treated as Administrative Expense Claims or Unsecured Claims, as appropriate.
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112.
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“Environmental Laws”
shall mean (a) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601,
et seq
., (b) the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendment of 1984, 42 U.S.C. §§ 6901,
et seq
., (c) the Clean Air Act, 42 U.S.C. §§ 7401,
et seq
., (d) the Clean Water Act of 1977, 33 U.S.C. §§ 1251,
et seq
., (e) the Toxic Substances Control Act, 15 U.S.C. §§ 2601,
et seq
., (f) all statutes, laws, rules, permits or regulations issued or promulgated by any Governmental Unit or court (including the common law), as they may be amended from time to time, relating to the protection and/or prevention of harm, contamination or pollution of or to the environment (including ecological systems and living organisms including humans and the following media whether alone or in combination: air (including air within buildings), water (including water under or within land or in pipe or sewage systems), land, buildings and soil) and (g) ordinances, rules, regulations, orders, notices of violation, requests, demands, permits and requirements issued or promulgated by any Governmental Unit in connection with such statutes or laws.
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113.
|
“Equity Committee”
shall mean the Official Committee of Equity Security Holders appointed in the Chapter 11 Cases.
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114.
|
“Equity Interest”
shall mean any interest in any of the Debtors pursuant to an “equity security” within the meaning of Bankruptcy Code § 101(16).
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115.
|
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974 and any regulations issued pursuant thereto, as amended from time to time.
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116.
|
“Estate Parties”
shall mean each of the Debtors, the estate of each Debtor, the post- confirmation estate of each Debtor, each of the Reorganized Debtors, and any trustee that may be appointed in any of the Debtors’ cases under the Bankruptcy Code.
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117.
|
“Exhibit Book”
shall mean the exhibits to the Disclosure Statement, the Plan, and/or the other Plan Documents, as may be amended, supplemented, or modified from time to time.
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118.
|
“Exit Financing”
shall mean such financing agreement(s) or commitment(s) as the Debtors may enter into to provide the Reorganized Debtors with appropriate credit availability.
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119.
|
“File
” or
“Filed”
or “
Filing
” shall mean file, filed, or filing with the Court in or to commence the Chapter 11 Cases, as the case may be.
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120.
|
“Final Order”
shall mean an order, the operation or effect of which has not been stayed, reversed, or amended and as to which order the time to appeal, petition for certiorari, or move for reargument or rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for reargument or rehearing shall then be pending or as to which any right to appeal, petition for certiorari, reargue, or rehear shall have been waived in writing by all Entities possessing such right, or, in the event that an appeal, writ of certiorari, or reargument or rehearing thereof has been sought, such order shall have been affirmed by the highest court to which such order was appealed, or from which reargument or rehearing was sought or certiorari has been denied, and the time to take any further appeal, petition for certiorari, or move for reargument or rehearing shall have expired;
provided, however,
that the possibility that a motion under Rule 60 of the Federal Rules of Civil Procedure or any analogous rule under the Bankruptcy Rules may be filed with respect to such order shall not cause such order not to be a Final Order.
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121.
|
“FMCH”
shall mean Fresenius Medical Care Holdings, Inc. (taxpayer identification number 13-3461988), a New York corporation, formerly named W. R. Grace & Co. and Fresenius National Medical Care Holdings, Inc., its Affiliates, and any and all of their predecessors, successors, and assigns.
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122.
|
“FMCH Group”
shall mean that group of corporations, immediately after December 31, 1996, that were members of the affiliated group of corporations within the meaning of section 1504 of the IRC, and the Treasury Regulations thereunder, of which FMCH was and on the date of the Fresenius Settlement Agreement continued to be the Common Parent.
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123.
|
“Fresenius”
shall mean FMCH and NMC.
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124.
|
“Fresenius Action”
shall mean the suit styled
Official Committee of Asbestos Personal Injury Claimants and Official Committee of Asbestos Property Damage Claimants of W.
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R. Grace & Co, suing on behalf of the Chapter 11 Bankruptcy Estate of W. R. Grace & Co., el. al. v. Fresenius Medical Care Holdings, Inc.
, Adv. No. 02-2211 (D. Del.).
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125.
|
“Fresenius Indemnified Parties”
shall mean Fresenius and each of their respective present and former subsidiaries, parents, Affiliates, officers, directors, employees, partners, trustees, shareholders, beneficiaries, agents, attorneys, predecessors, successors, and assigns, including Fresenius Medical Care AG & Co. KGaA. and Fresenius AG, but not including the Estate Parties and Sealed Air.
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126.
|
“Fresenius Indemnified Taxes”
shall mean all FSA Taxes for or attributable to Tax Periods ending on or before December 31, 1996 other than NMC Indemnified Taxes.
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127.
|
“Fresenius Payment”
shall mean the $115,000,000 consideration to be paid by Fresenius as directed in the Confirmation Order pursuant to the terms of, and subject to the conditions set forth in, the Fresenius Settlement Agreement.
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128.
|
“Fresenius Settlement Agreement”
shall mean that certain settlement agreement and release of claims dated February 6, 2003 by and among the Parent, Grace-Conn, Fresenius, the Asbestos PI Committee, and the Asbestos PD Committee, included as Exhibit 13 in the Exhibit Book, as such agreement may be amended from time to time.
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129.
|
“Fresenius Settlement Order”
shall mean the Order Authorizing, Approving and Implementing Settlement Agreement By and Among Plaintiffs, the Official Committee of Asbestos Property Damage Claimants and the Official Committee of Asbestos Personal Injury Claimants, the Debtors, and Defendants Fresenius Medical Holdings, Inc. and National Medical Care, Inc., entered by the District Court on June 25, 2003, Dkt. No. 19 and included as part of Exhibit 14 in the Exhibit Book.
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130.
|
“Fresenius Transaction”
shall mean the series of transactions that became effective on September 27-30, 1996, whereby,
inter alia,
(i) NMC distributed approximately $2.3 billion in cash and assumed debt to Grace-Conn; (ii) Grace-Conn distributed 100% of the common shares of NMC stock to Grace New York; (iii) Grace New York contributed 100% of the common shares of Grace-Conn stock to Old Grace Delaware; (iv) Grace New York distributed 100% of the common shares of Old Grace Delaware stock to its shareholders; and (iv) Grace New York merged with a subsidiary of Fresenius Medical Care AG & Co. KGaA., all of which are more fully described in that certain Distribution Agreement dated as of February 4, 1996, among Grace New York, Grace-Conn and Fresenius AG, and that certain Contribution Agreement dated as of February 4, 1996, among Fresenius AG, Sterilpharma GmbH (as defined therein), and Grace-Conn, as that series of transactions is described in, referred to, or contemplated by Form S-4 Registration Statement filed by Grace New York with the SEC under the Securities Act, on or about August 2, 1996, SEC File No. 333-09497, including all attachments, exhibits and schedules thereto.
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131.
|
“FSA Taxes”
shall mean all forms of taxation, customs, duties, levies, fees, tariffs, imposts, deficiencies, or other charges or assessments of any kind whatsoever, imposed by any government entity whenever created or imposed, and whether of the United States or elsewhere, and whether imposed by a local, municipal, governmental, state, foreign, federation or other body, and without limiting the generality of the foregoing, shall include income (including alternative minimum), sales, use,
ad valorem
, gross receipts, license, value added, franchise, transfer, recording, withholding, payroll, employment, excise, occupation, unemployment insurance, social security, business license, business organization, stamp, environmental, premium and property taxes, together with any related interest, penalties and additions to any such tax, or additional amounts imposed by any taxing authority (domestic or foreign) upon the FMCH Group, the New Grace Group, the Grace New York Group, the Sealed Air Group or any of their respective members or divisions or branches.
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132.
|
“General Unsecured Claim”
shall mean any Claim in the Chapter 11 Cases that is not an Administrative Expense Claim, Priority Tax Claim, Priority Claim, Secured Claim, Employee Benefit Claim, Workers’ Compensation Claim, Intercompany Claim, Asbestos PI Claim, CDN ZAI PD Claim, or Asbestos PD Claim.
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133.
|
“Governmental Unit”
shall mean any domestic, foreign, provincial, federal, state, local or municipal (a) government, or (b) governmental agency, commission, department, bureau, ministry, or other governmental entity, or (c) any other “governmental unit” (as defined in Bankruptcy Code § 101(27)).
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134.
|
“Grace Canada”
shall mean Grace Canada, Inc., an Ontario corporation.
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135.
|
“Grace-Conn”
shall mean W. R. Grace & Co.-Conn., a Connecticut corporation, and one of the Debtors in these Chapter 11 Cases.
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136.
|
“Grace New York”
shall mean W. R. Grace & Co., a New York corporation, (taxpayer identification number 13-3461988), whose name was changed to Fresenius National Medical Care Holdings, Inc. on September 27, 1996, and to Fresenius Medical Care Holdings on June 12, 1997.
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137.
|
“Grace New York Group”
shall mean that group of corporations, including Grace-Conn and Old Grace Delaware, that were members through (and including) September 29, 1996 or December 31, 1996, as applicable, of the affiliated group of corporations within the meaning of section 1504 of the IRC, and the Treasury Regulations thereunder, of which Grace New York was the Common Parent, including, with respect to FSA Taxes of other jurisdictions (domestic or foreign), that group of corporations which included Grace New York or one or more of the members of the Grace New York Group with respect to a Consolidated Tax Return.
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138.
|
“Grace PI Guaranty”
shall mean the guaranty by the Reorganized Parent of Reorganized Grace-Conn’s obligations under the Asbestos PI Deferred Payment Agreement in the form set forth in Exhibit 15 of the Exhibit Book or such other substantially similar form as shall have been agreed to by each of the Plan Proponents.
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139.
|
“Grace PD Guarantee Agreement for Class 7A”
shall mean the “W. R. Grace & Co. Guarantee Agreement (Class 7A PD)” substantially in the form included as Exhibit 29 of the Exhibit Book or such other substantially similar form as shall have been agreed to by each of the Plan Proponents.
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140.
|
“Grace PD Guarantee Agreement for Class 7B”
shall mean “W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI)” substantially in the form included as Exhibit 30 of the Exhibit Book or such other substantially similar form as shall have been agreed to by each of the Plan Proponents.
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141.
|
“Grace-Related Claim
” shall have the same meaning as defined in the Fresenius Settlement Agreement and shall include all claims (including unknown claims),
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Demands, rights, liabilities, and causes of action of every nature and description whatsoever, known or unknown, direct or indirect, whether concealed or hidden, from the beginning of time up to and including the date on which the Fresenius Payment is made pursuant to the Fresenius Settlement Agreement, asserted or that might have been asserted (including claims for fraudulent conveyance, successor liability, piercing of the corporate veil, negligence, gross negligence, professional negligence, breach of duty of care, breach of loyalty, breach of duty of candor, fraud, breach of fiduciary duty, mismanagement, corporate waste, breach of contract, negligent misrepresentation, contribution, indemnification, any other common law or equitable claims, and violations of any state or federal statutes, rules or regulations), which are either “Asbestos-Related Claims” (as defined in the Fresenius Settlement Agreement) or are based upon or arise out of the Fresenius Transaction, or the conduct or operations of any business or operations of any of Grace-Conn and its parents or subsidiaries at any time (other than the NMC Business), including any claims based on or arising out of environmental law, but not including any claims based on or arising out of the conduct or operations of the NMC Business or any act or omission of the Fresenius Indemnified Parties in connection with the operation of the NMC Business.
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142.
|
“Holder
” shall mean any Entity holding any Plan Claim or Equity Interest and, with respect to a vote on the Plan, shall mean the beneficial holders on the Voting Record Date or any authorized signatory who has completed and executed a Ballot or on whose behalf a Master Ballot has been properly completed and executed.
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143.
|
“Indirect PD Trust Claim”
shall mean any Claim or remedy, liability, or Demand against the Debtors, now existing or hereafter arising, whether or not such Claim, remedy, liability, or Demand is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured, whether or not the facts of or legal bases for such Claim, remedy, liability, or Demand are known or unknown, that is (x)(i) held by (A) any Entity (other than a director or officer entitled to indemnification pursuant to Section 8.8.9 of the Plan) who has been, is, or may be a defendant in an action seeking damages for an Asbestos PD Claim or (B) any assignee or transferee of such Entity and (ii) on account of alleged liability of the Debtors for payment, repayment, reimbursement, indemnification, subrogation, or contribution of any portion of any damages such Entity has paid or may pay to the plaintiff in such action or (y) held by any Entity that is a claim seeking payment, repayment, reimbursement, indemnification, subrogation, or contribution from the Debtors with respect to any insurance settlement agreement, surety bond, letter of credit or other financial assurance issued or entered into by any Entity on account of, or with respect to, an Asbestos PD Claim;
provided, however,
that for the avoidance of doubt, the term “Indirect PD Trust Claim” shall not include or pertain to any Asbestos PI Claim, CDN ZAI PD Claim, Environmental Claim, or Workers’ Compensation Claim.
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144.
|
“Indirect PI Trust Claim”
shall mean any Claim or remedy, liability, or Demand against the Debtors, now existing or hereafter arising, whether or not such Claim, remedy, liability, or Demand is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or
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unsecured, whether or not the facts of or legal bases for such Claim, remedy, liability, or Demand are known or unknown, that is (x)(i) held by (A) any Entity (other than a director or officer entitled to indemnification pursuant to Section 8.8.9 of the Plan) who has been, is, or may be a defendant in an action seeking damages for death, bodily injury, sickness, disease, or other personal injuries (whether physical, emotional, or otherwise) to the extent caused or allegedly caused, directly or indirectly, by exposure to asbestos or asbestos-containing products for which the Debtors have liability or (B) any assignee or transferee of such Entity and (ii) on account of alleged liability of the Debtors for payment, repayment, reimbursement, indemnification, subrogation, or contribution of any portion of any damages such Entity has paid or may pay to the plaintiff in such action or
(y) held by any Entity that is a claim seeking payment, repayment, reimbursement, indemnification, subrogation, or contribution from the Debtors with respect to any insurance settlement agreement, surety bond, letter of credit or other financial assurance issued or entered into by any Entity on account of, or with respect to, Asbestos PI Claims;
provided, however,
that for the avoidance of doubt, the term “Indirect PI Trust Claim” shall not include or pertain to any Asbestos PD Claim, CDN ZAI PD Claim, Environmental Claim, or Workers’ Compensation Claim;
and further provided, however,
for the avoidance of doubt, Indirect PI Trust Claims shall not be disallowed by the Court under section 502(e) of the Bankruptcy Code on the grounds that such claims were contingent or unliquidated.
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145.
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“Initial Tax Distribution Date”
shall mean: (i) a date within the first sixty (60) days after the Effective Date as selected by the Reorganized Debtors, or (ii) such later date as the Bankruptcy Court may establish, upon request by the Reorganized Debtors, for cause shown.
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146.
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“Insurance Contributor”
shall mean any of (a) the Debtors, (b) the Reorganized Debtors, and (c) the Non-Debtor Affiliates identified in the Asbestos Insurance Transfer Agreement.
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147.
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“Intercompany Claim”
shall mean: (a) any Claim that arose prior to the Effective Date by: (i) any Debtor against any other Debtor, or (ii) a Non-Debtor Affiliate against any Debtor; or (b) any claim that arose prior to the Effective Date by any Debtor against any Non-Debtor Affiliate.
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148.
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“IRC
” shall mean the Internal Revenue Code of 1986, as amended, and any applicable regulations (including temporary and proposed regulations) promulgated thereunder by the United States Treasury Department.
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149.
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“IRS
” shall mean the United States Internal Revenue Service.
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150.
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“Kaneb”
shall mean Kaneb Pipeline Operating Partnership n/k/a NuStar Pipeline Operating Partnership L.P., Support Terminal Services Inc. n/k/a NuStar Terminal Services Inc. and NuStar Energy L.P.
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151.
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“March 2003 Bar Date”
shall mean March 31, 2003, the last day for Filing a proof of claim relating to pre-petition (i) Asbestos PD Claims, (ii) non-asbestos claims (including all governmental claims, Environmental Claims, and all derivative asbestos claims and asbestos-related claims for contribution, indemnity, reimbursement, or subrogation), and
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(iii) Asbestos Medical Monitoring Claims.
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152.
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“March 2003 Bar Date Order”
shall mean the Court’s order, dated April 22, 2002, Dkt. No. 1963, which established the March 2003 Bar Date.
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153.
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“Master Ballot”
shall mean a Ballot (a) cast on behalf of one or more Holders of Asbestos PI Claims or Asbestos PD Claims, or (b) cast on behalf of one or more beneficial owners of Parent Common Stock, in either case pursuant to the terms and guidelines established in the Plan Documents and/or the Confirmation Procedures Order.
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154.
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“New Grace Group”
shall mean that group of corporations, including Grace-Conn (taxpayer identification number 13-5114230) that are, or hereafter become, members of that affiliated group of corporations under section 1504 of the IRC, and the Treasury Regulations thereunder, that have joined, or hereafter join, in filing a Consolidated Tax Return of which the Parent, or any successor to the Parent, including any reorganized Debtor successor to the Parent, was or is the Common Parent.
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155.
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“NMC”
shall mean National Medical Care, Inc., a Delaware corporation (taxpayer identification number 04-2835488).
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156.
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“NMC Business”
shall mean all of the worldwide healthcare business and operations conducted by NMC and the direct and indirect subsidiaries of NMC at any time, whether prior to or after September 29, 1996.
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157.
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“NMC Indemnified Taxes”
shall mean all Taxes of or attributable to any Tax Period arising from Tax Items relating to the NMC Business conducted by a member of the FMCH Group (net of benefits from Tax Items relating to the NMC Business from one or more Tax Periods not previously paid to, or applied for the benefit of, any member of the FMCH Group) which have not previously been paid to (i) one of the Estate Parties, (ii) Grace New York prior to the Fresenius Transaction, or (iii) the applicable tax authority, by any member of the FMCH Group.
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158.
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“Non-Debtor Affiliate”
shall mean each Affiliate of the Debtors that is not a debtor or debtor-in-possession in the Chapter 11 Cases, including the Entities designated as Non- Debtor Affiliates in Exhibit 16 in the Exhibit Book.
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159.
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“Old Grace Delaware”
shall mean W. R. Grace & Co., a Delaware corporation (taxpayer identification number 65-0654331), prior to the change of its name to Sealed Air Corporation in the Cryovac Transaction.
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160.
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“Old Sealed Air Corporation”
shall mean Sealed Air Corporation (US), a Delaware corporation (taxpayer identification number 22-1682767), which was named Sealed Air Corporation until the consummation of the Cryovac Transaction.
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161.
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“OneBeacon”
shall mean OneBeacon America Insurance Company on its own behalf and on behalf of its predecessor companies, affiliates and subsidiaries that issued insurance policies to the Debtors.
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162.
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“
Parent
” shall mean W. R. Grace & Co., a Delaware corporation (taxpayer identification number 65-0773649), the first named Debtor in the caption of the Chapter 11 Cases and ultimate parent holding company of all of the other Debtors and Non-Debtor Affiliates.
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163.
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“Parent Common Stock”
shall mean the common stock, par value $0.01 per share, of the Parent or, if after the Effective Date, of the Reorganized Parent.
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164.
|
“PBGC”
shall have the meaning set forth in Section 8.1.6 of the Plan.
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165.
|
“PD Settlement Agreements”
shall mean settlement agreements approved by the Bankruptcy Court on or before the Effective Date between the Debtors and certain Holders of Asbestos PD Claims fully and finally resolving the Allowed Amount of their Asbestos PD Claims.
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166.
|
“PD Trust”
shall mean the Asbestos PD Trust.
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167.
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“Pension Plans”
shall have the meaning set forth in Section 8.1.6 of the Plan.
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168.
|
“Petition Date”
shall mean April 2, 2001, the date on which the Debtors Filed their petitions for relief commencing the Chapter 11 Cases.
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169.
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“Plaintiffs”
means the Asbestos PI Committee and the Asbestos PD Committee, suing on behalf of the Chapter 11 Bankruptcy Estate of W. R. Grace & Co. in the Fresenius Action and the Sealed Air Action.
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170.
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“Plan
” shall mean the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders Dated February 27, 2009, as it may be amended, supplemented, or otherwise modified from time to time, and the exhibits and schedules to the foregoing, as the same may be in effect from time to time.
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171.
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“Plan Claims”
shall mean, collectively, Administrative Expense Claims, Priority Tax Claims, Priority Claims, Secured Claims, Employee Benefit Claims, Workers’ Compensation Claims, Intercompany Claims, Asbestos PI Claims, CDN ZAI PD Claims, Asbestos PD Claims, and General Unsecured Claims.
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172.
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“Plan Documents”
shall mean the Plan, the Exhibit Book, the Disclosure Statement, all exhibits in the Exhibit Book, and the Plan Supplement, either in the form approved by each of the Plan Proponents or as each may be amended, supplemented, or otherwise modified from time to time in accordance with its terms.
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173.
|
“Plan Proponents”
means, collectively, the Debtors, the Asbestos PI Committee, the Asbestos PI FCR, and the Equity Committee.
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174.
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“Plan Registration Rights Agreement”
shall mean the Registration Rights Agreement in the form included as Exhibit 17 of the Exhibit Book or such other substantially similar form as shall have been agreed to by each of the Plan Proponents.
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175.
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“Plan Supplement”
shall mean the supplement, containing copies of certain exhibits or schedules to the Plan and Disclosure Statement, including the By-Laws of the Parent, draft amended Certificates of Incorporation, and a list disclosing the identity and affiliates of any person proposed to serve on the initial board of directors or be an officer of one or more of the Reorganized Debtors, which shall be Filed with the Bankruptcy Court at least ten (10) days before the objection deadline with respect to the Plan and served on the Entities listed in Section 11.12 of this Plan.
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176.
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“Pre-petition Credit Facilities”
shall mean (i) the Credit Agreement, dated as of May 14, 1998, among Grace-Conn., the Parent, the several banks from time to time parties thereto, the co-agents thereto, The Chase Manhattan Bank as administrative agent, and Chase Securities Inc. as arranger; and (ii) the 364-Day Credit Agreement, dated as of May 5, 1999, as amended by the First Amendment dated as of May 3, 2000, among Grace-Conn., the Parent, the several banks from time to time parties thereto, Bank of America National Trust and Savings Association as syndication agent, The Chase Manhattan Bank as administrative agent, Chase Securities Inc. as book manager, and First Union National Bank as documentation agent.
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177.
|
“Post-Effective Distribution Date”
shall mean, with respect to any Plan Claim that becomes an Allowed Claim after the Effective Date or with respect to the amount of post- petition interest payable in relation to an Allowed General Unsecured Claim that is subject to a Post-Petition Interest Determination Notice or a Notice of Non-Default Contract Rate of Interest that is resolved pursuant to Sections 3.1.9(d) or (e) of the Plan, the last Business Day of the month following the month in which the Plan Claim has become an Allowed Claim or after the amount of post-petition interest has been resolved pursuant to Sections 3.1.9(d) or (e) of the Plan, as the case may be.
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178.
|
“Priority Claim”
shall mean any Claim (other than an Administrative Expense Claim or Priority Tax Claim) to the extent such Claim is entitled to priority in right of payment under Bankruptcy Code § 507.
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179.
|
“Priority Tax Claim”
shall mean a Claim that is of a kind specified in Bankruptcy Code
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§§ 502(i) or 507(a)(8).
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180.
|
“Professional”
shall mean an Entity (i) employed pursuant to a Final Order in accordance with Bankruptcy Code §§ 327, 328, 363, 524(g)(4)(B)(i) and/or 1103 and to be compensated for services pursuant to Bankruptcy Code §§ 327, 328, 329, 330 and/or 331, or (ii) for which compensation and reimbursement have been allowed by the Bankruptcy Court pursuant to Bankruptcy Code § 503(b)(4).
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181.
|
“Quarterly Tax Distribution Date”
shall mean the first Business Day of each calendar quarter following the Initial Tax Distribution Date;
provided, however,
that the first Quarterly Tax Distribution Date following the Initial Tax Distribution Date shall be no less than ninety (90) days following such Initial Tax Distribution Date.
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182.
|
“Reorganized Debtor,” “Reorganized Debtors”
or
“Reorganized Grace”
shall mean the Debtor(s) from and after the Effective Date.
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183.
|
“Reorganized Grace-Conn”
shall mean W. R. Grace & Co.-Conn from and after the Effective Date.
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184.
|
“Reorganized Parent”
shall mean the Parent from and after the Effective Date.
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185.
|
“Representatives”
shall mean, with respect to any Entity, the past and present directors, officers, employees, accountants (including independent registered public accountants), advisors, attorneys, consultants, or other agents of that Entity, or any other representatives or professionals of that Entity or of any of those directors, officers, employees, accountants (including independent registered public accountants), advisors, attorneys, consultants, or other agents, but only in their capacities as such.
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186.
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“Retained Causes of Action”
shall mean the actual and potential causes of action that the Reorganized Debtors shall retain under the Plan, on and after the Effective Date, on behalf of the Debtors, to commence and pursue, as appropriate, in any court or other tribunal including in an adversary proceeding filed in one or more of the Chapter 11 Cases, whether such causes of action accrued before or after the Petition Date and whether such causes of action are known or unknown as of any date of determination, including, but not limited to, the actions listed in Exhibit 19 included in the Exhibit Book, but specifically excluding the Asbestos PI Trust Causes of Action and the Asbestos PD Trust Causes of Action.
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187.
|
“SA Asbestos Personal Injury Claim”
shall mean an “Asbestos Personal Injury Claim” as defined in the Sealed Air Settlement Agreement, including any and all SA Claims, SA Debts, and SA Damages for death, bodily injury, sickness, disease, medical monitoring, or other personal injuries (whether physical or not) caused or allegedly caused by, based on, arising out of, or attributable to, directly or indirectly, in whole or in part, the presence of or exposure at any time to asbestos or asbestos-containing material or products, mined, processed, consumed, used, stored, manufactured, designed, sold, assembled, distributed, disposed of, or installed by or on behalf of any SA Debtor or any of its predecessors, successors, or assigns, or any current or former Affiliate of any of the foregoing (but only to the extent that any liability is asserted to exist as a result of it being
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such a predecessor, successor, assign, or current or former Affiliate), including any SA Claims, SA Debts, and SA Damages for reimbursement, indemnification, subrogation, or contribution.
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188.
|
“SA Asbestos Property Damage Claim”
shall mean an “Asbestos Property Damage Claim” as defined in the Sealed Air Settlement Agreement, including any and all SA Claims, SA Debts, and SA Damages for or arising out of property damage, including the cost of inspecting, maintaining, encapsulating, abating, repairing, decontaminating, removing, or disposing of asbestos or asbestos-containing materials or products in buildings or other structures, or other property caused or allegedly caused by, based on, arising out of, or attributable to, directly or indirectly, in whole or in part, the installation in, presence in, or removal of asbestos or asbestos-containing material or products mined, processed, consumed, used, stored, manufactured, designed, sold, assembled, distributed, disposed of, or installed by or on behalf of any SA Debtor or any of its predecessors, successors, or assigns, or any current or former Affiliate of any of the foregoing (but only to the extent that any liability is asserted to exist as a result of it being such a predecessor, successor, assign, or current or former Affiliate), including any SA Claims, SA Debts, and SA Damages for reimbursement, indemnification, subrogation, or contribution.
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189.
|
“SA Claims”
shall mean “Claim” as defined in the Sealed Air Settlement Agreement, including any and all claims, whether direct, indirect, derivative or otherwise, including ‘claim’ as the term is defined in section 101(5) of the Bankruptcy Code (except that a right to an equitable remedy shall also be considered an SA Claim whether or not the breach gives rise to a right of payment), remedies, or causes of action, liability, SA Debts, or SA Damages, known or unknown, now existing or hereafter arising, that have been, could have been, may be, or could be alleged or asserted now or in the future by any Entity against the SA Debtors, their predecessors, successors, assigns, or any current or former Affiliate of any of the foregoing, including the Canadian Entities, or the Sealed Air Indemnified Parties, of whatsoever kind or nature, whether alleged or asserted or not, whether founded in law, equity, admiralty, tort, contract, statute, or otherwise, and includes demands, liability, suits, judgments, and all legal or equitable theories of recovery whether arising under the common law or any statute, ordinance, or regulation. Without limiting the generality of the foregoing, SA Claims shall include any and all claims, causes of action, SA Debts, or SA Damages under or attributable to: (i) chapter 5 of the Bankruptcy Code; (ii) successor liability, piercing the corporate veil, alter ego liability, agency liability, transferee liability, or other similar claims or causes of action seeking to hold an Entity liable for the debts or obligations of another Entity; (iii) chapter 176 of title 28 of the United States Code or any other similar statutes; (iv) any debtor- creditor, fraudulent transfer, or fraudulent conveyance statutes; or (v) any other similar claims or causes of action (all such SA Claims, causes of action, SA Debts, or SA Damages under or attributable to (i) through (v), collectively,
“SA Successor Claims
”).
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190.
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“SA Damages”
shall mean “Damages” as defined in the Sealed Air Settlement Agreement, including any and all potential elements of recovery or relief, including those that are known, unknown, certain, uncertain, anticipated, or unanticipated, that have been, could have been, may be, or could be alleged or asserted now or in the future against the
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Sealed Air Indemnified Parties, whether alleged, unalleged, asserted, or unasserted by Plaintiffs or by any other Entity under any legal, regulatory, administrative, or equitable theory against the Sealed Air Indemnified Parties, and includes equitable relief, declaratory relief, actual damages (whether for successor liability, fraudulent transfer, fraudulent conveyance, alter ego liability, agency liability, property damage, environmental liability, Tax liability, economic loss, loss of profits, medical expenses, medical monitoring, personal injury, loss of consortium, wrongful death, survivorship, or compensatory, proximate, consequential, general, incidental, or special damages, or any other liability, loss, or injury), statutory or treble, or multiple or penal or punitive or exemplary damages, attorneys’ fees, interest, expenses, and costs of court.
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191.
|
“SA Debtors”
shall mean the “Debtors” as defined in the Sealed Air Settlement Agreement, including the Debtors, each of their estates, any trustee or examiner that may be appointed in any of the Debtors’ cases under the Bankruptcy Code, and the reorganized Debtors and includes any new corporation or other entity to which the stock or the assets of any of the Debtors or any combination thereof, are transferred pursuant to the Plan (other than the Asbestos PI Trust, the Asbestos PD Trust, or an unrelated third- party that has purchased assets from a Debtor pursuant to section 363 of the Bankruptcy Code).
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192.
|
“SA Debts”
shall mean “Debts” as defined in the Sealed Air Settlement Agreement, including any liability or obligation arising from, based on, or attributable to any SA Claim.
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193.
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“SA Indemnified Taxes”
shall mean all Taxes and other amounts for which any SA Debtor or any SA Non-Debtor Affiliate is responsible or required to pay, or is required to indemnify any SA Indemnified Party for or in respect thereto, pursuant to the 1998 Tax Sharing Agreement and including all “Grace Taxes” (as defined in the Sealed Air Settlement Agreement).
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194.
|
“SA Non-Debtor Affiliates”
shall mean “Non-Debtor Affiliates” as defined in the Sealed Air Settlement Agreement, including the Affiliates of the SA Debtors that are not debtors or debtors in possession under the Bankruptcy Code.
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195.
|
“SA Successor Claims”
shall have the meaning set forth in the definition of “SA Claims.”
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196.
|
“Schedules
” shall mean the schedules of assets and liabilities and the statements of financial affairs Filed by the Debtors in Possession with the Bankruptcy Court, as required by Bankruptcy Code § 521 and the Bankruptcy Rules, as such schedules and statements may be amended by the Debtors in Possession from time to time in accordance with Bankruptcy Rule 1007.
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197.
|
“Sealed Air”
shall mean Sealed Air Corporation and Cryovac, Inc.
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198.
|
“Sealed Air Action”
shall mean the suit styled
Official Committee of Asbestos Personal Injury Claimants and Official Committee of Asbestos Property Damage Claimants of W.
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R. Grace & Co., suing on behalf of the Chapter 11 Bankruptcy Estate of W. R. Grace & Co., el. al. v. Sealed Air Corporation and Cryovac, Inc.
, Adv. No. 02-2210 (D. Del.).
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199.
|
“Sealed Air Common Stock
” shall mean the voting common stock, par value of $0.10 per share, of Sealed Air Corporation.
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200.
|
“Sealed Air Corporation”
shall mean Sealed Air Corporation, a Delaware corporation (taxpayer identification number 65-0654331), formerly known as W. R. Grace & Co. prior to the Cryovac Transaction.
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201.
|
“Sealed Air Group”
shall mean the group of corporations, including but not limited to Cryovac, Inc., that from on or about September 29, 1996, were or hereafter become, members of an affiliated group of corporations under section 1504 of the IRC, and the Treasury Regulations thereunder, that have joined, or hereafter join, in filing a Consolidated Tax Return of which Sealed Air Corporation, or any successor to Sealed Air Corporation, was or is the Common Parent.
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202.
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“Sealed Air Indemnified Parties”
shall mean the “Released Parties” as defined in the Sealed Air Settlement Agreement, including Sealed Air Corporation, Cryovac, Inc. and all of their parent corporations, subsidiary corporations, joint venturers, Affiliates, and sister corporations, and any and all of their past, present and future agents, servants, officers, directors, employees, successors, assigns, heirs, executors, administrators, legal representatives, beneficiaries, insurers (but solely to the extent of coverage procured by Sealed Air Corporation (after March 31, 1998) or Cryovac, Inc. (after such date) of any liabilities of Sealed Air Corporation or Cryovac, Inc. for Asbestos-Related Claims), or any of them, including any Entity acting on behalf of or at the direction of any of them, but specifically excluding (i) the SA Debtors, (ii) all SA Non-Debtor Affiliates, (iii) Fresenius (to the extent of any and all SA Claims, SA Damages or SA Debts arising out of the Fresenius Transaction), and (iv) any and all insurers of the SA Debtors or the SA Non-Debtor Affiliates to the extent that they have provided coverage for Asbestos- Related Claims now or hereafter asserted or which could have been asserted at any time against the SA Debtors or the SA Non-Debtor Affiliates.
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203.
|
“Sealed Air Settlement Agreement”
shall mean that certain Settlement Agreement and Release, dated November 10, 2003, by and among the Asbestos PI Committee, the Asbestos PD Committee, Sealed Air Corporation, and Cryovac, Inc., included as Exhibit 22 in the Exhibit Book and Filed with the Bankruptcy Court on November 26, 2003, in Adv. No. 02-2210, Dkt. No. 729, as amended by the Sealed Air Settlement Order.
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204.
|
“Sealed Air Settlement Order”
shall mean the Order Approving, Authorizing, and Implementing Settlement Agreement By and Among the Plaintiffs, Sealed Air Corporation and Cryovac, Inc., dated June 27, 2005, and entered by the Bankruptcy Court on June 29, 2005, Dkt. No. 8742, included as Exhibit 23 in the Exhibit Book.
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205.
|
“Seaton”
shall mean Seaton Insurance Company on its own behalf and on behalf of its predecessor companies, affiliates and subsidiaries that issued insurance policies to the Debtors.
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206.
|
“SEC
” shall mean the United States Securities and Exchange Commission.
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207.
|
“Secured Claim”
shall mean a Claim that is: (i) secured by a lien (as such term is defined in Bankruptcy Code § 101(37)) on property in which the Debtors have an interest, which lien is valid, perfected, and enforceable under applicable law or by reason of a Final Order, or (ii) entitled to setoff under Bankruptcy Code § 553, to the extent of
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(A) the value of the Claimant’s interest in the Debtor’s interest in such property or (B) the amount subject to setoff, as applicable, as determined pursuant to Bankruptcy Code § 506(a).
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208.
|
“Securities Act”
shall mean the Securities Act of 1933, as amended.
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209.
|
“Settled Asbestos Insurance Company”
shall mean any Asbestos Insurance Entity that has entered into an Asbestos Insurance Settlement Agreement;
but only
with respect to, and only to the extent of, any Asbestos Insurance Policy (or any portion thereof) identified as the subject of an Asbestos Insurance Settlement Agreement in Exhibit 5 in the Exhibit Book (as the same may be amended from time to time, including after the Effective Date);
provided, however,
that (i) each such Asbestos Insurance Settlement Agreement is listed by Grace, with the consent of the ACC and the PI FCR, or, from and after the Effective Date, by the Asbestos PI Trust, in Exhibit 5; and (ii) any Asbestos Insurance Settlement Agreement entered into after the Petition Date has been approved by the Court after notice and a hearing (which approval may be contained in the Confirmation Order or any other order of the Court); and
further provided
, for the avoidance of doubt, that an Asbestos Insurance Entity is a Settled Asbestos Insurance Company to the fullest extent, but only to the extent, provided by section 524(g) in respect of any claim that arises by reason of one of the activities enumerated in section 524(g)(4)(A)(ii).
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210.
|
“Share Issuance Agreement”
shall mean the agreement setting forth the obligation of the Reorganized Parent to issue a number of shares of Parent Common Stock to the Trusts’ Representative, on behalf of the Asbestos PI Trust and the Asbestos PD Trust, in the form included as Exhibit 20 of the Exhibit Book or such other substantially similar form as shall have been agreed to by each of the Plan Proponents.
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211.
|
“Stock Incentive Plan”
shall mean the stock incentive awards to the management of the Reorganized Debtors and to other key employees, and to the Board of Directors of the Reorganized Debtors as set forth in the stock incentive plan included as Exhibit 31 of the Exhibit Book.
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212.
|
“Stock Trading Restrictions Term Sheet”
shall mean trading restrictions on Parent Common Stock as summarized on the stock trading restrictions term sheet included as Exhibit 32 of the Exhibit Book. For the avoidance of doubt, no restrictions shall be
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imposed on the acquisition or sale of Parent Common Stock by the Asbestos PI Trust or the Asbestos PD Trust or the ability of any person to acquire any or all of the Warrant Stock (as defined in the Stock Trading Restrictions Term Sheet at ¶ 4(a)(iii)) or any other Parent Common Stock from the Asbestos PI Trust and/or the Asbestos PD Trust to the extent the aforementioned Warrant Stock or Parent Common Stock is acquired by the Asbestos PI Trust or the Asbestos PD Trust from the Parent.
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213.
|
“Successor Claims”
shall mean any of the SA Successor Claims and/or the Grace- Related Claims.
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214.
|
“Successor Claims Injunction”
shall have the meaning set forth in Section 8.5 of this Plan.
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215.
|
“Tax”
or
“Taxes”
means all taxes, customs, duties, levies, fees, tariffs, imposts, deficiencies, or other charges or assessments of any kind whatsoever, including all net income, gross income, capital gains, gross receipt, property, franchise, sales, use, excise, withholding, payroll, employment, social security, worker’s compensation, unemployment, occupation, severance, capital stock, ad valorem, value added, transfer, gains, profits, net worth, asset, transaction, business consumption, or other taxes, and any interest, penalties, fines, additions to tax, or additional amounts with respect thereto, imposed by any governmental authority (whether domestic or foreign).
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216.
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“Tax Item”
shall mean any item of income, gain, loss, deduction, credit, provisions for reserves, recapture of credit, net operating loss, net capital loss, tax credit, sales, revenues, property or asset values, capital or any other item which increases or decreases FSA Taxes paid or payable, including an adjustment under IRC section 481 (or comparable provisions of the FSA Tax law of any other jurisdiction (domestic or foreign)) resulting from a change in accounting method, the allowance or disallowance in whole or in part of, or assessment with respect to, a tentative allowance of refund claimed on Form 1139, the allowance or disallowance in whole or in part of a net operating loss, net capital loss, or tax credit claimed on a Tax Return, an amended Tax Return or claim for refund, or an adjustment attributable to a quick refund of overpayment of estimated tax.
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217.
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“Tax Period”
shall mean any period for, or with respect to, which a Tax Return is or has been filed, is required to be filed or may be filed.
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218.
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“Tax Return”
shall mean any return, filing, questionnaire, information return or other document required or permitted to be filed, with respect to any Tax, including requests for extensions of time, filings made with estimated tax payments, claims for refund, Forms 1139 and amended returns, that has been, or hereafter may, be filed for any Tax Period with any tax authority (whether domestic or foreign).
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219.
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“Trusts’ Representative”
shall mean the Entity from time to time acting as the “Trusts’ Representative” on behalf of the Asbestos PI Trust and the Asbestos PD Trust pursuant to the terms of the Asbestos PI/PD Inter-Creditor Agreement.
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220.
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“TSIA”
shall mean that certain Tax Sharing and Indemnification Agreement made as of September 27, 1996, by and among Grace New York, Grace-Conn, and Fresenius AG, an Aktiengesellshaft organized under the laws of the Federal Republic of Germany and an indirect parent of FMCH.
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221.
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“United States Trustee”
shall mean the Office of the United States Trustee for the District of Delaware.
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222.
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“Unliquidated Claim
” shall mean: (i) any Plan Claim (other than an Asbestos PI Claim), the amount of liability for which has not been fixed, whether pursuant to agreement, applicable law, or otherwise, as of the date on which such Claim is sought to be fixed, or
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(ii) any Plan Claim (other than an Asbestos PI Claim) for which no Allowed Amount has been determined.
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223.
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“Unresolved Asbestos PD Bar Date Claims”
shall mean the Asbestos PD Claims in Class 7A that are identified on Exhibit 21 of the Exhibit Book.
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224.
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“Unresolved Asbestos PD Claims
” shall mean the Unresolved Asbestos PD Bar Date Claims and all other Asbestos PD Claims in Class 7A, other than Asbestos PD Claims that were resolved pursuant to PD Settlement Agreements.
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225.
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“Unsecured Creditors’ Committee”
shall mean the Official Committee of Unsecured Creditors appointed by the United States Trustee in the Chapter 11 Cases pursuant to Bankruptcy Code § 1102.
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226.
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“US ZAI PD Claim”
shall mean a Claim, SA Claim, Grace-Related Claim, or Demand, if any, against or debt, liability, or obligation of, any of the Debtors or the Asbestos Protected Parties, including (x) all related claims, debts, obligations, liabilities, and remedies for compensatory (including general, special, and consequential damages) and punitive damages, and restitution and (y) all cross-claims, contribution claims, subrogation claims, reimbursement claims, and indemnity claims (whether or not such Claim, SA Claim, Grace-Related Claim, Demand, if any, remedy, debt, liability, or obligation is reduced to judgment, liquidated, unliquidated, fixed, settled, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; whether or not the facts of or legal bases therefor are known or unknown; and whether in the nature of or sounding in tort, or under contract, warranty, guarantee, contribution, joint and several liability, subrogation, reimbursement or indemnity, or any other theory of law, equity, or admiralty), for, based on, or arising out of, resulting from, or attributable to, directly or indirectly property damage, including the cost of removal, abatement, and diminution in the value thereof, or environmental damage or economic loss caused or allegedly caused, by ZAI sold, manufactured, supplied, produced, specified, selected, distributed, or in any way marketed by one or more of the Debtors (or
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(x) any of their respective predecessors, successors, or assigns, or any current or former
Affiliate of any of the foregoing (including any of the Non-Debtor Affiliates), but only to the extent that any liability is asserted to exist as a result of it being such a predecessor,
successor, assign, or current or former Affiliate, or (y) any other Entity for whose products or operations any of the Debtors allegedly has liability or is otherwise liable). US ZAI PD Claims are included within the Class of Asbestos PD Claims.
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227.
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“Voting Record Date”
shall mean two (2) Business Days after the entry of an order by the Bankruptcy Court approving the Disclosure Statement.
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228.
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“Warrant”
shall mean the warrant for the purchase of Parent Common Stock that is to be issued by the Reorganized Parent pursuant to the terms of the Plan and the Warrant Agreement.
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229.
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“Warrant Agreement
” shall mean the Warrant Agreement included as Exhibit 24 of the Exhibit Book or such other substantially similar form as shall have been agreed to by each of the Plan Proponents.
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230.
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“Workers’ Compensation Claims”
shall mean any Claim: (i) for benefits under a state- mandated workers’ compensation system, which a past, present, or future employee of the Debtors or their predecessors is receiving, or may in the future have a right to receive and/or (ii) for reimbursement brought by any insurance company or state agency as a result of payments made to or for the benefit of such employees under such a system and fees and expenses incurred under any insurance policies or laws or regulations covering such employee claims.
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231.
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“ZAI
” shall mean Zonolite Attic Insulation, which is a loose-fill, non-roll vermiculite product primarily used in home attic insulation, and which may contain naturally occurring asbestos.
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232.
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“ZAI TDP”
shall mean the WRG United States Zonolite Attic Insulation Property Damage Settlement Trust Distribution Procedures.
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233.
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“ZAI Trust Distribution Procedures”
shall mean the procedures, substantially in the form included as Exhibit 33 in the Exhibit Book, to be implemented by the Class 7B Trustee (as defined in the Asbestos PD Trust Agreement) pursuant to the terms and conditions of the Plan and the Asbestos PD Trust Agreement, to liquidate, determine, and pay (if entitled to payment) US ZAI PD Claims in Class 7B as and to the extent set forth in such procedures.
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234.
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“Zonolite Attic Insulation Trust Advisory Committee”
shall mean the Zonolite Attic Insulation Trust Advisory Committee established pursuant to the terms of the Plan and having the powers, duties and obligations set forth in the Asbestos PD Trust Agreement.
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235.
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“ZTAC”
shall mean the Zonolite Attic Insulation Trust Advisory Committee.
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1.2
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OTHER TERMS/INTERPRETATION
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(a)
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Wherever from the context it appears appropriate, each term stated in either the singular or the plural shall include the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the other genders.
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(b)
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Subject to Section 1.2(n), any reference in a Plan Document to a contract, instrument, release, indenture or other agreement or document being in a particular form or on particular terms and conditions shall mean that such document shall be substantially in such form or substantially on such terms and conditions.
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(c)
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Any reference in a Plan Document to an existing document or exhibit in the Exhibit Book filed or to be filed shall mean the document or exhibit as it may have been or may be amended, modified or supplemented.
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(d)
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Any reference to an Entity as a Holder of a Claim or Plan Claim shall include that Entity’s successors, assigns and affiliates.
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(f)
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The words “herein,” “hereof,” “hereto,” “hereunder,” and others of similar import when used in a Plan Document refer to such Plan Document as a whole and not to any particular section, subsection, or clause contained in such Plan Document.
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(g)
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The word “including” (and, with correlative meaning, the forms of the word “include”) shall mean including, without limiting the generality of any description preceding that word; and the words “shall” and “will” are used interchangeably and have the same meaning.
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(h)
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All references to dollars are to United States dollars.
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(i)
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An initially capitalized term used herein that is not defined herein shall have the meaning ascribed to such term, if any, in the Bankruptcy Code, unless the context shall otherwise require.
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(j)
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The descriptive headings contained in Plan Documents are included for convenience of reference only and are not intended to be a part of and shall not affect in any way the meaning or interpretation of Plan Documents.
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(k)
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All references in a particular Plan Document to sections, articles, and exhibits are references to sections, articles and exhibits of or to such Plan Document unless otherwise specified.
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(l)
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In computing any period of time prescribed or allowed by a Plan Document, the provisions of Bankruptcy Rule 9006(a) shall apply.
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(m)
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The rules of construction set forth in Bankruptcy Code § 102 shall apply.
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(n)
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Nothing in the Plan or any other Plan Document shall be deemed to alter, modify, amend, or otherwise change, in any way, (i) the Sealed Air Settlement Agreement, except to the extent that each of the Sealed Air Corporation and Cryovac, Inc. expressly consents to such alteration, modification, amendment, or change in writing in its absolute discretion or (ii) the Fresenius Settlement Agreement, except to the extent that Fresenius consents to such alteration, modification, amendment, or change in writing in its absolute discretion.
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The Plan Documents, once Filed, shall also be available for review in the office of the clerk of the Bankruptcy Court during normal hours of operation of the Bankruptcy Court. Holders of Plan Claims and Equity Interests may also obtain a copy of the Plan Documents following their Filing with the clerk of the Court by contacting the Debtors’ voting agent, BMC Group, Inc. by a written request sent to:
If by hand delivery/courier:
BMC Group, Inc. 444 N. Nash Street
El Segundo, CA 90245-2822 Attn: Grace Voting Agent
If by U.S. mail:
BMC Group, Inc.
P.O. Box 913
El Segundo, CA 90245-0913 Attn: Grace Voting Agent
or by telephone at (888) 909-0100 or email to
wrgrace@bmcgroup.com
. Copies of the Plan Documents also will be available for review on the Debtors’ website at
www.grace.com
and on the website of BMC Group, Inc. at
www.bmcgroup.com/wrgrace
.
Each of the Plan Documents is an integral part of this Plan and is hereby incorporated by reference and made a part of this Plan.
ARTICLE 2
PROVISIONS FOR PAYMENT OF ADMINISTRATIVE EXPENSES AND PRIORITY TAX CLAIMS
In accordance with Bankruptcy Code § 1123(a)(1), Administrative Expense Claims and Priority Tax Claims are not classified and are excluded from the Classes set forth in Article 3 of this Plan.
2.1.1 PAYMENT OF ALLOWED ADMINISTRATIVE EXPENSE CLAIMS
(a)
Treatment.
Subject to the provisions of Bankruptcy Code §§ 330(a), 331, and 503, each Holder of an Allowed Administrative Expense Claim shall be paid the Allowed Amount of its Administrative Expense Claim either (i) in full, in Cash, by the Reorganized Debtors, on the Effective Date or as soon as practicable thereafter, or (ii) upon such other less favorable terms as may be mutually agreed upon between the Holder of an Allowed Administrative Expense Claim and the Reorganized Debtors or otherwise established pursuant to an order of the Bankruptcy Court;
provided, however,
that (A) Administrative Expense Claims representing liabilities incurred in the ordinary course of business by the Debtors in Possession on or after the Petition Date or assumed by the Debtors in Possession pursuant to this Plan or an order of the Bankruptcy Court shall be paid by the Reorganized Debtors in accordance with the terms and conditions of the particular transactions and any agreements relating thereto or any order of the Bankruptcy Court and (B) Allowed Administrative Expense Claims of Professionals shall be paid pursuant to an order of the Bankruptcy Court.
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(b)
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Deadline For Filing Applications for Compensation and Administrative Expenses.
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(1)
Professionals’ Fees.
All final applications for compensation of Professionals for services rendered and for reimbursement of expenses incurred on or before the Effective Date, and any other request for compensation by any Entity for making a substantial contribution (as described in Bankruptcy Code § 503(b)(3)(D)) in the Chapter 11 Cases (except only for Claims under 28 U.S.C. § 1930 and for fees incurred by the clerk’s office), shall be Filed no later than ninety (90) days after the Effective Date (“
Professionals’ Fees
”). Objections to any Administrative Expense Claims for Professionals’ Fees must be filed within sixty (60) days after the applications have been Filed. Any Professional or Entity with an Administrative Expense Claim that does not File an application for payment of such Administrative Expense Claim by the deadline set forth herein shall be forever barred from asserting such Administrative Expense Claim and shall receive no Distribution under this Plan or otherwise on account of such Administrative Expense Claim. Compensation of Professionals for services rendered and for reimbursement of expenses incurred after the Effective Date shall be paid by the Reorganized Debtors in accordance with any such Professional’s invoice(s) and to the extent undisputed without any action or order of the Court.
(2)
Other Administrative Expense Claims.
Unless a request for the payment of an Administrative Expense Claim previously was filed with the Court, all requests or applications for payment of Administrative Expense Claims other than Professionals’ Fees described in Section 2.1.1(b)(1) (“
Other Administrative Expense Claims
”) must be filed with the Court and served on the Reorganized Debtors, pursuant to the procedures specified in the Confirmation Order and the notice of entry of the Confirmation Order, no later than 90 days after the Effective Date (the “
Administrative Claims Bar Date
”). Any Holder of an Administrative Expense Claim that is required to file and serve a request for payment of such Administrative Expense Claim and that does not file and serve such a request within the time established by this Section 2.1.1(b)(2) will be forever barred from asserting such Administrative Expense Claim against the Debtors, the Reorganized Debtors or their respective property and such
Administrative Expense Claim will be deemed discharged as of the Effective Date. Objections to Other Administrative Expense Claims must be filed with the Court and served on the requesting party within 270 days after the Effective Date;
provided, however,
that such objection deadline may be extended by the Court upon request of the Reorganized Debtors.
2.1.2 PRIORITY TAX CLAIMS
Each Holder of an Allowed Priority Tax Claim shall be paid the Allowed Amount of its Priority Tax Claim, at the option of the Reorganized Debtors, either (i) in full, in Cash, by the Reorganized Debtors, on the Effective Date or as soon as practicable thereafter, or (ii) upon such other terms as may be agreed upon by the Holder of an Allowed Priority Tax Claim and approved by the Bankruptcy Court, or (iii) in equal quarterly Cash payments commencing on the Initial Tax Distribution Date and, thereafter, on each Quarterly Tax Distribution Date in an aggregate amount equal to such Allowed Priority Tax Claim, together with interest at 4.19% per annum, over a period not exceeding six (6) years after the date of assessment of such Allowed Priority Tax Claim, or upon such other terms (including such other rate of interest) determined by the Bankruptcy Court, which will provide the Holder of such Allowed Priority Tax Claim deferred Cash payments having a value, as of the Effective Date, equal to such Allowed Priority Tax Claim;
provided, however
, that each Holder of a Priority Tax Claim which by operation of the Fresenius Settlement Agreement is an obligation for Fresenius Indemnified Taxes promptly shall be paid in full in Cash as such Fresenius Indemnified Taxes become due and payable.
ARTICLE 3 CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS
Claims and Equity Interests are classified for all purposes, including voting, confirmation, and Distribution pursuant to this Plan and pursuant to Bankruptcy Code §§ 1122 and 1123(a)(1), as follows:
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CLASSIFICATION
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IMPAIRMENT AND VOTING
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Class 1
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Priority Claims
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Unimpaired -- deemed to have voted to accept the Plan; no separate vote being solicited.
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Class 2
|
Secured Claims
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Unimpaired -- deemed to have voted to accept the Plan; no separate vote being solicited.
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Class 3
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Employee Benefit Claims
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Unimpaired -- deemed to have voted to accept the Plan; no separate vote being solicited.
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Class 4
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Workers’ Compensation Claims
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Unimpaired -- deemed to have voted to accept the Plan; no separate vote being solicited.
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Class 5
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Intercompany Claims
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Unimpaired -- deemed to have voted to accept the Plan; no separate vote being solicited.
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Class 6
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Asbestos PI Claims
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Impaired -- vote being solicited.
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Class 7
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Class 7A.
Asbestos PD Claims (excluding US ZAI PD Claims)
Class 7B.
US ZAI PD Claims
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Unimpaired -- vote being solicited for purposes of
§ 524(g) of the Bankruptcy Code. Impaired -- vote being solicited.
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Class 8
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CDN ZAI PD Claims
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Impaired -- vote being solicited.
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Class 9
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General Unsecured Claims
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Unimpaired -- deemed to have voted to accept the Plan; provisional vote being solicited.
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Class 10
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Equity Interests in the Parent
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Impaired -- vote being solicited.
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Class 11
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Equity Interests in Debtors Other than the Parent
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Unimpaired -- deemed to have voted to accept the Plan; no separate vote being solicited.
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3.1.1 Class 1. Priority Claims
Class 1 consists of all Priority Claims against the Debtors.
Each Holder of an Allowed Priority Claim shall be paid the Allowed Amount of its Allowed Priority Claim plus interest at 4.19%, from the Petition Date, compounded annually, or if pursuant to an existing contract, interest at the non-default contract rate, at the option of the Reorganized Debtors, either (i) in full, in Cash, on the later of (A) the Effective Date or as soon as practicable thereafter or (B) the date such Priority Claim becomes an Allowed Priority Claim, or as soon as practicable thereafter, or (ii) upon such other less favorable terms as may be agreed upon by the Holder of an Allowed Priority Claim.
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(c)
|
Impairment and Voting
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Class 1 is unimpaired. The Holders of the Allowed Priority Claims in Class 1 are deemed to have voted to accept this Plan and, accordingly, their separate vote will not be solicited.
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3.1.2
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Class 2. Secured Claims
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Class 2 consists of all Secured Claims against the Debtors.
Each Holder of an Allowed Secured Claim shall be paid the Allowed Amount of its Allowed Secured Claim plus interest at 4.19%, from the Petition Date, compounded annually, or
if pursuant to an existing contract, interest at the non-default contract rate, at the option of the Reorganized Debtors, either (i) in full, in Cash, on the later of (A) the Effective Date or as soon as practicable thereafter or (B) the date such Secured Claim becomes an Allowed Secured Claim, or as soon as practicable thereafter; (ii) upon such other less favorable terms as may be agreed upon by the Holder of an Allowed Secured Claim; (iii) by the surrender to the Holder or Holders of any Allowed Secured Claim of the property securing such Secured Claim; or (iv) notwithstanding any contractual provision or applicable law that entitles the Holder of a Secured Claim to demand or receive payment thereof prior to the stated maturity from and after the occurrence of a default, by reinstatement in accordance with Bankruptcy Code § 1124(2)(A)-(D).
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(c)
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Impairment and Voting
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Class 2 is unimpaired. The Holders of the Allowed Secured Claims in Class 2 are deemed to have voted to accept this Plan and, accordingly, their separate vote will not be solicited.
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3.1.3
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Class 3. Employee Benefit Claims
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Class 3 consists of all Employee Benefit Claims.
Employee Benefit Claims shall be reinstated and paid pursuant to the written benefit plan or plans that the Debtors intend to continue pursuant to Section 9.3.1 of this Plan, subject to the terms and conditions of such plans. Thus, this Plan leaves unaltered the legal, equitable and contractual rights to which each such Claim entitles the Holder of such Claim.
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(c)
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Impairment and Voting
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Class 3 is unimpaired. The Holders of the Employee Benefit Claims in Class 3 are deemed to have voted to accept this Plan and, accordingly, their separate vote will not be solicited.
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3.1.4
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Class 4. Workers’ Compensation Claims
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Class 4 consists of all Workers’ Compensation Claims against the Debtors.
This Plan leaves unaltered the legal, equitable, and contractual rights to which each such Workers’ Compensation Claim entitles the Holder of such Workers’ Compensation Claim. For the avoidance of doubt, in no event shall any of the Sealed Air Indemnified Parties or the
Fresenius Indemnified Parties have any liability with respect to any Workers’ Compensation Claim.
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(c)
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Impairment and Voting
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Class 4 is unimpaired. The Holders of the Workers’ Compensation Claims in Class 4 are deemed to have voted to accept this Plan and, accordingly, their separate vote will not be solicited.
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3.1.5
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Class 5. Intercompany Claims
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Class 5 consists of all Intercompany Claims.
This Plan leaves unaltered the legal, equitable, and contractual rights to which each such Intercompany Claim entitles the Holder of such Intercompany Claim.
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(c)
|
Impairment and Voting
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Class 5 is unimpaired. The Holders of Intercompany Claims in Class 5 are deemed to have voted to accept this Plan and, accordingly, their separate vote will not be solicited.
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3.1.6
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Class 6. Asbestos PI Claims
|
Class 6 consists of all Asbestos PI Claims against the Debtors.
(i)
All Asbestos PI Claims shall be resolved in accordance with the terms, provisions, and procedures of the Asbestos PI Trust Agreement and the Asbestos PI TDP (unless previously allowed pursuant to an Order of the Court or agreement of the parties).
(ii)
All Asbestos PI Claims shall be paid by the Asbestos PI Trust solely from the Asbestos PI Trust Assets as and to the extent provided in the Asbestos PI TDP. Asbestos PI Claims shall not be deemed Allowed or Disallowed (unless an order or agreement approved by the Court allowing the Claim has been previously entered), but rather shall be resolved by the Asbestos PI Trust pursuant to the terms of the Asbestos PI TDP.
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(c)
|
Asbestos PI Channeling Injunction
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The sole recourse of the Holder of an Asbestos PI Claim on account of such Asbestos PI
Claim (whether or not such Asbestos PI Claim has been previously allowed pursuant to an Order
of the Court or agreement of the parties) shall be to the Asbestos PI Trust pursuant to the
provisions of the Asbestos PI Channeling Injunction, the Asbestos PI Trust Agreement, and the
Asbestos PI TDP
.
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(d)
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Impairment and Voting
|
Class 6 is impaired. The Debtors are soliciting the votes of Holders of the Asbestos PI Claims in Class 6 to accept or reject this Plan in the manner and to the extent provided in the Confirmation Procedures Order.
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3.1.7
|
Class 7. Asbestos PD Claims
|
Class 7 consists of all Asbestos PD Claims against the Debtors.
Class 7A consists of all Asbestos PD Claims (except US ZAI PD Claims) against the Debtors.
Class 7B consists of all US ZAI PD Claims against the Debtors.
(i)
Treatment of Claims in Class 7A.
Each Holder of an Asbestos PD Claim in Class 7A that is Allowed as of the Effective Date pursuant to a PD Settlement Agreement, or other stipulation, order, or agreement, shall be paid the Allowed Amount of its Allowed Asbestos PD Claim in Cash in full by the Asbestos PD Trust as and when due, without any deduction, proration, reduction, setoff or discount, pursuant to the terms of the respective PD Settlement Agreements, or other stipulation, order, or agreement, and the terms of the Asbestos PD Trust Agreement (which Asbestos PD Trust shall be deemed by this Plan, the Confirmation Order, and the Asbestos PD Trust Agreement to have assumed the obligations of such PD Settlement Agreements). Unresolved Asbestos PD Claims shall be paid pursuant to the following procedures:
(A)
In connection with confirmation of the Plan, the Court shall enter the Class 7A CMO; and
(B)
Allowed Unresolved Asbestos PD Claims shall be paid in full, in Cash, by the Asbestos PD Trust pursuant to the terms of the Asbestos PD Trust Agreement.
(C)
All Allowed Asbestos PD Claims in Class 7A shall be paid in full by the Asbestos PD Trust solely from the Asbestos PD Trust Assets that are designated for Class 7A Claims.
(D)
The inclusion of Demands as Asbestos PD Claims in Class 7A and any reference to Demands related to Asbestos PD Claims in Class 7A in the Plan does not constitute an admission by the Debtors and the other Plan Proponents that an Entity which did not have an allowable Asbestos PD Claim in Class 7A against the Debtors as of the Effective Date could assert a valid claim against the Asbestos PD Trust contemplated under the Plan, and all rights and defenses to the allowance of such a claim by the Asbestos PD Trust are expressly reserved pursuant to the Plan.
(ii)
Treatment of Claims in Class 7B.
All Asbestos PD Claims in Class 7B shall be resolved in accordance with the terms, provisions, and procedures of the Asbestos PD Trust Agreement and the ZAI TDP (unless previously allowed pursuant to an Order of the Court or agreement of the parties).
(A)
All Asbestos PD Claims in Class 7B shall be paid by the Asbestos PD Trust solely from the Asbestos PD Trust Assets that are designated for Class 7B Claims under the Asbestos PD Trust Agreement and as provided in the ZAI TDP. Asbestos PD Claims in Class 7B shall not be deemed Allowed or Disallowed (unless an order or agreement approved by the Court allowing the Claim has been previously entered), but rather shall be resolved by the Asbestos PD Trust pursuant to the terms of the ZAI TDP.
(B)
The inclusion of Demands as US ZAI PD Claims in Class 7B and any reference to Demands related to US ZAI PD Claims in Class 7B in the Plan does not constitute an admission by the Debtors and the other Plan Proponents that an Entity which did not have an allowable US ZAI PD Claim in Class 7B against the Debtors as of the Effective Date could assert a valid claim against the Asbestos PD Trust contemplated under the Plan, and all rights and defenses to the allowance of such a claim by the Asbestos PD Trust shall be treated as provided for in the ZAI TDP.
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(c)
|
Impairment and Voting
|
(i)
Voting for Class 7.
The votes of all Claimants in Class 7 will be solicited and tabulated as one class for purposes of § 524(g) of the Bankruptcy Code in the manner and to the extent provided in the Confirmation Procedures Order.
(ii)
Impairment and Voting for Class 7A
.
Class 7A is unimpaired; however, the Debtors have agreed to solicit the votes of Holders of the Asbestos PD Claims in Class 7A to accept or reject this Plan solely for purposes of § 524(g) of the Bankruptcy Code.
(iii)
Impairment and Voting for Class 7B.
Class 7B is impaired. The Debtors are soliciting the votes of Holders of the Asbestos PD Claims in Class 7B to accept or reject this Plan in the manner and to the extent provided in the Confirmation Procedures Order both for
purposes of § 524(g) and for all other purposes contemplated by §§ 1126(c) and 1129(a) of the Bankruptcy Code.
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(d)
|
Asbestos PD Channeling Injunction
|
The sole recourse of the Holder of an Asbestos PD Claim in Class 7A on account of such
Asbestos PD Claim (whether or not such Asbestos PD Claim is Allowed as of the Effective
Date) shall be to the Asbestos PD Trust pursuant to the provisions of the Asbestos PD
Channeling Injunction, the Asbestos PD Trust Agreement, the Class 7A CMO, and any orders
entered by the Bankruptcy Court allowing such Asbestos PD Claims
.
The sole recourse of the Holder of an Asbestos PD Claim in Class 7B on account of such
Asbestos PD Claim (whether or not such Asbestos PD Claim is Allowed as of the Effective
Date) shall be to the Asbestos PD Trust pursuant to the provisions of the Asbestos PD
Channeling Injunction, the Asbestos PD Trust Agreement, and the ZAI TDP.
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3.1.8
|
Class 8. CDN ZAI PD Claims
|
Class 8 consists of all CDN ZAI PD Claims against the Debtors.
(i)
All CDN ZAI PD Claims shall be resolved in accordance with the terms, provisions, and procedures outlined in the CDN ZAI Minutes of Settlement.
(ii)
All CDN ZAI PD Claims shall be paid solely from the CDN ZAI PD Claims Fund in the manner set out in the CDN ZAI Minutes of Settlement. CDN ZAI PD Claims shall not be deemed Allowed or Disallowed, but rather shall be resolved as set forth in the CDN ZAI Minutes of Settlement. Confirmation of this Plan shall constitute approval by this Court of the settlement reflected in the CDN ZAI Minutes of Settlement for all purposes including to the extent required by Bankruptcy Rule 9019.
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(c)
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Asbestos PD Channeling Injunction
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The sole recourse of the Holder of a CDN ZAI PD Claim on account of such CDN ZAI
PD Claim shall be to the CDN ZAI PD Claims Fund pursuant to the provisions of the CDN ZAI
Minutes of Settlement, the Asbestos PD Channeling Injunction, and any orders by the Canadian
Court allowing such CDN ZAI PD Claims.
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(d)
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Impairment and Voting
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Class 8 is impaired. The CCAA Representative Counsel shall be entitled to vote to accept or reject this Plan on behalf of holders of CDN ZAI PD Claims in the manner and to the extent provided in the CDN ZAI Minutes of Settlement and the Canadian Settlement Approval Order.
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3.1.9
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Class 9. General Unsecured Claims
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Class 9 consists of all General Unsecured Claims against the Debtors.
Each Holder of an Allowed General Unsecured Claim, other than Holders of General Unsecured Claims arising from the Pre-petition Credit Facilities, shall be paid the Allowed Amount of its Allowed General Unsecured Claim plus post-petition interest on such Claim either
(i)
in Cash in full on the later of (A) the Effective Date or (B) the date such General Unsecured Claim becomes an Allowed General Unsecured Claim, or (ii) on such other less favorable terms as have been agreed upon by the Holder of an Allowed General Unsecured Claim and the Debtors or the Reorganized Debtors. Holders of General Unsecured Claims arising from the Pre-petition Credit Facilities shall be paid the principal amount of such General Unsecured Claims (along with any outstanding and undisputed pre-petition interest owed under the Pre- petition Credit Facilities) plus post-petition interest calculated at the rate set forth in Section 3.1.9(b)(i)(A) below on the Effective Date. The Plan leaves unaltered the legal, equitable, and contractual rights to which each such General Unsecured Claim entitles the Holder of each such General Unsecured Claim subject to the preemptory effect of bankruptcy law. Subject to Section 3.1.9(d) of this Plan, post-petition interest on Allowed General Unsecured Claims shall be calculated as follows: (i) either
(A)
for General Unsecured Claims arising from the Pre-petition Credit Facilities, post-petition interest shall be calculated at the rate of 6.09% from the Petition Date through December 31, 2005 and thereafter at floating prime, in each case compounded quarterly through the Effective Date;
(B)
for General Unsecured Claims arising from Environmental Claims that include a liquidated amount for post-petition or future cleanup liability, post-petition interest shall be calculated at the rate of 4.19% from the date specified in any order allowing the Environmental Claim in such liquidated amount, compounded annually through the Effective Date or the date of payment of the General Unsecured Claim if it becomes an Allowed General Unsecured Claim after the Effective Date;
(C)
for General Unsecured Claims arising from an existing contract that specifies payment of interest at a non-default rate of interest, post-petition interest shall be calculated at the non-default rate of interest provided in such contract from the Petition Date, compounded annually through the Effective Date or the date of payment of the General Unsecured Claim if it becomes an Allowed General Unsecured Claim after the Effective Date; or
(D)
for all other General Unsecured Claims, post-petition interest shall be calculated at the rate of 4.19% from the Petition Date, compounded annually through the Effective
Date or the date of payment of the General Unsecured Claim if it becomes an Allowed General Unsecured Claim after the Effective Date; or
(ii)
on such other less favorable terms as have been agreed upon by the Holder of an Allowed General Unsecured Claim and the Debtors or Reorganized Debtors, including an agreement whereby no post-petition interest is paid on the Claim or post-petition interest begins to accrue on the Claim on a date other than the Petition Date.
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(c)
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EPA Multi-Site Agreement Obligations
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The Debtors’ obligations under the Multi-Site Settlement Agreement approved by the Bankruptcy Court on June 3, 2008 (Dkt. No. 18847) constitute Claims in Class 9, except for those obligations specifically identified therein as Allowed Administrative Expense Claims. The Multi-Site Settlement Agreement is incorporated into the Plan, and the rights of the Settling Federal Agencies (as defined in the Multi-Site Settlement Agreement) and the Debtors with respect to “Debtor-Owned Sites,” “Additional Sites,” “Work Consent Decrees” and “Work Administrative Orders” (as defined in the Multi-Site Settlement Agreement), shall be governed by the Multi-Site Settlement Agreement notwithstanding any other provision of the Plan or the Confirmation Order to the contrary.
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(d)
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Procedures for Resolution of Post-Petition Interest Disputes
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(i)
If any Holder of a General Unsecured Claim, other than a Holder of a General Unsecured Claim arising from the Pre-petition Credit Facilities (which Claims are subject to a pending objection and litigation concerning the amount of post-petition interest to which the Holders are entitled) believes that it is entitled to post-petition interest at a rate or calculation other than the treatment set forth in Section 3.1.9(b) of the Plan, such Holder may File with the Bankruptcy Court a “
Post-Petition Interest Determination Notice
” by no later than the deadline established by the Bankruptcy Court for Claimants to vote to accept or reject the Plan. Any Post-Petition Interest Determination Notice that is Filed shall (A) identify the Claim and the requested rate of post-petition interest applicable to such Claim and (B) attach documentation supporting the payment of such rate of interest for the Claim. Failure to timely File a Post- Petition Interest Determination Notice with the required information and supporting documentation will be deemed an agreement to accept the post-petition interest treatment provided for in Section 3.1.9(b) of the Plan. The Debtors shall provide notice of the deadline to File a Post-Petition Interest Determination Notice in the manner and to the extent provided in the Confirmation Procedures Order.
(ii)
The Debtors or Reorganized Debtors, as applicable, may dispute any Post-Petition Interest Determination Notice by Filing an objection thereto by no later than 60 days after the Effective Date. In objecting to a Post-Petition Interest Determination Notice, the Debtors or Reorganized Debtors, as applicable, may assert that the Holder of the General Unsecured Claim that Filed the Post-petition Interest Determination Notice is entitled to no post-petition interest under applicable law or that an amount of post-petition interest less than the amount provided for in Section 3.1.9(b) of the Plan should be paid on account of such Claim, and the Bankruptcy Court may so find in accordance with any such objection asserted by the Debtors or the
Reorganized Debtors. If the Debtors or Reorganized Debtors, as applicable, object to a Post- Petition Interest Determination Notice, then they shall also assert any and all objections that they may have to the underlying General Unsecured Claim within the same objection notwithstanding the time to file such other objections set forth in Section 5.1 of the Plan.
(iii)
The Debtors shall pay the principal amount of any Allowed General Unsecured Claim to which a Post-Petition Interest Determination Notice relates on the Effective Date or on the date on which such Claim becomes an Allowed General Unsecured Claim in accordance with the applicable provisions of the Plan,
provided, however
, that no payment of post-petition interest will be made with respect to any General Unsecured Claim for which a Post-Petition Interest Determination Notice has been Filed until the Post-Petition Interest Determination Notice has been resolved in accordance with this Section 3.1.9(d).
(iv)
At any time, if the Debtors or Reorganized Debtors, as applicable, determine that the post-petition interest rate or calculation asserted in a Post-Petition Interest Determination Notice is appropriate, the Debtors or Reorganized Debtors, as applicable, may File a certificate of no objection with respect to such notice (without prejudice to their rights in relation to any other Post-Petition Interest Determination Notice). No hearing is required by the Bankruptcy Court with respect to any Post-Petition Interest Determination Notice for which a certificate of no objection is Filed or to which the Debtors or Reorganized Debtors, as applicable, do not timely File an objection, and the respective amount of post-petition interest shall be paid on the Post-Effective Distribution Date with respect thereto.
(v)
If the Debtors or Reorganized Debtors, as applicable, object to a Post-Petition Interest Determination Notice and no stipulation or agreement is reached with respect to the rate or calculation of post-petition interest for such General Unsecured Claim, the Debtors or Reorganized Debtors, as applicable, will ask the Bankruptcy Court to schedule a hearing on the particular Post-Petition Interest Determination Notice and the related objection at an appropriate time and shall pay the amount of post-petition interest determined by a Final Order in relation to such Post-Petition Interest Determination Notice on the Post-Effective Distribution Date in relation thereto. All litigation with respect to a disputed Post-Petition Interest Determination Notice shall be conducted in the Bankruptcy Court as claims allowance litigation, subject to the same bankruptcy rules and procedures that would have applied had the litigation been conducted before the Effective Date.
(vi)
The Debtors or Reorganized Debtors, as applicable, and the Holder of the General Unsecured Claim that Filed the Post-Petition Interest Determination Notice at any time may enter into a stipulation or agreement as to the appropriate rate or calculation of post-petition interest with respect to such General Unsecured Claim without further action of the Bankruptcy Court and without any prejudice to the Debtors’ or the Reorganized Debtors’ objections to any other Post-Petition Interest Determination Notice.
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(e)
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Procedures for Determining Non-Default Contract Rate of Post-Petition Interest
|
(i)
Any Holder of a General Unsecured Claim, other than a Holder of a General Unsecured Claim arising from the Pre-petition Credit Facilities, who does not dispute the manner
in which post-petition interest shall be calculated as provided for in Section 3.1.9(b)(i)(C) of the Plan, but who wishes to substantiate the existence of an existing contract that specifies payment of interest at a non-default rate of interest as contemplated by Section 3.1.9(b)(i)(C), shall submit a “
Notice of Non-Default Contract Rate of Interest
” to the Debtors’ voting and claims reconciliation agent, BMC Group, Inc., by no later than the deadline established by the Bankruptcy Court for Claimants to vote to accept or reject the Plan. Any Notice of Non-Default Contract Rate of Interest shall (A) identify the Claim and the non-default contractual rate of interest applicable to such Claim, (B) attach a copy of the contract relating to such Claim and (C) be signed by the Holder of the Claim or its authorized representative under penalty of perjury. A Notice of Non-Default Contract Rate of Interest does not need to be Filed with the Bankruptcy Court. Provided that a Holder of a General Unsecured Claim or its authorized representative has not Filed a Post-Petition Interest Determination Notice, failure by a Holder of a General Unsecured Claim or its authorized representative to timely submit a Notice of Non-Default Contract Rate of Interest will be deemed an admission that no non-default contract rate of interest exists with respect to such Holder’s General Unsecured Claim, and said Holder of the General Unsecured Claim shall receive interest as set forth in Section 3.1.9(b)(i)(D) above. The Debtors shall provide notice of the deadline to submit a Notice of Non-Default Contract Rate of Interest in the manner and to the extent provided in the Confirmation Procedures Order.
(ii)
The Debtors may dispute any Notice of Non-Default Contract Rate of Interest by serving a written objection at any time before the Effective Date upon the Holder of a General Unsecured Claim who has submitted a Notice of Non-Default Contract Rate of Interest. After a written objection to a Notice of Non-Default Contract Rate of Interest has been served, the Debtors or the Reorganized Debtors, as the case may be, and the Holder of the applicable General Unsecured Claim shall negotiate to resolve the objection. If a resolution is not reached, the Holder of the General Unsecured Claim may request a hearing before the Bankruptcy Court to resolve the objection to its Notice of Non-Default Contract Rate of Interest,
provided, however,
that such request must be made no later than 60 days after the Effective Date and that the only issue to be determined by the Bankruptcy Court at such a hearing shall be the appropriate amount of non-default contract interest with respect to the General Unsecured Claim, which shall be paid on the Post-Effective Distribution Date in relation to a Final Order making such determination. If the Debtors do not dispute a Notice of Non-Default Contract Rate of Interest by serving a written objection upon the Holder of a General Unsecured Claim who has submitted a Notice of Non-Default Contract Rate of Interest, then the interest rate contained in the Notice of Non-Default Contract Rate of Interest shall govern and be paid.
(iii)
To the extent that a Notice of Non-Default Contract Rate of Interest relates to an Allowed General Unsecured Claim and does not relate to a Claim that is also subject to a Post- Petition Interest Determination Notice, the Debtors shall pay, on the Effective Date or on the date on which such Claim becomes an Allowed General Unsecured Claim, the principal amount of the Allowed General Unsecured Claim to which such notice relates plus post-petition interest at the rate of 4.19% from the Petition Date or, if applicable, the non-default contract rate of interest according to the Debtors’ books and records, compounded annually, in accordance with the applicable provisions of the Plan pending resolution of any dispute concerning the amount of non-default contract rate of interest asserted in the Notice of Non-Default Contract Rate of
Interest. Post-petition interest shall not accrue with respect to any General Unsecured Claim after the Debtors have paid the principal amount of such Claim.
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(f)
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Impairment and Voting
|
Class 9 is unimpaired. The Holders of General Unsecured Claims in Class 9 are deemed to have voted to accept this Plan. Notwithstanding the foregoing, the Debtors have agreed to provisionally solicit the votes of Holders of General Unsecured Claims in Class 9 in the manner and to the extent provided in the Confirmation Procedures Order.
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3.1.10
|
Class 10. Equity Interests in the Parent
|
Class 10 consists of Equity Interests in the Parent.
On the Effective Date, Class 10 Equity Interests in the Parent shall be retained, subject to the issuance of the Warrant, the terms of the Share Issuance Agreement, and the Stock Trading Restrictions Term Sheet.
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(c)
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Impairment and Voting
|
Class 10 is impaired. The Debtors are soliciting the votes of Holders of the Equity Interests in the Parent in Class 10 to accept or reject this Plan in the manner and to the extent provided in the Confirmation Procedures Order.
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3.1.11
|
Class 11. Equity Interests in the Debtors other than the Parent
|
Class 11 consists of Equity Interests in the Debtors other than the Parent.
This Plan leaves unaltered the legal, equitable, and contractual rights to which each such Equity Interest in the Debtors other than the Parent entitles the Holder of such Equity Interest.
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(c)
|
Impairment and Voting
|
Class 11 is unimpaired. The Holders of the Equity Interests in the Debtors other than the Parent in Class 11 are deemed to have voted to accept this Plan and, accordingly, their separate vote will not be solicited.
ARTICLE 4
MODIFICATION OR WITHDRAWAL OF THIS PLAN
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4.1
|
MODIFICATION OF THE PLAN; AMENDMENT OF PLAN DOCUMENTS
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4.1.1
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Modification of the Plan
|
The Plan Proponents, acting together, may alter, amend, or modify this Plan, or any other Plan Document, under Bankruptcy Code § 1127(a) at any time prior to the Confirmation Date so long as this Plan, as modified, meets the requirements of Bankruptcy Code §§ 1122 and 1123. After the Confirmation Date, the Plan Proponents, acting together, may alter, amend, or modify this Plan but only before its substantial consummation in accordance with Bankruptcy Code § 1127(b). Notwithstanding the foregoing, in no event may the Plan Proponents alter, amend, or modify this Plan or any other Plan Document in a manner that (a) conflicts with the Sealed Air Settlement Agreement except to the extent that such alteration, amendment, or modification is expressly consented to, in writing, by each of Sealed Air Corporation and Cryovac, Inc. in its absolute discretion or (b) conflicts with the Fresenius Settlement Agreement except to the extent that such alteration, amendment, or modification is expressly consented to, in writing, by Fresenius in its absolute discretion. In no event shall either Sealed Air Corporation or Cryovac, Inc. have any obligation with respect to the Cryovac Payment (including the Asbestos PD Initial Payment) unless the terms of the Plan and/or any alteration, amendment, or modification thereto comply fully with the Sealed Air Settlement Agreement except to the extent that any and every non-compliance with the Sealed Air Settlement Agreement has been expressly consented to, in writing, by each of Sealed Air Corporation and Cryovac, Inc. in its absolute discretion. In no event shall Fresenius have any obligation with respect to the Fresenius Payment (including the Asbestos PD Initial Payment) unless the terms of the Plan and/or any alteration, amendment, or modification thereto comply fully with the Fresenius Settlement Agreement except to the extent that any and every non-compliance with the Fresenius Settlement Agreement has been expressly consented to, in writing, by Fresenius in its absolute discretion.
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4.1.2
|
Post-Effective Date Amendment of Other Plan Documents
|
From and after the Effective Date, the authority to amend, modify, or supplement the Plan Documents, other than the Plan, will be as provided in such Plan Documents. Notwithstanding the foregoing, in no event may the Plan Proponents or any other party amend, modify, or supplement any Plan Document in a manner that (a) conflicts with the Sealed Air Settlement Agreement except to the extent that such amendment, modification or supplement is expressly consented to, in writing, by each of Sealed Air Corporation and Cryovac, Inc. in its absolute discretion or (b) conflicts with the Fresenius Settlement Agreement except to the extent that such amendment, modification, or supplement is expressly consented to, in writing, by Fresenius in its absolute discretion.
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4.2
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WITHDRAWAL OF THIS PLAN
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4.2.1
|
Right to Withdraw this Plan
|
This Plan may be withdrawn by the Plan Proponents, acting together, prior to the Confirmation Date.
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4.2.2
|
Effect of Withdrawal
|
If this Plan is withdrawn prior to the Confirmation Date, this Plan shall be deemed null and void. In such event, nothing contained herein or in any of the Plan Documents shall be deemed to constitute a waiver or release of any claims or defenses of, or an admission or statement against interest by, any of the Plan Proponents or any other Entity or to prejudice in any manner the rights of any of the Plan Proponents or any Entity in any further proceedings involving the Debtors.
ARTICLE 5
PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS AND ASBESTOS CLAIMS GENERALLY
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5.1
|
OBJECTION TO CLAIMS (OTHER THAN ASBESTOS PI CLAIMS, ASBESTOS PD CLAIMS, AND CDN ZAI PD CLAIMS); PROSECUTION OF DISPUTED CLAIMS
|
Subject to the treatment provisions of this Plan, the Debtors or Reorganized Debtors, as applicable, and the United States Trustee, may object to the allowance of any Plan Claims (other than Asbestos PI Claims, Asbestos PD Claims (except as provided for pursuant to the Asbestos PD Trust Agreement and this Plan), and CDN ZAI PD Claims)) Filed with the Bankruptcy Court or to be otherwise resolved pursuant to any provisions of this Plan with respect to which they dispute liability, in whole or in part. Subject to the treatment provisions of this Plan, the Debtors’ pending objections to any Plan Claims not channeled to and assumed by the Asbestos PI Trust or the Asbestos PD Trust shall be transferred to the Reorganized Debtors on the Effective Date for final resolution.
Not later than ten (10) days before the Effective Date, the Debtors shall File with the Bankruptcy Court an exhibit listing all Plan Claims (other than Asbestos PI Claims, Asbestos PD Claims, and CDN ZAI PD Claims) that the Debtors have already analyzed and to which the Debtors have no objection (the “
Undisputed Claims Exhibit
”). Plan Claims listed on the Undisputed Claims Exhibit shall be Allowed Claims as set forth in Section 1.1.4 of the Plan. The Debtors or the Reorganized Debtors, as applicable, may File additional Undisputed Claims Exhibits with the Court at any time after the Filing of the initial Undisputed Claims Exhibit with respect to any remaining Plan Claims (other than Asbestos PI Claims, Asbestos PD Claims, and CDN ZAI PD Claims) if they have determined not to object to any of such Claims.
After the Effective Date, all objections that are Filed and prosecuted by the Reorganized Debtors as provided herein may be: (i) compromised and settled in accordance with the business judgment of the Reorganized Debtors without approval of the Bankruptcy Court, or (ii) litigated to Final Order by the Reorganized Debtors. Unless otherwise provided herein or ordered by the Bankruptcy Court, all objections by the Reorganized Debtors to Plan Claims (other than Asbestos PI Claims, Asbestos PD Claims, and CDN ZAI PD Claims, all of which have no objection deadline) shall be served and Filed no later than 180 days after the Effective Date, subject to any extensions granted pursuant to a further order of the Bankruptcy Court. Such further order may be obtained by the Reorganized Debtors upon notice to all Holders of Plan Claims (other than Asbestos PI Claims, Asbestos PD Claims, and CDN ZAI PD Claims) that are still pending allowance and are not subject to a pending objection.
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5.2
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RESOLUTION OF ASBESTOS PI CLAIMS
|
Asbestos PI Claims shall be resolved in accordance with the Asbestos PI Trust Agreement and the Asbestos PI TDP.
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5.3
|
RESOLUTION OF ASBESTOS PD CLAIMS
|
Asbestos PD Claims shall be resolved in accordance with the Asbestos PD Trust Agreement and (a) in the case of Asbestos PD Claims in Class 7A, the Class 7A Case Management Order setting forth procedures for determining the allowance or disallowance of the Unresolved Asbestos PD Claims; and (b) in the case of Asbestos PD Claims in Class 7B, the ZAI TDP setting forth procedures for resolving the US ZAI PD Claims in Class 7B.
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5.4
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RESOLUTION OF CDN ZAI PD CLAIMS
|
CDN ZAI PD Claims shall be resolved in accordance with the terms, provisions, and procedures outlined in the CDN ZAI Minutes of Settlement.
ARTICLE 6
ACCEPTANCE OR REJECTION OF THIS PLAN
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6.1
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IMPAIRED CLASSES TO VOTE
|
Each Holder of a Plan Claim or Equity Interest in an impaired Class is entitled to vote to accept or reject this Plan to the extent and in the manner provided herein or in the Confirmation Procedures Order. In addition, the Debtors have agreed to solicit the votes of Holders of the Asbestos PD Claims in Class 7A to accept or reject this Plan for purposes of section 524(g) of the Bankruptcy Code as described in Section 3.1.7(c). Further, the Debtors have agreed to solicit and tabulate the votes of the Holders of General Unsecured Claims in Class 9. Whether those votes will be given effect, is subject to it being determined that Class 9 is an impaired Class.
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6.2
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ACCEPTANCE BY IMPAIRED CLASSES OF CLAIMS
|
Acceptance of this Plan by any impaired Class of Plan Claims shall be determined in accordance with the Confirmation Procedures Order and the Bankruptcy Code.
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6.3
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PRESUMED ACCEPTANCE OF THIS PLAN
|
Classes 1, 2, 3, 4, 5, 7A, 9, and 11 of Plan Claims and Equity Interests in Debtors other than the Parent are unimpaired. Under Bankruptcy Code § 1126(f), the Holders of Plan Claims and Equity Interests in such Classes (except for Class 7A with respect to section 524(g) of the Bankruptcy Code) are conclusively presumed to have voted to accept this Plan.
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6.4
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ACCEPTANCE PURSUANT TO SECTION 524(g) OF THE BANKRUPTCY CODE.
|
This Plan shall have been voted upon favorably as required by section 524(g)(2)(B)(ii)(IV)(bb) of the Bankruptcy Code to the extent that at least 75% of those voting in Classes 6, 7, and 8 vote to accept this Plan.
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6.5
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NONCONSENSUAL CONFIRMATION
|
With respect to impaired Equity Interests in the Parent, and subject to Section 6.4 of this Plan, with respect to any impaired Class of Plan Claims that fail to accept this Plan in accordance with Bankruptcy Code §§ 1126 and 1129(a), the Plan Proponents request, to the extent consistent with applicable law, that the Court confirm this Plan in accordance with Bankruptcy Code § 1129(b) with respect to such non-accepting Class of Equity Interests and such non-accepting Class of Plan Claims (if any), and this Plan constitutes a motion for such relief.
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6.5.2
|
General Reservation of Rights
|
Should this Plan fail to be accepted by the requisite number and amount of the Holders of Plan Claims and Equity Interests required to satisfy Bankruptcy Code §§ 524(g) and 1129, then, notwithstanding any other provision of this Plan to the contrary, the Plan Proponents reserve the right to amend this Plan. Notwithstanding the foregoing, in no event may the Plan Proponents amend, modify, or supplement this Plan in a manner that (a) conflicts with the Sealed Air Settlement Agreement except to the extent that such amendment, modification, or supplement is expressly consented to, in writing, by each of Sealed Air Corporation and Cryovac, Inc. in its absolute discretion or (b) conflicts with the Fresenius Settlement Agreement except to the extent that such amendment, modification, or supplement is expressly consented to, in writing, by Fresenius in its absolute discretion. In no event shall either Sealed Air Corporation or Cryovac, Inc. have any obligation with respect to the Cryovac Payment (including the Asbestos PD Initial Payment) unless the terms of the Plan and/or any amendment, modification, or supplement thereto comply fully with the Sealed Air Settlement Agreement except to the extent that any and every non-compliance with the Sealed Air Settlement Agreement has been expressly consented to, in writing, by each of Sealed Air Corporation and Cryovac, Inc. in its absolute discretion. In no event shall Fresenius have any obligation with respect to the Fresenius Payment (including the Asbestos PD Initial Payment) unless the terms of the Plan and/or any amendment, modification, or supplement thereto comply fully with the Fresenius Settlement Agreement
except to the extent that any and every non-compliance with the Fresenius Settlement Agreement has been expressly consented to, in writing, by Fresenius in its absolute discretion.
ARTICLE 7 IMPLEMENTATION OF THIS PLAN
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7.1.1
|
Amendment of Certificates of Incorporation of the Debtors
|
The Certificates of Incorporation of each of the Debtors that is a corporation shall be amended as of the Effective Date. The amended Certificates of Incorporation of the Debtors shall, among other things: (i) prohibit the issuance of nonvoting equity securities (A) as required by Bankruptcy Code § 1123(a)(6) and (B) subject to further amendment as permitted by applicable law, (ii) as to any classes of securities possessing voting power, provide for an appropriate distribution of such power among such classes, including, in the case of any class of equity securities having a preference over another class of equity securities with respect to dividends, adequate provisions for the election of directors representing such preferred class in the event of default in payment of such dividends, and (iii) effectuate any other provisions of this Plan. The amended Certificates of Incorporation shall be filed with the Secretary of State or equivalent official in their respective jurisdictions of incorporation on or prior to the Effective Date and be in full force and effect without any further amendment as of the Effective Date.
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7.1.2
|
Amendment of By-Laws of the Parent
|
The By-Laws of the Parent shall be amended as of the Effective Date to read in their entirety substantially in the form set forth in the Plan Supplement to, among other things, effectuate the provisions of this Plan.
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7.1.3
|
Precedence of Share Issuance Obligations
|
The covenants and agreements of Parent (for purposes of this Section 7.1.3, as defined in the Share Issuance Agreement) under Section 5(d) of the Share Issuance Agreement shall take precedence and prevail over any inconsistent or contrary provision contained in the certificate of incorporation or by-laws of Parent or any of its subsidiaries or in any contract, agreement or other instrument to which Parent or any of its subsidiaries is a party or otherwise bound (other than provisions, if any, that are inconsistent with, or contrary to, provisions of the Sealed Air Settlement Agreement or the Fresenius Settlement Agreement), and, to the fullest extent permitted by applicable law, any such inconsistent or contrary provision shall be nugatory and of no force and effect and shall not dilute, restrict or impair the value or ownership rights of the shares issued to the Asbestos PI Trust or the Asbestos PD Trust thereunder. The issuance of stock to the Trusts’ Representative, on behalf of the Asbestos PI Trust and the Asbestos PD Trust pursuant to the Share Issuance Agreement, shall not be subject to or trigger any “poison pill,” shareholder or stockholder rights plan, or other anti-takeover or takeover defense plan, contract, agreement, instrument, or provision adopted or implemented by the Parent.
The Board of Directors of Reorganized Parent shall take all actions necessary so that the Asbestos PI Trust shall not be an “Acquiring Person” within the meaning of the Amended and Restated Rights Agreement, dated as of March 25, 2008, by and between the Reorganized Parent and Mellon Investor Services, LLC, as rights agent (as amended from time to time, the “
Rights Agreement
”). The Reorganized Parent shall not lower the Beneficial Ownership (as defined in the Rights Agreement) percentage in the Rights Agreement’s definition of “Acquiring Person” until such time as the Asbestos PI Trust no longer owns the Warrant (either because of its transfer or expiration) or any shares of Parent Common Stock issued to the Asbestos PI Trust upon exercise of the Warrant. No “poison pill”, shareholder or stockholder rights plan, or other anti-takeover or takeover defense plan, contract, agreement, instrument, or provision adopted or implemented by the Reorganized Parent shall apply to or be triggered by the issuance of the Warrant to, or the purchase of, Parent Common Stock upon exercise of the Warrant by the Asbestos PI Trust.
If, prior to issuance of the Warrant to the Asbestos PI Trust, the Reorganized Parent shall issue or sell any shares of Parent Common Stock, other than Excluded Stock (defined below), or any rights to purchase or acquire, or securities convertible into or exchangeable for, shares of Parent Common Stock (including any (x) options (other than Excluded Options, as defined below), warrants or other rights (whether or not at the time exercisable) to purchase or acquire Parent Common Stock, other than Excluded Stock, (y) securities by their terms convertible into or exchangeable (whether at the time so convertible or exchangeable) for Parent Common Stock, other than Excluded Stock or (z) options (other than Excluded Options), warrants or rights to purchase such convertible or exchangeable securities), for no consideration or for a consideration per share that is less than the securities exchange average closing price per share of Parent Common Stock for the twenty consecutive trading days preceding (and not including) the last trading day immediately prior to the day of such issuance or sale (the “
Market Price
”), then and in each such case (a “
Trigger Issuance
”) the per share exercise price of the Warrant (initially,
$17.00) shall be reduced, immediately upon such Trigger Issuance, to the price determined by multiplying such exercise price by a fraction, (1) the numerator of which shall be (x) the number of shares of Parent Common Stock outstanding immediately prior to such issuance or sale plus
(y) the number of shares of Parent Common Stock which the aggregate consideration received (or to be received) by the Reorganized Parent for the total number of such additional shares of Parent Common Stock so issued or sold (or issuable upon exercise, conversion or exchange) would purchase at the Market Price and (2) the denominator of which shall be the number of shares of Parent Common Stock outstanding (or issuable upon exercise, conversion or exchange) immediately after such Trigger Issuance. In the event of such an adjustment of such exercise price, the number of shares of Parent Common Stock issuable upon the exercise of the Warrant (initially, 10,000,000 shares of Parent Common Stock) shall be increased to a number obtained by dividing (1) the product of (x) the number of shares of Parent Common Stock issuable upon the exercise of the Warrant before such adjustment, and (y) the exercise price thereof in effect immediately prior to the Trigger Issuance by (2) the new exercise price determined in accordance with the immediately preceding sentence. Such adjustments shall be made whenever such shares of Common Stock or such rights, options (other than Excluded Options) or warrants or convertible securities are issued or sold . “
Excluded Stock
” means shares of Parent Common
Stock issued and sold in a registered firm commitment underwritten public offering pursuant to a registration statement declared effective in accordance with the Securities Act, or any successor statute thereto. Excluded Stock shall not include a private placement of shares, including one which is followed by a public offering thereof. “
Excluded Options
” means options to purchase shares of Parent Common Stock issued to directors, officers, employees and consultants of any Reorganized Debtor (i) pursuant to an option plan or arrangement approved by either the stockholders of Parent or Reorganized Parent or the Bankruptcy Court and (ii) with an exercise price equal to the average of the high and the low trading prices of Parent Common Stock on the New York Stock Exchange (or if Parent Common Stock is not traded on the New York Stock Exchange, on the principal stock exchange on which it trades) on the date of grant of the option.
At the time of issuance, the exercise price of, and number of shares issuable pursuant to, the Warrant shall reflect any adjustment made pursuant to the preceding paragraph.
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7.2
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THE ASBESTOS PI TRUST
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7.2.1
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Creation of the Asbestos PI Trust
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Upon the entry of the Confirmation Order, effective as of the Effective Date, the Asbestos PI Trust shall be created pursuant to section 524(g) of the Bankruptcy Code and in accordance with the Plan Documents. The Asbestos PI Trust shall be a “qualified settlement fund” for federal income tax purposes within the meaning of the treasury regulations issued pursuant to section 468B of the IRC.
The purpose of the Asbestos PI Trust shall be to, among other things: (i) assume the liabilities of the Debtors with respect to all Asbestos PI Claims; (ii) process, liquidate, pay and satisfy all Asbestos PI Claims in accordance, as applicable, with this Plan, the Asbestos PI Trust Agreement and the Asbestos PI TDP and in such a way that provides reasonable assurance that the Asbestos PI Trust will value, and be in a financial position to pay, present and future Asbestos PI Claims (including Demands that involve similar claims) in substantially the same manner and to otherwise comply with Bankruptcy Code § 524(g)(2)(B)(i); (iii) preserve, hold, manage, and maximize the assets of the Asbestos PI Trust for use in paying and satisfying Asbestos PI Claims entitled to payment; (iv) qualify at all times as a “qualified settlement fund” for federal income tax purposes within the meaning of the treasury regulations issued pursuant to section 468B of the IRC; and (v) otherwise carry out the provisions of the Asbestos PI Trust Agreement and any other agreements into which the Asbestos PI Trustees have entered or will enter in connection with this Plan.
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7.2.2
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Funding of the Asbestos PI Trust
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(a)
On the Effective Date, Grace-Conn or Parent shall transfer to the Asbestos PI Trust (i) the sum of $250 million in Cash that is part of the Asbestos PI Trust Assets, plus interest thereon from January 1, 2009 until (and including) the Effective Date at the same rate applicable to the Debtors’ senior debt and (ii) an amount in Cash equal to the Asbestos PD Initial Payment. In addition to the foregoing, on the Effective Date, Grace-Conn or Parent shall transfer, or cause the transfer of, on behalf of the Reorganized Debtors and the Non-Debtor
Affiliates, all other Asbestos PI Trust Assets that are not otherwise identified, transferred, or assigned in this Section 7.2.2 and Section 7.2.4 hereof to the Asbestos PI Trust.
(b)
On the Effective Date, Cryovac, Inc. shall transfer the Cryovac Payment (reduced by the total aggregate amount of Cryovac, Inc.’s transfers to the Asbestos PD Trust as part of the Class 7A Initial Payment and the Class 7B Initial Payment) directly to the Asbestos PI Trust. Simultaneously with, and in exchange for such direct transfer and payment to the Asbestos PI Trust and Cryovac Inc.’s transfers to the Asbestos PD Trust described in Sections 7.3.2(a) and 7.3.2(b) of the Plan, the Plaintiffs shall deliver to Sealed Air: (i) the “Release” (as defined in the Sealed Air Settlement Agreement) duly executed by each of the Plaintiffs and the SA Debtors;
(ii)
a copy of the Plan, (iii) a copy of the Confirmation Order, (iv) a duly executed Stipulation of Dismissal With Prejudice of the Sealed Air Action in the form annexed as Exhibit 4 to the Sealed Air Settlement Agreement, denying any other recovery against the Sealed Air Indemnified Parties, and (v) the Registration Rights Agreement, in the form annexed as Exhibit 1 to the Sealed Air Settlement Agreement, with appropriate insertions therein, duly executed by the “Initial Holders” (as defined in the Sealed Air Settlement Agreement).
(c)
On the Effective Date, Fresenius shall transfer the Fresenius Payment (reduced by the total aggregate amount of Fresenius’ transfers to the Asbestos PD Trust as part of the Class 7A Initial Payment and the Class 7B Initial Payment) to the Asbestos PI Trust.
(d)
(i) On the Effective Date, the Insurance Contributors shall execute and deliver the Asbestos Insurance Transfer Agreement to the Asbestos PI Trust.
(ii)
All Asbestos Insurance Rights, and all claims and causes of action asserted or to be asserted in furtherance of or connection therewith, shall be preserved for the benefit of the Asbestos PI Trust, for prosecution either by the applicable Insurance Contributor or the Asbestos PI Trust in accordance with the Asbestos Insurance Transfer Agreement. Upon execution and delivery of the Asbestos Insurance Transfer Agreement, all Asbestos Insurance Rights shall be irrevocably transferred to and vested in the Asbestos PI Trust in accordance with the Asbestos Insurance Transfer Agreement, without any further action by the Debtors, the other Insurance Contributors, the Asbestos PI Trust, or the Bankruptcy Court. Asbestos Insurance Rights shall be so vested free and clear of all Encumbrances, liens, security interests, and other Claims or causes of action, except as expressly provided in Section 7.15 of the Plan.
(iii)
Upon its execution and delivery, the Asbestos Insurance Transfer Agreement shall be valid, binding, and enforceable. However, if a court of competent jurisdiction determines the Asbestos Insurance Transfer Agreement to be invalid, non-binding, or unenforceable, in whole or in part, then each Insurance Contributor shall (1) upon request by the Asbestos PI Trust and at the reasonable expense of the Asbestos PI Trust, take all reasonable actions to pursue any of the Asbestos Insurance Rights for the benefit of, and to the extent requested by, the Asbestos PI Trust and (2) immediately transfer any amounts recovered under or on account of any of the Asbestos Insurance Rights to the Asbestos PI Trust;
provided, however,
that while any such amounts are held by or under the control of any Insurance Contributor, such amounts shall be held in trust for the benefit of the Asbestos PI Trust.
(iv)
On the Effective Date, the Asbestos PI Trust shall be the successor to all rights of the Debtors and Non-Debtor Affiliates under each Asbestos Insurance Reimbursement Agreement. The Asbestos PI Trust’s payment of an Asbestos PI Claim under the PI TDP shall be deemed to constitute settlement and payment of such claim by or on behalf of the Debtors or Non-Debtor Affiliates within the meaning of, and in full compliance with, each Asbestos Insurance Reimbursement Agreement.
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7.2.3
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Transfer of Claims and Demands to the Asbestos PI Trust
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On the Effective Date, without any further action of any Entity, all liabilities, obligations,
and responsibilities of any Asbestos Protected Party with respect to all Asbestos PI Claims shall
be channeled to and assumed by the Asbestos PI Trust.
This Section 7.2.3 is intended to further effect the Asbestos PI Channeling Injunction described in Section 8.2 of this Plan, and the discharge described in Section 8.1 of this Plan. This Section 7.2.3 is not intended to, and it shall not, serve as a waiver of any defense to any claim the Debtors, the Asbestos PI Trust, or any other Asbestos Protected Party would otherwise have.
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7.2.4
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Assignment and Enforcement of Asbestos PI Trust Causes of Action
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On the Effective Date, by virtue of the confirmation of this Plan, without further notice, action, or deed, the Asbestos PI Trust Causes of Action shall be automatically transferred and assigned to, and indefeasibly vested in, the Asbestos PI Trust, and the Asbestos PI Trust shall thereby become the estate representative pursuant to section 1123(b)(3)(B) of the Bankruptcy Code with respect to the Asbestos PI Trust Causes of Action, with the exclusive right to enforce the Asbestos PI Trust Causes of Action against any Entity, and the proceeds of the recoveries of such Asbestos PI Trust Causes of Action shall be deposited in and shall become the property of the Asbestos PI Trust;
provided, however,
that nothing herein shall alter, amend, or modify the injunctions and/or releases provided under this Plan including the Asbestos PI Channeling Injunction, the Asbestos PD Channeling Injunction, the Successor Claims Injunction, and the Asbestos Insurance Entity Injunction.
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7.2.5
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Appointment and Termination of Asbestos PI Trustees
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The three initial Asbestos PI Trustees of the Asbestos PI Trust shall be the persons identified in the Asbestos PI Trust Agreement. All successor Asbestos PI Trustees shall be appointed in accordance with the terms of the Asbestos PI Trust Agreement. Upon termination of the Asbestos PI Trust, the Asbestos PI Trustees’ employment shall be deemed terminated and the Asbestos PI Trustees shall be released and discharged of and from all further authority, duties, responsibilities and obligations relating to or arising from or in connection with the Chapter 11 Cases.
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7.2.6
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Creation and Termination of the Asbestos PI TAC
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The Asbestos PI Trust Advisory Committee shall be established pursuant to the Asbestos PI Trust Agreement. The Asbestos PI TAC shall have four members and shall have the functions, duties and rights provided in the Asbestos PI Trust Agreement. On or before the Confirmation Date, the initial members of the Asbestos PI TAC shall be selected by the Asbestos
PI Committee. Upon termination of the Asbestos PI Trust, the Asbestos PI TAC shall be deemed dissolved and the Asbestos PI TAC shall be released and discharged of and from all further authority, duties, responsibilities and obligations relating to or arising from or in connection with the Chapter 11 Cases.
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7.2.7
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Cooperation Agreement
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On the Effective Date, the Reorganized Debtors and the Asbestos PI Trust shall enter into a cooperation agreement substantially in the form included as Exhibit 10 in the Exhibit Book.
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7.2.8
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Institution and Maintenance of Legal and other Proceedings
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As of the Effective Date, without any further action of the Court or any Entity, the Asbestos PI Trust shall be empowered to initiate, prosecute, defend, and resolve all legal actions and other proceedings related to any asset, liability, or responsibility of the Asbestos PI Trust, including the Asbestos PI Trust Causes of Action.
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7.2.9
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Authority of Asbestos PI Trust to Extend Asbestos PI Channeling Injunction to Asbestos Insurance Entities After the Effective Date
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From and after the Effective Date, the Asbestos PI Trust may, at any time, in its sole and absolute discretion, move the District Court to extend the Asbestos PI Channeling Injunction to any Asbestos Insurance Entity, for good cause shown, after notice and a hearing (within the meaning of section 102(1) of the Bankruptcy Code). Such motion shall be served in accordance with Section 11.12 of the Plan and upon the parties entitled to notice pursuant to applicable order(s) of the Court (including any such order(s) issued after the Effective Date), and shall disclose, to the extent necessary, the terms of any Asbestos Insurance Settlement Agreement with respect to such Asbestos Insurance Entity.
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7.3
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THE ASBESTOS PD TRUST
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7.3.1
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Creation of the Asbestos PD Trust
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Upon the entry of the Confirmation Order, effective as of the Effective Date, the Asbestos PD Trust shall be created pursuant to section 524(g) of the Bankruptcy Code and in accordance with the Plan Documents. The Asbestos PD Trust shall be a “qualified settlement fund” for federal income tax purposes within the meaning of the treasury regulations issued pursuant to section 468B of the IRC.
The purpose of the Asbestos PD Trust shall be to, among other things, (i) assume the liabilities of the Debtors with respect to all Asbestos PD Claims, (ii) pay and satisfy all Allowed Asbestos PD Claims in Class 7A in accordance, as applicable, with this Plan, the Asbestos PD Trust Agreement, the PD Settlement Agreements, the Class 7A CMO, and Final Orders determining the Allowed Amount of such Asbestos PD Claims pursuant to the Class 7A CMO in such a way that provides reasonable assurance that the Asbestos PD Trust will value, and be in a financial position to pay, present and future Asbestos PD Claims in Class 7A (including
Demands, if any, that involve similar claims) in substantially the same manner and to otherwise comply with Bankruptcy Code § 524(g)(2)(B)(i); (iii) pay and satisfy all US ZAI PD Claims in Class 7B in accordance, as applicable, with this Plan, the Asbestos PD Trust Agreement and the ZAI TDP in such a way that provides reasonable assurance that the Asbestos PD Trust will value, and be in a financial position to pay, present and future US ZAI PD Claims in Class 7B (including Demands, if any, that involve similar claims) in substantially the same manner and to otherwise comply with Bankruptcy Code § 524(g)(2)(B)(i); (iv) preserve, hold, manage, and maximize the assets of the Asbestos PD Trust for use in paying and satisfying Asbestos PD Claims entitled to payment; (v) qualify at all times as a “qualified settlement fund” for federal income tax purposes within the meaning of the treasury regulations issued pursuant to section 468B of the IRC; and (vi) otherwise carry out the provisions of the Asbestos PD Trust Agreement, the ZAI TDP, and any other agreements into which the Asbestos PD Trustees have entered or will enter in connection with this Plan.
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7.3.2
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Funding of the Asbestos PD Trust
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(a)
On the Effective Date, Cryovac, Inc. shall transfer directly to the Asbestos PD Trust its share of the amount of the Class 7A Initial Payment and Fresenius shall transfer directly to the Asbestos PD Trust its share of the amount of the Class 7A Initial Payment. The Class 7A Initial Payment shall remain segregated from (i) the Class 7B Initial Payment pursuant to the terms of the Asbestos PD Trust Agreement and (ii) any payments made to the Asbestos PD Trust on account of CDN ZAI PD Claims.
(b)
On the Effective Date, the Asbestos PD Trust shall assume, or shall be deemed to have assumed, the PD Settlement Agreements and shall immediately reserve and segregate from the Class 7A Initial Payment all amounts required to be paid upon the occurrence of the Effective Date pursuant to PD Settlement Agreements that require such payment, and shall provide for the payment of such amounts in the manner and at the time set forth in such PD Settlement Agreements.
(c)
On the Effective Date, Cryovac, Inc. shall transfer directly to the Asbestos PD Trust its share of the amount of the Class 7B Initial Payment and Fresenius shall transfer directly to the Asbestos PD Trust its share of the amount of the Class 7B Initial Payment. The Class 7B Initial Payment shall remain segregated from (i) the Class 7A Initial Payment pursuant to the terms of the Asbestos PD Trust Agreement and (ii) any payments made to the Asbestos PD Trust on account of CDN ZAI PD Claims.
(d)
On the Effective Date, Grace-Conn or Parent shall, on behalf of the Reorganized Debtors and the Non-Debtor Affiliates, transfer to the Asbestos PD Trust all funds as set forth in the CDN ZAI Minutes of Settlement. The Asbestos PD Trust shall immediately transfer the amounts set forth in the CDN ZAI Minutes of Settlement to the CDN ZAI PD Claims Fund to be used in the manner set forth in the CDN ZAI Minutes of Settlement. In no event shall the Asbestos PD Initial Payment (or any portion thereof) be transferred to the CDN ZAI PD Claims Fund.
(e)
After the Effective Date, Grace-Conn or Parent shall, on behalf of the Reorganized Debtors and the Non-Debtor Affiliates, transfer to the Asbestos PD Trust all funds as set forth in the Class 7A Asbestos PD Deferred Payment Agreement and the Class 7B Asbestos PD Deferred Payment Agreement. Funds transferred pursuant to the Class 7A Asbestos PD Deferred Payment Agreement shall remain segregated from funds transferred pursuant to the Class 7B Asbestos PD Deferred Payment Agreement pursuant to the terms of the Asbestos PD Trust Agreement.
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7.3.3
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Transfer of Claims and Demands to the Asbestos PD Trust
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On the Effective Date, without any further action of any Entity, all liabilities, obligations,
and responsibilities of any Asbestos Protected Party with respect to all Asbestos PD Claims shall
be channeled to and assumed by the Asbestos PD Trust.
This Section 7.3.3 is intended to further effect the Asbestos PD Channeling Injunction described in Section 8.3 of the Plan, and the discharge described in Section 8.1 of this Plan. This Section 7.3.3 is not intended to, and it shall not, serve as a waiver of any defense to any claim the Debtors, the Asbestos PD Trust or any other Asbestos Protected Party would otherwise have.
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7.3.4
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Assignment and Enforcement of Asbestos PD Trust Causes of Action
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On the Effective Date, by virtue of the confirmation of this Plan, without further notice, action, or deed, the Asbestos PD Trust Causes of Action shall be automatically transferred and assigned to, and indefeasibly vested in, the Asbestos PD Trust, and the Asbestos PD Trust shall thereby become the estate representative pursuant to § 1123(b)(3)(B) of the Bankruptcy Code with respect to the Asbestos PD Trust Causes of Action, with the exclusive right to enforce the Asbestos PD Trust Causes of Action, against any Entity, except those related to Claims and Demands in Class 7A, which shall be enforced by the Reorganized Debtors on behalf of the Asbestos PD Trust, and the proceeds of the recoveries of such Asbestos PD Trust Causes of Action shall be deposited in and shall become the property of the Asbestos PD Trust;
provided, however
, that nothing herein shall alter, amend or modify the injunctions and/or releases provided under this Plan including the Asbestos PD Channeling Injunction, the Asbestos PI Channeling Injunction, the Successor Claims Injunction, and the Asbestos Insurance Entity Injunction.
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7.3.5
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Appointment and Termination of Asbestos PD Trustees
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The initial Class 7A Trustee (as defined in the Asbestos PD Trust Agreement) of the Asbestos PD Trust shall be the person identified in the Asbestos PD Trust Agreement, and the initial Class 7B Trustee (as defined in the Asbestos PD Trust Agreement) of the Asbestos PD Trust shall be the person identified in the Asbestos PD Trust Agreement. Their functions are set forth more fully in the Asbestos PD Trust Agreement. All successor Asbestos PD Trustees shall be appointed in accordance with the terms of the Asbestos PD Trust Agreement. Upon termination of the Asbestos PD Trust, the Asbestos PD Trustees’ employment shall be deemed terminated and the Asbestos PD Trustees shall be released and discharged of and from all further authority, duties, responsibilities and obligations relating to or arising from or in connection with the Chapter 11 Cases.
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7.3.6
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Creation and Termination of the Zonolite Attic Insulation TAC
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The Zonolite Attic Insulation Trust Advisory Committee or ZTAC shall be established pursuant to the Asbestos PD Trust Agreement. The ZTAC shall have three members that will have the functions, duties and rights provided in the Asbestos PD Trust Agreement, and ZAI TDP. Initial members of the ZTAC shall be those three individuals named in the Asbestos PD Trust Agreement and the ZAI TDP. Upon termination of the Asbestos PD Trust, the ZTAC shall be deemed dissolved and the ZTAC shall be released and discharged of and from all further authority, duties, responsibilities and obligations relating to or arising from or in connection with the Chapter 11 Cases.
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7.4
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PAYMENTS AND DISTRIBUTIONS UNDER THIS PLAN
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7.4.1
Asbestos PI Trust Payments, Asbestos PD Trust Payments and Plan Distributions
Payments to Holders of Asbestos PI Claims shall be made by the Asbestos PI Trust in accordance with the Asbestos PI Trust Agreement and the Asbestos PI TDP. Payments to Holders of Asbestos PD Claims shall be made by the Asbestos PD Trust as and when due in accordance with the Asbestos PD Trust Agreement, PD Settlement Agreements, the Class 7A CMO, any Final Orders of the Bankruptcy Court allowing Claims in Class 7A, and the ZAI TDP for Claims in Class 7B. Payments to Holders of CDN ZAI PD Claims shall be made pursuant to the CDN ZAI Minutes of Settlement by the CDN ZAI PD Claims Fund. All other Distributions or payments required or permitted to be made under this Plan (other than to Professionals) shall be made by the Reorganized Debtors or, in their discretion, a disbursing agent employed by the Reorganized Debtors, in accordance with the treatment specified for each such Holder as specified herein (unless otherwise ordered by the Bankruptcy Court). Distributions to be made on the Effective Date, the Initial Tax Distribution Date or the Quarterly Tax Distribution Date shall be deemed actually made on such distribution date if made either (i) on the Effective Date, the Initial Tax Distribution Date or the Quarterly Tax Distribution Date or (ii) as soon as practicable thereafter, but not more than 10 days thereafter;
provided, however,
that Distributions and transfers to the Asbestos PI Trust of the Asbestos PI Trust Assets shall be made on the Effective Date, and Distributions and transfers to the Asbestos PD Trust of the Asbestos PD Trust Assets and the funds set forth in the CDN ZAI Minutes of Settlement payable to the CDN ZAI PD Claims Fund shall be made on the Effective Date. Distributions to be made on the date that a Plan Claim becomes an Allowed Claim, rather than on the Effective Date, shall be deemed actually made on such date if made on or before the Post-Effective Distribution Date with respect to such Claim. Notwithstanding that Distributions to Allowed Claims may be deemed made on the date that a Plan Claim becomes an Allowed Claim as per the preceding sentence, nothing in this Section shall modify the calculation of post-petition interest through the date of payment for General Unsecured Claims that become Allowed General Unsecured Claims after the Effective Date as set forth in Section 3.1.9(b) of the Plan. Except as otherwise provided herein, Professionals shall be paid pursuant to orders of the Bankruptcy Court.
Under no circumstances shall any fractional shares of Sealed Air Common Stock be transferred pursuant to the Asbestos PI Trust Agreement such that any Entity shall be the transferee of less than one thousand shares of Sealed Air Common Stock,
provided, however
, that in no event shall the Asbestos PI Trust incur any costs or expenses associated with such one thousand share limitation.
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7.4.2
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Timing of Plan Distributions
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Whenever any Distribution to be made under this Plan shall be due on a day other than a Business Day, such Distribution shall instead be made, without the accrual of any additional interest (if interest is accruing pursuant to this Plan), on the immediately succeeding Business Day, but shall be deemed to have been made on the date due.
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7.5
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DELIVERY OF DISTRIBUTIONS AND UNDELIVERABLE OR UNCLAIMED DISTRIBUTIONS.
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7.5.1
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Delivery by the Reorganized Debtors of Distributions in General
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Payments by the Asbestos PI Trust to Holders of Asbestos PI Claims shall be made in accordance with the Asbestos PI Trust Agreement and the Asbestos PI TDP. Payments to Holders of Asbestos PD Claims shall be made by the Asbestos PD Trust as and when due in accordance with the Asbestos PD Trust Agreement, PD Settlement Agreements, any Final Orders of the Bankruptcy Court allowing Claims in Class 7A, and the ZAI TDP for Claims in Class 7B. Payments to Holders of CDN ZAI PD Claims shall be made by the CDN ZAI PD Claims Fund in accordance with the procedures set forth in the CDN ZAI Minutes of Settlement. All Distributions to Holders of Allowed Claims shall be made at the address of the Holder of such Allowed Claim as set forth on the Schedules, unless superseded by a new address set forth
(i)
on a proof of claim Filed by a Holder of an Allowed Claim, (ii) in another writing notifying the Reorganized Debtors of a change of address prior to the date of Distribution, or (iii) in a request for payment of an Administrative Expense Claim.
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7.5.2
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Undeliverable Distributions by the Reorganized Debtors
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Any Cash, assets, and other properties to be distributed by the Reorganized Debtors under this Plan to Holders of Plan Claims, other than Asbestos PI Claims and Asbestos PD Claims, that remain unclaimed (including by an Entity’s failure to negotiate a check issued to such Entity) or otherwise not deliverable to the Entity entitled thereto one year after Distribution shall become vested in, and shall be transferred and delivered to, the Reorganized Debtors. In such event, such Entity’s Plan Claim shall no longer be deemed to be Allowed or payable by the Reorganized Debtors, and such Entity shall be deemed to have waived its rights to such payments or Distributions under this Plan pursuant to Bankruptcy Code § 1143, shall have no further Claim in respect of such Distribution, and shall not participate in any further Distributions under this Plan with respect to such Claim.
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7.6
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PAYMENTS UNDER THIS PLAN
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7.6.1
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Manner of Cash Payments under this Plan
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Unless the Entity receiving a Distribution or payment agrees otherwise, any such Distribution or payment to be made by the Reorganized Debtors, the Asbestos PI Trust, or the Asbestos PD Trust in Cash shall be made, at the election of the Reorganized Debtors, the Asbestos PI Trust, or the Asbestos PD Trust as applicable, by check drawn on a domestic bank or by wire transfer from a domestic bank;
provided, however,
that Distributions of Cash to the Asbestos PI Trust and the Asbestos PD Trust shall be by wire transfer.
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7.6.2
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Fractional Payments under this Plan
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Notwithstanding any other provision of this Plan, payments of fractions of dollars or of fractional shares shall not be made. Whenever, under this Plan, any payment of a fraction of a dollar or a fractional share of Parent Common Stock would otherwise be called for, the actual payment made shall reflect a rounding of such fraction to the nearest whole dollar or nearest whole share of Parent Common Stock, as applicable, (up or down), with half dollars or half shares being rounded up.
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7.7
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CONDITIONS TO OCCURRENCE OF THE CONFIRMATION DATE
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The Court shall have made the following findings of fact, conclusions of law, orders, and/or decrees among others, substantially to the effect as follows, in connection with the confirmation of this Plan, each of which shall be expressly set forth in the Confirmation Order:
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(a)
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The Plan satisfies all applicable sections of the Bankruptcy Code, including Bankruptcy Code § 524(g);
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(b)
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Claimants in Classes 6, 7 (including both sub-classes 7A and 7B), and 8 have voted to accept the Plan in the requisite numbers and amounts required by Bankruptcy Code §§ 524(g), 1126, and 1129;
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(c)
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As of the Petition Date, the Debtors have been named as defendants in personal injury, wrongful death, and property damage actions seeking recovery for damages allegedly caused by the presence of, or exposure to, asbestos or asbestos-containing products;
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(d)
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Effective as of the Effective Date, the Asbestos PI Trust shall be created and the Asbestos PD Trust shall be created pursuant to Bankruptcy Code
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§ 524(g) and in accordance with the Plan Documents;
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(e)
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The Asbestos PI Trust and the Asbestos PD Trust shall be “qualified settlement funds” for federal income tax purposes within the meaning of the treasury regulations issued pursuant to section 468B of the IRC and shall be subject to the continuing jurisdiction of the Bankruptcy Court;
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(f)
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On the Effective Date, the Asbestos PI Trust shall assume the liabilities of the Debtors with respect to all Asbestos PI Claims, the Asbestos PD Trust shall assume the liabilities of the Debtors with respect to all Asbestos PD Claims, and the CDN ZAI PD Claims Fund contemplated by the CDN ZAI Minutes of Settlement shall assume the liabilities of the Debtors with respect to all CDN ZAI PD Claims;
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(g)
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The Asbestos PI Trust and the Asbestos PD Trust are to be funded in part by securities of the Reorganized Parent and by the obligations of the Reorganized Parent to make future payments, including dividends;
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(h)
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The Asbestos PI Trust and the Asbestos PD Trust are to own, or by the exercise of rights granted under the Plan would be entitled to own if specified contingencies occur, a majority of the voting shares of the Reorganized Parent;
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(i)
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The Asbestos PI Trust is to use the Asbestos PI Trust Assets to pay Asbestos PI Claims (including Demands) and Asbestos PI Trust Expenses, and the Asbestos PD Trust is to use the Asbestos PD Trust Assets to pay Asbestos PD Claims (including Demands, if any) and Asbestos PD Trust Expenses, and the CDN ZAI PD Claims Fund is to use the funds identified in the CDN ZAI Minutes of Settlement to pay CDN ZAI PD Claims and the expenses outlined in the CDN ZAI Minutes of Settlement;
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(j)
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The Debtors are likely to be subject to substantial future Demands for payment arising out of the same or similar conduct or events that gave rise to the Asbestos PI Claims, which Demands are addressed by the Asbestos PI Channeling Injunction, and the Debtors are likely to be subject to substantial future Demands for payment arising out of the same or similar conduct or events that gave rise to the Asbestos PD Claims, which Demands, if any, are addressed by the Asbestos PD Channeling Injunction;
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(k)
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The actual amounts, numbers, and timing of such future Demands cannot be determined;
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(l)
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Pursuit of such Demands outside the procedures prescribed by the Plan is likely to threaten the Plan’s purpose to deal equitably with the Asbestos PI Claims, the Asbestos PD Claims, and the CDN ZAI PD Claims;
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(m)
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The terms of the Asbestos PI Channeling Injunction, the Asbestos PD Channeling Injunction, the Successor Claims Injunction, and the Asbestos Insurance Entity Injunction, and any provisions barring actions against third parties, are set out in the Plan and the Disclosure Statement, and each of the Plan and the Disclosure Statement adequately describes such injunctions and provisions (and the acts and entities to which they apply)
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in specific and conspicuous language in accordance with the requirements of Bankruptcy Rule 3016(c));
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(n)
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Pursuant to Court orders or otherwise, the Asbestos PI Trust, the Asbestos PD Trust, and CDN ZAI PD Claims Fund shall operate through mechanisms such as structured, periodic, or supplemental payments, pro rata distributions, matrices, or periodic review of estimates of the numbers and values of (1) Asbestos PI Claims (including Demands) in the case of the Asbestos PI Trust, (2) Asbestos PD Claims (including Demands, if any) in the case of the Asbestos PD Trust, or (3) CDN ZAI PD Claims (including Demands, if any) in the case of the CDN ZAI PD Claims Fund, or other comparable mechanisms that provide reasonable assurance that the Asbestos PI Trust shall value, and be in a financial position to pay, Asbestos PI Claims (including Demands that involve similar claims) in substantially the same manner, that the Asbestos PD Trust shall value, and be in a financial position to pay Asbestos PD Claims (including Demands, if any, that involve similar claims) in substantially the same manner, and that the CDN ZAI PD Claims Fund shall value, and be in a financial position to pay CDN ZAI PD Claims (including Demands, if any, that involve similar claims) in substantially the same manner;
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(o)
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The Asbestos PI FCR has been appointed by the Bankruptcy Court as part of the proceedings leading to the issuance of the Asbestos PI Channeling Injunction for the purpose of, among other things, protecting the rights of Entities that might subsequently assert Demands of the kind that are addressed in the Asbestos PI Channeling Injunction and transferred to the Asbestos PI Trust;
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(p)
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The Asbestos PD FCR has been appointed by the Bankruptcy Court as part of the proceedings leading to the issuance of the Asbestos PD Channeling Injunction for the purpose of, among other things, protecting the rights of Entities that might subsequently assert Demands, if any, of the kind that are addressed in the Asbestos PD Channeling Injunction and transferred to the Asbestos PD Trust;
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(q)
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CCAA Representative Counsel has been appointed by the Canadian Court as part of proceedings leading to the issuance of the Asbestos PD Channeling Injunction for the purpose of, among other things, protecting the rights of Entities that might subsequently assert Demands, if any, of the kind that are addressed in the Asbestos PD Channeling Injunction and transferred to the CDN ZAI PD Claims Fund;
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(r)
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The Court has jurisdiction over each of the Claims, SA Claims, Grace- Related Claims, and Demands that is subject to any of (i) the Asbestos PI Channeling Injunction described in Section 8.2 of the Plan, (ii) the Asbestos PD Channeling Injunction described in Section 8.3 of the Plan,
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(iii) the Successor Claims Injunction described in Section 8.5 of the Plan, and (iv) the releases described in the Plan;
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(s)
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In light of the benefits provided, or to be provided, to the Asbestos PI Trust and the Asbestos PD Trust by, or on behalf of, each Asbestos Protected Party (including the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties), (i) the Asbestos PI Channeling Injunction is fair and equitable (including with respect to the Entities that might subsequently assert Demands against any Asbestos Protected Party) and is supported by reasonable consideration, (ii) the Asbestos PD Channeling Injunction is fair and equitable (including with respect to the Entities that might subsequently assert Demands, if any, against any Asbestos Protected Party) and is supported by reasonable consideration, (iii) the Successor Claims Injunction is fair and equitable and is supported by reasonable consideration, and (iv) the releases in favor of the Asbestos Protected Parties described in the Plan are fair and equitable and are supported by reasonable consideration;
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(t)
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The Asbestos PI Channeling Injunction, the Asbestos PD Channeling Injunction, the Successor Claims Injunction, the Asbestos Insurance Entity Injunction, and the releases in favor of the Asbestos Protected Parties described in the Plan are to be implemented and granted in connection with the Plan and the Plan Documents;
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(u)
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The Asbestos PI Channeling Injunction, the Asbestos PD Channeling Injunction, the Successor Claims Injunction, and the releases in favor of the Asbestos Protected Parties described in the Plan (i) are essential to the Debtors’ reorganization efforts and the feasibility of the Plan, (ii) provide necessary funding to the Plan that otherwise would be unavailable absent the injunctions and releases, (iii) are necessary to induce the Asbestos Protected Parties (including Sealed Air and Fresenius) to enter into the settlements and agreements described in the Plan and to otherwise settle their disputes, and (iv) are necessary to resolve finally all claims of the Debtors, the Non-Debtor Affiliates, and the Debtors’ creditors against the other Asbestos Protected Parties (including the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties);
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(v)
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An identity of interests exists among the Debtors and the Asbestos Protected Parties such that an Asbestos PI Claim (including a Successor Claim based upon an Asbestos PI Claim and/or a Successor Claim based on or arising from, in whole or in part, directly or indirectly, the Cryovac Transaction or the Fresenius Transaction) asserted against any of the Asbestos Protected Parties gives rise to a Claim against the Debtors, including by the operation of the law of indemnity (contractual or otherwise) and/or contribution; and an Asbestos PD Claim or CDN ZAI PD Claim (including a Successor Claim based upon an Asbestos PD Claim or CDN ZAI PD Claim and/or a Successor Claim based on or
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arising from, in whole or in part, directly or indirectly, the Cryovac Transaction or the Fresenius Transaction) asserted against any of the Asbestos Protected Parties gives rise to a Claim against the Debtors, including by the operation of the law of indemnity (contractual or otherwise) and/or contribution;
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(w)
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The Sealed Air Settlement Agreement is essential and integral to the Plan, and the payment of the Cryovac Payment to the Asbestos PI Trust and the Asbestos PD Trust in accordance with the Sealed Air Settlement Agreement and the terms of the Plan, together with the other Asbestos PI Trust Assets and the Asbestos PD Trust Assets to be transferred to the Asbestos PI Trust and the Asbestos PD Trust, respectively, pursuant to the Plan, constitute both (i) substantial assets of the Plan and the reorganization, and (ii) a fair, reasonable, and equitable settlement of all claims, potential claims, and Demands against the Asbestos Protected Parties (including, with respect to the Sealed Air Indemnified Parties, all Asbestos-Related Claims and any other claims, potential claims, and Demands for which the Sealed Air Settlement Agreement contemplates a release or injunction in favor of the Sealed Air Indemnified Parties) that are subject to the injunctions and releases described in the Plan, and the only unsatisfied conditions precedent to payment of the Cryovac Payment are the satisfaction or waiver of the conditions to the Effective Date in accordance with Section 7.8 of this Plan;
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(x)
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The Fresenius Settlement Agreement is essential and integral to the Plan, and the payment of the Fresenius Payment to the Asbestos PI Trust and the Asbestos PD Trust in accordance with the Plan, together with the other Asbestos PI Trust Assets to be transferred to the Asbestos PI Trust pursuant to the Plan, constitute both (i) substantial assets of the Plan and the reorganization, and (ii) a fair, reasonable, and equitable settlement of all claims, potential claims, and Demands against the Asbestos Protected Parties (including, with respect to the Fresenius Indemnified Parties, the Grace-Related Claims, all Asbestos-Related Claims and Demands related thereto and any other claims, potential claims, and Demands for which the Fresenius Settlement Agreement contemplates a release or injunction in favor of the Fresenius Indemnified Parties) that are subject to the injunctions and releases described in the Plan, and the only unsatisfied conditions to payment of the Fresenius Payment are the satisfaction or waiver of the conditions to the Effective Date in accordance with Section
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7.8 of this Plan;
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(y)
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The SA Debtors, the Plaintiffs, and the SA Non-Debtor Affiliates understand and agree, and the Court so finds, that Sealed Air has entered into the Sealed Air Settlement Agreement in order to settle, release, extinguish, and terminate fully, finally, and forever any and all further controversy respecting any and all Asbestos-Related Claims and any and all Demands related thereto against the Sealed Air Indemnified Parties.
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The SA Debtors, the Plaintiffs, and the SA Non-Debtor Affiliates have acknowledged and agreed that this provision is an essential and material term of the Sealed Air Settlement Agreement and the compromise settlement leading to the Sealed Air Settlement Agreement, and that, without such provision, neither Sealed Air Corporation nor Cryovac, Inc. would have executed the Sealed Air Settlement Agreement and the compromise settlement would not have been accomplished;
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(z)
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The Debtors, the Plaintiffs, and the Non-Debtor Affiliates understand and agree, and the Court so finds, that Fresenius has entered into the Fresenius Settlement Agreement in order to settle, release, extinguish, and terminate fully, finally, and forever any and all further controversy respecting any and all Asbestos-Related Claims against the Fresenius Indemnified Parties. The Debtors, the Plaintiffs, and the Non-Debtor Affiliates have acknowledged and agreed that this provision is an essential and material term of the Fresenius Settlement Agreement, and that, without such provision, Fresenius would not have executed the Fresenius Settlement Agreement and the compromise settlement would not have been accomplished;
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(aa)
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The settlements, compromises, releases, and injunctions in favor of the Asbestos Protected Parties described in the Plan (including those described in the Sealed Air Settlement Agreement and the Fresenius Settlement Agreement) are approved in all respects;
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(bb)
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In approving the settlements, compromises, releases, and injunctions with respect to the Asbestos Protected Parties (including the Sealed Air Settlement Agreement and the Fresenius Settlement Agreement, and the releases and injunctions in favor of the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties), the Court has considered, among other things: (i) the nature of the claims asserted or potentially asserted by the Debtors, the Non-Debtor Affiliates, the Plaintiffs (on behalf of the Debtors’ creditors, stakeholders, and estates), and/or the Debtors’ creditors against the Asbestos Protected Parties, and the claims asserted or potentially assertable by the Asbestos Protected Parties against the Debtors and the Non-Debtor Affiliates, (ii) the balance of the likelihood of success of claims which might be asserted by the Debtors or other claimants against the Asbestos Protected Parties against the likelihood of success of the defenses or counterclaims possessed by the Asbestos Protected Parties, (iii) the complexity, cost, and delay of litigation that would result in the absence of these settlements, compromises, releases, and injunctions, (iv) the lack of objections by, or the overruling of objections of any creditor or party-in-interest to the settlements, compromises, releases and injunctions, (v) that the Asbestos PI Claims will be channeled to the Asbestos PI Trust rather than extinguished, (vi) that the Estate Parties and the Asbestos PI Trust will receive substantial consideration from the Asbestos Protected Parties described in the Plan,
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76
(vii)
that the Asbestos PD Claims will be channeled to the Asbestos PD Trust rather than extinguished, and the CDN ZAI PD Claims will be channeled to the CDN ZAI PD Claims Fund rather than extinguished,
(viii)
that the Estate Parties and the Asbestos PD Trust will receive substantial consideration from or on behalf of the Asbestos Protected Parties described in the Plan, (ix) that the Asbestos Protected Parties that will benefit from the releases and injunctions share an identity of interest with the Debtors, (x) that the enjoined claims against the Asbestos Protected Parties would otherwise indirectly impact the Debtors’ reorganization by way of indemnity or contribution, and (xi) the Plan and the settlements, compromises, releases, and injunctions described in the Plan are the product of extensive arms’ length negotiations among the Debtors, the Asbestos PI Committee, the Asbestos PI FCR, the Asbestos PD FCR, and the Asbestos Protected Parties, among others;
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(cc)
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As of the Effective Date, the Reorganized Debtors will have the ability to pay and satisfy in the ordinary course of business their respective obligations and liabilities, including any and all indemnification obligations to the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties with respect to present and future Asbestos-Related Claims and Demands related thereto, SA Indemnified Taxes, Fresenius Indemnified Taxes, and all other obligations set forth in the Fresenius Settlement Agreement and the Sealed Air Settlement Agreement;
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(dd)
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Upon the transfer of the Sealed Air Common Stock to the Asbestos PI Trust, the Asbestos PI Trustees shall represent and warrant to and agree with (on behalf of the Asbestos PI Trust) Sealed Air, that the Asbestos PI Trust is acquiring the Sealed Air Common Stock for its own account for investment and not with a view toward distribution in a manner which would violate the Securities Act and the Asbestos PI Trust and its transferees will comply with all filing and other reporting obligations under all applicable laws which shall be applicable to such Asbestos PI Trust with respect to the Sealed Air Common Stock;
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(ee)
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On or before the Effective Date, (i) the SA Debtors, the Asbestos PD Committee, and the Asbestos PI Committee shall have executed and delivered the “Release” (as defined in the Sealed Air Settlement Agreement), (ii) the “Government Plaintiff” (as defined in the Sealed Air Settlement Agreement) shall have executed and delivered the “Government Release” (as defined in the Sealed Air Settlement Agreement), and (iii) the Asbestos PI Committee and the Asbestos PD Committee shall have delivered the “Fresenius Release” (as defined in the Sealed Air Settlement Agreement), all as provided for in the Sealed Air Settlement Agreement. In addition, in consideration for the Cryovac Payment, (i) each of the SA Non-Debtor Affiliates shall irrevocably release, acquit, and forever discharge the Sealed Air Indemnified Parties from any and all (A) present and future Asbestos-Related Claims and
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77
Demands relating thereto and (B) present and future SA Claims, Canadian Claims, SA Debts, and SA Damages on the basis of, arising from, or attributable to (in whole or in part, directly or indirectly) the Fresenius Transaction that have accrued or been asserted or that hereafter might accrue or be asserted against the Sealed Air Indemnified Parties and (ii) each SA Non-Debtor Affiliate shall not institute, participate in, maintain, maintain a right to or assert against the Sealed Air Indemnified Parties, either directly or indirectly, on its own behalf, derivatively, or on behalf of any other Entity, any and all present and future Asbestos-Related Claims and/or Demands relating thereto, and any and all present and future SA Claims, Canadian Claims, SA Debts, and SA Damages on the basis of, arising from, or attributable to (in whole or in part, directly or indirectly) the Fresenius Transaction;
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(ff)
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The Asbestos Protected Parties shall receive the full benefit of the Asbestos PI Channeling Injunction and the Asbestos PD Channeling Injunction under Bankruptcy Code § 524(g) and the Successor Claims Injunction under Bankruptcy Code § 105(a), which Asbestos PI Channeling Injunction, Asbestos PD Channeling Injunction, and Successor Claims Injunction (1) shall be in form and substance reasonably acceptable to Sealed Air Corporation, Cryovac Inc., and Fresenius, and (2) as applicable, include provisions enjoining any and all Entities from taking any and all legal or other actions (including the continued prosecution of pending “Actions” or the commencement of future “Actions” as such term is used in paragraph II(c)(vi) of the Sealed Air Settlement Agreement) or making any Demand for the purpose of, directly or indirectly, claiming, collecting, recovering, or receiving any payment, recovery, or any other relief whatsoever from any and all of the Asbestos Protected Parties with respect to any and all Asbestos PI Claims, Asbestos PD Claims, CDN ZAI PD Claims, and/or Successor Claims based on or arising from, in whole or in part, directly or indirectly, the Cryovac Transaction or the Fresenius Transaction;
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(gg)
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Each of the SA Debtors and the Plaintiffs have acknowledged and agreed that the Sealed Air Common Stock to be transferred to the Asbestos PI Trust has not been and, upon delivery of such Sealed Air Common Stock to the Asbestos PI Trust, shall not be registered under the Securities Act and that the certificates for such Sealed Air Common Stock shall bear a legend to that effect. Each of the SA Debtors and the Plaintiffs understand and have acknowledged that any transfer by Cryovac, Inc. of Sealed Air Common Stock to the Asbestos PI Trust is being made pursuant to an exemption from registration contained in the Securities Act based in part upon the foregoing representation and the representations contained in the Sealed Air Settlement Agreement;
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(hh)
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The SA Debtors shall, jointly and severally, at their sole expense, indemnify, defend, and hold harmless the Sealed Air Indemnified Parties
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78
from and against (1) any and all present and future Asbestos-Related Claims and Demands related thereto and all SA Indemnified Taxes, (2) any and all losses costs, and expenses incurred as a result of any breach of any of the SA Debtors’ or SA Non-Debtor Affiliates’ obligations, covenants, and agreements set forth or referred to in the Sealed Air Settlement Agreement, including any such obligation, covenant, or agreement of any SA Debtors or SA Non-Debtor Affiliates set forth in the Plan or Confirmation Order, (3) if any SA Non-Debtor Affiliate has not executed and delivered a “Release” (as defined in the Sealed Air Settlement Agreement), any and all Asbestos-Related Claims and Demands related thereto based on, arising out of, or attributable to, directly or indirectly, in whole or in part, such SA Non-Debtor Affiliate and (4) any and all attorneys’ fees or costs and expenses attributable to any “SA Indemnity Claim” (as defined below), provided, however, that in each case such indemnification shall not apply to “Excluded Fees” (as defined in the Sealed Air Settlement Agreement) such indemnity obligations, collectively, the “SA Debtors’ Indemnity Obligation”; and any and all SA Claims, SA Debts, or SA Damages that could be asserted by any of the Sealed Air Indemnified Parties under the SA Debtors’ Indemnity Obligation, the “SA Indemnity Claims”), and provided, further, that nothing in the Sealed Air Settlement Agreement shall adversely affect any rights of any Entity to file and pursue, or object to, a proof of claim for “Excluded Fees” (as defined in the Sealed Air Settlement Agreement) in the Chapter 11 Cases;
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(ii)
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Each SA Debtor shall execute and deliver an indemnity agreement in favor of the Sealed Air Indemnified Parties in the form annexed as Exhibit 6 to the Sealed Air Settlement Agreement;
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(jj)
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The SA Debtors’ Indemnity Obligation (and the obligations, covenants, and agreements of each of the SA Debtors and SA Non-Debtor Affiliates set forth or referred to in the Sealed Air Settlement Agreement, including any such obligation, covenant, or agreement of any SA Debtor or SA Non- Debtor Affiliate set forth in the Plan or Confirmation Order) shall not be discharged, expunged, estimated, or otherwise adversely affected in the Chapter 11 Cases or by the confirmation of the Plan;
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(kk)
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The SA Debtors’ Indemnity Obligation (and the obligations, covenants, and agreements of each of the SA Debtors and SA Non-Debtor Affiliates set forth or referred to in the Sealed Air Settlement Agreement, including any such obligation, covenant, or agreement of any SA Debtor or SA Non- Debtor Affiliate set forth in the Plan or Confirmation Order) shall continue unaffected as a post-confirmation obligation of each of the Reorganized Debtors;
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(ll)
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The Debtors, the Asbestos PI Committee, the Asbestos PI FCR, the Asbestos PI TAC, and the Asbestos PI Trustees have (i) promptly
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provided to Cryovac, Inc. and Fresenius all “Material Drafts” (as defined in the Sealed Air Settlement Agreement) of the Asbestos PI Trust Agreement and each related “Trust Document” (as defined in the Sealed Air Settlement Agreement) (but excluding or redacting drafts of the Asbestos PI TDP), and (ii) incorporated promptly (if it was the party drafting such document), or if otherwise, urged the party drafting such document promptly to incorporate, into any such document each provision with respect to the subject matter set forth or referred to in paragraphs II(c)(ix), (x), and (xi), and paragraph VI(g), and clauses (i)(A) through (D) of paragraph VI(c) of the Sealed Air Settlement Agreement that were reasonably requested by Cryovac, Inc. or Fresenius;
(mm) The Debtors, the Asbestos PD Committee, and the Asbestos PD FCR have
(i) promptly provided to Cryovac, Inc. and Fresenius all “Material Drafts” (as defined in the Sealed Air Settlement Agreement) of the Asbestos PD Trust Agreement and each related “Trust Document” (as defined in the Sealed Air Settlement Agreement) (but excluding or redacting drafts of the ZAI TDP), and (ii) incorporated promptly (if it was the party drafting such document), or if otherwise, urged the party drafting such document promptly to incorporate, into any such document each provision with respect to the subject matter set forth or referred to in paragraphs II(c)(ix), (x), and (xi), and paragraph VI(g), and clauses (i)(A) through (D) of paragraph VI(c) of the Sealed Air Settlement Agreement that were reasonably requested by Cryovac, Inc. or Fresenius;
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(nn)
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SA Debtors and SA Non-Debtor Affiliates shall take all actions required or requested by Sealed Air as contemplated in the Sealed Air Settlement Agreement and shall be prohibited from taking any actions prohibited by Sealed Air as provided by the Sealed Air Settlement Agreement with respect to tax matters, including those set forth in Annex I hereto and those set forth in paragraphs II(c)(x), IV, and VI of the Sealed Air Settlement Agreement and those provisions of the Sealed Air Settlement Agreement are incorporated herein as if fully set forth herein and shall likewise be incorporated into the Confirmation Order as if fully set forth therein;
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(oo)
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The Plaintiffs, Asbestos PI Trust and Asbestos PD Trust shall take all actions required or requested by Sealed Air as provided by the Sealed Air Settlement Agreement and shall be prohibited from taking any actions prohibited by Sealed Air as contemplated in the Sealed Air Settlement Agreement with respect to tax matters, including those set forth in Annex II hereto and those set forth in paragraphs II(c)(ix), II(c)(x) and II(c)(xi) of the Sealed Air Settlement Agreement and those provisions of the Sealed Air Settlement Agreement are incorporated herein as if fully set forth and shall likewise be incorporated into the Confirmation Order as if fully set forth therein;
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(pp)
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Each of the SA Debtors acknowledge and agree that (i) to the extent that any SA Debtor is required, pursuant to generally accepted accounting principles, to accrue a liability for asbestos which liabilities are satisfied by Cryovac, Inc. by a transfer made by Cryovac, Inc. directly to the Asbestos PI Trust or Asbestos PD Trust pursuant to this Plan or the Confirmation Order and such SA Debtor is required pursuant to generally accepted accounting principles to reverse such accrual, to the extent that there is more than one methodology under generally accepted accounting principles pursuant to which the SA Debtors are allowed to reverse any such accrual, such SA Debtor shall adopt the methodology, if any, not inconsistent with the provisions of paragraphs VI(b) and VI(g) of the Sealed Air Settlement Agreement, (ii) any payment or transfer by Cryovac, Inc. directly to the Asbestos PI Trust or Asbestos PD Trust shall not be treated, for financial accounting purposes, as resulting in an expense or deduction of any SA Debtor or SA Non-Debtor Affiliate and
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(iii) to the extent that any payment or transfer by Cryovac, Inc. directly to the Asbestos PI Trust or Asbestos PD Trust results, for financial accounting purposes, in income to any SA Debtor, the SA Debtors shall treat such income as income from the cancellation of indebtedness or liabilities of the SA Debtors;
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(qq)
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The Debtors and Estate Parties shall take all actions required or requested by Fresenius as contemplated in the Fresenius Settlement Agreement and be prohibited from taking any actions prohibited by Fresenius as contemplated in the Fresenius Settlement Agreement with respect to tax matters, including those outlined in Article III of the Fresenius Settlement Agreement and those provisions of the Fresenius Settlement Agreement are incorporated herein as if fully set forth and shall likewise be incorporated into the Confirmation Order as if fully set forth therein;
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(rr)
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The 1998 Tax Sharing Agreement shall be an assumed agreement of each of the SA Debtors (including Grace New York and Grace-Conn) pursuant to section 365 of the Bankruptcy Code, and nothing contained in or contemplated by the Sealed Air Settlement Agreement, the Plan, or the Confirmation Order shall adversely affect the rights of the Debtors, Sealed Air Corporation or any of their respective Affiliates under the 1998 Tax Sharing Agreement;
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(ss)
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Upon confirmation, each of the Sealed Air Settlement Agreement, the Sealed Air Settlement Order, the Fresenius Settlement Agreement and the Fresenius Settlement Order shall be in full force and effect;
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(tt)
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Subject to Section 7.7(uu) below, the duties and obligations of the Asbestos Insurance Entities under the Asbestos Insurance Policies, Asbestos Insurance Settlement Agreements, Asbestos In-Place Insurance Coverage, and Asbestos Insurance Reimbursement Agreements are not diminished, reduced or eliminated by (1) the discharge of the obligations
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and liabilities of the Debtors and the Reorganized Debtors for and in respect of all Asbestos PI Claims or (2) the assumption by the Asbestos PI Trust of responsibility and liability for all Asbestos PI Claims;
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(uu)
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As of the Effective Date, the Asbestos Insurance Transfer Agreement shall be a valid and binding obligation of each the parties thereto, shall be in full force and effect and shall be valid and enforceable in accordance with its terms, in each case notwithstanding any anti-assignment provision in or incorporated into any Asbestos Insurance Policy, Asbestos Insurance Settlement Agreement, Asbestos In-Place Insurance Coverage, Asbestos Insurance Reimbursement Agreement, or under applicable non-bankruptcy law;
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(vv)
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As of the Effective Date, each of the Asbestos PI Deferred Payment Agreement, the Class 7A Asbestos PD Deferred Payment Agreement, the Class 7B Asbestos PD Deferred Payment Agreement, the Share Issuance Agreement, the Grace PI Guaranty, the Grace PD Guarantee Agreement for Class 7A, the Grace PD Guarantee Agreement for Class 7B, the Plan Registration Rights Agreement, the Asbestos PI/PD Inter-Creditor Agreement, the Warrant, and the Warrant Agreement shall be a valid and binding obligation of each of the parties thereto and shall be in full force and effect and enforceable in accordance with its terms;
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(ww)
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All Asbestos PI Claims shall be resolved by and channeled to the Asbestos PI Trust, all Asbestos PD Claims shall be resolved by and channeled to the Asbestos PD Trust, and all CDN ZAI PD Claims shall be resolved by and channeled to the CDN ZAI PD Claims Fund in the manner set forth in the CDN ZAI Minutes of Settlement;
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(xx)
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The Court shall have entered a Final Order allowing claims for post- petition interest on account of the General Unsecured Claims arising from the Pre-petition Credit Facilities in amounts that are not in excess of the rates set forth in Section 3.1.9(b) of this Plan;
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(yy) The Canadian Settlement Approval Order shall have been entered; and (zz) As of the Effective Date, pursuant to Section 3.1(a) of the Asbestos PD
Trust Agreement, the Class 7B Trustee (as defined in the Asbestos PD Trust Agreement) shall keep segregated the ZAI Trust Assets (as defined in the Asbestos PD Trust Agreement) from the other Asbestos PD Trust Assets at all times, and no non-US ZAI PD Claim or liability of any kind shall ever be satisfied, either voluntarily or involuntarily, with ZAI Trust Assets.
The Confirmation Order shall be in form and substance acceptable to (a) each of the Plan Proponents, (b) with respect to any and all findings of fact, conclusions of law, orders, decrees, provisions, and terms required to be included in the Confirmation Order by, or relating to, the
Sealed Air Settlement Agreement, Sealed Air (
provided, however
, that any specific findings, conclusions, orders, decrees, provisions, and terms required to be included in the Confirmation Order by the Sealed Air Settlement Agreement shall be included in the Confirmation Order as they appear in the Sealed Air Settlement Agreement) and (c) with respect to any and all findings of fact, conclusions of law, orders, decrees, provisions, and terms required to be included in the Confirmation Order by, or relating to, the Fresenius Settlement Agreement, Fresenius (
provided, however
, that any specific findings, conclusions, orders, decrees, provisions, and terms required to be included in the Confirmation Order by the Fresenius Settlement Agreement shall be included in the Confirmation Order as they appear in the Fresenius Settlement Agreement). This Plan shall not be confirmed and the Confirmation Order shall not be entered until and unless each of the foregoing conditions to confirmation is either satisfied or waived by each of the Plan Proponents with the consent of each of Sealed Air Corporation, Cryovac, Inc., and Fresenius, with the exception of the following: (1) Sections 7.7(w) and (nn) shall be waiveable by each of the Plan Proponents with the consent of each of Sealed Air Corporation and Cryovac, Inc., and without the consent of Fresenius; (2) Sections 7.7(x) and (qq) shall be waiveable by each of the Plan Proponents with the consent of Fresenius and without the consent of Sealed Air; (3) Sections 7.7(tt), (uu), and (vv) shall be waiveable by each of the Plan Proponents without the consent of Sealed Air and Fresenius, and (4) Section 7.7(xx) shall be waiveable only by each of the Debtors and the Equity Committee without the consent of the other Plan Proponents, Sealed Air, and Fresenius.
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7.8
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CONDITIONS TO OCCURRENCE OF THE EFFECTIVE DATE
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The “effective date of the plan,” as used in Bankruptcy Code § 1129, shall not occur, and this Plan shall be of no force and effect, until the Effective Date. The occurrence of the Effective Date is subject to satisfaction of the following conditions precedent:
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(a)
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The Court shall have entered the Confirmation Order granting the Asbestos PI Channeling Injunction, the Asbestos PD Channeling Injunction, the Successor Claims Injunction, and the Asbestos Insurance Entity Injunction to take effect as of the Effective Date, and the Confirmation Order shall have become a Final Order and shall have been a Final Order for a minimum of ten Business Days;
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(b)
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The District Court shall have entered, issued, or affirmed an order(s) approving each of the Asbestos PI Channeling Injunction, the Asbestos Insurance Entity Injunction, the Successor Claims Injunction, the Asbestos PD Channeling Injunction, and all releases in favor of the Asbestos Protected Parties, in its entirety, and such order(s) shall have become Final Orders;
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(c)
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The District Court shall have entered, issued, or affirmed the Confirmation Order, and such order shall have become a Final Order;
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(d)
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The Asbestos PI Channeling Injunction, the Asbestos PD Channeling Injunction, the Successor Claims Injunction, the Asbestos Insurance Entity
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Injunction, and all releases in favor of the Asbestos Protected Parties shall be in full force and effect;
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(e)
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Each of the Plan Documents, including each of the exhibits and attachments to the Sealed Air Settlement Agreement and the Fresenius Settlement Agreement, shall have been (i) executed or otherwise finalized, as the case may be, in a form acceptable to each of the Plan Proponents, Sealed Air, and Fresenius,
provided, however
, that the exhibits and attachments to the Sealed Air Settlement Agreement and the Fresenius Settlement Agreement shall be executed or otherwise finalized in the form attached to the Sealed Air Settlement Agreement and the Fresenius Settlement Agreement (as the case may be), (ii) delivered to Sealed Air and Fresenius, and (iii) where applicable, filed with the appropriate governmental or supervisory authorities;
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(f)
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On or before the Effective Date, (i) the SA Debtors, the Asbestos PD Committee and the Asbestos PI Committee shall have executed and delivered the “Release” (as defined in the Sealed Air Settlement Agreement); (ii) the “Government Plaintiff” (as defined in the Sealed Air Settlement Agreement) shall have executed and delivered the “Government Release” (as defined in the Sealed Air Settlement Agreement); and (iii) the Asbestos PI Committee and the Asbestos PD Committee shall have delivered the “Fresenius Release” (as defined in the Sealed Air Settlement Agreement), all as provided for in the Sealed Air Settlement Agreement. In addition, in consideration for the Cryovac Payment, (i) each of the SA Non-Debtor Affiliates shall irrevocably release, acquit, and forever discharge the Sealed Air Indemnified Parties from any and all (A) present and future Asbestos-Related Claims and/or Demands relating thereto and (B) present and future SA Claims, Canadian Claims, SA Debts, and SA Damages on the basis of, and arising from, or attributable to (in whole or in part, directly or indirectly) the Fresenius Transaction that have accrued or been asserted or that hereafter might accrue or be asserted against the Sealed Air Indemnified Parties, and (ii) each SA Non-Debtor Affiliate shall not institute, participate in, maintain, maintain a right to or assert against the Sealed Air Indemnified Parties, either directly or indirectly, on its own behalf, derivatively, or on behalf of any other Entity, any and all present and future Asbestos-Related Claims and/or Demands relating thereto, and any and all present and future SA Claims, Canadian Claims, SA Debts, and SA Damages on the basis of, arising from, or attributable to (in whole or in part, directly or indirectly) the Fresenius Transaction;
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(g)
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The Certificate of Incorporation of each of the Debtors, as amended in accordance with this Plan, shall have been filed with the secretary of state or equivalent agency of its jurisdiction of incorporation;
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(h)
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The Exit Financing, in an amount and on such terms satisfactory to the Debtors, shall be in full force and effect and available immediately upon the occurrence of the Effective Date and after all necessary parties have executed the documentation relating thereto;
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(i)
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The Debtors shall have obtained either (i) private letter rulings establishing that the Asbestos PI Trust and the Asbestos PD Trust are “qualified settlement funds” pursuant to section 468B of the IRC, or (ii) an opinion of counsel regarding the tax classification of the Asbestos PI Trust satisfactory to the Debtors and the Asbestos PI Trust, and an opinion of counsel regarding the tax classification of the Asbestos PD Trust satisfactory to the Debtors and the Asbestos PD Trust;
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(j)
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The Canadian Order shall have been issued by the Canadian Court and the time for any appeal with respect to the Canadian Order shall have expired and no appeal shall be pending or outstanding;
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(k)
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Each of the Sealed Air Settlement Agreement, the Sealed Air Settlement Order, the Fresenius Settlement Agreement, and the Fresenius Settlement Order shall be in full force and effect and all of the terms and conditions thereunder have been satisfied;
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(l)
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The injunctions, releases, and indemnifications set forth in the Fresenius Settlement Agreement shall be approved and effected through one or more Final Orders subject only to the transfer of the Fresenius Payment;
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(m)
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The Asbestos PI Trust Assets shall have been transferred to the Asbestos PI Trust and the Asbestos PD Trust Assets shall have been transferred to the Asbestos PD Trust;
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(n)
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In addition to the Asbestos PI Trust Assets, the Asbestos PI Trust shall have received from the Parent or other Debtors: (A) an amount in Cash equal to the difference, if any, between (1) five hundred twelve million five hundred thousand dollars ($512,500,000), plus interest thereon from December 21, 2002 until the Effective Date at a rate of 5.5% per annum compounded annually (reduced by the total aggregate amount of Cryovac, Inc.’s transfers to the Asbestos PD Trust as part of the Class 7A Initial Payment and the Class 7B Initial Payment), and (2) the amount of Cash delivered to the Asbestos PI Trust as part of the Cryovac Payment, plus
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(B) the difference, if any, between (i) eighteen million (18,000,000) shares of Sealed Air Common Stock (as adjusted for a two-for-one stock split on March 16, 2007, and subject to further adjustment to the extent provided in the Sealed Air Settlement Agreement) and (ii) the number of such shares delivered to the Asbestos PI Trust as part of the Cryovac Payment. Upon transfer to the Asbestos PI Trust, such assets shall be treated as Asbestos PI Trust Assets for all purposes, and shall be indefeasibly vested
in the Asbestos PI Trust free and clear of all claims, equity interests, Encumbrances, and other interests of any Entity.
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(o)
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The Asbestos Insurance Transfer Agreement, the Asbestos PI Deferred Payment Agreement, the Class 7A Asbestos PD Deferred Payment Agreement, the Class 7B Asbestos PD Deferred Payment Agreement, the Grace PI Guaranty, the Grace PD Guarantee Agreement for Class 7A, the Grace PD Guarantee Agreement for Class 7B, the Plan Registration Rights Agreement, the Share Issuance Agreement, the Asbestos PD/PI Inter- Creditor Agreement, the Warrant, and the Warrant Agreement shall have been executed and delivered by each of the parties thereto and shall be binding, enforceable and in full force and effect;
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(p)
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The Sealed Air Action and Fresenius Action shall be dismissed with prejudice;
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(q)
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The following actions against Fresenius shall have been dismissed with prejudice: (1)
Mesquita v. W. R. Grace & Co. et al.
, amended as
Abner v.
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W. R. Grace & Co. et al.,
No. 315465, Superior Court of California, County of San Francisco (since transferred to the Bankruptcy Court as Adv. Pro. No. 01-08883); (2)
Woodward v. Sealed Air Corporation (US) et al.
, No. 01-10547 PBS, U.S. District Court, District of Massachusetts (since transferred to the Bankruptcy Court as Case No. 01-CV-412); and
(3)
Lewis v. W. R. Grace & Co. et al.
, U.S. Bankruptcy Court, District of Delaware, Bankruptcy Case No. 01-1139/Adv. Case No. 01-08810; and
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(r)
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All payments required under the CDN ZAI Minutes of Settlement (other than any payments, if any, to be made by the Asbestos PI Trust) shall have been made.
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(s)
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The Court shall not have entered any order on or before the Effective Date, including as part of the Confirmation Order, which holds that any Claim or any right which may give rise to a Demand, which is included in the definition of either Indirect PD Trust Claim or Indirect PI Trust Claim, is not properly classified as an Asbestos PD Claim or Asbestos PI Claim or is not subject to the Asbestos PD Channeling Injunction or the Asbestos PI Channeling Injunction.
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The Effective Date shall not occur unless and until each of the foregoing conditions is either satisfied or waived by each of the Plan Proponents and expressly waived in writing by each of the Sealed Air Corporation, Cryovac, Inc., and Fresenius (subject to the absolute discretion of each). In no event shall the Effective Date occur nor shall Sealed Air Corporation or Cryovac, Inc. have any obligation to make the Cryovac Payment (including the Asbestos PD Initial Payment) at any time prior to the satisfaction of each and every one of the conditions specified in this Section 7.8 without such express written consent by each of Sealed Air Corporation and Cryovac, Inc. in its absolute discretion. In no event shall the Effective Date occur nor shall Fresenius have any obligation to make the Fresenius Payment (including the Asbestos PD Initial
Payment) at any time prior to the satisfaction of each and every one of the conditions specified in this Section 7.8 without such express written consent by Fresenius in its absolute discretion. Notice of the occurrence of the Effective Date reflecting that the foregoing conditions have been satisfied or waived shall: (i) be signed by each of the Plan Proponents and, in the case of a waiver, by each of Sealed Air Corporation, Cryovac, Inc. and Fresenius, (ii) state the date of the Effective Date, and (iii) be Filed with the Bankruptcy Court by counsel to the Debtors. No waiver shall be effective unless it complies with the requirements of this provision.
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7.9
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MANAGEMENT OF THE REORGANIZED DEBTORS
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On and after the Effective Date, the business and affairs of the Reorganized Debtors will be managed by their respective Boards of Directors or equivalent thereof. Upon the Effective Date, the Board of Directors of the Reorganized Parent shall be composed of at least five (5) directors. The members of the Board of Directors of the Reorganized Parent shall be persons identified to the Court prior to the Confirmation Hearing.
On the Effective Date, the approval and effectiveness of matters provided under this Plan involving the corporate structure of the Reorganized Debtors or corporate action by the Reorganized Debtors shall be deemed to have occurred and to have been authorized, and shall be in effect from and after the Effective Date without requiring further action under applicable law, regulation, order, or rule, including any action by the stockholders or directors of the Debtors, the Debtors in Possession, or the Reorganized Debtors.
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7.11
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EFFECTUATING DOCUMENTS AND FURTHER TRANSACTIONS
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Each of the officers of the Debtors and the Reorganized Debtors is authorized and directed to execute, deliver, file, or record such contracts, instruments, releases, indentures, and other agreements or documents and to take such actions as may be necessary or appropriate, for and on behalf of the Debtors and the Reorganized Debtors, to effectuate and further evidence the terms and conditions of this Plan, the transactions contemplated by this Plan, and any securities issued pursuant to this Plan.
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7.12
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ALLOCATION OF PLAN DISTRIBUTIONS BETWEEN PRINCIPAL AND INTEREST
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To the extent that any Allowed Plan Claim entitled to a Distribution under this Plan consists of indebtedness and accrued but unpaid interest thereon, such Distribution shall, for federal income tax purposes, be allocated first to the principal amount of the Plan Claim and then, to the extent the Distribution exceeds the principal amount of the Plan Claim, to the accrued but unpaid interest.
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7.13
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NO SUCCESSOR LIABILITY
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Except as otherwise expressly provided in this Plan, the Debtors, the Reorganized Debtors, the Asbestos PI Committee, the Asbestos PD Committee, the Asbestos PI FCR, the Asbestos PD FCR, the CCAA Representative Counsel, and the Asbestos Protected Parties will not, pursuant to this Plan or otherwise, assume, agree to perform, pay, or indemnify creditors or otherwise have any responsibilities for any liabilities or obligations of the Debtors or any of the Debtors’ past or present Affiliates, as such liabilities or obligations may relate to or arise out of the operations of or assets of the Debtors or any of the Debtors’ past or present Affiliates or any of their respective successors, whether arising prior to, or resulting from actions, events, or circumstances occurring or existing at any time prior to the Confirmation Date. Neither the Asbestos Protected Parties, the Reorganized Debtors, the Asbestos PI Trust, the Asbestos PD Trust, nor the CDN ZAI PD Claims Fund is, or shall be, a successor to the Debtors or any of the Debtors’ past or present Affiliates by reason of any theory of law or equity, and none shall have any successor or transferee liability of any kind or character, except that the Reorganized Debtors, the Asbestos PI Trust, the Asbestos PD Trust, and the CDN ZAI PD Claims Fund shall assume the obligations specified in this Plan and the Confirmation Order.
Except as otherwise expressly provided in this Plan, effective automatically on the
Effective Date, the Asbestos Protected Parties shall be unconditionally, irrevocably and fully
released from (a) any and all Asbestos-Related Claims, including (i) any and all Successor
Claims based on or arising from, in whole or in part, directly or indirectly, or related to the
Cryovac Transaction and (ii) any and all Asbestos Claims, (b) any and all SA Claims, SA Debts,
SA Damages, including Successor Claims, based on, arising from, or attributable to (in whole or
in part, directly or indirectly) the Fresenius Transaction, and (c) any other claims and causes of
action arising under Chapter 5 of the Bankruptcy Code or similar claims or causes of action
arising under state or any other law, including, if applicable, claims in the nature of fraudulent
transfer, successor liability, corporate veil piercing, or alter ego-type claims, as a consequence of
transactions, events, or circumstances involving or affecting the Debtors (or any of their
predecessors) or any of their respective businesses or operations that occurred or existed prior to
the Effective Date.
Notwithstanding the foregoing, nothing herein shall release any Asbestos Insurance Entity from its obligations under any Asbestos Insurance Settlement Agreement or Asbestos In-Place Insurance Coverage or Asbestos Insurance Reimbursement Agreement. For the avoidance of doubt, and without limiting any defense, counterclaim, or other right of any of the Sealed Air Indemnified Parties or the application of any other provision of the Plan (including each of the injunctions and releases in the Plan), this Section 7.13 of the Plan does not release the Sealed Air Indemnified Parties from any direct contractual indemnification obligation that they may have to OneBeacon America Insurance Company under the 1996 CU Agreement with respect to environmental claims asserted against the policies covered by that agreement except where any such obligation is, gives rise to, is based on, arises out of, or otherwise relates to any Asbestos Claim. For the avoidance of doubt, and without limiting any other defense, counterclaim, or other right of any of the Sealed Air Indemnified Parties or the application of any other provision of the Plan (including each of the other injunctions and releases in the Plan), this Section 7.13 of the Plan does not release the Sealed Air Indemnified Parties from any contractual indemnification and hold harmless obligations for which the Sealed Air Indemnified Parties are directly obligated to CNA and that arise directly under (or are directly based on) the CNA/Old Grace Delaware 5/30/97 Settlement Agreement except to the extent that any such obligation is,
gives rise to, is based on, arises out of, or otherwise relates to any Asbestos Claim. For the further avoidance of doubt, CNA’s claims against the Sealed Air Indemnified Parties under or based on any of the CNA/Old Grace Delaware Settlement Agreements that are Asbestos PI Claims or Asbestos PD Claims shall be subject to the Asbestos PI Channeling Injunction or the Asbestos PD Injunction and shall be treated as Class 6 Claims or Class 7A Claims under the Joint Plan.
This section is not intended to preclude a governmental entity from enforcing its police and regulatory powers.
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7.14
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DEEMED CONSOLIDATION OF THE DEBTORS FOR PLAN PURPOSES ONLY
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Subject to the occurrence of the Effective Date, the Debtors shall be deemed consolidated under this Plan for Plan purposes only. Each and every Claim Filed or to be Filed against any of the Debtors shall be deemed Filed against the deemed consolidated Debtors and shall be deemed one Claim against and obligation of the deemed consolidated Debtors.
Such deemed consolidation, however, shall not (other than for purposes related to funding Distributions under this Plan and as set forth above in this Section 7.14) affect: (i) the legal and organizational structure of the Debtors; (ii) any Encumbrances that are required to be maintained under this Plan (A) in connection with executory contracts or unexpired leases that were entered into during the Chapter 11 Cases or that have been or will be assumed, (B) pursuant to this Plan, or (C) in connection with any Exit Financing; (iii) the Sealed Air Settlement Agreement; and (iv) the Fresenius Settlement Agreement.
Notwithstanding anything contained in this Plan to the contrary, the deemed consolidation of the Debtors shall not have any effect on any of the Plan Claims being reinstated and left unimpaired under this Plan, and the legal, equitable, and contractual rights to which the Holders of any such Plan Claims are entitled shall be left unaltered by this Plan.
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7.15
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INSURANCE NEUTRALITY
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(a)
Notwithstanding anything to the contrary in the Plan or any of the Plan Documents, except as provided in Sections 7.15(b) through 7.15(j) of the Plan: (i) nothing in the Plan or any of the Plan Documents (including any other provision that purports to be preemptory or supervening) shall in any way operate to, or have the effect of, impairing any Asbestos Insurance Entity’s legal, equitable or contractual rights, if any, in any respect; and (ii) the rights of each Asbestos Insurance Entity shall be determined under the applicable Asbestos Insurance Policies, Asbestos In-Place Insurance Coverages, Asbestos Insurance Reimbursement Agreements, or Asbestos Insurance Settlement Agreements.
(b)
The Plan, the Plan Documents, and the Confirmation Order shall be binding on the Debtors, the Reorganized Debtors, the Asbestos PI Trust and the holders of Class 6 Asbestos PI Claims; provided, however, that to the extent that an Asbestos Insurance Entity is or may be a holder of a Class 6 Asbestos PI Claim, the portions of the Plan and the Plan Documents addressing holders of Class 6 Asbestos PI Claims shall be binding on such Asbestos Insurance
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Entity only in its capacity as a holder of a Class 6 Asbestos PI Claim. The obligations, if any, of the Asbestos PI Trust to pay holders of Asbestos PI Claims shall be determined pursuant to the Plan, the Plan Documents and the Confirmation Order. Except as provided in Sections 7.15(e), 7.15(h) and 7.15(j), none of (I) the Bankruptcy Court’s or District Court’s approval of the Plan or the Plan Documents, (II) the Confirmation Order or any findings and conclusions entered with respect to Confirmation, (III) any judgment, order, finding of fact, conclusion of law, determination or statement (written or oral, made on or off the record) made by the Bankruptcy Court or issued or affirmed by the District Court pursuant to 11 U.S.C. § 524(g)(3), or (IV) any estimation or valuation of Asbestos PI Claims, either individually or in the aggregate (including any agreement as to the valuation of Asbestos PI Claims or any value attributed to the Asbestos PI Trust Assets) in the Chapter 11 Cases or otherwise, shall, with respect to any Asbestos Insurance Entity, constitute a trial or hearing on the merits or an adjudication or judgment; or accelerate (on the basis of the decision in or principles espoused in
UNR Industries, Inc. v.
Continental Casualty Co.,
942 F.2d 1101 (7
th
Cir. 1991) or otherwise) the obligations, if any, of any Asbestos Insurance Entity under its Asbestos Insurance Policies or Asbestos In-Place Insurance Coverage, as applicable; or be used as evidence or argument in any forum to prove or claim:
(i)
that any of the Debtors, the Reorganized Debtors, the Asbestos PI Trust, or any Asbestos Insurance Entity is liable for, or otherwise obligated to indemnify or pay with respect to, any individual Asbestos PI Claim or Demand;
(ii)
that the procedures established by the Plan, including the Asbestos PI Trust Distribution Procedures, for evaluating and paying Asbestos PI Claims and Demands (including the medical, causation or exposure criteria and disease values) are reasonable or appropriate;
(iii)
that the procedures established by the Plan, including the Asbestos PI Trust Distribution Procedures, for evaluating and paying Asbestos PI Claims and Demands (including the medical, causation or exposure criteria and disease values) are consistent with any procedures that were used to evaluate or settle Asbestos PI Claims against the Debtors before the Petition Date;
(iv)
that the settlement of, or the value assigned to, any individual Asbestos PI Claim pursuant to the Asbestos PI Trust Distribution Procedures was, is or will be reasonable and/or otherwise appropriate;
(v)
that any of the Asbestos Insurance Entities participated in the negotiation of and/or consented to the Plan or any of the Plan Documents, including the Asbestos PI Trust Distribution Procedures;
(vi)
that any of the Debtors or the Asbestos PI Trust has suffered an insured loss with respect to any Asbestos PI Claim or Demand; or
(vii)
(A) the liability of the Debtors, the Reorganized Debtors or the Asbestos PI Trust for Asbestos PI Claims or Demands, whether such Asbestos PI Claims or Demands are
considered individually or on an aggregate basis; or (B) the value of such Asbestos PI Claims or Demands, individually or in the aggregate.
For the avoidance of any doubt, nothing in this Section 7.15 of the Plan shall preclude the Asbestos PI Trust from asserting in any subsequent coverage litigation:
(i)
that the Asbestos PI Trust has assumed the liabilities and responsibilities for all Asbestos PI Claims;
(ii)
that the Plan or any of the Plan Documents, including the Asbestos PI Trust Distribution Procedures, constitute a mechanism setting out a procedure for determination of the approval/disapproval and valuation of Asbestos PI Claims which would result in settlements that trigger coverage; or
(iii)
that the Asbestos PI Trust’s liability for which the Asbestos PI Trust is entitled to coverage under the Asbestos Insurance Policies is the full value for which a claim is resolved by the Asbestos PI Trust and is not limited to just the amount that the Asbestos PI Trust is able to pay on the claim.
Nothing in this Section 7.15 of the Plan shall preclude the Asbestos Insurance Entities from disputing the assertions by the Asbestos PI Trust set forth in subsections (i) through (iii) immediately above in any subsequent coverage litigation, but this Section 7.15 of the Plan likewise shall not be used by the Asbestos Insurance Entities as evidence that the Asbestos PI Trust has acceded to the Asbestos Insurance Entities’ positions on those points.
(c)
Nothing in this Section 7.15 of the Plan shall affect or limit, or be construed as affecting or limiting, the protection afforded to any Settled Asbestos Insurance Company by the Asbestos PI Channeling Injunction or the Asbestos PD Channeling Injunction.
(d)
Nothing in the Plan or Plan Documents is intended, nor shall it be construed, to preclude otherwise applicable principles of
res judicata
or collateral estoppels from being applied against any Asbestos Insurance Entity with respect to any issue that has not been withdrawn by the Asbestos Insurance Entity prior to issuance of the Confirmation Order and that is actually litigated by such Asbestos Insurance Entity as part of its objections, if any, to confirmation of the Plan or as part of any contested matter or adversary proceeding filed in conjunction with or related to confirmation of the Plan.
(e)
Each Asbestos Insurance Entity shall be bound by any Final Order, and related Court findings and conclusions that, under the Bankruptcy Code, the transfer of Asbestos Insurance Rights under the Asbestos Insurance Transfer Agreement is valid and enforceable against each Asbestos Insurance Entity notwithstanding applicable non-bankruptcy law or any anti-assignment provision in or incorporated into any Asbestos Insurance Policy, Asbestos In- Place Insurance Coverage, Asbestos Insurance Reimbursement Agreement or Asbestos Insurance Settlement Agreement.
(f)
Each Asbestos Insurance Entity shall be bound by any Final Order that the releases and injunctions as provided in the Plan are valid and enforceable against each Asbestos Insurance Entity, and this Section 7.15 of the Plan is not intended, nor shall it be construed, to limit the protections afforded to the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties by any Final Order approving such releases and injunctions in the Plan or to allow the Asbestos Insurance Entities to undertake any action against any of the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties that is contrary to any such Final Order.
(g)
If an Asbestos Insurance Entity that is not a Settled Asbestos Insurance Company asserts that it has rights of contribution, indemnity, reimbursement, subrogation or other similar claims (collectively, for purposes of this Section 7.15(g), “Contribution Claims”) against a Settled Asbestos Insurance Company, (i) such Contribution Claims may be asserted as a defense or offset against the Asbestos PI Trust or the Reorganized Debtors (as applicable) in any Asbestos Insurance Action including such Asbestos Insurance Entity that is not a Settled Asbestos Insurance Company, and the Asbestos PI Trust or the Reorganized Debtors (as applicable) may assert the legal or equitable rights, if any, of the Settled Asbestos Insurance Entity, and (ii) to the extent such Contribution Claim is determined to be valid, pursuant to a Final Order, the liability (if any) of such Asbestos Insurance Entity that is not a Settled Asbestos Insurance Company to the Asbestos PI Trust or the Reorganized Debtors (as applicable) shall be reduced by the amount of such Contribution Claim.
(h)
Each Asbestos Insurance Entity that is a party to an Asbestos Insurance Reimbursement Agreement shall be bound by any Final Order that the provisions of Section 7.2.2(d)(iv) of the Plan are applicable to such Asbestos Insurance Reimbursement Agreement.
(i)
Notwithstanding anything to the contrary in the Plan or the Plan Documents: (i) any Entity (including the Asbestos PI Trust, any Reorganized Debtor and any non-Debtor Affiliate) that tenders a claim for defense, indemnity or coverage under an Asbestos Insurance Policy to an Asbestos Insurance Entity shall be responsible, for purposes of such claim, for any retrospective insurance premium, self-insured retention, deductible or similar obligation of the insured under the Asbestos Insurance Policies with respect to such claim; (ii) with respect to any self-insured retention, deductible or similar obligation, any Asbestos Insurance Entity to which such claim is tendered may assert, as a coverage defense, that such tendering Entity has not fulfilled the obligations of the insured under the Asbestos Insurance Policies in respect of which such claim was tendered; and (iii) with respect to any retrospective insurance premium or similar obligation, any Asbestos Insurance Entity to which such claim is tendered may offset the amount of such retrospective insurance premium or similar obligation against any amount otherwise payable by such Asbestos Insurance Entity to the Asbestos PI Trust on account of that or any other claim tendered by the Asbestos PI Trust to that Asbestos Insurance Entity.
(j)
The duties and obligations of an Asbestos Insurance Entity under any Asbestos Insurance Policy, Asbestos In-Place Insurance Coverage, Asbestos Insurance Reimbursement Agreement or Asbestos Insurance Settlement Agreement are not diminished, reduced or eliminated by (1) the discharge of the obligations and liabilities of the Debtors and Reorganized Debtors for and in respect of all Asbestos PI Claims or (2) the assumption by the Asbestos PI Trust of responsibility and liability for all Asbestos PI Claims. Except as provided in Sections
7.15(e) and 7.15(h), in any Asbestos Insurance Action, an Asbestos Insurance Entity may assert against any Entity (including the Asbestos PI Trust, any Reorganized Debtor and any non-Debtor Affiliate) seeking coverage any applicable defense that the insured or the Entity seeking coverage under the Asbestos Insurance Policy, Asbestos In-Place Insurance Coverage, Asbestos Insurance Reimbursement Agreement or Asbestos Insurance Settlement Agreement has failed to comply with the terms and conditions of the Asbestos Insurance Policy, Asbestos In-Place Insurance Coverage, Asbestos Insurance Reimbursement Agreement or Asbestos Insurance Settlement Agreement, or any other obligation imposed on the insured by the Asbestos Insurance Policy, Asbestos In-Place Insurance Coverage, Asbestos Insurance Reimbursement Agreement or Asbestos Insurance Settlement Agreement or under applicable law, and any such failure to comply by the insured may be asserted as a defense against any Entity (including the Asbestos PI Trust) to the same extent that such failure to comply could have been asserted as a defense against the insured had the insured brought the Asbestos Insurance Action against the Asbestos Insurance Entity. Except as provided in Sections 7.15(e) and 7.15(h), the Asbestos PI Trust shall be subject to the duties, terms and conditions of any Asbestos Insurance Policy, Asbestos In- Place Insurance Coverage, Asbestos Insurance Reimbursement Agreement or Asbestos Insurance Settlement Agreement that set forth, define or limit the Asbestos Insurance Rights that are transferred to the Asbestos PI Trust under the Asbestos Insurance Transfer Agreement, to the same extent that the Debtors would be subject to such duties, terms or conditions under applicable law had the Debtors’ obligations and liabilities not been discharged in this Chapter 11 case.
ARTICLE 8 INJUNCTIONS, RELEASES & DISCHARGE
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8.1.1
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Discharge of the Debtors and Related Discharge Injunction
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The rights afforded in this Plan and the treatment of all Claims, Plan Claims, Demands and Equity Interests herein shall be in exchange for and shall discharge all Claims, Plan Claims, and Demands of any nature whatsoever, including any interest accrued thereon from and after the Petition Date, against the Debtors and the Debtors in Possession, or their assets, properties, or interests in property. Except as otherwise provided herein, on the Effective Date, all Claims, Plan Claims, and Demands against the Debtors and the Debtors in Possession shall be discharged. The Reorganized Debtors shall not be responsible for any obligations of the Debtors or the Debtors in Possession except those expressly assumed by the Reorganized Debtors pursuant to this Plan. All Entities shall be precluded and forever barred from asserting against the Debtors and the Reorganized Debtors, or their assets, properties, or interests in property any other or further Claims, Plan Claims, or Demands based upon any act or omission, transaction, or other activity, event, or occurrence of any kind or nature that occurred prior to the Effective Date, whether or not the facts of or legal bases therefor were known or existed prior to the Effective Date, except as expressly provided in this Plan.
With respect to any debts discharged by operation of law under Bankruptcy Code §§
524(a) and 1141, the discharge of the Debtors operates as an injunction against the
commencement or continuation of an action, the employment of process, or an act, to collect,
recover, or offset any such debt as a personal liability of the Debtors, whether or not the
discharge of such debt is waived;
provided, however
, that the obligations of the Reorganized
Debtors under this Plan and the other Plan Documents to be entered into on the Effective Date
are not so discharged.
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8.1.2
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Discharge of Liabilities to Holders of Asbestos PI Claims
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The transfer to, vesting in, and assumption by the Asbestos PI Trust of the Asbestos PI Trust Assets as contemplated by this Plan, among other things, shall discharge the Debtors, the Reorganized Debtors and their Representatives for and in respect of all Asbestos PI Claims, subject to the reservations listed in Section 8.2.2 herein. On the Effective Date, the Asbestos PI Trust shall assume the liabilities of the Debtors with respect to all Asbestos PI Claims and shall pay Asbestos PI Claims entitled to payment in accordance with the Asbestos PI Trust Agreement and the Asbestos PI TDP.
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8.1.3
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Discharge of Liabilities to Holders of Asbestos PD Claims
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The transfer to, vesting in, and assumption by the Asbestos PD Trust of the Asbestos PD Trust Assets as contemplated by this Plan, among other things, shall discharge the Debtors, the Reorganized Debtors and their Representatives for and in respect of all Asbestos PD Claims, subject to the reservations listed in Section 8.3.2 herein. On the Effective Date, the Asbestos PD Trust shall assume the liabilities of the Debtors with respect to all Asbestos PD Claims and shall pay Asbestos PD Claims entitled to payment in accordance with the Asbestos PD Trust Agreement and any Final Orders of the Bankruptcy Court allowing such claims.
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8.1.4
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Discharge of Liabilities to Holders of CDN ZAI PD Claims
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The transfer to, vesting in, and assumption by the CDN ZAI PD Claims Fund of the CDN ZAI PD Claims as contemplated by the CDN ZAI Minutes of Settlement and this Plan, among other things, shall discharge the Debtors, the Reorganized Debtors and their Representatives for and in respect of all CDN ZAI PD Claims, subject to the reservations listed in Section 8.3.2 herein. On the Effective Date, the CDN ZAI PD Claims Fund shall assume the liabilities of the Debtors with respect to all CDN ZAI PD Claims and shall pay CDN ZAI PD Claims entitled to payment in accordance with the terms of the CDN ZAI Minutes of Settlement.
On and after the Effective Date, the Debtors, the Reorganized Debtors and their Representatives shall be fully and finally discharged of any liability or obligation on a Disallowed Claim, and any order creating a Disallowed Claim that is not a Final Order as of the Effective Date solely because of an Entity’s right to move for reconsideration of such order pursuant to Bankruptcy Code § 502 or Bankruptcy Rule 3008 shall nevertheless become and be deemed to be a Final Order on the Effective Date.
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8.1.6
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Non-Dischargeable ERISA Liability
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The Parent is a controlled group member within the meaning of 29 U.S.C. § 1301(a)(14) and may also be a contributing sponsor of one or more ongoing, defined benefit pension plans to which Title IV of the ERISA applies (the “
Pension Plans
”). The Debtors intend that the Reorganized Parent will continue to be the continuing sponsor of the Pension Plans. Each of the Pension Plans is a defined benefit pension plan insured by the Pension Benefit Guaranty Corporation (
“PBGC”
) under ERISA. The Pension Plans are subject to minimum funding requirements of ERISA and section 412 of the IRC. Should the Pension Plans be underfunded and should the Pension Plans terminate, the PBGC may assert claims for the underfunding, for any unpaid minimum funding contributions owed the Pension Plan, and for any unpaid premiums owed the PBGC.
Nothing contained in this Plan, the Confirmation Order, the Bankruptcy Code (including Bankruptcy Code § 1141), or any other document Filed in the Chapter 11 Cases shall be construed to discharge, release or relieve the Debtors, or any other party, in any capacity, from any liability or responsibility to the PBGC with respect to the Pension Plans under any law, governmental policy, or regulatory provision. The PBGC shall not be enjoined or precluded from enforcing such liability or responsibility, as a result of any of the provisions of this Plan (including those provisions providing for exculpation, satisfaction, release, and discharge of Claims), the Confirmation Order, the Bankruptcy Code (including Bankruptcy Code § 1141), or any other document Filed in the Chapter 11 Cases. Notwithstanding the foregoing, neither the PBGC nor any other Entity shall assert any liability or responsibility with respect to the Pension Plans under any law, governmental policy or regulatory provisions against, and such liability or responsibility shall not attach to, the Asbestos PI Trust or any of the Asbestos PI Trust Assets or the Asbestos PD Trust or any of the Asbestos PD Trust Assets.
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8.2
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THE ASBESTOS PI CHANNELING INJUNCTION
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In order to supplement, where necessary, the injunctive effect of the discharge provided by Bankruptcy Code §§ 1141, 524(a), and 105 and as described in this Article 8, and pursuant to the exercise of the equitable jurisdiction and power of the Court under Bankruptcy Code § 524(g), the Confirmation Order shall provide for issuance of the Asbestos PI Channeling Injunction to take effect as of the Effective Date.
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8.2.1
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Asbestos PI Channeling Injunction
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On and after the Effective Date, the sole recourse of the Holder of an Asbestos PI Claim
or a Successor Claim arising out of or based on any Asbestos PI Claim on account thereof shall
be to the Asbestos PI Trust pursuant to the provisions of the Asbestos PI Channeling Injunction
and the Asbestos PI TDP and such Holder shall have no right whatsoever at any time to assert its
Asbestos PI Claim or Successor Claim arising out of or based on any Asbestos PI Claim against
the Debtors, Reorganized Debtors, any other Asbestos Protected Party, or any property or
interest (including any Distributions made pursuant to this Plan) in property of the Debtors, the
Reorganized Debtors, or any other Asbestos Protected Party. Without limiting the foregoing,
from and after the Effective Date, the Asbestos PI Channeling Injunction shall apply to all
present and future Holders of Asbestos PI Claims or Successor Claims arising out of or based on
any Asbestos PI Claim, and all such Holders permanently and forever shall be stayed, restrained,
and enjoined from taking any and all legal or other actions or making any Demand against any
Asbestos Protected Party or any property or interest (including Distributions made pursuant to
this Plan) in property of any Asbestos Protected Party for the purpose of, directly or indirectly,
claiming, collecting, recovering, or receiving any payment, recovery, satisfaction, or any other
relief whatsoever on, of, or with respect to any Asbestos PI Claims or Successor Claims arising
out of or based on any Asbestos PI Claims other than from the Asbestos PI Trust in accordance
with the Asbestos PI Channeling Injunction and pursuant to the Asbestos PI Trust Agreement
and the Asbestos PI TDP, including:
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(a)
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commencing, conducting, or continuing in any manner, directly or
indirectly, any suit, action, or other proceeding (including a judicial,
arbitration, administrative, or other proceeding) in any forum against or
affecting any Asbestos Protected Party, or any property or interest in
property of any Asbestos Protected Party;
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(b)
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enforcing, levying, attaching (including any prejudgment attachment),
collecting, or otherwise recovering by any means or in any manner,
whether directly or indirectly, any judgment, award, decree, or other order
against any Asbestos Protected Party, or any property or interest in
property of any Asbestos Protected Party;
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(c)
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creating, perfecting, or otherwise enforcing in any manner, directly or
indirectly, any Encumbrance against any Asbestos Protected Party, or any
property or interest in property of any Asbestos Protected Party;
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(d)
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setting off, seeking reimbursement of, indemnification or contribution
from, or subrogation against, or otherwise recouping in any manner,
directly or indirectly, any amount against any liability owed to any
Asbestos Protected Party, or any property or interest in property of any
Asbestos Protected Party; and
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(e)
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proceeding in any other manner with regard to any matter that is subject to
resolution pursuant to the Asbestos PI Trust, except in conformity and
compliance with the Asbestos PI Trust Agreement and the Asbestos PI
TDP.
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8.2.2
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Reservations from Asbestos PI Channeling Injunction
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Notwithstanding anything to the contrary in Section 8.2.1 above, the Asbestos PI
Channeling Injunction issued pursuant to Section 8.2.1 shall not enjoin:
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(a)
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the rights of Entities to the treatment accorded them under this Plan,
including the rights of Entities with Asbestos PI Claims to assert such
Asbestos PI Claims in accordance with the Asbestos PI TDP;
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(b)
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the rights of Entities to assert any claim, debt, obligation or liability for
payment of expenses of the Asbestos PI Trust solely against the Asbestos
PI Trust or the Asbestos PI Trust Assets;
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(c)
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the rights of the Asbestos PI Trust and, to the extent permitted by the
Asbestos Insurance Transfer Agreement, the Insurance Contributors, to
prosecute any cause of action or to assert any Claim, Demand, debt,
obligation, or liability for payment against any Entity (but not the Sealed
Air Indemnified Parties or the Fresenius Indemnified Parties), including
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any Asbestos Insurance Entity, based on or arising from the Asbestos
Insurance Rights;
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(d)
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the rights of the Asbestos PI Trust and, to the extent permitted by the
Asbestos Insurance Transfer Agreement, the Insurance Contributors, to
receive any settlement, award, payment of cash or other property of any
kind whatsoever from any Entity (but not the Sealed Air Indemnified
Parties or the Fresenius Indemnified Parties) including any Asbestos
Insurance Entity in satisfaction of any Asbestos Insurance Rights; and
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(e)
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BNSF from asserting any claim (as that term is defined in Bankruptcy
Code § 101(5)) for insurance coverage as an insured or an additional
insured against a Settled Asbestos Insurance Company under and only
under an insurance policy (or part of a policy) that is not identified as
being the subject of any Asbestos Insurance Settlement Agreement in
Exhibit 5 of the Exhibit Book or is not subject to protection under the
terms of the Debtors’ Settlement Agreement with the Royal Parties, dated
June 17, 2009 (the “Arrowood Rule 9019 Settlement Agreement”). To
avoid any doubt, BNSF shall be enjoined from asserting any claim against
any of the policies identified in Exhibits 2 and 3 of the Arrowood Rule
9019 Settlement Agreement.
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Except as otherwise expressly provided in this Plan, the Sealed Air Settlement
Agreement, or the Fresenius Settlement Agreement, nothing contained in this Plan shall
constitute or be deemed a waiver of any claim, right, or cause of action that the Debtors, the
Reorganized Debtors, or the Asbestos PI Trust may have against any Entity in connection with or
arising out of or based on any Asbestos PI Claim. Notwithstanding anything to the contrary in
this Section 8.2.2, in any other provision of this Plan, or in any Plan Document (including the
Asbestos PI Trust Agreement and the Asbestos PI TDP), and for the avoidance of any doubt,
following the transfer to the Asbestos PI Trust of the Cryovac Payment (reduced by the total
aggregate amount of transfers to the Asbestos PD Trust by or on behalf of Cryovac, Inc. as part
of the Class 7A Initial Payment and the Class 7B Initial Payment), (i) no Entity shall have any
right to enforce any provision of this Plan relating to the Cryovac Payment or the payment
thereof against any of the Sealed Air Indemnified Parties or any property or interest (including
any Distributions made pursuant to this Plan) in property of any of the Sealed Air Indemnified
Parties and (ii) the sole recourse of a Holder of an Asbestos PI Claim against any of the Sealed
Air Indemnified Parties or a Successor Claim arising out of or based on any Asbestos PI Claim
on account thereof, shall be to the Asbestos PI Trust, and such Holder shall have no right
whatsoever at any time to assert its Asbestos PI Claim or Successor Claim arising out of or based
on any Asbestos PI Claim against any of the Sealed Air Indemnified Parties or any property or
interest (including any Distributions made pursuant to this Plan) in property of any of the Sealed
Air Indemnified Parties. Notwithstanding anything to the contrary in this Section 8.2.2, in any
other provision of this Plan, or in any Plan Document (including the Asbestos PI Trust and the
Asbestos PI TDP), and for the avoidance of any doubt, following the transfer to the Asbestos PI
Trust of the Fresenius Payment (reduced by the total aggregate amount of transfers to the
Asbestos PD Trust by or on behalf of Fresenius as part of the Class 7A Initial Payment and the
Class 7B Initial Payment), (i) no Entity shall have any right to enforce any provision of this Plan
relating to the Fresenius Payment or the payment thereof against any of the Fresenius
Indemnified Parties or any property or interest (including any Distributions made pursuant to this
Plan) in property of any of the Fresenius Indemnified Parties and (ii) the sole recourse of a
Holder of an Asbestos PI Claim against any of the Fresenius Indemnified Parties or a Successor
Claim arising out of or based on any Asbestos PI Claim on account thereof, shall be to the
Asbestos PI Trust, and such Holder shall have no right whatsoever at any time to assert its
Asbestos PI Claim or Successor Claim arising out of or based on any Asbestos PI Claim against
any of the Fresenius Indemnified Parties or any property or interest (including any Distributions
made pursuant to this Plan) in property of any of the Fresenius Indemnified Parties.
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8.3
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THE ASBESTOS PD CHANNELING INJUNCTION
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In order to supplement, where necessary, the injunctive effect of the discharge provided by Bankruptcy Code §§ 1141, 524(a), and 105 and as described in this Article 8, and pursuant to the exercise of the equitable jurisdiction and power of the Court under Bankruptcy Code § 524(g), the Confirmation Order shall provide for issuance of the Asbestos PD Channeling Injunction to take effect as of the Effective Date.
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8.3.1
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Asbestos PD Channeling Injunction
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On and after the Effective Date, (1) the sole recourse of the Holder of an Asbestos PD
Claim or a Successor Claim arising out of or based on any Asbestos PD Claim on account
thereof shall be to the Asbestos PD Trust; and (2) the sole recourse of a Holder of a CDN ZAI
PD Claim or a Successor Claim arising out of or based on any CDN ZAI PD Claim, shall be as
set forth in the CDN ZAI Minutes of Settlement, pursuant to the provisions of the Asbestos PD
Channeling Injunction and any Final Orders of the Bankruptcy Court allowing such claims, and
such Holders shall have no right whatsoever at any time to assert their Asbestos PD Claim,
Successor Claim arising out of or based on any Asbestos PD Claim, CDN ZAI PD Claim, or
Successor Claim arising out of or based on any CDN ZAI PD Claim against the Debtors,
Reorganized Debtors, any other Asbestos Protected Party, or any property or interest (including
any Distributions made pursuant to this Plan) in property of the Debtors, the Reorganized
Debtors, or any other Asbestos Protected Party. Without limiting the foregoing, from and after
the Effective Date, the Asbestos PD Channeling Injunction shall apply to all present and future
Holders of Asbestos PD Claims, Successor Claims arising out of or based on any Asbestos PD
Claim, CDN ZAI PD Claims, and Successor Claims arising out of or based on any CDN ZAI PD
Claims, and all such Holders permanently and forever shall be stayed, restrained, and enjoined
from taking any and all legal or other actions or making any Demand for the purpose of, directly
or indirectly, claiming, collecting, recovering, or receiving any payment, recovery, satisfaction,
or any other relief whatsoever on, of, or with respect to any Asbestos PD Claims, Successor
Claims arising out of or based on any Asbestos PD Claims, CDN ZAI PD Claims, or Successor
Claims arising out of or based on any CDN ZAI PD Claim other than from the Asbestos PD
Trust in accordance with the Asbestos PD Channeling Injunction and pursuant to the Asbestos
PD Trust Agreement in the case of Asbestos PD Claims or in accordance with the Asbestos PD
Channeling Injunction and pursuant to the CDN ZAI Minutes of Settlement in the case of CDN
ZAI PD Claims, including:
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(f)
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commencing, conducting, or continuing in any manner, directly or
indirectly, any suit, action, or other proceeding (including a judicial,
arbitration, administrative, or other proceeding) in any forum against or
affecting any Asbestos Protected Party, or any property or interest in
property of any Asbestos Protected Party;
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(g)
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enforcing, levying, attaching (including any prejudgment attachment),
collecting, or otherwise recovering by any means or in any manner,
whether directly or indirectly, any judgment, award, decree, or other order
against any Asbestos Protected Party, or any property or interest in
property of any Asbestos Protected Party;
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(h)
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creating, perfecting, or otherwise enforcing in any manner, directly or
indirectly, any Encumbrance against any Asbestos Protected Party, or any
property or interest in property of any Asbestos Protected Party;
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(i)
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setting off, seeking reimbursement of, indemnification or contribution
from, or subrogation against, or otherwise recouping in any manner,
directly or indirectly, any amount against any liability owed to any
Asbestos Protected Party, or any property or interest in property of any
Asbestos Protected Party; and
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(j)
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proceeding in any other manner with regard to any matter that is subject to
resolution pursuant to the Asbestos PD Trust, except in conformity and
compliance with the Asbestos PD Trust Agreement in the case of Asbestos
PD Claims, or proceeding in any other manner with regard to any matter
that is subject to resolution pursuant to the CDN ZAI Minutes of
Settlement in the case of CDN ZAI PD Claims.
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8.3.2
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Reservations from Asbestos PD Channeling Injunction
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Notwithstanding anything to the contrary in Section 8.3.1 above, the Asbestos PD
Channeling Injunction issued pursuant to Section 8.3.1 shall not enjoin:
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(a)
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the rights of Entities to the treatment accorded them under this Plan,
including the rights of Entities with Asbestos PD Claims to assert such
Asbestos PD Claims in accordance with the PD Settlement Agreements,
the Class 7A Case Management Order or the ZAI TDP, and the rights of
Entities with CDN ZAI PD Claims to assert such CDN ZAI PD Claims in
accordance with the provisions set forth in the CDN ZAI Minutes of
Settlement. For the avoidance of doubt, such rights shall include the rights
of an Entity holding an Allowed Asbestos PD Claim under a PD
Settlement Agreement to enforce the provisions of this Plan which
contemplate that on the Effective Date, the Asbestos PD Initial Payment
will be made to the Asbestos PD Trust in an amount sufficient to permit
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the Asbestos PD Trust to make all payments, in full, on account of and as
required by PD Settlement Agreements as contemplated by this Plan; and
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(b)
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the rights of Entities to assert any claim, debt, obligation or liability for
payment of expenses of the Asbestos PD Trust solely against the Asbestos
PD Trust or the Asbestos PD Trust Assets.
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Except as otherwise expressly provided in this Plan, the Sealed Air Settlement
Agreement, or the Fresenius Settlement Agreement, nothing contained in this Plan shall
constitute or be deemed a waiver of any claim, right, or cause of action that the Debtors, the
Reorganized Debtors, or the Asbestos PD Trust may have against any Entity in connection with
or arising out of or based on any Asbestos PD Claim or CDN ZAI PD Claim. Notwithstanding
anything to the contrary in this Section 8.3.2, in any other provision of this Plan, or in any Plan
Document (including the Asbestos PD Trust Agreement, the CDN ZAI Minutes of Settlement,
the ZAI TDP, and the Class 7A Case Management Order), and for the avoidance of any doubt,
following the transfer to the Asbestos PD Trust of Cryovac, Inc.’s share of the Asbestos PD
Initial Payment by or on behalf of Cryovac, Inc., (i) no Entity shall have any right to enforce any
provision of this Plan relating to the Asbestos PD Initial Payment or the payment thereof against
any of the Sealed Air Indemnified Parties or any property or interest (including any Distributions
made pursuant to this Plan) in property of any of the Sealed Air Indemnified Parties and (ii) the
sole recourse of a Holder of an Asbestos PD Claim or CDN ZAI PD Claim against any of the
Sealed Air Indemnified Parties or a Successor Claim arising out of or based on any Asbestos PD
Claim or CDN ZAI PD Claim on account thereof, shall be to the Asbestos PD Trust or as set
forth in the CDN ZAI Minutes of Settlement (as applicable), and such Holder shall have no right
whatsoever at any time to assert its Asbestos PD Claim, CDN ZAI PD Claim, or Successor
Claim arising out of or based on any Asbestos PD Claim or CDN ZAI PD Claim against any of
the Sealed Air Indemnified Parties or any property or interest (including any Distributions made
pursuant to this Plan) in property of any of the Sealed Air Indemnified Parties. Notwithstanding
anything to the contrary in this Section 8.3.2, in any other provision of this Plan, or in any Plan
Document (including the Asbestos PD Trust Agreement, the CDN ZAI Minutes of Settlement,
the ZAI TDP, and the Class 7A Case Management Order), and for the avoidance of any doubt,
following the transfer to the Asbestos PD Trust of Fresenius’ share of the Asbestos PD Initial
Payment by or on behalf of Fresenius, (i) no Entity shall have any right to enforce any provision
of this Plan relating to the Asbestos PD Initial Payment or the payment thereof against any of the
Fresenius Indemnified Parties or any property or interest (including any Distributions made
pursuant to this Plan) in property of any of the Fresenius Indemnified Parties and (ii) the sole
recourse of a Holder of an Asbestos PD Claim or CDN ZAI PD Claim against any of the
Fresenius Indemnified Parties or a Successor Claim arising out of or based on any Asbestos PD
Claim or CDN ZAI PD Claim on account thereof, shall be to the Asbestos PD Trust or as set
forth in the CDN ZAI Minutes of Settlement (as applicable), and such Holder shall have no right
whatsoever at any time to assert its Asbestos PD Claim, CDN ZAI PD Claim, or Successor
Claim arising out of or based on any Asbestos PD Claim or CDN ZAI PD Claim against any of
the Fresenius Indemnified Parties or any property or interest (including any Distributions made
pursuant to this Plan) in property of any of the Fresenius Indemnified Parties.
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8.4
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ASBESTOS INSURANCE ENTITY INJUNCTION
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Pursuant to the exercise of the equitable jurisdiction and power of the Court under Bankruptcy Code § 105(a), the Confirmation Order shall provide for issuance of the Asbestos Insurance Entity Injunction to take effect as of the Effective Date.
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8.4.1
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Asbestos Insurance Entity Injunction
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8.4.1.1
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Injunction for the Benefit of the Asbestos PI Trust
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(a)
All Entities that have held or asserted, that hold or assert, or that may in
the future hold or assert, any claim or cause of action against any Asbestos Insurance Entity,
based upon, or arising out of, any Asbestos PI Claim against the Debtors or any Asbestos
Insurance Rights, whenever and wherever arisen or asserted (including all claims in the nature of
or sounding in tort, or under contract, warranty, or any other theory of law, equity, or admiralty)
shall be stayed, restrained, and enjoined from taking any action for the purpose of directly or
indirectly claiming, collecting, recovering, or receiving any payment, recovery, satisfaction, or
any other relief whatsoever on, of, or with respect to any such claim or cause of action,
including:
(i)
commencing, conducting, or continuing, in any manner,
directly or indirectly, any suit, action, or other proceeding (including a
judicial, arbitration, administrative, or other proceeding in any forum)
against or affecting any Asbestos Insurance Entity, or any property or
interest in property of any Asbestos Insurance Entity;
(ii)
enforcing, levying, attaching (including any prejudgment
attachment), collecting, or otherwise recovering by any means or in any
manner, whether directly or indirectly, any judgment, award, decree, or
other order against any Asbestos Insurance Entity, or any property or
interest in property of any Asbestos Insurance Entity;
(iii)
creating, perfecting, or otherwise enforcing in any manner,
directly or indirectly, any Encumbrance against any Asbestos Insurance
Entity, or any property or interest in property of any Asbestos Insurance
Entity;
(iv)
setting off, seeking reimbursement of, indemnification or
contribution from, or subrogation against, or otherwise recouping in any
manner, directly or indirectly, any amount against any liability owed to
any Asbestos Insurance Entity, or any property or interest in property of
any Asbestos Insurance Entity; and
(v)
proceeding in any other manner with regard to any matter
that is subject to resolution by the Asbestos PI Trust, except in conformity
and compliance with the Asbestos PI Trust Agreement and the Asbestos
PI TDP
.
(b)
The Asbestos PI Trust shall have the sole and exclusive authority at any
time to terminate, reduce or limit the scope of, the Asbestos Insurance Entity Injunction issued
pursuant to Section 8.4.1.1 as it may apply to any Asbestos Insurance Entity upon express
written notice to that Asbestos Insurance Entity; and
(c)
The Asbestos Insurance Entity Injunction is not issued for the benefit of
any Asbestos Insurance Entity, and no Asbestos Insurance Entity is or may become a third-party
beneficiary of the Asbestos Insurance Entity Injunction.
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8.4.1.2
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Reservations from the Injunction for the Benefit of the Asbestos PI Trust
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Notwithstanding anything to the contrary in Section 8.4.1.1 above, the Asbestos
Insurance Entity Injunction issued pursuant to Section 8.4.1.1 shall not enjoin
:
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(a)
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the rights of any Entity to the treatment accorded it under this Plan;
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(b)
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the rights of the Asbestos PI Trust or, to the extent provided in the
Asbestos Insurance Transfer Agreement, any of the Insurance
Contributors, to prosecute any cause of action or to assert any claim,
demand, debt, obligation, or liability for payment against any Entity (but
not the Sealed Air Indemnified Parties or the Fresenius Indemnified
Parties), including any Asbestos Insurance Entity or any property or
interest in property of any Asbestos Insurance Entity, based on or arising
from the Asbestos Insurance Rights for the Asbestos PI Trust’s benefit;
and
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(c)
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the rights of the Asbestos PI Trust or, to the extent provided in the
Asbestos Insurance Transfer Agreement, any of the Insurance
Contributors, to receive any settlement, award, payment of Cash or other
property of any kind whatsoever from any Entity (but not the Sealed Air
Indemnified Parties or the Fresenius Indemnified Parties), including any
Asbestos Insurance Entity or any property or interest in property of any
Asbestos Insurance Entity, in satisfaction of any Asbestos Insurance
Rights that the Asbestos PI Trust or any of the Insurance Contributors
may have against any of the foregoing.
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8.4.1.3
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Reservations from the Injunction for the Benefit of BNSF
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Notwithstanding anything to the contrary in Section 8.4.1.1 above, the Asbestos
Insurance EntityInjunction issued pursuant to Section 8.4.1.1 shall not enjoin:
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(a)
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BNSF from asserting any claim (as that term is defined in Bankruptcy
Code § 101(5)) for insurance coverage as an insured or an additional
insured against any Asbestos Insurance Entity that is not identified on
Exhibit 5 of the Exhibit Book; and
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103
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(b)
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BNSF from asserting any claim (as that term is defined in Bankruptcy
Code § 101(5)) for insurance coverage as an insured or an additional
insured against a Settled Asbestos Insurance Company under and only
under an insurance policy (or part of a policy) that is not identified as
being the subject of an Asbestos Insurance Settlement Agreement in
Exhibit 5 of the Exhibit Book;
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provided, however, that in all events, BNSF shall be enjoined from
asserting any claim against any Entity or policy entitled to protection
under the terms of the Arrowood Rule 9019 Settlement Agreement (as
defined in Section 8.2.2(e) above), including any of the policies identified
in Exhibits 2 and 3 to the Arrowood Rule 9019 Settlement.
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8.4.1.4
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Reservations from the Injunction Regarding Insurer Contribution Claims
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Notwithstanding anything to the contrary in Section 8.4.1.1 above, the Asbestos
Insurance Entity Injunction issued pursuant to Section 8.4.1.1 shall not enjoin an insurer from
asserting any claim for contribution against any other insurer that is not a Settled Asbestos
Insurance Company.
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8.5
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SUCCESSOR CLAIMS INJUNCTION
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Pursuant to the exercise of the equitable jurisdiction and power of the Court under Bankruptcy Code § 105(a), the Confirmation Order shall provide for issuance of the Successor Claim Injunction to take effect as of the Effective Date.
All Entities that have held or asserted, that hold or assert, or that may in the future hold or
assert, any Successor Claim (other than Successor Claims arising out of or based on any
Asbestos PI Claim, Asbestos PD Claim, or CDN ZAI PD Claim) against any Asbestos Protected
Party shall be stayed, restrained, and enjoined from taking any and all legal or other actions or
making any demand for the purpose of directly or indirectly claiming, collecting, recovering, or
receiving any payment, recovery, satisfaction, or any other relief whatsoever on, of, or with
respect to any such Successor Claim, including:
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(a)
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commencing, conducting, or continuing in any manner, directly or
indirectly, any suit, action, or other proceeding (including a judicial,
arbitration, administrative, or other proceeding) in any forum against or
affecting any Asbestos Protected Party, or any property or interest in
property of any Asbestos Protected Party
;
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(b)
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enforcing, levying, attaching (including any prejudgment attachment),
collecting, or otherwise recovering by any means or in any manner,
whether directly or indirectly, any judgment, award, decree, or other order
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against any Asbestos Protected Party, or any property or interest in
property of any Asbestos Protected Party
;
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(c)
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creating, perfecting, or otherwise enforcing in any manner, directly or
indirectly, any Encumbrance against any Asbestos Protected Party, or any
property or interest in property of any Asbestos Protected Party
;
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(d)
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setting off, seeking reimbursement of, indemnification or contribution
from, or subrogation against, or otherwise recouping in any manner,
directly or indirectly, any amount against any liability owed to any
Asbestos Protected Party, or any property or interest in property of any
Asbestos Protected Party; and
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(e)
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proceeding in any other manner with regard to any Successor Claim based
on or arising from, in whole or in part, directly or indirectly, the Cryovac
Transaction or Fresenius Transaction (other than Successor Claims arising
out of or based on any Asbestos PI Claim, Asbestos PD Claim, or CDN
ZAI PD Claim).
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8.5.2
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Reservations from the Injunction for the Benefit of Holders of Grace-
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Related Claims
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(a)
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As used in this Section 8.5.2: (i)
“GR Claim”
means a Grace-Related Claim against Fresenius that is not (x) an Asbestos PI Claim or an Asbestos PD Claim; (y) a claim against such Fresenius Indemnified Party that arises out of the Fresenius Transaction, or (z) a claim for fraudulent conveyance, successor liability, piercing of the corporate veil, a claim arising under chapter 5 of the Bankruptcy Code, or any other similar claim or cause of action; (ii)
“GR Proof of Claim”
means a proof of claim set forth in a format substantially the same as Official Form 10 that asserts a GR Claim; (iii) provided, however, that with respect to Seaton, a GR Claim may only be asserted, and a GR Proof of Claim may only be filed with respect to a GR Claim that is based on the 1996 Unigard Agreement; and (iv) further provided that with respect to OneBeacon, a GR Claim may only be asserted, and a GR Proof of Claim may only be filed, with respect to a GR Claim that is based on the 1996 CU Agreement.
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(b)
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Any Holder of a GR Claim who has not, on or before the Effective Date, filed a proof of claim against the Debtors with respect to the same claim(s) as are contemplated by such GR Claim, may file a GR Proof of Claim asserting such GR Claim against the Debtors on or before the sixtieth day subsequent to the Effective Date (the
“GR Claims Bar Date”
);
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(c)
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The Reorganized Debtors, from and after the Effective Date, shall assume all liability of Fresenius, and be entitled to assert and have the benefit of
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all defenses of Fresenius, with respect to all GR Claims timely filed by the GR Claims Bar Date; and
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(d)
|
For the avoidance of doubt, the Successor Claims Injunction shall not apply to Asbestos PI Claims and Asbestos PD Claims, which respectively shall be subject to the Asbestos PI Channeling Injunction and the Asbestos PD Channeling Injunction.
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(e)
|
Nothing in this Section 8.5.2 shall be construed to limit the scope or effect of the injunction afforded to the Fresenius Indemnified Parties or any of the other Asbestos Protected Parties pursuant to Section 8.5.1 above or any of the other injunctions, releases, indemnifications, or protections afforded to the Fresenius Indemnified Parties or any of the other Asbestos Protected Parties under this Plan.
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8.5.3
|
Reservations from the Injunction for the Benefit of OneBeacon and CNA
|
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(a)
|
Notwithstanding anything to the contrary contained in Section 8.5.1 above, and without limiting any defense, counterclaim, or other right of any of the Sealed Air Indemnified Parties or the application of any other provision of the Plan (including each of the injunctions and releases in the Plan), the Successor Claims Injunction shall not apply to any direct contractual indemnification obligation that any Sealed Air Indemnified Party may have to OneBeacon based upon or arising under the 1996 CU Agreement with respect to “Hatco-Related Environmental Claims” (as defined in the 1996 CU Agreement) asserted against the policies covered by that agreement.
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(b)
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Notwithstanding anything to the contrary contained in Section 8.5.1 above, and without limiting any other defense, counterclaim, or other right of any of the Sealed Air Indemnified Parties or the application of any other provision of the Plan (including each of the other injunctions and releases in the Plan), the Successor Claims Injunction shall not apply to any contractual indemnification and hold harmless obligations for which the Sealed Air Indemnified Parties are directly obligated to CNA and that arise directly under (or are directly based on) the CNA/Old Grace Delaware 5/30/97 Settlement Agreement except to the extent that any such obligation is, gives rise to, is based on, arises out of, or otherwise relates to any Asbestos Claim. For the avoidance of doubt, CNA’s claims against the Sealed Air Indemnified Parties under or based on any of the CNA/Old Grace Delaware Settlement Agreements that are Asbestos PI Claims or Asbestos PD Claims shall be subject to the Asbestos PI Channeling Injunction or the Asbestos PD Injunction and shall be treated as Class 6 Claims or Class 7A Claims under the Joint Plan.
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8.6
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INJUNCTIONS AND RELEASES RELATED TO THE SEALED AIR INDEMNIFIED PARTIES AND FRESENIUS INDEMNIFIED PARTIES
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As required by the Sealed Air Settlement Agreement, the Sealed Air Settlement Order, the Fresenius Settlement Agreement, and the Fresenius Settlement Order, the injunctions and releases outlined in this Plan, including the Asbestos PI Channeling Injunction and Asbestos PD Channeling Injunction provided under Bankruptcy Code § 524(g) and the Successor Claims Injunction provided under Bankruptcy Code § 105(a), shall absolutely and unequivocally extend to and protect the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties.
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8.7
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TERM OF CERTAIN INJUNCTIONS AND AUTOMATIC STAY
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8.7.1
Injunctions and/or Automatic Stays in Existence Immediately prior to Confirmation
All of the injunctions and/or automatic stays provided for in or in connection with the Chapter 11 Cases, whether pursuant to Bankruptcy Code §§ 105, 362, or any other provision of the Bankruptcy Code or other applicable law, in existence immediately prior to the Confirmation Date shall remain in full force and effect until the injunctions set forth in this Plan become effective, and thereafter if so provided by this Plan, the Confirmation Order, or by their own terms. In addition, on and after the Confirmation Date, the Reorganized Debtors or the Plan Proponents, acting together, may seek such further orders as they may deem necessary or appropriate to preserve the status quo during the time between the Confirmation Date and the Effective Date.
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8.7.2
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Injunctions Provided for in this Plan
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Each of the injunctions provided for in this Plan shall become effective on the Effective Date and shall continue in effect at all times thereafter unless otherwise provided by this Plan. Notwithstanding anything to the contrary contained in this Plan, all actions in the nature of those to be enjoined by such injunctions shall be enjoined during the period between the Confirmation Date and the Effective Date.
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8.8
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ADDITIONAL RELEASES AND INDEMNIFICATION
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8.8.1
Release of Sealed Air Indemnified Parties
On or prior to the Effective Date, (i) the SA Debtors, the Asbestos PD Committee, and the
Asbestos PI Committee shall execute and deliver the “Release” (as defined in the Sealed Air
Settlement Agreement); (ii) the “Government Plaintiff” (as defined in the Sealed Air Settlement
Agreement) shall execute and deliver the “Government Release” (as defined in the Sealed Air
Settlement Agreement); and (iii) the Asbestos PI Committee and the Asbestos PD Committee
shall deliver the “Fresenius Release” (as defined in the Sealed Air Settlement Agreement), all as
provided for in the Sealed Air Settlement Agreement. In addition, in consideration for the
Cryovac Payment, each of the SA Non-Debtor Affiliates shall irrevocably release, acquit, and
forever discharge the Sealed Air Indemnified Parties from any and all present and future
Asbestos-Related Claims and Demands related thereto and any and all present and future SA
Claims, Canadian Claims, SA Debts, and SA Damages on the basis of, and arising from, or
attributable to (in whole or in part, directly or indirectly) the Fresenius Transaction that have
accrued or been asserted or that hereafter might accrue or be asserted against the Sealed Air
Indemnified Parties, and that each Non-Debtor Affiliate shall not institute, participate in,
maintain, maintain a right to or assert against the Sealed Air Indemnified Parties, either directly
or indirectly, on its own behalf, derivatively, or on behalf of any other Entity any and all present
and future Asbestos-Related Claims and Demands related thereto, and any and all claims
present and future SA Claims, Canadian Claims, SA Debts, and SA Damages on the basis of,
arising from, or attributable to (in whole or in part, directly or indirectly) the Fresenius
Transaction.
The SA Debtors and the Reorganized Debtors shall defend, indemnify, and hold harmless each of the Sealed Air Indemnified Parties as provided in, and to the extent set forth, in the Sealed Air Settlement Agreement.
The SA Debtors shall, jointly and severally, at their sole expense, indemnify, defend, and hold harmless the Sealed Air Indemnified Parties from and against (1) any and all present and future Asbestos-Related Claims and Demands related thereto and all SA Indemnified Taxes, (2) any and all losses, costs, and expenses incurred as a result of any breach of any of the SA Debtors’ or SA Non-Debtor Affiliates’ obligations, covenants, and agreements set forth or referred to in the Sealed Air Settlement Agreement, including any such obligation, covenant, or agreement of any SA Debtor or SA Non-Debtor Affiliates set forth in the Plan or Confirmation Order, (3) if any SA Non-Debtor Affiliate has not executed and delivered a “Release” (as defined in the Sealed Air Settlement Agreement), any and all Asbestos-Related Claims and Demands related thereto based on, arising out of, or attributable to, directly or indirectly, in whole or in part, such SA Non-Debtor Affiliate and (4) any and all attorneys’ fees or costs and expenses attributable to any “SA Indemnity Claim” (as defined in Section 7.7(hh) above);
provided, however,
that in each case such indemnification shall not apply to “Excluded Fees” (as defined in the Sealed Air Settlement Agreement) and
provided, further
, that nothing in the Sealed Air Settlement Agreement or this Plan, shall adversely affect any rights of any Entity to file and pursue, or object to, a proof of claim for Excluded Fees in the Chapter 11 Cases.
Each SA Debtor shall execute and deliver an indemnity agreement in favor of the Released Parties in the form annexed as Exhibit 6 to the Sealed Air Settlement Agreement. The SA Debtors’ Indemnity Obligation (and the obligations, covenants, and agreements of each of the SA Debtors and SA Non-Debtor Affiliates set forth or referred to in the Sealed Air Settlement Agreement, including any such obligation, covenant, or agreement of any SA Debtor or SA Non-Debtor Affiliate set forth in the Plan or Confirmation Order) shall not be discharged, expunged, estimated, or otherwise adversely affected in or by the Chapter 11 Cases or by the confirmation of the Plan.
The SA Debtors’ Indemnity Obligation (and the obligation, covenants, and agreements of each of the SA Debtors and SA Non-Debtor Affiliates set forth or referred to in the Sealed Air Settlement Agreement, including any such obligation, covenant, or agreement of any SA Debtor or SA Non-Debtor Affiliate set forth in the Plan or Confirmation Order) shall continue
unaffected as a post-confirmation obligation of each of the Reorganized Debtors. For the avoidance of doubt, each of the SA Debtors’ and the Reorganized Debtors’ obligations to indemnify, defend, and hold harmless the Sealed Air Indemnified Parties under the Sealed Air Settlement Agreement and the documents governing the Cryovac Transaction shall survive confirmation and the SA Debtors’ and the Reorganized Debtors’ discharge and remain fully effective and enforceable after the Effective Date; and for the further avoidance of doubt the foregoing obligations include the obligations of the SA Debtors and Reorganized Debtors, at their sole expense, to jointly and severally defend, indemnify, and hold harmless the Sealed Air Indemnified Parties from and against any and all indemnification obligations of any of the Sealed Air Indemnified Parties to OneBeacon based upon or arising under the 1996 CU Agreement with respect to environmental claims asserted against the policies covered by that agreement. For the avoidance of doubt, each of the SA Debtors’ and the Reorganized Debtors’ obligations to indemnify, defend, and hold harmless the Sealed Air Indemnified Parties under the Sealed Air Settlement Agreement and the documents governing the Cryovac Transaction shall survive confirmation and the SA Debtors’ and the Reorganized Debtors’ discharge, and shall remain fully effective and enforceable after the Effective Date; and, for the further avoidance of doubt, the foregoing obligations include the obligations of the SA Debtors and Reorganized Debtors, at their sole expense, to jointly and severally defend, indemnify, and hold harmless the Sealed Air Indemnified Parties from and against any and all indemnification obligations of any of the Sealed Air Indemnified Parties to CNA based upon or arising under any of the CNA/Old Grace Delaware Settlement Agreements with respect to environmental claims asserted by Kaneb (as described on page 36 of the CNA Post-Trial Brief) or “Hatco Environmental Claims” (as defined by the CNA/Old Grace Delaware 5/30/97 Settlement Agreement).
8.8.2
Reservation of Rights With Respect to Cryovac Transaction Contractual Obligations
Notwithstanding anything to the contrary in this Plan, any of the Plan Documents, or the Confirmation Order, nothing in this Plan, any of the Plan Documents, or the Confirmation Order (including any other provision that purports to be preemptory or supervening) shall in any way operate to, or have the effect of, impairing or limiting the contractual rights, obligations, and defenses of any of the Sealed Air Indemnified Parties or the Debtors and the Non-Debtor Affiliates with respect to outstanding claims arising out of the interpretation or application of the documents governing the Cryovac Transaction. All such contractual rights, obligations, and defenses shall survive confirmation and the Debtors’ discharge and remain fully effective and enforceable after the Effective Date.
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8.8.3
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Release of Fresenius Indemnified Parties
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Upon receipt of the Fresenius Payment, the Debtors, the Reorganized Debtors, the
Asbestos PI Committee, and the Asbestos PD Committee will each fully, finally and forever
release, relinquish and discharge each and every Fresenius Indemnified Party from any and all
Grace-Related Claims, including, for the avoidance of doubt, claims and causes of action under
chapter 5 of the Bankruptcy Code or similar claims or causes of action under state or any other
law, that the Debtors, the Reorganized Debtors, the Asbestos PI Committee or the Asbestos PD
Committee have asserted or could have asserted in the Bankruptcy Court or any other forum
against any of the Fresenius Indemnified Parties and the release that is attached as Appendix B to
the Fresenius Settlement Agreement shall become effective. Upon receipt of the Fresenius
Payment, in addition to the more limited duties of indemnification by the Debtors to the
Fresenius Indemnified Parties under Article III of the Fresenius Settlement Agreement, the
Debtors and the Reorganized Debtors shall indemnify, defend and hold harmless the Fresenius
Indemnified Parties as provided in and to the extent set forth in the Fresenius Settlement
Agreement. Without limiting the foregoing, pursuant to Section 3.05 of the Fresenius Settlement
Agreement, the Debtors and the Reorganized Debtors shall indemnify, defend and hold harmless
the Fresenius Indemnified Parties from Fresenius Indemnified Taxes and, to the extent provided
in the Fresenius Settlement Agreement, any and all losses, costs, and expenses incurred as a
result of any breach of the Estate Parties’ obligations, covenants, and agreements set forth or
referred to in the Fresenius Settlement Agreement.
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8.8.4
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Assumption of 1998 Tax Sharing Agreement and Section 4.04 of the TSIA
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(a)
The Confirmation Order shall constitute an order authorizing the assumption by each of the Debtors of the 1998 Tax Sharing Agreement. The 1998 Tax Sharing Agreement shall be an assumed agreement of each of the Debtors (including Grace New York and Grace- Conn) pursuant to 11 U.S.C. § 365 and nothing contained in, or contemplated by, this Plan, the Confirmation Order, or the Sealed Air Settlement Agreement shall adversely affect the rights of the Debtors, Sealed Air Corporation or any of their respective Affiliates under the 1998 Tax Sharing Agreement.
(b)
The Confirmation Order shall constitute an order authorizing the assumption by each of the Debtors of Section 4.04 of the TSIA. Section 4.04 of the TSIA shall be an assumed agreement of each of the Debtors (including Grace New York and Grace-Conn) pursuant to 11
U.S.C. § 365 and nothing contained in, or contemplated by, this Plan, the Confirmation Order, or the Fresenius Settlement Agreement shall adversely affect the rights of the Debtors, Fresenius or any of their respective Affiliates under Section 4.04 of the TSIA.
8.8.5
Effect of the Fresenius Settlement Agreement, the Fresenius Settlement Order, and the Sealed Air Settlement Agreement.
Notwithstanding anything to the contrary in this Plan, any of the Plan Documents, or the Confirmation Order, nothing in this Plan, any of the Plan Documents, or the Confirmation Order (including any other provision that purports to be preemptory or supervening) shall in any way operate to, or have the effect of, impairing or limiting the legal, equitable, or contractual rights or obligations of the Sealed Air Indemnified Parties, the Fresenius Indemnified Parties, or the Debtors, the Reorganized Debtors, the other Estate Parties, and the Non-Debtor Affiliates, respectively, pursuant to the Sealed Air Settlement Agreement, the Sealed Air Settlement Order, the Fresenius Settlement Agreement or the Fresenius Settlement Order, as applicable, each of which is expressly made a part of this Plan and incorporated in this Plan by reference.
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8.8.6
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Release of Avoidance Actions
.
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Effective as of the Effective Date, the Debtors and the Reorganized Debtors fully, finally
and forever release, relinquish and discharge each and every claim, cause of action, or right of
the Debtors, the Reorganized Debtors or any of them, arising under the Bankruptcy Code,
including any avoidance or recovery actions under sections 544, 545, 547, 548, 549, 550, 551
and 553 of the Bankruptcy Code, or under any similar state statutes, which seek recovery of or
with respect to any payment by, or transfer of any interest in property of, any of the Debtors or
the Debtors in Possession on account of an Asbestos PI Claim, Asbestos PD Claim, or CDN ZAI
PD Claim, or any claim that would have constituted an Asbestos PI Claim, Asbestos PD Claim,
or CDN ZAI PD Claim had such payment or transfer not been made
. Notwithstanding the foregoing, the release provided in this Section 8.8.6 shall supplement the other releases and injunctions provided by the Debtors and Reorganized Debtors to the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties pursuant to this Plan and nothing in this Section
8.8.6 in any way limits or modifies, nor shall be construed to in any way limit or modify, the scope of such releases.
8.8.7
Specific Releases by Holders of Claims or Equity Interests
.
Without limiting any other provisions of this Plan, each Holder of a Claim or Equity
Interest who votes in favor of this Plan shall be deemed to unconditionally have released the
Asbestos Protected Parties, the Unsecured Creditors’ Committee, the Asbestos PI Committee, the
Asbestos PD Committee, the Equity Committee, Asbestos PI FCR, and the Asbestos PD FCR,
and each such party’s Representatives to the extent such Representatives served during the
Chapter 11 Cases (except that the foregoing limitation shall not apply to Representatives of the
Sealed Air Indemnified Parties and the Fresenius Indemnified Parties), as of the Effective Date,
from any and all claims, SA Claims, SA Damages, obligations, rights, suits, judgments,
damages, causes of action, remedies, and liabilities of any nature whatsoever, whether known or
unknown, foreseen or unforeseen, matured or unmatured, existing or hereafter arising, in law,
equity, or otherwise, that such Holder would have been legally entitled to assert in its own right
(whether individually or collectively), based in whole or in part upon any act or omission,
transaction, agreement, event, or other occurrence taking place on or before the Effective Date in
any way relating or pertaining to, the Debtors or the Reorganized Debtors, their operations on or
before the Effective Date, their respective property, the Chapter 11 Cases, or the negotiation,
formulation, and preparation of this Plan or any related agreements, instruments, or other
documents. In addition to the foregoing, each Holder of a Claim or Equity Interest who receives
or retains any property under this Plan shall also be deemed to unconditionally release the
Fresenius Indemnified Parties to the same extent as the release in the preceding sentence. This
section is not intended to preclude a Governmental Unit from enforcing its police and regulatory
powers
.
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8.8.8
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Release by Debtors and Estate Parties
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Effective as of the Confirmation Date, but subject to the occurrence of the Effective Date,
for good and valuable consideration, to the fullest extent permissible under applicable law, each
Debtor, in its individual capacity and as a debtor-in-possession for and on behalf of its estate and
its Affiliates, and the Reorganized Debtors on their own behalf and as representatives of their
respective estates and their Affiliates, and their respective successors, assigns and any and all
Entities who may purport to claim by, through, for or because of them, are hereby deemed to
release and waive conclusively, absolutely, unconditionally, irrevocably, and forever each and all
of the Debtors’ and their Non-Debtor Affiliates’ Representatives, to the extent they served during
the Chapter 11 Cases, and their respective properties (the “Released Parties”), from any and all
claims, obligations, rights, suits, damages, remedies, liabilities, or causes of action in any manner
arising from, based on, or relating to, in whole or in part, the Debtors, the Debtors’ property, the
Chapter 11 Cases, the purchase, sale, or rescission of the purchase or sale of any security of the
Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest
that is treated in this Plan, the restructuring of Claims and Interests prior to or in the Chapter 11
Cases, the negotiation, formulation, or preparation of the Plan and the Disclosure Statement, or
related agreements, instruments, or other documents, involving any act, omission, transaction,
agreement, occurrence, or event taking place on or before the Effective Date, other than any act
or omission of a Released Party that constitutes willful misconduct. Any act or omission taken
with the approval of the Bankruptcy Court will be conclusively deemed not to constitute willful
misconduct
.
8.8.9
Indemnification of Representatives of the Debtors and Non-Debtor Affiliates
.
The Reorganized Debtors will defend, indemnify, and hold harmless to the fullest extent permitted by applicable law, all Representatives of the Debtors, and all Representatives of the Non-Debtor Affiliates, on and after the Effective Date for all claims, obligations, rights, suits, damages, causes of action, remedies, and liabilities whatsoever that are purported to be released pursuant to Sections 8.8.7 and 8.8.8 herein. Nothing herein is intended to, and shall not, alter in any way the rights of the present and/or former officers and/or directors of the Debtors and the Non-Debtor Affiliates, under the Debtors’ By-Laws and/or Certificate of Incorporation, and the Non-Debtor Affiliates’ applicable bylaws and/or certificates of incorporation, whatever those rights may be.
8.8.10
Indemnification of Reorganized Debtors and Their Representatives by the Asbestos PI Trust
.
From and after the Effective Date, the Asbestos PI Trust shall protect, defend, indemnify and hold harmless, to the fullest extent permitted by applicable law each of the Reorganized Debtors and their Representatives from and against: (a) any and all Asbestos PI Claims or Successor Claims arising out of or based on any Asbestos PI Claim to the extent they are subject to the Asbestos PI Channeling Injunction, together with any and all related Damages, (b) any and all Damages relating to Asbestos PI Claims or Successor Claims purported to be covered by the Asbestos PI Channeling Injunction, to the extent that such Asbestos PI Claims or Successor Claims are brought in jurisdictions outside of the United States of America or are not otherwise, for any reason, subject to the Asbestos PI Channeling Injunction, (c) any and all claims or Damages arising out of, resulting from, or attributable to, directly or indirectly, the assignment, transfer or other provision to the Asbestos PI Trust of the Asbestos Insurance Rights, and (d) any
and all claims or Damages arising out of Asbestos PI Claims, to the extent such Claims or Damages are based upon claims brought by, on behalf of or in the name of the Asbestos PI Trust on account of or derived from the Asbestos PI Trust Assets;
provided however
, that notwithstanding the foregoing, none of the Reorganized Debtors nor any of their Representatives shall be entitled to be protected, defended, indemnified or held harmless from any criminal proceeding or any claims or Damages arising out of, resulting from, or attributable to, directly or indirectly, the criminal proceeding styled
United States v. W. R. Grace & Co., et al.,
Case No. CR-05-07-M-DWM (D. Mont.) or any similar or related proceeding or any settlement thereof. If there shall be pending any claim against the Asbestos PI Trust for indemnification under this Section 8.8.10, the Asbestos PI Trust shall maintain sufficient assets (as determined in good faith by the Asbestos PI Trustees of the Asbestos PI Trust) to fund any payments in respect of that claim for indemnification. For purposes of this Section only, “Damages” to any Entity covered by the indemnity in this Section 8.8.10 shall mean any cost, damage (including any consequential, exemplary, punitive, or treble damage) or expense (including reasonable fees and actual disbursements by attorneys, consultants, experts, or other Representatives and costs of litigation) imposed upon that Entity. The Reorganized Debtors shall provide prompt notice to the Asbestos PI Trust upon becoming aware of the basis for any claim for indemnification under this Section 8.8.10.
8.8.11
Indemnification of the Reorganized Debtors and Their Representatives by the Asbestos PD Trust
.
From and after the Effective Date, the Asbestos PD Trust shall protect, defend, indemnify and hold harmless, to the fullest extent permitted by applicable law each of the Reorganized Debtors and their Representatives from and against: (a) any and all Asbestos PD Claims or Successor Claims arising out of or based on any Asbestos PD Claim to the extent they are subject to the Asbestos PD Channeling Injunction, together with any and all related Damages, (b) any and all Damages relating to Asbestos PD Claims or Successor Claims purported to be covered by the Asbestos PD Channeling Injunction, to the extent that such Asbestos PD Claims or Successor Claims are brought in jurisdictions outside of the United States of America (other than Canada) or are not otherwise, for any reason, subject to the Asbestos PD Channeling Injunction, and (c) any and all claims or Damages arising out of Asbestos PD Claims, to the extent such Claims or Damages are based upon claims brought by, on behalf of or in the name of the Asbestos PD Trust on account of or derived from the Asbestos PD Trust Assets;
provided however
, that notwithstanding the foregoing, none of the Reorganized Debtors nor any of their Representatives shall be entitled to be protected, defended, indemnified or held harmless from any criminal proceeding or any claims or Damages arising out of, resulting from, or attributable to, directly or indirectly, the criminal proceeding styled
United States v. W. R. Grace & Co., et al.,
Case No. CR-05-07-M-SWM (D. Mont.) or any similar or related proceeding or any settlement thereof. If there shall be pending any claim against the Asbestos PD Trust for indemnification under this Section 8.8.11, the Asbestos PD Trust shall maintain sufficient assets (as determined in good faith by the Asbestos PD Trustees of the Asbestos PD Trust) to fund any payments in respect of that claim for indemnification. For purposes of this Section only, “Damages” to any Entity covered by the indemnity in this Section 8.8.11 shall mean any cost, damage (including any consequential, exemplary, punitive, or treble damage) or expense (including reasonable fees and actual disbursements by attorneys, consultants, experts, or other Representatives and costs of litigation) imposed upon that Entity. The Reorganized Debtors
shall provide prompt notice to the Asbestos PD Trust upon becoming aware of the basis for any claim for indemnification under this Section 8.8.11.
ARTICLE 9
EXECUTORY CONTRACTS, UNEXPIRED LEASES, LETTERS OF CREDIT, SURETY BONDS,
COMPENSATION, INDEMNITY AND BENEFIT PROGRAMS
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9.1
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ASSUMPTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
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9.1.1
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Assumption Generally
.
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Except for (i) executory contracts and unexpired leases that the Debtors reject prior to the Effective Date or designate (on a list set forth in Exhibit 18 in the Exhibit Book) as being subject to rejection in connection with the Effective Date; (ii) the TSIA which shall be terminated (except for Section 4.04) upon the effective date of the Fresenius Settlement Agreement; and (iii) agreements, to the extent executory, that create an obligation of the Debtors to reimburse or indemnify third parties with respect to Asbestos PI Claims, Asbestos PD Claims or CDN ZAI PD Claims (other than all Asbestos Insurance Policies, Asbestos Insurance Settlement Agreements, Asbestos In-Place Insurance Coverage, and Asbestos Insurance Reimbursement Agreements, to the extent they are executory, the Sealed Air Settlement Agreement, the Fresenius Settlement Agreement, and the 1998 Tax Sharing Agreement), all executory contracts and unexpired leases (including all Asbestos Insurance Policies, Asbestos Insurance Settlement Agreements, Asbestos In-Place Insurance Coverage, and Asbestos Insurance Reimbursement Agreements, to the extent they are executory; the Sealed Air Settlement Agreement, the Fresenius Settlement Agreement, the 1998 Tax Sharing Agreement; and the cost sharing agreement between the Debtors, Unifirst Corporation, and Beatrice Company, dated November 16, 1990 and described at Section 2.8.2 of the Disclosure Statement) not previously assumed by the Debtors pursuant to Bankruptcy Code § 365 shall be deemed to have been assumed by the Reorganized Debtors on the Effective Date, and this Plan shall constitute a motion to assume such executory contracts and unexpired leases as of the Effective Date.
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9.1.2
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Assumption Procedures
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Subject to the occurrence of the Effective Date, entry of the Confirmation Order shall constitute express approval of the assumption of the executory contracts and unexpired leases described in Section 9.1.1 pursuant to Bankruptcy Code § 365(a) and a finding by the Bankruptcy Court that each such assumption is in the best interests of the Debtors, their estates, and all parties in interest in the Chapter 11 Cases.
Not later than twenty (20) days after entry of the Confirmation Order, the Debtors will File with the Bankruptcy Court an exhibit (the “
Cure Exhibit
”) setting forth those executory contracts and unexpired leases which are being assumed by the Debtors and as to which the Debtors believe that cure amounts are owing, together with the respective cure amounts due for each such executory contract or assumed lease. The Debtors shall serve the Cure Exhibit on each non-Debtor party to an executory contract or unexpired lease being assumed pursuant to the
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Plan, including those listed on such exhibit. If there is a dispute regarding (i) the nature or amount of any cure, (ii) the ability of a Reorganized Debtor or assignee to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under the contract or lease to be assumed or (iii) any other matter pertaining to assumption, cure will occur following the entry of a Final Order resolving the dispute and approving the assumption. With respect to any executory contracts or unexpired leases which are being assumed by the Debtors but as to which the Debtors contend that no cure amounts are due, such executory contracts and unexpired leases will not be included on the Cure Exhibit.
Not later than twenty (20) days after the Filing and service of the Cure Exhibit, the non- Debtor party to any executory contract or unexpired lease that the Debtors propose to assume, whether or not listed on the Cure Exhibit, may dispute the cure amount, if any, set forth by the Debtors on the Cure Exhibit pursuant to Section 9.1.1 of the Plan, assert that a cure amount should be owing with respect to any executory contract or unexpired lease that is being assumed, or otherwise object to the assumption of the executory contract or unexpired lease indicated in Section 9.1.1 of the Plan by Filing a written objection with the Bankruptcy Court and serving such objection on counsel for the Debtors.
If no objection to the cure amount or the proposed assumption is properly Filed and served within twenty (20) days after the Filing and service of the Cure Exhibit then (i) the proposed assumption of the executory contract or unexpired leases shall be deemed approved without further action of the Bankruptcy Court in accordance with the Plan and the Confirmation Order, effective as of the Effective Date, and (ii) the cure amount, if any, identified by the Debtors in the Cure Exhibit shall be fixed and shall be paid in full in Cash on the Effective Date or on such other terms as are agreed to by the parties to such executory contract or unexpired lease.
If an objection to the cure amount or the proposed assumption is properly Filed and served within twenty (20) days after the Filing and service of the Cure Exhibit, then the Debtors or Reorganized Debtors, as applicable, and the objecting party may resolve such objection by stipulation, without further action of the Bankruptcy Court. If the parties are unable to resolve such objection, then: (i) the Debtors or Reorganized Debtors may file a reply to such objection no later than thirty (30) days after the Filing and service of such objection and ask the Bankruptcy Court to schedule a hearing on the particular objection and the related reply at an appropriate time; or (ii) the Debtors or Reorganized Debtors, as applicable, may designate the executory contract or unexpired lease underlying such objection for rejection pursuant to Section
9.1.3 of the Plan.
Executory contracts and unexpired leases previously assumed by the Debtors during the case pursuant to Bankruptcy Code § 365 shall be governed by and subject to the provisions of the order of the Court authorizing the assumption thereof.
9.1.3 Rejection of Certain Executory Contracts and Unexpired Leases
.
On the Effective Date, each executory contract and unexpired lease listed on Exhibit 18 in the Exhibit Book shall be rejected pursuant to section 365 of the Bankruptcy Code. Each
contract and lease listed on Exhibit 18 shall be rejected only to the extent that such contract or lease constitutes an executory contract or unexpired lease. Listing a contract or lease on Exhibit 18 shall not constitute an admission by the Debtors or Reorganized Debtors that such contract or lease is an executory contract or unexpired lease or that the Debtors or Reorganized Debtors have any liability thereunder. Subject to the occurrence of the Effective Date, entry of the Confirmation Order shall constitute an order of the Bankruptcy Court approving such rejection pursuant to section 365 of the Bankruptcy Code and a finding by the Bankruptcy Court that each such rejection is in the best interests of the Debtors, their estates, and all parties in interest in the Chapter 11 Cases.
The Debtors shall have the right until ten (10) days prior to the Effective Date to modify the list of rejected contracts included in Exhibit 18 in the Exhibit Book to add executory contracts or leases (but not the 1998 Tax Sharing Agreement, the Sealed Air Settlement Agreement, the Fresenius Settlement Agreement, or any Asbestos Insurance Policy, Asbestos Insurance Settlement Agreement, Asbestos In-Place Insurance Coverage, or Asbestos Insurance Reimbursement Agreements) or remove executory contracts or leases (but not Section 4.04 of the TSIA addressed in Section 8.8.4(b) of this Plan),
provided
that the Debtors shall file a notice with the Bankruptcy Court and serve each affected party with such notice. Notwithstanding the foregoing, such affected parties shall not be entitled to any Administrative Expense Claim for any executory contracts or leases added to the list of rejected contracts and will only be entitled to a Claim for rejection damages.
To the extent executory, all agreements that create an obligation of the Debtors to reimburse or indemnify third parties (other than the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties) with respect to Asbestos PI Claims, Asbestos PD Claims or CDN ZAI PD Claims (other than Asbestos Insurance Policies, Asbestos Insurance Settlement Agreements, Asbestos In-Place Insurance Coverage, Asbestos Insurance Reimbursement Agreements, the Sealed Air Settlement Agreement, the Fresenius Settlement Agreement, or the 1998 Tax Sharing Agreement to the extent any are executory) shall be deemed rejected by operation of entry of the Confirmation Order, subject to the occurrence of the Effective Date, unless expressly identified and assumed pursuant to the Plan, a Plan Document, or an order of the Bankruptcy Court.
Pursuant to the terms of the March 2003 Bar Date Order and Bankruptcy Rule 3002(c)(4), and except as otherwise ordered by the Bankruptcy Court, a proof of claim for each Claim arising from the rejection of an executory contract or unexpired lease pursuant to this Plan shall be Filed with the Bankruptcy Court within thirty (30) days of the later of: (i) the date of service of the Notice of Confirmation Date, or (ii) the Effective Date. Any Claims not Filed within such applicable time period shall be forever barred from assertion. Except with respect to Claims arising from the rejection of an executory contract or unexpired lease that creates an obligation of the Debtors to reimburse or indemnify third parties with respect to Asbestos PI Claims, Asbestos PD Claims or CDN ZAI PD Claims, all Claims for damages arising from the rejection of an executory contract or unexpired lease shall be included in Class 9 and shall be treated in accordance with Article 3 herein. All Claims for damages arising from the rejection of an agreement that creates an obligation of the Debtors to reimburse or indemnify third parties with respect to Asbestos PI Claims, Asbestos PD Claims or CDN ZAI PD Claims shall be
included in Class 6, Class 7 or Class 8, respectively, and shall be treated in accordance with Article 3 herein.
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9.2
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LETTERS OF CREDIT AND SURETY BONDS
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Letters of credit related to the Debtors’ post-petition credit facilities will be refinanced upon emergence from the Chapter 11 Cases. All other letters of credit and surety bonds on account of non-asbestos claims will remain in place and become obligations of the Reorganized Debtors. Claims arising under letters of credit and surety bonds issued or provided on account of Asbestos PI Claims will be treated as Indirect PI Trust Claims and will be channeled to the Asbestos PI Trust. Claims arising under letters of credit and surety bonds issued or provided on account of Asbestos PD Claims will be treated as Indirect PD Trust Claims and will be channeled to the Asbestos PD Trust. Notwithstanding any other provision in this Plan, the Disclosure Statement or any other document prepared in connection with the Chapter 11 Cases, nothing shall affect the right of the plaintiffs in
Sheldon H. Solow v. W. R. Grace & Co.,
No. 2453/88 (NY Sup. Ct.) to execute on and recover in satisfaction of the judgment in that case in accordance with state law against any entity that issued a surety bond to secure payment of that judgment, or any successor to such entity.
Nothing in Article 9 shall (i) constitute a reinstatement, continuation, or assumption of any warranty provision, guaranty, or any other contractual or other obligation, Demand, or Plan Claim by the Reorganized Debtors to the extent that the Plan Claim, Demand, or obligation constitutes an Asbestos PI Claim, or (ii) limit, restrict, or otherwise impair the releases afforded to the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties that are granted elsewhere in this Plan or Plan Documents.
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9.3
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COMPENSATION, INDEMNITY AND BENEFIT PROGRAM
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9.3.1
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Employee Benefits
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From and after the Effective Date, the Reorganized Debtors intend to continue their existing employee compensation, indemnity agreements, and benefit plans, programs, and policies, and to cure any defaults that may exist under such agreements, plans, programs, and policies, including payment of the Debtors’ voluntary supplemental pension payments which were limited during the pendency of these Chapter 11 Cases, subject to any rights to amend, modify, or terminate such benefits under the terms of the applicable compensation and benefit plan, other agreement, or applicable nonbankruptcy law.
It is also anticipated that after the Effective Date, the Reorganized Debtors may award special cash bonuses of up to an aggregate of $6 million to a select group of key executives in recognition of their contributions during the Chapter 11 Cases, including substantially increasing the revenues and enterprise value of the Grace group and successfully leading the Debtors’ reorganization efforts. The amount and allocation of such bonus awards will be determined after the Effective Date by the Board of Directors of the Reorganized Parent.
In addition, on the Effective Date, the Reorganized Parent’s Board of Directors will have the authority to grant stock incentive awards to the management of the Reorganized Debtors and to other key employees, and to the Board of Directors of the Reorganized Debtors pursuant to the Stock Incentive Plan.
From and after the Effective Date, the Reorganized Debtors intend to continue to pay retiree benefits (as defined in section 1114(a) of the Bankruptcy Code) and any similar health, disability, or death benefits in accordance with the terms of the retiree benefit plans or other agreements governing the payment of such benefits, subject to any rights to amend, modify, or terminate such benefits under the terms of the applicable retiree benefits plan, other agreement, or applicable nonbankruptcy law.
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9.3.3
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Workers’ Compensation Benefits
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From and after the Effective Date, the Reorganized Debtors, in their sole discretion, may continue to pay valid Workers’ Compensation Claims, subject to any rights to amend, modify, or terminate such benefits pursuant to applicable nonbankruptcy law.
ARTICLE 10 RETENTION OF JURISDICTION
Pursuant to Bankruptcy Code §§ 105(a), 524(a), 1141(d), and 1142, the Bankruptcy Court shall retain and shall have exclusive jurisdiction over any matter (i) arising under the Bankruptcy Code, (ii) arising in or related to the Chapter 11 Cases or this Plan, or (iii) that relates to the following, provided that the District Court shall retain jurisdiction for such matters to which the automatic reference to the Bankruptcy Court has been withdrawn or to the extent required by law and to the extent set forth in Section 10.10 below:
To interpret, enforce, and administer the terms of the Plan Documents and all annexes and exhibits thereto.
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10.2
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EXECUTORY CONTRACTS AND UNEXPIRED LEASES
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To hear and determine any and all motions or applications for the assumption and/or assignment or rejection of (i) executory contracts, (ii) unexpired leases, (iii) letters of credit, (iv) surety bonds, (v) guaranties (which for purposes of this Section include contingent liabilities arising in connection with assigned executory contracts and unexpired leases), or (vi) written indemnity agreements with respect to letters of credit, surety bonds or guaranties existing as of the Effective Date to which the Debtors are parties or with respect to which the Debtors may be liable that are: (A) pending on the Confirmation Date or (B) within the time period described in
Section 9.1 of this Plan, and to review and determine all Claims resulting from the expiration or termination of any executory contract or unexpired lease prior to the Confirmation Date.
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10.3
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DISPUTED CLAIMS ALLOWANCE/DISALLOWANCE
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To hear and determine any objections to: (i) the allowance of Plan Claims (other than Asbestos PI Claims and any Successor Claims arising out of or based on any Asbestos PI Claims), including any objections to the classification of any Claim; and (ii) the allowance or disallowance of any Disputed Claim in whole or in part, including Asbestos PD Claims pursuant to the Class 7A Case Management Order contemplated by Section 3.1.7 of this Plan.
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10.4
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ENFORCEMENT/MODIFICATION OF THIS PLAN AND THE RELEASES, INJUNCTIONS AND DISCHARGE PROVIDED UNDER THE PLAN
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(a)
To enforce the discharge, releases, and injunctions provided under the Plan, including with respect to the assertion by any Entity after the Effective Date of claims or causes of action that are discharged, released, or enjoined pursuant to the Plan and the Confirmation Order;
(b)
To make all determinations or rulings as to whether claims or causes of action asserted after the Effective Date in any forum have been discharged, released, or enjoined pursuant to the Plan and the Confirmation Order;
(c)
To allow and disallow Asbestos PD Claims as contemplated by the Class 7A Case Management Order;
(d)
To issue such orders in aid of execution of this Plan to the extent authorized or contemplated by Bankruptcy Code § 1142;
(e)
To consider and approve any modifications of this Plan or Plan Documents, remedy any defect or omission, or reconcile any inconsistency in any order of the Court, including the Confirmation Order;
(f)
To hear and determine all controversies, suits, and disputes that may relate to, impact upon, or arise in connection with this Plan or any other Plan Documents or their interpretation, implementation, enforcement, or consummation;
(g)
To hear and determine all objections to the termination of the Asbestos PI Trust or the Asbestos PD Trust;
(h)
To determine such other matters that may be set forth in, or that may arise in connection with, this Plan, the Confirmation Order, the Asbestos PI Channeling Injunction, the Asbestos PD Channeling Injunction, the Successor Claims Injunction, the Asbestos Insurance Entity Injunction, the Asbestos PI Trust Agreement, or the Asbestos PD Trust Agreement;
(i)
To hear and determine any proceeding that involves the validity, application, construction, enforceability, or request to modify the Asbestos PI Channeling Injunction, the
Asbestos PD Channeling Injunction, the Successor Claims Injunction, or the Asbestos Insurance Entity Injunction;
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(j)
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To enter an order or final decree closing the Chapter 11 Cases;
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(k)
To hear and determine any other matters related hereto, including matters related to the implementation and enforcement of all orders entered by the Court in the Chapter 11 Cases;
(l)
To enter such orders as are necessary to implement and enforce the injunctions described herein; and
(m)
To enter orders authorizing immaterial modifications to this Plan and to hear and determine any issue involving the Asbestos PI Trust or the Asbestos PD Trust in order to comply with section 468B of the IRC.
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10.5
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COMPENSATION OF PROFESSIONALS
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To hear and determine all applications for allowance of compensation and reimbursement of expenses of Professionals under Bankruptcy Code §§ 327, 328, 329, 330, 331, and 363 and any other fees and expenses authorized to be paid or reimbursed under this Plan.
To the extent that Court approval is required, to consider and act on the compromise and settlement of any Plan Claim or cause of action by or against the Debtors’ or Reorganized Debtors’ estates, the Asbestos PI Trust, or the Asbestos PD Trust.
To hear and determine matters concerning state, local, and federal taxes (including the amount of net operating loss carryforwards), fines, penalties, or additions to taxes for which the Debtors or Debtors in Possession may be liable, directly or indirectly, in accordance with Bankruptcy Code §§ 346, 505, and 1146.
To hear and determine such other matters and for such other purposes as may be provided in the Confirmation Order.
To hear and determine matters concerning the Asbestos Insurance Policies, Asbestos In- Place Insurance Coverage, Asbestos Insurance Reimbursement Agreements, and Asbestos Insurance Settlement Agreements;
provided, however,
that the Court shall have nonexclusive jurisdiction over such matters.
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10.10
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EXCLUSIVE JURISDICTION OF DISTRICT COURT
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The District Court shall, without regard to the amount in controversy, retain exclusive jurisdiction after the Effective Date to hear and determine any motion pursuant to Section 7.2.9 above to extend the Asbestos PI Channeling Injunction to an Asbestos Insurance Entity.
ARTICLE 11 MISCELLANEOUS PROVISIONS
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11.1
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AUTHORITY OF THE DEBTORS
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On the Confirmation Date, the Debtors shall be directed and authorized to take or cause to be taken, prior to the Effective Date, all actions necessary to enable them to implement effectively the provisions of this Plan, the other Plan Documents (including the Sealed Air Settlement Agreement and the Fresenius Settlement Agreement), and the creation of the Asbestos PI Trust and the Asbestos PD Trust, and to cooperate with the Plan Proponents as provided herein and with respect to matters related to the Plan generally.
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11.2
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AUTHORITY OF THE REORGANIZED DEBTORS TO GRANT NEW STOCK INCENTIVE PLAN AND IMPOSE STOCK TRADING RESTRICTIONS
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On the Effective Date, the Reorganized Parent’s Board of Directors shall have the authority to grant stock incentive awards to the management of the Reorganized Debtors and to other key employees, and to the Board of Directors of the Reorganized Debtors pursuant to the Stock Incentive Plan and as described more fully in the Disclosure Statement. Also on the Effective Date, the Board of Directors of the Reorganized Parent shall be authorized, in certain circumstances, to impose trading restrictions on Parent Common Stock pursuant to the Stock Trading Restrictions Term Sheet, and as described more fully in the Disclosure Statement.
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11.3
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PAYMENT OF STATUTORY FEES
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All fees payable pursuant to section 1930 of title 28 of the United States Code, as determined by the Court at the hearing on confirmation of this Plan, shall be paid by the Debtors on or before the Effective Date.
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11.4
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RETAINED CAUSES OF ACTION
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11.4.1
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Maintenance of Causes of Action
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Nothing in this Section 11.4 of this Plan shall be deemed to be a transfer by the Debtors and the Reorganized Debtors of any claims, causes of action, or defenses relating to assumed executory contracts or otherwise which are required by the Reorganized Debtors to conduct their businesses in the ordinary course subsequent to the Effective Date. Moreover, except as otherwise expressly contemplated by this Plan, the Sealed Air Settlement Agreement, the
Fresenius Settlement Agreement or other Plan Documents, and except for the Asbestos PI Trust Causes of Action and the Asbestos PD Trust Causes of Action, from and after the Effective Date, the Reorganized Debtors shall have and retain any and all rights to commence and pursue any and all claims, causes of action, including the Retained Causes of Action, or defenses against any parties, other Claimants and Holders of Equity Interests, whether such causes of action accrued before or after the Petition Date.
The Reorganized Debtors shall retain and may exclusively enforce any and all such claims, rights, or causes of action, including Retained Causes of Action, and commence, pursue, and settle the causes of action in accordance with this Plan. The Reorganized Debtors shall have the exclusive right, authority, and discretion to institute, prosecute, abandon, settle, or compromise any and all such claims, rights, and causes of action, including Retained Causes of Action, without the consent or approval of any third party and without any further order of the Court.
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11.4.2
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Preservation of All Causes of Action not Expressly Settled or Released
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Unless a claim or cause of action against a Claimant or other Entity is expressly waived, relinquished, released, compromised, or settled in this Plan or any Final Order, the Debtors expressly reserve such claim or Retained Cause of Action (including any unknown causes of action) for later adjudication by the Reorganized Debtors, the Asbestos PD Trust Causes of Action related to Claims in Class 7A for later adjudication by the Reorganized Debtors on behalf of the Asbestos PD Trust pursuant to the Class 7A CMO, the Asbestos PD Trust Causes of Action related to Claims in Class 7B for later adjudication by the Asbestos PD Trust, and the Asbestos PI Trust Causes of Action for later adjudication by the Asbestos PI Trust. Therefore, no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, waiver, estoppel (judicial, equitable, or otherwise), or laches shall apply to such claims, Retained Causes of Action, Asbestos PI Trust Causes of Action, or Asbestos PD Trust Causes of Action upon or after the Confirmation Date or Effective Date of this Plan based on the Disclosure Statement, this Plan or the Confirmation Order, except where such claims or Retained Causes of Action have been released in this Plan or other Final Order. In addition, the Debtors, the Reorganized Debtors, and the successor entities under this Plan expressly reserve the right to pursue or adopt any claim alleged in any lawsuit in which the Debtors are defendants or an interested party, against any Entity, including the plaintiffs or co- defendants in such lawsuits.
Any Entity to whom the Debtors have incurred an obligation (whether on account of services, purchase or sale of goods or otherwise), or who has received services from the Debtors or a transfer of money or property of the Debtors, or who has transacted business with the Debtors, or leased equipment or property from the Debtors should assume that such obligation, transfer, or transaction may be reviewed by the Debtors or the Reorganized Debtors, and may, if appropriate, be the subject of an action after the Effective Date, whether or not (i) such Entity has filed a proof of claim against the Debtors in the Chapter 11 Cases; (ii) such Claimant’s proof of claim has been objected to; (iii) such Claimant’s Claim was included in the Debtors’ Schedules; or (iv) such Claimant’s scheduled Claim has been objected to by the Debtors or has
been identified by the Debtors as a Disputed Claim, a Contingent Claim, or an Unliquidated Claim.
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11.5
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THIRD-PARTY AGREEMENTS
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The Distributions to the various Classes of Plan Claims hereunder will not affect the right of any Entity to levy, garnish, attach, or employ any other legal process with respect to such Distributions by reason of any claimed subordination rights or otherwise. All of such rights and any agreements relating thereto will remain in full force and effect.
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11.6
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REQUIREMENTS OF THE FRESENIUS SETTLEMENT AGREEMENT
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Except as expressly waived in writing by Fresenius in its absolute discretion, each of the provisions to be included in the Plan to satisfy the preconditions to the payment of the Fresenius Payment set forth in the Fresenius Settlement Agreement and the other requirements of the Fresenius Settlement Agreement, to the extent not already included herein or waived pursuant to the terms of the Fresenius Settlement Agreement, shall be included in Exhibit 13 in the Exhibit Book and are hereby expressly incorporated herein by reference and made a part hereof as if the same were fully set forth in this Plan.
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11.7
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REQUIREMENTS OF THE SEALED AIR SETTLEMENT AGREEMENT
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Except as expressly waived in writing by each of Sealed Air Corporation and Cryovac, Inc. in its absolute discretion, each of the provisions to be included in the Plan to satisfy the preconditions to the payment of the Cryovac Payment set forth in the Sealed Air Settlement Agreement and the other requirements of the Sealed Air Settlement Agreement, to the extent not already included herein or waived pursuant to the terms of the Sealed Air Settlement Agreement, shall be included in Exhibit 22 in the Exhibit Book and are hereby expressly incorporated herein by reference and made a part hereof as if the same were fully set forth in this Plan.
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11.8
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DISSOLUTION OF THE UNSECURED CREDITORS’ COMMITTEE, THE ASBESTOS PI COMMITTEE, THE ASBESTOS PD COMMITTEE AND THE EQUITY COMMITTEE; CONTINUED RETENTION OF THE ASBESTOS PI FUTURE CLAIMANTS’ REPRESENTATIVE AND THE ASBESTOS PD FUTURE CLAIMANTS’ REPRESENTATIVE
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The Debtors shall pay the reasonable fees and expenses incurred by the Asbestos PI Committee, the Asbestos PD Committee, the Unsecured Creditors’ Committee, the Equity Committee, the Asbestos PI Future Claimants’ Representative, and the Asbestos PD Future Claimants’ Representative through the Effective Date in accordance with the fee and expense procedures promulgated during the Chapter 11 Cases. On the Effective Date, except as set forth below, the Asbestos PI Committee, the Asbestos PD Committee, the Unsecured Creditors’ Committee, and the Equity Committee shall thereupon be released and discharged of and from all further authority, duties, responsibilities, and obligations relating to or arising from or in connection with the Chapter 11 Cases, and those committees shall be deemed dissolved. After the Effective Date, the rights, duties, and responsibilities of the Asbestos PI Future Claimants’ Representative shall be as set forth in the Asbestos PI Trust Agreement, and the rights, duties,
123
and responsibilities of the Asbestos PD Future Claimants’ Representative shall be as set forth in the Asbestos PD Trust Agreement.
Notwithstanding the foregoing, if the Effective Date occurs prior to the entry of a Final Order with respect to final fee applications of Professionals retained by order of the Bankruptcy Court during the Chapter 11 Cases, the Unsecured Creditors’ Committee, the Asbestos PI Committee, the Asbestos PD Committee, and the Equity Committee may, at their option, continue to serve until a Final Order is entered with respect to such proceedings. Further, after the Effective Date, the Unsecured Creditors’ Committee, the Asbestos PI Committee, the Equity Committee, the Asbestos PI Future Claimants’ Representative, and the Asbestos PD Future Claimants’ Representative shall continue in existence and have standing and capacity to (i) object to any proposed modification of the Plan, (ii) object to or defend the Administrative Expense Claims of Professionals employed by or on behalf of the Debtors or their estates, (iii) participate in any appeals of the Confirmation Order (if applicable), (iv) prepare and prosecute applications for the payment of fees and reimbursement of expenses, and (v) continue any adversary proceeding (but not the Sealed Air Action or the Fresenius Action, each of which shall be dismissed with prejudice as a condition to the Effective Date), claim objection, appeal, or other proceeding that was in progress prior to the Effective Date. Nothing in section (v) of the foregoing sentence shall be deemed to confer standing and capacity on the Unsecured Creditors' Committee, the Asbestos PI Committee, the Equity Committee, the Asbestos PI Future Claimants' Representative, or the Asbestos PD Future Claimants' Representative to provide services or take action in connection with an adversary proceeding, claim objection, appeal or other proceeding that was in progress prior to the Effective Date where such services are for the benefit of an individual creditor or creditors and do not serve the direct interests of the creditor or equity interest class which such Entity is appointed to represent. The Reorganized Debtors shall pay the reasonable fees and expenses incurred by the Unsecured Creditors’ Committee, the Asbestos PI Committee, Equity Committee, the Asbestos PI Future Claimants’ Representative, and the Asbestos PD Future Claimants’ Representative relating to any post-Effective Date activities authorized hereunder without further order of the Bankruptcy Court. Nothing in this Section 11.8 shall purport to limit or otherwise affect the rights of the United States Trustee under section 502 of the Bankruptcy Code or otherwise to object to Claims or requests for allowances of Administrative Expense Claims.
None of the Reorganized Debtors, the Debtors, the Non-Debtor Affiliates, the Sealed Air Indemnified Parties, the Fresenius Indemnified Parties, the Asbestos PI Committee, the Asbestos PD Committee, the Unsecured Creditors’ Committee, the Equity Committee, the Asbestos PI FCR, the Asbestos PD FCR, or any of their respective Representatives are to have or incur any liability to any Entity for any act or omission in connection with or arising out of the Chapter 11 Cases, including the negotiation of this Plan or the settlements provided in the Sealed Air Settlement Agreement and the Fresenius Settlement Agreement, the pursuit of confirmation of this Plan, the consummation of this Plan or the settlements provided in the Sealed Air Settlement Agreement or Fresenius Settlement Agreement, or the administration of this Plan or the property to be distributed under this Plan so long as, in each case such action, or failure to act, did not constitute gross negligence or willful misconduct. In all respects, they will be entitled to rely upon the advice of counsel with respect to their duties and responsibilities under this Plan. Any
act or omission taken with the approval of the Bankruptcy Court will be conclusively deemed not to constitute gross negligence or willful misconduct. This section is not intended to preclude a governmental entity from enforcing its police and regulatory powers.
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11.10
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TITLE TO ASSETS; DISCHARGE OF LIABILITIES
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Upon the transfer of the Asbestos PI Trust Assets into the Asbestos PI Trust, such Asbestos PI Trust Assets shall be indefeasibly vested in the Asbestos PI Trust free and clear of all claims, Equity Interests, Encumbrances, and other interests of any Entity. Notwithstanding the foregoing, or anything else in this Plan to the contrary, the Asbestos PI Trust Assets shall remain subject to any and all restrictions imposed by applicable securities laws and the Sealed Air Common Stock transferred to the Asbestos PI Trust shall remain subject to any and all restrictions imposed by the Sealed Air Settlement Agreement (including any rights of Sealed Air under the Sealed Air Settlement Agreement) and applicable securities laws. Upon the transfer of the Asbestos PD Trust Assets into the Asbestos PD Trust, such Asbestos PD Trust Assets shall be indefeasibly vested in the Asbestos PD Trust free and clear of all claims, equity interests, Encumbrances, and other interests of any Entity. Except as otherwise provided in this Plan and in accordance with Bankruptcy Code § 1123(b)(3), on the Effective Date, title to all of the Debtors’ assets and properties and interests in property, including the Retained Causes of Action, shall vest in the Reorganized Debtors free and clear of all claims, Equity Interests, Encumbrances, and other interests, and the Confirmation Order shall be a judicial determination of discharge of the liabilities of the Debtors.
Except as otherwise indicated, the Plan and the Plan Documents supersede all prior negotiations, promises, covenants, agreements, understandings, and representations on such subjects, including all plans of reorganization previously filed by any party in interest with the Court in these Chapter 11 Cases.
Any notices, statements, requests, and demands required or permitted to be provided under this Plan, in order to be effective, must be: (i) in writing (including by facsimile transmission), and unless otherwise expressly provided herein, shall be deemed to have been duly given or made (A) if personally delivered or if delivered by facsimile or courier service, when actually received by the Entity to whom notice is sent, (B) if deposited with the United States Postal Service (but only when actually received), at the close of business on the third business day following the day when placed in the mail, postage prepaid, certified or registered with return receipt requested, or (C) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid) (but only when actually received) and (ii) addressed to the appropriate Entity or Entities to whom such notice, statement, request or demand is directed (and, if required, its counsel), at the address of such Entity or Entities set forth below (or at such other address as such Entity may designate from time to time by written notice to all other Entities listed below in accordance with this Section 11.12):
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If to the Debtors:
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W. R. Grace & Co. 7500 Grace Drive
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Columbia, MD 21044 Attn: General Counsel
Telephone: (410) 531-4000
Facsimile: (410) 531-4545
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With a copy to:
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Kirkland & Ellis LLP 300 North LaSalle
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Chicago, IL 60654
Attn: John Donley/Adam Paul Telephone (312) 862-2000
Facsimile: (312) 862-2200 and
Baer Higgins Fruchtman LLC
111 East Wacker Drive, Suite 2800
Chicago, IL 60601 Attn: Janet S. Baer
Telephone: (312) 836-4022
Facsimile: (312) 577-0737 and
Pachulski, Stang, Ziehl, & Jones LLP 919 North Market Street, 17
th
Floor
P.O. Box 8705
Wilmington, Delaware 19899-8705 (Courier 19801)
Attn: Laura Davis Jones/James E. O’Neill Telephone : (302) 652-4100
Facsimile: (302) 652-4400
If to the Asbestos PI Committee:
Caplin & Drysdale, Chartered
One Thomas Circle, NW, Suite 1100 Washington, DC 20005
Attn: Peter Lockwood/Ronald Reinsel
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Telephone:
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#VALUE!
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Facsimile:
and
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#VALUE!
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Caplin & Drysdale, Chartered 375 Park Avenue, 35th Floor New York, NY 10152
Attn: Elihu Inselbuch Telephone: (212) 319-7125
Facsimile: (212) 644-6755
If to the Asbestos PD Committee:
Bilzin Sumberg Baena Price & Axelrod LLP
200 South Biscayne Blvd., Suite 2500
Miami, FL 33131-5340
Attn: Scott L. Baena/Jay M. Sakalo/Mindy A. Mora
Telephone: (305) 374-7580
Facsimile: (305) 374-7593
If to the Asbestos PI Future Claimants’ Representative:
David T. Austern
3110 Fairview Park Drive Suite 200
Falls Church VA 22042-0683 Telephone: (703) 205-0835
Facsimile: (703) 205-6249
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With a copy to:
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Orrick, Herrington & Sutcliffe LLP 1152 15th Street, N.W. Washington, D.C. 20005-1706 Attention: Roger Frankel Telephone: (202) 339-8400
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Facsimile: (202) 339-8500
If to the Asbestos PD Future Claimants’ Representative:
Alexander M. Sanders, Jr. 19 Water Street
Charleston, South Carolina 29401 Telephone: (843) 953-5755
Facsimile: (843) 953-7570
With a copy to:
Alan B. Rich
Attorney and Counselor 4244 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Telephone: (214) 744-5100
Facsimile: (214) 744-5101
If to the Unsecured Creditors’ Committee:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038-4982
Attn: Lewis Kruger/Arlene Krieger/Kenneth Pasquale
Telephone: (212) 806-5400
Facsimile: (212) 806-6006
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If to Sealed Air:
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Sealed Air Corporation 200 Riverfront Boulevard Elmwood Park, NJ 07407 Attn: General Counsel
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Telephone: (201) 791-7600
Facsimile: (201) 703-4113
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With a copy to:
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Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square
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New York, NY 10036
Attn: J. Gregory St. Clair/David M. Turetsky Telephone: (212) 735-3000
Facsimile: (212) 735-2000
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If to Fresenius:
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Fresenius Medical Care North America Corporate Headquarters
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Corporate Law Department 95 Hayden Avenue
Lexington, MA 02420-9192 Attn: General Counsel Telephone: (781) 402-9000
Facsimile: (781) 402-9700
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With a copy to:
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McDermott, Will & Emery 227 W. Monroe, Suite 4400
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Chicago, IL 60606
Attn: David S. Rosenbloom Telephone: (312) 372-2000
Facsimile: (312) 984-7700
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If to the Equity Committee:
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Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas
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New York, NY 10036 Attn: Phillip Bentley
Telephone: (212) 715-9100
Facsimile: (212) 715-8000
The headings used in this Plan are inserted for convenience only and neither constitute a portion of this Plan nor in any manner affect the construction of the provisions of this Plan.
Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and Bankruptcy Rules), the laws of the State of Delaware, without giving effect to any conflicts of law principles thereof that would result in the application of the laws of any other jurisdiction, shall govern the construction of this Plan and any agreements, documents, and instruments executed in connection with this Plan, except as otherwise expressly provided in such instruments, agreements, or documents.
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11.15
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FILING OF ADDITIONAL DOCUMENTS
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On or before the Effective Date, the Plan Proponents shall File with the Court such agreements and other documents, including the Plan Supplement, as may be necessary or appropriate to effectuate and further evidence the terms and conditions of this Plan.
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11.16
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COMPLIANCE WITH TAX REQUIREMENTS
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In connection with this Plan, the Debtors, the Reorganized Debtors, the Asbestos PI Trust, and the Asbestos PD Trust will comply with all applicable withholding and reporting requirements imposed by federal, state, and local taxing authorities, and all Distributions hereunder or under any Plan Document shall be subject to such withholding and reporting requirements, if any. Notwithstanding any other provision of this Plan, each Entity receiving a Distribution pursuant to this Plan, or any other Plan Document, will have sole and exclusive responsibility for the satisfaction and payment of any tax obligations imposed by any Governmental Unit, including income tax and other obligations, on account of that Distribution.
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11.17
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EXEMPTION FROM TRANSFER TAXES
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Pursuant to Bankruptcy Code § 1146(a), the issuance, transfer, or exchange of notes or equity securities under this Plan, the creation of any mortgage, deed of trust, or other security interest, the making or assignment of any lease or sublease, or the making or delivery of any deed or other instrument of transfer under, in furtherance of, or in connection with this Plan shall be exempt from all taxes as provided in Bankruptcy Code § 1146(a).
The Debtors, the Reorganized Debtors, the Non-Debtor Affiliates, the Asbestos Protected Parties, the Asbestos Insurance Entities, the Asbestos PI Trust, the Asbestos PD Trust and all Holders of Plan Claims receiving Distributions under this Plan and all other parties in interest shall, and shall be authorized to, from time to time, prepare, execute, and deliver any agreements or documents and take any other action consistent with the terms of this Plan as may be
necessary to effectuate the provisions and intent of this Plan, with each such Entity to bear its own costs incurred in connection therewith.
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11.19
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FURTHER AUTHORIZATIONS
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The Plan Proponents, and, after the Effective Date, the Reorganized Debtors, the Asbestos PI Trust, and the Asbestos PD Trust if and to the extent necessary, may seek such orders, judgments, injunctions, and rulings that any of them deem necessary to carry out further the intentions and purposes of, and to give full effect to the provisions of, this Plan, with each such Entity to bear its own costs in connection therewith.
[The remainder of this page has been left blank intentionally]
Respectfully submitted,
W. R. GRACE & CO. (on behalf of itself and the other Debtors and Debtors In Possession)
By:
/s/ Mark A. Shelnitz
Name: Mark A. Shelnitz
Title: Vice President, General Counsel & Secretary
OFFICIAL COMMITTEE OF ASBESTOS PERSONAL INJURY CLAIMANTS
By:
/s/ Elihu Inselbuch
Name: Elihu Inselbuch
Title: Counsel to the Asbestos PI Committee
ASBESTOS PI FUTURE CLAIMANTS’ REPRESENTATIVE
By:
/s/ Roger Frankel
Name: David T. Austern by counsel
OFFICIAL COMMITTEE OF EQUITY SECURITY HOLDERS
By:
/s/ R. Ted Weschler
Name: R. Ted Weschler
Title: Chairman of the Equity Committee
Annex I
Pursuant to Section 7.7(nn) of the Plan, and not by way of limitation of the Sealed Air Settlement Agreement, each of the SA Debtors and the SA Non-Debtors Affiliates shall:
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a.
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use its best efforts to cause each of the Asbestos PI Trust and the Asbestos PD Trust (each, for purposes of this Annex I, a "Trust" and, collectively, the "Trusts") to qualify, and to maintain its status, as a Qualified Settlement Fund (as defined in the Sealed Air Settlement Agreement),
provided, however
, that nothing herein shall in any way be construed as a representation, warranty, or covenant concerning the treatment for federal income tax purposes of the transfer by Cryovac, Inc. of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) to the Asbestos PI Trust pursuant to Section 7.2.2 of the Plan and the Asbestos PD Initial Payment to the Asbestos PD Trust pursuant to Section 7.3.2 of the Plan and the Confirmation Order,
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b.
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use its best efforts to cause the constitutive document(s) (including the Asbestos PI Trust Agreement and the Asbestos PD Trust Agreement), or any amendments thereto, of each of the Asbestos PI Trust and the Asbestos PD Trust to contain provisions, reasonably satisfactory to Cryovac, Inc., qualifying and maintaining its status as a Qualified Settlement Fund (as defined in the Sealed Air Settlement Agreement) and providing that Cryovac, Inc. or its designee shall be a Transferor (as defined in the Sealed Air Settlement Agreement) to each Trust,
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c.
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promptly provide to Cryovac, Inc. all Material Drafts (as defined in the Sealed Air Settlement Agreement), or any amendments thereto, of each Asbestos PI Trust Agreement, Asbestos PD Trust Agreement and each Trust Document (as defined in the Sealed Air Settlement Agreement) (but excluding or redacting the Asbestos PI TDP and ZAI TDP),
provided, however
, that Cryovac, Inc. shall keep any such Material Draft (as defined in the Sealed Air Settlement Agreement), or any amendments thereto, confidential and shall disclose any such Material Draft (as defined in the Sealed Air Settlement Agreement), or any amendments thereto, only to Sealed Air Corporation, and officers, employees, and advisors of Cryovac, Inc., Sealed Air Corporation, or its Affiliates, and only after such Entity agrees to keep such Material Draft (as defined in the Sealed Air Settlement Agreement), or any amendments thereto, confidential but may disclose to any and all Entities, without limitation of any kind, the tax treatment and any facts that may be relevant to the tax structure of the transactions contemplated by the Sealed Air Settlement Agreement,
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d.
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incorporate promptly if it is the party drafting such document, or if otherwise, urge the party drafting such document promptly to incorporate, into any such document, or any amendments thereto, each provision with respect to the subject matter set forth or referred to in paragraphs II(c)(ix), (x), and (xi), paragraph VI(g), clauses (i)(A) through (C) of paragraph VI(c) of the Sealed Air Settlement Agreement and clauses o. and p. and sub- clauses h(1) through (3) of this Annex I, as the case may be, that are reasonably requested by Cryovac, Inc.,
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e.
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take all Defined Actions (as defined in the Sealed Air Settlement Agreement) required to be taken pursuant to, or that are reasonably requested by Sealed Air Corporation and consistent with the provisions of, paragraphs II(c)(ix), (x), or (xi), or VI(g), of the Sealed Air Settlement Agreement and clauses o. and p. of this Annex I, as the case may be,
provided, however
, that it shall not be required to take a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this clause e. if each of the following four requirements has been previously satisfied (1) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement or clause n. of this Annex I, (2) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to paragraph VI(b) of the Sealed Air Settlement Agreement or clauses e., f. and g. of this Annex I, as the case may be, (3) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (4) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
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f.
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be prohibited from taking any Defined Action (as defined in the Sealed Air Settlement Agreement) prohibited from being taken pursuant to, or that is inconsistent with the provisions of, paragraphs II(c)(ix), (x), or (xi), or VI(g), of the Sealed Air Settlement Agreement and clauses o. and p. of this Annex I,
provided, however,
that it shall not be prohibited from taking a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this clause f. if each of the following four requirements has been previously satisfied (1) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement or clause n. of this Annex I, (2) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to paragraph VI(b) of the Sealed Air Settlement Agreement or clauses e., f. and g. of this Annex I, as the case may be, (3) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (4) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
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g.
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use its best efforts not to make any statement in a court document filed in the SA Debtors' Chapter 11 Cases or in any oral statement to the court in the SA Debtors' Chapter 11 Cases that is prohibited by, or inconsistent with the provisions of, paragraphs II(c)(ix), (x), or (xi), or VI(g), of the Sealed Air Settlement Agreement or clauses o. and p. of this Annex I, as the case may be,
provided, however,
that it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this paragraph g. if each of the following four requirements has been previously satisfied (1) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement or clause n. of this Annex I Agreement, as the case may be, (2) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as
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defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this sentence, (3) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (4) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
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h.
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promptly notify Cryovac, Inc. and Sealed Air Corporation upon receipt by any of them or any of their Affiliates of any notice of any pending or threatened audit or assessment, suit, litigation, proposed adjustment, deficiency, dispute, administrative or judicial proceeding or other similar Claim (as defined in the Sealed Air Settlement Agreement) involving any of them or any of their Affiliates from any Tax authority or any other Entity challenging (1) the qualification of the Asbestos PI Trust or the Asbestos PD Trust as a Qualified Settlement Fund (as defined in the Sealed Air Settlement Agreement), (2) the qualification of Cryovac, Inc. as a Transferor (as defined in the Sealed Air Settlement Agreement) to the Asbestos PI Trust or the Asbestos PD Trust, (3) the transfer by Cryovac, Inc. of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) to the Asbestos PI Trust pursuant to Section 7.2.2 of the Plan or the Confirmation Order and the Asbestos PD Initial Payment to the Asbestos PD Trust pursuant to Section 7.3.2 of the Plan or the Confirmation Order as a direct payment by Cryovac, Inc. to the Asbestos PI Trust or the Asbestos PD Trust for Asbestos Claims that constitutes an ordinary and necessary expense of Cryovac, Inc. (for purposes of this Annex I, any such audit or assessment, suit, litigation, proposed adjustment, deficiency, dispute, administrative or judicial proceeding or other similar Claim (as defined in the Sealed Air Settlement Agreement), for purposes of this Annex I a "Tax Claim"),
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i.
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permit, and cause their respective Affiliates to permit, Cryovac, Inc. and Sealed Air Corporation to participate at their expense in the defense or prosecution of any Tax Claim (including to participate in all discussions with the Tax authorities regarding any Tax Claim and to be allowed to provide affirmative suggestions or comments with respect to any written submissions or communications to the Tax authorities regarding any Tax Claims, which comments and suggestions shall be incorporated into such written submissions or communications with the consent of the SA Debtors, such consent not to be unreasonably withheld),
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j.
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consult with Cryovac, Inc. and Sealed Air Corporation in connection with the defense or prosecution of any Tax Claim and provide such cooperation and information as Cryovac, Inc. and Sealed Air Corporation shall reasonably request with respect to any Tax Claim,
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k.
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agree to use its best efforts to attempt to sever any Tax Claim from other issues raised in any audit or assessment, suit, litigation, proposed adjustment, deficiency, dispute, administrative or judicial proceeding or other similar Claim (as defined in the Sealed Air Settlement Agreement) and shall instruct their, and their Affiliates’, respective Chief Executive Officer, Chief Financial Officer, and Director of Taxes to deliver, and shall cause each of their Affiliates, to deliver to Cryovac, Inc. and Sealed Air Corporation:
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1.
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promptly after the receipt of any document received from the IRS relating to a Tax Claim, a copy of such document;
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2.
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any document delivered to the IRS with respect to a Tax Claim promptly after such document is delivered to the IRS,
provided, however
, that, if such document was prepared in response to a request by the IRS, then prior to the delivery of such document to the IRS, Cryovac, Inc. and Sealed Air Corporation shall be allowed to provide affirmative suggestions or comments with respect to any such document, as provided in paragraph VI(c)(ii) of the Sealed Air Settlement Agreement and clauses i. and j. of this Annex I;
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3.
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at least five days prior to any meeting or conference (whether in person or by teleconference) scheduled with the IRS during which a Tax Claim may be discussed, with written notice of such scheduled meeting or conference, and an opportunity to attend the portions of such meeting or conference during which any Tax Claim is discussed; and
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4.
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with cooperation and information reasonably requested by Cryovac, Inc. or Sealed Air Corporation in connection with any Tax Claim, including, at Cryovac, Inc.'s or Sealed Air Corporation's request, status updates with respect to all Tax Claims.
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l.
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be entitled to redact any document to be provided to Cryovac, Inc. or Sealed Air Corporation in furtherance of the obligations set forth in clause k. of this Annex I to exclude information not pertinent to the Tax Claim,
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m.
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not settle or otherwise dispose of any Tax Claim unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement),
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n.
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if any of the SA Debtors or the SA Non-Debtor Affiliates has determined that an issue (for the purposes of this Annex I such issue, a "Paragraph VI(f) Issue") may exist with respect to its taking, or the failure to take, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to paragraph II(c)(ix), (x), or (xi), or VI(b) or VI(g), of the Sealed Air Settlement Agreement or clauses e., f., g., o., and p., of this Annex I, as the case may be, then, prior to delivering a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) in accordance with the provisos set forth in paragraph II(c)(ix), (x), or (xi), VI(b) or VI(g) of the Sealed Air Settlement Agreement, or clauses e., f., g., o., and p., of this Annex I, as the case may be,
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(1) provide to Sealed Air Corporation, as promptly as practicable, a written notice identifying such Defined Action (as defined in the Sealed Air Settlement Agreement) and describing in detail the Paragraph VI(f) Issue and (2) consult and act (and cause its advisors to, consult and act) in good faith to determine and resolve (i) if such issue relates to a Tax issue, whether, as a result of a Change in Circumstances, there is no "reasonable basis", as defined in IRC section 6662 (or successor provision thereof), for the taking of, or the failure to take, such Defined Action (as defined in the Sealed Air Settlement Agreement) by such Entity or (ii) if such issue relates to an accounting issue, whether, as a result of a Change in Circumstances, the taking, or the failure to take, such Defined
Action (as defined in the Sealed Air Settlement Agreement) is inconsistent with generally accepted accounting principles. For purposes of this Annex I, "Change in Circumstances" shall mean (i) for U.S. federal income tax purposes, (x) any amendment to the IRC or the final or temporary regulations promulgated under the IRC, (y) a decision by any federal court, or (z) a Revenue Ruling, Notice, Revenue Procedure, or Announcement, which amendment is enacted, promulgated, issued, or announced, or which decision, Revenue Ruling, Notice, Revenue Procedure, or Announcement is issued or announced, in each case, after the Effective Date, and (ii) for financial accounting purposes, any amendment to or change in generally accepted accounting principles, which amendment is issued or announced or, which change occurs, in each case, after the Effective Date.
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o.
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unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement), (1) file all Tax Returns required to be filed by such Entity, if any, consistent with the provisions of paragraph II(c)(ix) of the Sealed Air Settlement Agreement and take all other Defined Actions (as defined in the Sealed Air Settlement Agreement) that are reasonably requested by Sealed Air Corporation and consistent with the provisions of paragraph II(c)(ix) of the Sealed Air Settlement Agreement, and (2) be prohibited, from taking any Defined Action (as defined in the Sealed Air Settlement Agreement) that may result in the disqualification of the Asbestos PI Trust or the Asbestos PD Trust as a Qualified Settlement Fund (as such term is defined in the Sealed Air Settlement Agreement) or be inconsistent with Cryovac, Inc. being treated as a Transferor (as defined in the Sealed Air Settlement Agreement) of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) directly to the Asbestos PI Trust pursuant to Section 7.2.2 of the Plan and the Confirmation Order and the Asbestos PD Initial Payment directly to the Asbestos PD Trust pursuant to Section 7.3.2 of the Plan and the Confirmation Order;
provided, however
, that it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this clause o. if each of the following four requirements has been previously satisfied: (1) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement and clause n. of this Annex I, as the case may be, (2) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this clause o., (3) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (4) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
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p.
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treat for all Tax purposes any and all payments by Cryovac, Inc. of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) to the Asbestos PI Trust pursuant to Section 7.2.2 of the Plan and the Confirmation Order and the Asbestos PD Initial Payment to the Asbestos PD Trust pursuant to Section 7.3.2 of the Plan and the Confirmation Order as a direct payment by Cryovac, Inc. to the Asbestos PI Trust or the Asbestos PD Trust for Asbestos Claims that constitutes an ordinary and necessary
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expense of Cryovac, Inc., and, unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement):
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1.
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for financial accounting or any other regulatory purpose, be prohibited from treating any payment by Cryovac, Inc. to the Asbestos PI Trust or the Asbestos PD Trust pursuant to the Plan or the Confirmation Order as a payment by Cryovac, Inc. to any of the SA Debtors or SA Non-Debtor Affiliates, or as a payment by any SA Debtor or SA Non-Debtor Affiliate to any Entity (including to the Asbestos PI Trust or the Asbestos PD Trust) (or treating such payment as, or resulting in, an expense or deduction of any Debtor or Non-Debtor Affiliate),
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2.
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for Tax purposes, be prohibited from claiming that any payment by Cryovac, Inc. to the Asbestos PI Trust or the Asbestos PD Trust pursuant to the Plan or the Confirmation Order results in or gives rise (directly or indirectly) to the accrual or allowance of a deduction or expense, or income to, or any other transfer of any type to, any SA Debtor or SA Non-Debtor Affiliate,
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3.
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take all Defined Actions (as defined in the Sealed Air Settlement Agreement) that are reasonably requested by Sealed Air Corporation and consistent with the provisions of this clause p.,
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4.
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not take any position inconsistent with the foregoing on any Tax Return or with any Tax authority, and
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5.
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not make any statement in any public or regulatory filing or release or otherwise, or take any other Defined Action (as defined in the Sealed Air Settlement Agreement), that is inconsistent with the obligations of such Entity pursuant to this clause p.,
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provided, however
, that with respect to sub-clauses p.3 and p.5 above, it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this clause p. if each of the following four requirements has been previously satisfied: (1) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement and clause n. of this Annex I, as the case may be, (2) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this clause p., (3) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (4) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
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q.
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be entitled to prepare and execute (but not file) a Protective Claim (as defined in the Sealed Air Settlement Agreement and, for purposes of this Annex I, with respect to each of the SA Debtors and the SA Non-Debtors Affiliates, a "Grace Protective Claim"),
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(which filing shall be effected only by Cryovac, Inc. pursuant to, and in accordance with, the provisions of the Sealed Air Settlement Agreement) for the taxable year of the SA Debtors in which the transfers by Cryovac, Inc. of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) to the Asbestos PI Trust pursuant to Section
7.2.2
of the Plan or the Confirmation Order and the Asbestos PD Initial Payment to the Asbestos PD Trust pursuant to Section 7.3.2 of the Plan or the Confirmation Order (for purposes of this Annex I, the "Transfer") are made, or for any other prior (solely with respect to a carryback from the taxable year of the Transfer) or subsequent taxable year in which the Tax Benefits (as defined in the Sealed Air Settlement Agreement) realized as a result of such Transfer may be claimed by the SA Debtors (for purposes of this Annex I any such taxable year, a "Relevant Tax Year"), and require Cryovac, Inc. to file such Grace Protective Claim with the IRS or other governmental authority for and on behalf of the SA Debtors; provided, however, that a Grace Protective Claim shall not be required to be filed by Cryovac, Inc. at any time prior to 15 days before the expiration (taking into account all extensions thereof) of the applicable statute of limitations for the SA Debtors to file an amended return ("SOL") for the Relevant Tax Year, and provided further that notwithstanding anything to the contrary set forth in paragraph VI(h) of the Sealed Air Settlement Agreement and clauses q., r., s., t. and u. of this Annex I, the Debtors may prepare and execute a Grace Protective Claim, and require Cryovac, Inc. to file such Grace protective Claim with the IRS or other governmental authority for a Relevant Tax Year, only if each of the following requirements has been previously satisfied:
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1.
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the SA Debtors have granted each extension (and each further extension) to the applicable SOL for such Relevant Tax Year that has been requested by the IRS,
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2.
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at the time of each such request by the IRS referred to in sub-clause p.1, above, to extend (or further extend) the applicable SOL for such Relevant Tax Year, the SA Debtors shall have used their best efforts to extend (and cause the IRS to agree to extend) such SOL for a period of two (2) years or longer;
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3.
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in the event that the IRS has not requested the SA Debtors to extend (or further extend) the applicable SOL for such Relevant Tax Year prior to 180 days prior to the end of such SOL, the SA Debtors shall have used their best efforts to extend (and cause the IRS to agree to extend) such SOL for a period of two (2) years or longer;
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4.
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the SA Debtors shall have provided to Cryovac, Inc. a written statement by their Chief Financial Officer that each of the requirements set forth immediately above in sub- clauses p.1, 2, and 3 has been satisfied in all respects; and
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r.
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at the request of Sealed Air Corporation, prepare and execute a Grace Protective Claim to be filed by Sealed Air Corporation pursuant to paragraph VI(h)(ii) of the Sealed Air Settlement Agreement or this clause r.
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s.
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pay to Cryovac, Inc. in immediately available funds fifty (50) percent of the amount of any Tax Benefit (as defined in the Sealed Air Settlement Agreement) realized as a result of the Transfer no later than ten (10) days after such Tax Benefit (as defined in the Sealed
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Air Settlement Agreement) has been deemed to have been Actually Realized (as defined in and determined pursuant to the Sealed Air Settlement Agreement),
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t.
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if requested by Sealed Air Corporation, use their best efforts to extend (and cause the IRS to agree to extend) the applicable SOL for any Relevant Tax Year,
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u.
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include in Part II of Form 1120X (or applicable section of any similar state or local tax form) of any Grace Protective Claim the language set forth on Exhibit 7 of the Sealed Air Settlement Agreement and only such other language as may be mutually agreed to by the SA Debtors and Cryovac, Inc. (or Sealed Air Corporation),
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v.
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withdraw all Grace Protective Claims upon a Cryovac Final Determination (as defined in the Sealed Air Settlement Agreement) that the Transfer results in a Tax Benefit (as defined in the Sealed Air Settlement Agreement) to Cryovac, Inc. (or the affiliated group filing a consolidated Tax Return of which Sealed Air Corporation is the common parent), and provide a written statement to Cryovac, Inc. signed by the Chief Financial Officer of the SA Debtors stating that all Grace Protective Claims have been withdrawn,
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w.
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upon notice by Cryovac, Inc. as provided in paragraph VI(i) of the Sealed Air Settlement Agreement, as the case may be, or if otherwise requested in writing by Cryovac, Inc., use reasonable best efforts to pursue all Grace Protective Claims and keep Cryovac, Inc. fully informed of, and permit Cryovac, Inc. to participate in, all developments with respect to all such Grace Protective Claims in a manner consistent with the provisions set forth in paragraphs VI(c)(ii) through (vi) of the Sealed Air Settlement Agreement and clauses i., j., k., l., and m. of this Annex I, as the case may be,
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x.
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no later than ten (10) days after the SA Debtors shall have Actually Realized (as defined in the Sealed Air Settlement Agreement) a Tax Benefit (as defined in the Sealed Air Settlement Agreement) as a result of the Transfer, provide Cryovac, Inc. with a detailed statement (for the purposes of this Annex I, the "Tax Benefit Statement") specifying (1) the amount of the Tax Benefit (as defined in the Sealed Air Settlement Agreement) that was Actually Realized (as defined in the Sealed Air Settlement Agreement) by the SA Debtors and any information relevant to the computation thereof (including full access to any applicable Tax Return, non-proprietary work papers and other materials and information of the SA Debtors and their accountants), (2) the date that such Tax Benefit (as defined in the Sealed Air Settlement Agreement) was Actually Realized (as defined in the Sealed Air Settlement Agreement), (3) the amount of deduction, loss, credit or exclusion initially claimed by the SA Debtors as a result of the Transfer (for purposes of this Annex I, the "Initial Tax Benefit Item"), (4) the amount of the Initial Tax Benefit Item that is utilized by the SA Debtors to create such Tax Benefit (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement) (including as a result of all or a portion of the Initial Tax Benefit Item being carried back or forward), and (5) the amount of the Initial Tax Benefit Item not yet utilized by the SA Debtors (to create a Tax Benefit (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement)) that will be carried forward,
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y.
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no later than 30 days after the SA Debtors have filed their U.S. federal consolidated income Tax Return for each year beginning the year that includes the Tax Benefit Start Date (as defined in the Sealed Air Settlement Agreement), deliver to Cryovac, Inc. an annual statement (for purposes of this Annex I, the "CFO Annual Statement"), signed by their Chief Financial Officer under penalties of perjury, that sets forth (1) the amount of the Tax Benefits (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement), if any, by the SA Debtors as a result of the Transfer during the preceding taxable year (including, without limitation, as a result of an amended return for any taxable year, a loss or deduction being utilized for such preceding taxable year, a loss or credit carryback from such preceding taxable year, or a loss or credit carryforward to such preceding taxable year), (2) the date (or dates) such Tax Benefits were Actually Realized (as defined in the Sealed Air Settlement Agreement) during such taxable year, (3) the amount of the Initial Tax Benefit Item, (4) the amount of the Initial Tax Benefit Item that is utilized by the SA Debtors to create such Tax Benefit (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement), and (5) the amount of the Initial Tax Benefit Item not yet utilized by the SA Debtors (to create a Tax Benefit (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement)) that will be carried forward,
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z.
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provide Cryovac, Inc. with all information relevant to the computation of such Tax Benefits (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement) by the SA Debtors set forth in clause
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y.1 of this Annex I (including full access to any applicable Tax Return, the non- proprietary work papers, and other materials and information of the SA Debtors and their accountants),
aa. within fifteen (15) days after the SA Debtors' receipt of a Tax Benefit Dispute Notice (as defined in the Sealed Air Settlement Agreement), unless the matters in the Tax Benefit Dispute Notice (as defined in the Sealed Air Settlement Agreement) have otherwise been resolved by mutual agreement of the parties, select, jointly with Cryovac, Inc., a nationally-recognized independent certified public accountant (for purposes of this Annex I, the "Tax Benefit Accountant");
provided, however
, if the SA Debtors and Cryovac, Inc. are unable to agree upon the Tax Benefit Accountant within such fifteen
(15) day period, then the SA Debtors and Cryovac, Inc. shall each select a nationally- recognized independent certified public accountant which shall then jointly choose the Tax Benefit Accountant within fifteen (15) days thereafter, and the terms of the engagement of such Tax Benefit Accountant shall require the Tax Benefit Accountant to comply with paragraph VI(j)(iv) of the Sealed Air Settlement Agreement,
bb. pay to Cryovac, Inc. in immediately available funds no later than five (5) days after delivery of the Tax Benefit Report (as defined in the Sealed Air Settlement Agreement) to the SA Debtors and Cryovac, Inc. the sum of (x) the excess, if any, of fifty (50) percent of the amount of the Tax Benefit (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement) set forth in the Tax Benefit Report (as defined in the Sealed Air Settlement Agreement) over the amount previously paid, if any, by the SA Debtors to Cryovac, Inc. with respect thereto and (y)
interest with respect to any such excess, as provided for in paragraph VI(k) of the Sealed Air Settlement Agreement,
cc. if a loss, deduction, credit or exclusion that resulted in Tax Benefit that was Actually Realized (as defined in the Sealed Air Settlement Agreement) by the SA Debtors is later denied by a Taxing authority by (x) a decision, decree or other order by a court of competent jurisdiction, which has become final and unappealable or (y) any other means (including a closing agreement or accepted offer in compromise under section 7121 or 7122 of the Internal Revenue Code) if Cryovac, Inc. has consented to such other means, which consent shall not be unreasonably withheld or delayed, provide (1) a written statement, signed under penalties of perjury by the Chief Financial Officer of the SA Debtors, that states (i) the amount of such loss, deduction, credit or exclusion that was denied, (ii) the amount of the Tax Benefits (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement) that was initially determined and paid by the SA Debtors to Cryovac, Inc. for such taxable period, and (iii) the revised amount of the Tax Benefit (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement) for such taxable period taking into account the denial of such loss, deduction, credit or exclusion, and (2) provide to Cryovac, Inc. any information relevant to the computation of such initial and revised amount of the Tax Benefits (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement) by the SA Debtors (including full access to any applicable Tax Return, the non-proprietary work papers, and other materials and information of the SA Debtors and their accountants), and
dd. perform all other actions required, and refrain from taking any other activities precluded, by the Sealed Air Settlement Agreement.
Annex II
Pursuant to Section 7.7(oo) of the Plan, and not by way of limitation of the Sealed Air Settlement Agreement, unless indicated otherwise:
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a.
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each of the Plaintiffs, the Asbestos PI Trust and the Asbestos PD Trust shall, unless otherwise required by a Final Determination, (1) file all Tax Returns required to be filed by it, if any, consistent with the provisions of this clause a. and shall take all other Defined Actions (as defined in the Sealed Air Settlement Agreement) that are reasonably requested by Sealed Air Corporation and consistent with the provisions of this clause a., and (2) be prohibited from taking any Defined Action (as defined in the Sealed Air Settlement Agreement) that may result in the disqualification of the Asbestos PI Trust or the Asbestos PD Trust as a Qualified Settlement Fund (as defined in the Sealed Air Settlement Agreement) or be inconsistent with Cryovac, Inc. being treated as a "transferor" (as defined under Treasury Regulations section 1.468B-1(d)) (for purposes of this Annex II the "Transferor") of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) directly to the Asbestos PI Trust pursuant to Section 7.2.2 of the Plan and the Confirmation Order and the Asbestos PD Initial Payment directly to the Asbestos PD Trust pursuant to Section 7.3.2 of the Plan and the Confirmation Order
,
provided
,
however
, that it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this clause a. if each of the following four requirements has been previously satisfied (i) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement, (ii) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this clause a., (iii) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (iv) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
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b.
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the Asbestos PI Trust and the Asbestos PD Trust shall, unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement), treat for all Tax purposes any and all payments by Cryovac Inc. pursuant to Sections 7.2.2 and 7.2.3 of the Plan and the Confirmation Order, as a direct payment by Cryovac, Inc. to the Asbestos PI Trust or the Asbestos PD Trust, as applicable, for Asbestos Claims that constitutes an ordinary and necessary expense of Cryovac, Inc, and each of the Plaintiffs, the Asbestos PI Trust and the Asbestos PD Trust shall, unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement): (1) be prohibited from taking any Defined Action (as defined in the Sealed Air Settlement Agreement) that is inconsistent with the foregoing provisions of this clause b., and (2) take all Defined Actions (as defined in the Sealed Air Settlement Agreement) that are
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reasonably requested by Sealed Air Corporation and consistent with the provisions of this clause b.;
provided
,
however
, that it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to sub- clauses (1) and (2) of this clause b. if each of the following four requirements has been previously satisfied (i) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement, (ii) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this clause b., (iii) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (iv) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
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c.
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if it has determined that an issue (for the purposes of this Annex II such issue, a "Paragraph VI(f) Issue") may exist with respect to its taking, or the failure to take, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to paragraph II(c)(ix) or (x), of the Sealed Air Settlement Agreement or clauses a. and b., of this Annex II, as the case may be, then, prior to delivering a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) in accordance with the provisos set forth in paragraph II(c)(ix) or (x) of the Sealed Air Settlement Agreement, or clauses a. and b., of this Annex II, as the case may be, each of the Plaintiffs, the Asbestos PI Trust and the Asbestos PD Trust, as the case may be, shall (1) provide to Sealed Air Corporation, as promptly as practicable, a written notice identifying such Defined Action (as defined in the Sealed Air Settlement Agreement) and describing in detail the Paragraph VI(f) Issue and (2) consult and act (and cause its advisors (including accountants and tax attorneys, as the case may be) to, consult and act) in good faith to determine and resolve (i) if such issue relates to a Tax issue, whether, as a result of a Change in Circumstances (as defined in the Sealed Air Settlement Agreement), there is no "reasonable basis", as defined in IRC section 6662 (or successor provision thereof), for the taking of, or the failure to take, such Defined Action (as defined in the Sealed Air Settlement Agreement) by such Entity or (ii) if such issue relates to an accounting issue, whether, as a result of a Change in Circumstances, the taking, or the failure to take, such Defined Action (as defined in the Sealed Air Settlement Agreement) is inconsistent with generally accepted accounting principles, and
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d.
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perform all other actions required, and refrain from taking any other activities precluded, by the Sealed Air Settlement Agreement.
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2
IN THE UNITED STATES BANKRUPTCY COURT FOR DISTRICT OF DELAWARE
IN RE:
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W.R. Grace & Co.,
et al.
1
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Bankruptcy No. 01-1139 (JKF) Debtor(s) Chapter 11
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Jointly Administered
Related to Doc. No. 24657
RECOMMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER REGARDING CONFIRMATION OF
FIRST AMENDED JOINT PLAN OF REORGANIZATION AS MODIFIED THROUGH DECEMBER 23, 2010
INTRODUCTION
WHEREAS the above-captioned Debtors (Collectively, the “debtors” and, as reorganized entities after emergence, the “Reorganized Debtors”), together with the Asbestos Claimants’ Committee, the Asbestos PI Future Claimants’ Representative, and the Official Equity Committee proposed the First Amended Joint Plan of Reorganization Under Chapter11 of the
1
The Debtors consist of the following 62 entities: W. R. Grace & Co. (f/k/a Grace Specialty Chemicals, Inc.), W. R. Grace & Co. Conn., A-1 Bit & Tool Co., Inc., Alewife Boston Ltd., Alewife Land Corporation, Amicon, Inc., CB Biomedical, Inc. (f/k/a Circe Biomedical, Inc.), CCHP, Inc., Coalgrace, Inc., Coalgrace II, Inc., Creative Food 'N Fun Company, Darex Puerto Rico, Inc., Del Taco Restaurants, Inc., Dewey and Almy, LLC (f/k/a Dewey and Almy Company), Ecarg, Inc., Five Alewife Boston Ltd., GC Limited Partners I, Inc., (flk/a Grace Cocoa Limited Partners I, Inc.), GC Management, Inc. (f/k/a Grace Cocoa Management, Inc.), GEC Management Corporation, GN Holdings, Inc. GPC Thomasville Corp., Gloucester New Communities Company, Inc., Grace A-B Inc., Grace A-B II Inc., Grace Chemical Company of Cuba, Grace Culinary Systems, Inc., Grace Drilling Company, Grace Energy Corporation, Grace Environmental, Inc., Grace Europe, Inc., Grace H-G Inc., Grace H-G II Inc., Grace Hotel Services Corporation, Grace International Holdings, Inc. (f/k/a Dearborn International Holdings, Inc.), Grace Offshore Company, Grace PAR Corporation, Grace Petroleum Libya Incorporated, Grace Tarpon Investors, Inc., Grace Ventures Corp., Grace Washington, Inc., W. R. Grace Capital Corporation., W. R. Grace Land Corporation, Gracoal, Inc., Gracoal II, Inc., Guanica-Caribe Land Development Corporation, Hanover Square Corporation, Homco International, Inc., Kootenai Development Company, L B Realty, Inc., Litigation Management, Inc. (f/k/a GHSC Holding, Inc., Grace JVH, Inc., Asbestos Management, Inc.), Monolith Enterprises, Incorporated, Monroe Street, Inc., MRA Holdings Corp. (f/k/a Nestor·BNA Holdings Corporation), MRA Intermedco, Inc. (f/k/a Nestor-BNA, Inc.), MRA Staffing Systems, Inc. (f/k/a British Nursing Association, Inc.), Remedium Group, Inc. (f/k/a Environmental Liability Management, Inc., E&C Liquidating Corp., Emerson & Cuming, Inc.), Southern Oil, Resin & Fiberglass, Inc., Water Street Corporation, Axial Basin Ranch Company, CC Partners (f/k/a Cross Country Staffing), Hayden-Gulch West Coal Company, H-G Coal Company.
Bankruptcy Code of W.R. Grace & Co.,
et al.
, the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as modified through December 15, 2010, Doc. No. 25931, and amendment to §3.1.9 of the Joint Plan, Doc. No. 25956, filed December 23, 2010, (as it may be further modified hereafter in accordance with its terms, this Confirmation Order, and the Bankruptcy Code, the “Plan” or “Joint Plan”);
2
WHEREAS on March 9, 2009, the bankruptcy Court entered the Order Approving the Disclosure Statement, Solicitation and Confirmation Procedures, Confirmation Schedule and Related Relief (Doc. No. 20944) (the “Solicitation Procedures Order”), by which the Bankruptcy Court, among other things, (1) established procedures for the solicitation and tabulation of votes to accept or reject the Plan; (2) approved the disclosure Statement; and (3) scheduled a hearing to consider Phase I of the Confirmation Hearing on the Joint Plan to commence on June 22, 2009, at 9:00 a.m., prevailing Eastern time and set a hearing to consider Phase II of the Confirmation Hearing on the Joint Plan to commence on September 8, 2009, at 11:00 a.m. prevailing Eastern time (the “Confirmation Hearing”);
WHEREAS an affidavit of service was filed by the BMC Group, Inc. (“”BMC”) on August 17, 2009, (service commenced on April 1, 2009) (Doc. No. 22825) respecting service of the Disclosure Statement, solicitation materials, and the Exhibit Book containing the Joint Plan and other plan documents;
WHEREAS an affidavit of publication was filed by the Debtors with the Bankruptcy
2
Capitalized terms not defined herein shall have the meanings ascribed to such terms in the Joint Plan. For the avoidance of doubt, this Confirmation Order shall be interpreted and construed in accordance with the provisions of §1.2 of the Joint Plan.
Court on June 3, 2009, (Doc. No. 21974) regarding,
inter alia
, the publication of the notice of the Confirmation Hearing, as approved by the Bankruptcy Court, in certain magazines and newspapers and as set forth in the Solicitation Procedures Order;
WHEREAS BMC, the court-appointed solicitation and tabulation agent in respect of the Joint Plan, filed (a) the Declaration of Kevin A. Martin Certifying Tabulation of Ballots Regarding Vote on First Amended Joint Plan of Reorganization on June 8, 2009 (Doc. No.
22020); (b) Exhibit A to the Declaration of Kevin A. Martin Certifying Tabulation of Ballots Regarding Vote on First Amended Joint plan of Reorganization on June 10, 2009 (Doc. No. 22044); and (c) the Amended Declaration of Kevin A. Martin Certifying Tabulation of Ballots Regarding the Plan on August 176, 2009 (Doc. No. 22825) (collectively, the “BMC Voting Declarations”);
WHEREAS, as indicated in the BMC Voting Declarations, every impaired class populated by Claims entitled to vote on the Joint Plan voted to accept the Plan as follows:
Description of Class
Class Designation
Asbestos PI Claims Class 6
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Asbestos PD Claims (all except
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Class 7A (unimpaired – vote for US ZAI PD Claims) §524(g) purposes only)
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Asbestos PD Claims (US ZAI
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Class 7B PD Claims)
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CDN ZAI PD Claims Class 8
Equity Interests in the Parent Class 10
WHEREAS, as indicated in the BMC Voting Declarations, Class 6 accepted the Joint Plan by 99.51 percent in number and 99.39 percent in dollar amount; Class 7A accepted the Plan
in number;
3
Class 7B accepted the Plan by 88.42% in number and 88.60% in dollar amount; Class 8 accepted the Plan by 100% in number and 100% in dollar amount; and Class 10 accepted the Plan by 89.89% in number;
4
WHEREAS, as indicated in the BMC Voting Declarations, General Unsecured Claims in Class 9, which the Plan Proponents asserted were unimpaired and not entitled to vote, were afforded the opportunity to cast provisional ballots on the Plan as ordered by this Court given the dispute whether Class 9 was an impaired class. Class 9 accepted the Plan by 92.54% in number, but rejected the Plan by 83.03% in dollar amounts;
WHEREAS, on May 8, 2009, the Debtors filed a Plan Supplement containing (1) the Bylaws of W. R. Grace & Co.; (2) amended certificates of incorporation of the Debtors; and (3) a list of the identity and affiliations of persons proposed to serve as initial board of directors or officers of the Reorganized Debtors (Doc. No. 21594);
WHEREAS, on May 15, 2009, the Debtors filed a first amendment to the Plan Supplement (the "First Plan Supplement Amendment") regarding the list of the identity and affiliations of persons proposed to serve as initial board of directors or officers of the Reorganized Debtors (Doc. No. 21706);
WHEREAS, on April 23, 2010, the Debtors filed a second amendment to the Plan Supplement (the "Second Plan Supplement Amendment") that amended the list of the identity
3
Class 7A was solicited and allowed to vote solely to the extent required by §524(g) of the Bankruptcy Code, and the approved voting procedures did not require dollar amounts. See Solicitation Procedures Order at p. 20 of Exhibit C thereto.
4
Class 10 -- Equity Interests -- was allowed to vote based on the number of shares of Parent Common Stock owned on the Voting Record Date, and the approved voting procedures did not require dollar amounts. See Solicitation Procedures Order at p. 21 of Exhibit C thereto.
and affiliations of persons proposed to serve as initial board of directors or officers of the Reorganized Debtors (Doc. No. 24663);
WHEREAS, the objection deadline for objecting to the confirmation of the Plan was set for May 20, 2009 pursuant to the Solicitation Procedures Order and objections to the Plan were filed by (1) the Bank Lender Group (Doc. No. 20315, 21789); (2) the Unsecured Creditors' Committee (Doc. No. 20308, 21790); (3) Certain AIU Insurers (Doc. No. 21777); (4) Allstate Insurance Company ("Allstate") (Doc. No. 20419, 21767); (5) Arrowood Indemnity Company f/k/a Royal Indemnity Company ("Arrowood") (Doc. No. 20450, 21814, 21815, 21867); (6) Anderson Memorial Hospital ("AMH") (Doc. No. 21782); (7) Seaton Insurance Company and OneBeacon America Insurance Company ("Seaton OneBeacon") (Doc. No. 20434, 21763); (8) Maryland Casualty Company ("MCC") (Doc. No. 20195, 20420, 21783); (9) the State of Montana ("Montana") (Doc. No. 20305, 21785); (10) Her Majesty the Queen in Right of Canada (the "Crown") (Doc. No. 24144); (11) CNA Companies ("CNA") (Doc. No. 21794); (12) the Libby Claimants (Doc. No. 20313, 21811, 21952); (13) Morgan Stanley Senior Funding ("Morgan Stanley") (Doc. No. 21752); (14) BNSF Railway Company ("BNSF") (Doc. No. 20309, 21769); (15) Longacre Master Fund, Ltd. and Longacre Capital Partners (QP), L.P. ("Longacre") (Doc. No. 20324, 21778); (16) National Union Fire Insurance Company of Pittsburgh, Pa ("National Union") (Doc. No. 21779); (17) City of Vancouver (Doc. No. 21792); (18) School District 68 Nanaimo-Ladysmith (Doc. No. 21793); (19) TIG Insurance Company and United States Fire Insurance Company (Doc. No. 21800); (20) Garlock Sealing Technologies, LLC ("Garlock") (Doc. No. 21795); (21) Federal Insurance Company ("Federal") (Doc. No. 20444, 21770); (22) Government Employees Insurance Co. and Republic Insurance
Company n/k/a Starr Indemnity & Liability Company ("GEICO") (Doc. No. 20439, 21771); (23) AXA Belgium Insurance Company ("AXA") (Doc. No. 20427, 21803); (24) Fireman's Fund Insurance Company and Allianz S.P.A., f/k/a Riunione Adriatica Di Sicurta, and Allianz SE, f/k/a Allianz Aktiengesellschaft (Doc. No. 20425, 21781, 21975); (25) Fireman's Fund Insurance Company ("Fireman's Fund") (Doc. No. 21791); (26) Hartford Accident and Indemnity Company ("Hartford") (Doc. No. 21802); (27) Kaneb Pipeline Operating Partnership, L.P. and Support Terminal Services, Inc. ("Kaneb") (Doc. No. 20307, 21707); (28) Tyco/Covidien (Doc. No. 21760); (29) the Edwards Judgment Claimants (Doc. No. 21773); (30) the ERISA Plaintiffs (Doc. No. 20310, 21762); (31) General Insurance Company of America ("General") (Doc. No. 21776); (32) Certain London Market Insurance Companies ("London") (Doc. No. 20300, 20442, 21801); (33) the Michigan Department of Treasury (Doc. No. 20260, 21611); (34) the Scotts Company LLC (Doc. No. 20306, 21775); (35) the St. Paul Companies (Doc. No. 21876); (36) Travelers Casualty and Surety Company (Doc. No. 20416, 21796); (37) the Texas Comptroller (Doc. No. 21291); (38) Zurich Insurance Company and Zurich International (Bermuda) Ltd. (Doc. No. 20195, 20420, 21764); (39) the U.S. Trustee (Doc. No. 20312, 21797); (40) Joseph W. Parry-Hill (Doc. No. 21567); (41) Lloyd's Underwriters (Doc. No. 20300); (42) the Dow Chemical Company (Doc. No. 20311); and (43) Owens-Illinois, Inc. (Doc. No. 20317);
WHEREAS briefs were filed by the objecting parties and by the Plan Proponents, discovery was undertaken, and the Confirmation Hearing commenced on June 22, 2009. The June 22-23, 2009 hearing dates ("Phase I") covered certain objections raised by the Bank Lender Group and the Unsecured Creditors' Committee with respect to impairment, and also covered certain objections raised by various insurers regarding insurance neutrality. The second phase of
the Confirmation Hearing ("Phase II") addressed the objections of (a) parties classified under the Plan as Holders of Indirect PI or PD Trust Claims (including insurers as Holders of Indirect PI or PD Trust Claims with respect to such Claims); (b) the objections of the Libby Claimants; and (c) any other confirmation objections not addressed and resolved in Phase I;
WHEREAS Phase II of the Confirmation Hearing commenced on September 8, 2009 and continued through January 25, 2010, at which time the record was closed;
WHEREAS, on September 4, 2009, the Plan Proponents filed their First Set of Modifications to the Joint Plan of Reorganization (Doc. No. 23177);
WHEREAS, on October 12, 2009, the Plan Proponents filed their Second Set of Modifications to the Joint Plan of Reorganization (Doc. No. 23474);
WHEREAS, on December 16, 2009, the Plan Proponents filed their Third Set of Modifications to the Joint Plan of Reorganization (Doc. No. 24016);
WHEREAS, on March 19, 2010, the Plan Proponents filed their Fourth Set of Modifications to the Joint Plan of Reorganization (Doc. No. 24477);
WHEREAS, on December 8, 2010, the Plan Proponents filed their Fifth Set of Modifications to the Joint Plan of Reorganization (Doc. No. 25881);
WHEREAS on December 23, 2010, counsel for Plan Proponents, counsel for the Unsecured Creditors’ Committee, and counsel for the Bank Lender Group filed a Certification of Counsel Regarding Agreed Amendment to Section 3.1.9 of the Joint Plan (Doc. No. 25956) (collectively, with earlier modifications to the Joint Plan, the “Modifications”);
5
5
Plan Proponents filed a Sixth Set of Modifications to the Joint Plan of Reorganization,
Doc. No. 25931, on December 16, 2010, which was superseded in its entirety by the
(continued...)
WHEREAS many objections were resolved or withdrawn pursuant to various settlement agreements reached between the Plan Proponents and various objecting parties as outlined in Section VII below; however, certain objections remain subject to the Court's determination;
6
WHEREAS the Court has reviewed the Plan, the Disclosure Statement, the Solicitation Procedures Order, the BMC Voting Declarations, the Affidavits of Service, the Publication Affidavit, the objections, the statements of counsel, briefs, declarations, expert reports and all other evidence admitted as part of the Confirmation Hearing;
WHEREAS the Court has taken judicial notice of the papers and pleadings on file and prior Court hearings in these Chapter 11 Cases and in each of the adversary proceedings filed in one or more of these Chapter 11 Cases, including the Sealed Air Action and the Fresenius Action;
WHEREAS the Bankruptcy Court has separately entered Supplemental Recommended Findings of Fact and Conclusions of Law in the Memorandum Opinion Regarding Objections to Confirmation of First Amended Joint Plan of Reorganization, including the findings that (i) the Bankruptcy Court and the District Court have jurisdiction over this matter pursuant to 28 U.S.C.
§§157 and 1334, (ii) this is a core proceeding pursuant to 28 U.S.C. §157(b)(2), (iii) each of the Debtors was and is qualified to be a debtor under §109 of the Bankruptcy Code, and (iv) venue
5
(...continued)
Certification of Counsel Regarding Agreed Amendment to Section 3.1.9 of the Joint Plan, filed December 23, 2010, at Doc. No. 25956.
6
On March 30, 2010, Plan Proponents filed an Updated and Amended Chart (Revised) Summarizing Confirmation Requirements and Remaining Objections to the First Amended Plan of Reorganization, Doc. No. 24549, but several objections listed in that chart were resolved after it was filed and those settlements are not reflected in the chart.
of the Chapter 11 Cases in the United States Bankruptcy Court for the District of Delaware was proper as of the Petition Date, pursuant to 28 U.S.C. §1408, and continues to be proper; and
WHEREAS the Findings and Conclusions herein and as supplemented by the Memorandum Opinion Overruling Objections to the First Amended Joint Plan of Reorganization establish just cause for the relief granted herein;
THE BANKRUPTCY COURT HEREBY RECOMMENDS THAT THE DISTRICT COURT APPROVE THE RECOMMENDATIONS OF FINDINGS OF FACT, CONCLUSIONS OF LAW, AND PROPOSED ORDER HEREIN IN CONJUNCTION WITH THE MEMORANDUM OPINION AND ORDER OVERRULING OBJECTIONS TO THE FIRST AMENDED JOINT PLAN OF REORGANIZATION.
I.
GENERAL PROVISIONS REGARDING CONFIRMATION OF THE PLAN AND APPROVAL OF PLAN-RELATED DOCUMENTS.
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A.
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MODIFICATIONS TO THE PLAN.
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The Modifications to the Plan are deemed to be either technical changes or clarifications that do not adversely change the treatment of the Claim of any creditor of the Debtors or have been consented to by the entities affected thereby and are approved in all respects. Accordingly, the Plan Proponents are authorized to take any and all steps and actions necessary to implement or effectuate any of the transactions or other matters set forth in the Modifications to the Plan.
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B.
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CONFIRMATION OF THE PLAN.
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1.
The Plan and each of its provisions (whether or not specifically approved herein) and all exhibits and schedules thereto as amended to the date hereof are CONFIRMED in each and every respect, pursuant to §1129 of the Bankruptcy Code. If there is any conflict between the terms of the Plan or any exhibit thereto and the terms of this Confirmation Order, the terms of this Confirmation Order shall control.
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2.
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As set forth more fully in this Court's Memorandum Opinion Regarding
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Objections to Confirmation of First Amended Joint Plan of Reorganization and Recommended Supplemental Findings of Fact and Conclusions of Law, Class 9 is unimpaired pursuant to
§1124(1) of the Bankruptcy Code; therefore, the provisional vote of Class 9 shall have no force and effect.
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C.
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SPECIFIC CONDITIONS TO CONFIRMATION OF THE PLAN
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As required by §7.7 of the Plan, the Court makes the following recommended findings of fact, conclusions of law, orders, and/or decrees and incorporating by reference the Memorandum Opinion and Order Overruling Objections to the First Amended Joint Plan of Reorganization.
(a)
The Plan satisfies all applicable sections of the Bankruptcy Code, including Bankruptcy Code §524(g);
(b)
Claimants in Classes 6, 7 (including both sub-classes 7A and 7B), and 8 have voted to accept the Plan in the requisite numbers and amounts required by Bankruptcy Code §§524(g), 1126, and 1129;
(c)
As of the Petition Date, the Debtors have been named as defendants in personal injury, wrongful death, and property damage actions seeking recovery for damages allegedly caused by the presence of, or exposure to, asbestos or asbestos-containing products;
(d)
Effective on the Effective Date, the Asbestos PI Trust shall be created and the Asbestos PD Trust shall be created pursuant to Bankruptcy Code §524(g) and in accordance with the Plan Documents;
(e)
The Asbestos PI Trust and the Asbestos PD Trust shall be "qualified settlement funds" for federal income tax purposes within the meaning of the treasury regulations issued pursuant to §468B of the IRC and shall be subject to the continuing jurisdiction of the Bankruptcy Court;
(f)
On the Effective Date, the Asbestos PI Trust shall assume the liabilities of the Debtors with respect to all Asbestos PI Claims, the Asbestos PD Trust shall assume the liabilities of the Debtors with respect to all Asbestos PD Claims, and the CDN ZAI PD Claims Fund contemplated by the CDN ZAI Minutes of Settlement shall assume the liabilities of the Debtors with respect to all CDN ZAI PD Claims;
(g)
The Asbestos PI Trust and the Asbestos PD Trust are to be funded in part by securities of the Reorganized Parent and by the obligations of the Reorganized Parent to make future payments, including dividends;
(h)
The Asbestos PI Trust and the Asbestos PD Trust are to own, or by the exercise of rights granted under the Plan would be entitled to own if specified contingencies occur, a majority of the voting shares of the Reorganized Parent;
(i)
The Asbestos PI Trust is to use the Asbestos PI Trust Assets to pay Asbestos PI Claims (including Demands) and Asbestos PI Trust Expenses, and the Asbestos PD Trust is to use the Asbestos PD Trust Assets to pay Asbestos PD Claims (including Demands, if any) and Asbestos PD Trust Expenses, and the CDN ZAI PD Claims Fund is to use the funds identified in the CDN ZAI Minutes of Settlement to pay CDN ZAI PD Claims and the expenses outlined in the CDN ZAI Minutes of Settlement;
(j)
The Debtors are likely to be subject to substantial future Demands for payment arising out of the same or similar conduct or events that gave rise to the Asbestos PI Claims, which Demands are addressed by the Asbestos PI Channeling Injunction, and the Debtors are likely to be subject to substantial future Demands for payment arising out of the same or similar conduct or events that gave rise to the Asbestos PD Claims, which Demands, if any, are addressed by the Asbestos PD Channeling Injunction;
(k)
The actual amounts, numbers, and timing of such future Demands cannot be determined;
(l)
Pursuit of such Demands outside the procedures prescribed by the Plan is likely to threaten the Plan's purpose to deal equitably with the Asbestos PI Claims, the Asbestos PD Claims, and the CDN ZAI PD Claims;
(m)
The terms of the Asbestos PI Channeling Injunction, the Asbestos PD Channeling Injunction, the Successor Claims Injunction, and the Asbestos Insurance Entity Injunction, and any provisions barring actions against third parties, are set out in the Plan and the Disclosure Statement, and each of the Plan and the Disclosure Statement adequately describes such injunctions and provisions (and the acts and entities to which they apply) in specific and conspicuous language in accordance with the requirements of Bankruptcy Rule 3016(c));
(n)
Pursuant to Court orders or otherwise, the Asbestos PI Trust, the Asbestos PD Trust, and CDN ZAI PD Claims Fund shall operate through mechanisms such as structured, periodic, or supplemental payments, pro rata distributions, matrices, or periodic review of estimates of the numbers and values of (1) Asbestos PI
Claims (including Demands) in the case of the Asbestos PI Trust, (2) Asbestos PD Claims (including Demands, if any) in the case of the Asbestos PD Trust, or
(3) CDN ZAI PD Claims (including Demands, if any) in the case of the CDN ZAI PD Claims Fund, or other comparable mechanisms that provide reasonable assurance that the Asbestos PI Trust shall value, and be in a financial position to pay, Asbestos PI Claims (including Demands that involve similar claims) in substantially the same manner, that the Asbestos PD Trust shall value, and be in a financial position to pay Asbestos PD Claims (including Demands, if any, that involve similar claims) in substantially the same manner, and that the CDN ZAI PD Claims Fund shall value, and be in a financial position to pay CDN ZAI PD Claims (including Demands, if any, that involve similar claims) in substantially the same manner;
(o)
The Asbestos PI FCR has been appointed by the Bankruptcy Court as part of the proceedings leading to the issuance of the Asbestos PI Channeling Injunction for the purpose of, among other things, protecting the rights of Entities that might subsequently assert Demands of the kind that are addressed in the Asbestos PI Channeling Injunction and transferred to the Asbestos PI Trust;
(p)
The Asbestos PD FCR has been appointed by the Bankruptcy Court as part of the proceedings leading to the issuance of the Asbestos PD Channeling Injunction for the purpose of, among other things, protecting the rights of Entities that might subsequently assert Demands, if any, of the kind that are addressed in the Asbestos PD Channeling Injunction and transferred to the Asbestos PD Trust;
(q)
CCAA Representative Counsel has been appointed by the Canadian Court as part of proceedings leading to the issuance of the Asbestos PD Channeling Injunction for the purpose of, among other things, protecting the rights of Entities that might subsequently assert Demands, if any, of the kind that are addressed in the Asbestos PD Channeling Injunction and transferred to the CDN ZAI PD Claims Fund;
7
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(r)
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The Court has jurisdiction over each of the Claims, SA Claims,
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Grace-Related Claims, and Demands that is subject to any of (i) the Asbestos PI Channeling Injunction described in §8.2 of the Plan, (ii) the Asbestos PD Channeling Injunction described in §8.3 of the Plan, (iii) the Successor Claims Injunction described in §8.5 of the Plan, and (iv) the releases described in the
7
While not a condition to confirmation under §7.7 of the Plan, it should be noted that this Court also approved the appointment of the CCAA Representative Counsel to serve as Special Counsel to Canadian ZAI Claimants in the Chapter 11 Cases. See Modified Order Granting the Canadian ZAI Claimants' Application for Appointment of Special Counsel Lauzon Bélanger S.E.N.C.R.L. and Scarfone Hawkins LLP, dated 3/19/10 (Doc. No. 24508).
Plan;
(s)
In light of the benefits provided, or to be provided, to the Asbestos PI Trust and the Asbestos PD Trust by, or on behalf of, each Asbestos Protected Party as defined in §1.1(51)
8
of the Joint Plan, Doc. No. 24657 at Exhibit 1, (including the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties), (i) the Asbestos PI Channeling Injunction is fair and equitable (including with respect to the Entities that might subsequently assert Demands against any Asbestos Protected Party) and is supported by reasonable consideration, (ii) the Asbestos PD Channeling Injunction is fair and equitable (including with respect to the Entities that might subsequently assert Demands, if any, against any Asbestos Protected Party) and is supported by reasonable consideration, (iii) the Successor Claims Injunction is fair and equitable and is supported by reasonable consideration, and (iv) the releases in favor of the Asbestos Protected Parties
8
As defined in that section, the Asbestos Protected Parties are:
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(b)
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the Reorganized Debtors;
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(c)
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the Non-Debtor Affiliates;
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(d)
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the Settled Asbestos Insurance Companies;
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(f)
) the Sealed Air Indemnified Parties;
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(g)
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the Fresenius Indemnified Parties;
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(h)
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Montana Vermiculite Company
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(i)
any Entity that, pursuant to the Plan or otherwise on or after the Effective Date, becomes a direct or indirect transferee of, or successor to, any of the Debtors, the Reorganized Debtors, the Non-Debtor Affiliates, the Sealed Air Indemnified Parties, or the Fresenius Indemnified Parties, or any of their respective assets (but only to the extent that any liability is asserted to exist as a result of its becoming such a transferee or successor);
(j)
any Entity that, pursuant to the Plan or otherwise on or after the Effective Date, makes a loan to any of the Reorganized Debtors, the Non-Debtor Affiliates, the Asbestos PI Trust, the Asbestos PD Trust, or to a successor to, or transferee of any of the respective assets of, the Debtors, the Reorganized Debtors, the NonDebtor Affiliates, the Asbestos PI Trust, or the Asbestos PD Trust (but only to the extent that any liability is asserted to exist as a result of its becoming such a lender or to the extent that any Encumbrance of assets made in connection with such a loan is sought to be invalidated, upset or impaired in whole or in part as a result of its being such a lender);
(k)
each of the respective present and future Affiliates of each of the Debtors, the Reorganized Debtors, the Non-Debtor Affiliates, the Sealed Air Indemnified Parties, and the Fresenius Indemnified Parties (but only to the extent that any liability is asserted to exist as a result of its being or becoming such an Affiliate);or
(1)
each of the respective Representatives of each of the Debtors, the Reorganized Debtors, the Non-Debtor Affiliates, the Sealed Air Indemnified Parties, and the Fresenius Indemnified Parties.
described in the Plan are fair and equitable and are supported by reasonable consideration;
see
Annex III hereto.
(t)
The Asbestos PI Channeling Injunction, the Asbestos PD Channeling Injunction, the Successor Claims Injunction, the Asbestos Insurance Entity Injunction, and the releases in favor of the Asbestos Protected Parties described in the Plan are to be implemented and granted in connection with the Plan and the Plan Documents;
(u)
The Asbestos PI Channeling Injunction, the Asbestos PD Channeling Injunction, the Successor Claims Injunction, and the releases in favor of the Asbestos Protected Parties described in the Plan (i) are essential to the Debtors' reorganization efforts and the feasibility of the Plan, (ii) provide necessary funding to the Plan that otherwise would be unavailable absent the injunctions and releases, (iii) are necessary to induce the Asbestos Protected Parties (including Sealed Air and Fresenius) to enter into the settlements and agreements described in the Plan and to otherwise settle their disputes, and (iv) are necessary to resolve finally all claims of the Debtors, the Non-Debtor Affiliates, and the Debtors' creditors against the other Asbestos Protected Parties (including the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties);
(v)
An identity of interests exists among the Debtors and the Asbestos Protected Parties such that an Asbestos PI Claim (including a Successor Claim based upon an Asbestos PI Claim and/or a Successor Claim based on or arising from, in whole or in part, directly or indirectly, the Cryovac Transaction or the Fresenius Transaction) asserted against any of the Asbestos Protected Parties gives rise to a Claim against the Debtors, including by the operation of the law of indemnity (contractual or otherwise) and/or contribution; and an Asbestos PD Claim or CDN ZAI PD Claim (including a Successor Claim based upon an Asbestos PD Claim or CDN ZAI PD Claim and/or a Successor Claim based on or arising from, in whole or in part, directly or indirectly, the Cryovac Transaction or the Fresenius Transaction) asserted against any of the Asbestos Protected Parties gives rise to a Claim against the Debtors, including by the operation of the law of indemnity (contractual or otherwise) and/or contribution;
(w)
The Sealed Air Settlement Agreement is essential and integral to the Plan, and the payment of the Cryovac Payment to the Asbestos PI Trust and the Asbestos PD Trust in accordance with the Sealed Air Settlement Agreement and the terms of the Plan, together with the other Asbestos PI Trust Assets and the Asbestos PD Trust Assets to be transferred to the Asbestos PI Trust and the Asbestos PD Trust, respectively, pursuant to the Plan, constitute both (i) substantial assets of the Plan and the reorganization, and (ii) a fair, reasonable, and equitable settlement of all claims, potential claims, and Demands against the Asbestos Protected Parties (including, with respect to the Sealed Air Indemnified
Parties, all Asbestos-Related Claims and any other claims, potential claims, and Demands for which the Sealed Air Settlement Agreement contemplates a release or injunction in favor of the Sealed Air Indemnified Parties) that are subject to the injunctions and releases described in the Plan, and the only unsatisfied conditions precedent to payment of the Cryovac Payment are the satisfaction or waiver of the conditions to the Effective Date in accordance with §7.8 of the Plan;
(x)
The Fresenius Settlement Agreement is essential and integral to the Plan, and the payment of the Fresenius Payment to the Asbestos PI Trust and the Asbestos PD Trust in accordance with the Fresenius Settlement Agreement and the Plan, together with the other Asbestos PI Trust Assets and the Asbestos PD Trust Assets to be transferred to the Asbestos PI Trust and the Asbestos PD Trust, respectively, pursuant to the Plan, constitute both (i) substantial assets of the Plan and the reorganization, and (ii) a fair, reasonable, and equitable settlement of all claims, potential claims, and Demands against the Asbestos Protected Parties (including, with respect to the Fresenius Indemnified Parties, the Grace-Related Claims, all Asbestos-Related Claims and Demands related thereto and any other claims, potential claims, and Demands for which the Fresenius Settlement Agreement contemplates a release or injunction in favor of the Fresenius Indemnified Parties) that are subject to the injunctions and releases described in the Plan, and the only unsatisfied conditions precedent to payment of the Fresenius Payment are the satisfaction or waiver of the conditions to the Effective Date in accordance with §7.8 of the Plan;
(y)
The SA Debtors, the Plaintiffs, and the SA Non-Debtor Affiliates understand and agree, and the Court so finds, that Sealed Air has entered into the Sealed Air Settlement Agreement in order to settle, release, extinguish, and terminate fully, finally, and forever any and all further controversy respecting any and all Asbestos-Related Claims and any and all Demands related thereto against the Sealed Air Indemnified Parties. The SA Debtors, the Plaintiffs, and the SA Non-Debtor Affiliates have acknowledged and agreed that this provision is an essential and material term of the Sealed Air Settlement Agreement and the compromise settlement leading to the Sealed Air Settlement Agreement, and that, without such provision, neither Sealed Air Corporation nor Cryovac, Inc. would have executed the Sealed Air Settlement Agreement and the compromise settlement would not have been accomplished;
(z)
The Debtors, the Plaintiffs, and the Non-Debtor Affiliates understand and agree, and the Court so finds, that Fresenius has entered into the Fresenius Settlement Agreement in order to settle, release, extinguish, and terminate fully, finally, and forever any and all further controversy respecting any and all Asbestos-Related Claims against the Fresenius Indemnified Parties. The Debtors, the Plaintiffs, and the Non-Debtor Affiliates have acknowledged and agreed that this provision is an essential and material term of the Fresenius Settlement
Agreement, and that, without such provision, Fresenius would not have executed the Fresenius Settlement Agreement and the compromise settlement would not have been accomplished;
(aa) The settlements, compromises, releases, and injunctions in favor of the Asbestos Protected Parties described in the Plan (including those described in the Sealed Air Settlement Agreement and the Fresenius Settlement Agreement) are approved in all respects;
(bb) In approving the settlements, compromises, releases, and injunctions with respect to the Asbestos Protected Parties (including the Sealed Air Settlement Agreement and the Fresenius Settlement Agreement, and the releases and injunctions in favor of the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties), the Court has considered, among other things: (i) the nature of the claims asserted or potentially asserted by the Debtors, the Non-Debtor Affiliates, the Plaintiffs (on behalf of the Debtors' creditors, stakeholders, and estates), and/or the Debtors' creditors against the Asbestos Protected Parties, and the claims asserted or potentially assertable by the Asbestos Protected Parties against the Debtors and the Non-Debtor Affiliates, (ii) the balance of the likelihood of success of claims which might be asserted by the Debtors or other claimants against the Asbestos Protected Parties against the likelihood of success of the defenses or counterclaims possessed by the Asbestos Protected Parties, (iii) the complexity, cost, and delay of litigation that would result in the absence of these settlements, compromises, releases, and injunctions, (iv) the lack of objections by, or the overruling of objections of any creditor or party-in-interest to the settlements, compromises, releases and injunctions, (v) that the Asbestos PI Claims will be channeled to the Asbestos PI Trust rather than extinguished, (VI) that the Estate Parties and the Asbestos PI Trust will receive substantial consideration from the Asbestos Protected Parties described in the Plan, (vii) that the Asbestos PD Claims will be channeled to the Asbestos PD Trust rather than extinguished, and the CDN ZAI PD Claims will be channeled to the CDN ZAI PD Claims Fund rather than extinguished, (viii) that the Estate Parties and the Asbestos PD Trust will receive substantial consideration from or on behalf of the Asbestos Protected Parties described in the Plan, (ix) that the Asbestos Protected Parties that will benefit from the releases and injunctions share an identity of interest with the Debtors, (x) that the enjoined claims against the Asbestos Protected Parties would otherwise indirectly impact the Debtors' reorganization by way of indemnity or contribution, and (xi) the Plan and the settlements, compromises, releases, and injunctions described in the Plan are the product of extensive arms' length negotiations among the Debtors, the Asbestos PI Committee, the Asbestos PI FCR, the Asbestos PD FCR, and the Asbestos Protected Parties, among others;
(cc) On and after the Effective Date, the Reorganized Debtors will have the
ability to pay and satisfy in the ordinary course of business their respective obligations and liabilities, including any and all indemnification obligations to the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties with respect to present and future Asbestos-Related Claims and Demands related thereto, SA Indemnified Taxes, Fresenius Indemnified Taxes, and all other obligations set forth in the Fresenius Settlement Agreement and the Sealed Air Settlement Agreement;
(dd) Upon the transfer of the Sealed Air Common Stock to the Asbestos PI Trust, the Asbestos PI Trustees shall represent and warrant to and agree with (on behalf of the Asbestos PI Trust) Sealed Air, that the Asbestos PI Trust is acquiring the Sealed Air Common Stock for its own account for investment and not with a view toward distribution in a manner which would violate the Securities Act and the Asbestos PI Trust and its transferees will comply with all filing and other reporting obligations under all applicable laws which shall be applicable to such Asbestos PI Trust with respect to the Sealed Air Common Stock;
(ee) On or before the Effective Date, (i) the SA Debtors, the Asbestos PD Committee, and the Asbestos PI Committee shall have executed and delivered the "Release" (as defined in the Sealed Air Settlement Agreement), (ii) the "Government Plaintiff" (as defined in the Sealed Air Settlement Agreement) shall have executed and delivered the "Government Release" (as defined in the Sealed Air Settlement Agreement), and (iii) the Asbestos PI Committee and the Asbestos PD Committee shall have delivered the "Fresenius Release" (as defined in the Sealed Air Settlement Agreement), all as provided for in the Sealed Air Settlement Agreement. In addition, in consideration for the Cryovac Payment, (i) each of the SA Non-Debtor Affiliates shall irrevocably release, acquit, and forever discharge the Sealed Air Indemnified Parties from any and all (A) present and future Asbestos-Related Claims and Demands relating thereto and (B) present and future SA Claims, Canadian Claims, SA Debts, and SA Damages on the basis of, arising from, or attributable to (in whole or in part, directly or indirectly) the Fresenius Transaction that have accrued or been asserted or that hereafter might accrue or be asserted against the Sealed Air Indemnified Parties and (ii) each SA Non-Debtor Affiliate shall not institute, participate in, maintain, maintain a right to or assert against the Sealed Air Indemnified Parties, either directly or indirectly, on its own behalf, derivatively, or on behalf of any other Entity, any and all present and future Asbestos-Related Claims and/or Demands relating thereto, and any and all present and future SA Claims, Canadian Claims, SA Debts, and SA Damages on the basis of, arising from, or attributable to (in whole or in part, directly or indirectly) the Fresenius Transaction;
(ff) The Asbestos Protected Parties shall receive the full benefit of the Asbestos PI Channeling Injunction and the Asbestos PD Channeling Injunction
under Bankruptcy Code §524(g) and the Successor Claims Injunction under Bankruptcy Code §105(a), which Asbestos PI Channeling Injunction, Asbestos PD Channeling Injunction, and Successor Claims Injunction (i) shall be in form and substance reasonably acceptable to Sealed Air Corporation, Cryovac Inc., and Fresenius, and (ii) as applicable, include provisions enjoining any and all Entities from taking any and all legal or other actions (including the continued prosecution of pending "Actions" or the commencement of future "Actions" as such term is used in paragraph II(c)(VI) of the Sealed Air Settlement Agreement) or making any Demand for the purpose of, directly or indirectly, claiming, collecting, recovering, or receiving any payment, recovery, or any other relief whatsoever from any and all of the Asbestos Protected Parties with respect to any and all Asbestos PI Claims, Asbestos PD Claims, CDN ZAI PD Claims, and/or Successor Claims based on or arising from, in whole or in part, directly or indirectly, the Cryovac Transaction or the Fresenius Transaction;
(gg) Each of the SA Debtors and the Plaintiffs have acknowledged and agreed that the Sealed Air Common Stock to be transferred to the Asbestos PI Trust has not been and, upon delivery of such Sealed Air Common Stock to the Asbestos PI Trust, shall not be registered under the Securities Act and that the certificates for such Sealed Air Common Stock shall bear a legend to that effect. Each of the SA Debtors and the Plaintiffs understand and have acknowledged that any transfer by Cryovac, Inc. of Sealed Air Common Stock to the Asbestos PI Trust is being made pursuant to an exemption from registration contained in the Securities Act based in part upon the foregoing representation and the representations contained in the Sealed Air Settlement Agreement;
(hh) The SA Debtors shall, jointly and severally, at their sole expense, indemnify, defend, and hold harmless the Sealed Air Indemnified Parties from and against (i) any and all present and future Asbestos-Related Claims and Demands related thereto and all SA Indemnified Taxes, (ii) any and all losses costs, and expenses incurred as a result of any breach of any of the SA Debtors' or SA Non-Debtor Affiliates' obligations, covenants, and agreements set forth or referred to in the Sealed Air Settlement Agreement, including any such obligation, covenant, or agreement of any SA Debtors or SA Non-Debtor Affiliates set forth in the Plan or Confirmation Order, (iii) if any SA Non-Debtor Affiliate has not executed and delivered a "Release" (as defined in the Sealed Air Settlement Agreement), any and all Asbestos-Related Claims and Demands related thereto based on, arising out of, or attributable to, directly or indirectly, in whole or in part, such SA Non-Debtor Affiliate and (iv) any and all attorneys' fees or costs and expenses attributable to any "SA Indemnity Claim" (as defined below), provided, however, that in each case such indemnification shall not apply to "Excluded Fees" (as defined in the Sealed Air Settlement Agreement) (such indemnity obligations, collectively, the "SA Debtors' Indemnity Obligation"; and any and all SA Claims, SA Debts, or SA Damages that could be asserted by any
of the Sealed Air Indemnified Parties under the SA Debtors' Indemnity Obligation, the "SA Indemnity Claims"), and provided, further, that nothing in the Sealed Air Settlement Agreement shall adversely affect any rights of any Entity to file and pursue, or object to, a proof of claim for "Excluded Fees" (as defined in the Sealed Air Settlement Agreement) in the Chapter 11 Cases;
(ii) Each SA Debtor shall execute and deliver an indemnity agreement in favor of the Sealed Air Indemnified Parties in the form annexed as Exhibit 6 to the Sealed Air Settlement Agreement;
(jj) The SA Debtors' Indemnity Obligation (and the obligations, covenants, and agreements of each of the SA Debtors and SA Non-Debtor Affiliates set forth or referred to in the Sealed Air Settlement Agreement, including any such obligation, covenant, or agreement of any SA Debtor or SA Non-Debtor Affiliate set forth in the Plan or Confirmation Order) shall not be discharged, expunged, estimated, or otherwise adversely affected in the Chapter 11 Cases or by the confirmation of the Plan;
(kk) The SA Debtors' Indemnity Obligation (and the obligations, covenants, and agreements of each of the SA Debtors and SA Non-Debtor Affiliates set forth or referred to in the Sealed Air Settlement Agreement, including any such obligation, covenant, or agreement of any SA Debtor or SA Non-Debtor Affiliate set forth in the Plan or Confirmation Order) shall continue unaffected as a post-confirmation obligation of each of the Reorganized Debtors;
(ll) The Debtors, the Asbestos PI Committee, the Asbestos PI FCR, the Asbestos PI TAC, and the Asbestos PI Trustees have (i) promptly provided to Cryovac, Inc. and Fresenius all "Material Drafts" (as defined in the Sealed Air Settlement Agreement) of the Asbestos PI Trust Agreement and each related "Trust Document" (as defined in the Sealed Air Settlement Agreement) (but excluding or redacting drafts of the Asbestos PI TDP), and (ii) incorporated promptly (if it was the party drafting such document), or if otherwise, urged the party drafting such document promptly to incorporate, into any such document each provision with respect to the subject matter set forth or referred to in paragraphs II(c)(ix), (x), and (xi), and paragraph VI(g), and clauses (i)(A) through (D) of paragraph VI(c) of the Sealed Air Settlement Agreement that were reasonably requested by Cryovac, Inc. or Fresenius;
(mm) The Debtors, the Asbestos PD Committee, and the Asbestos PD FCR have promptly provided to Cryovac, Inc. and Fresenius all "Material Drafts" (as defined in the Sealed Air Settlement Agreement) of the Asbestos PD Trust Agreement and each related "Trust Document" (as defined in the Sealed Air Settlement Agreement) (but excluding or redacting drafts of the ZAI TDP), and incorporated promptly (if it was the party drafting such document), or if
otherwise, urged the party drafting such document promptly to incorporate, into any such document each provision with respect to the subject matter set forth or referred to in paragraphs II(c)(ix), (x), and (xi), and paragraph VI(g), and clauses (i)(A) through (D) of paragraph VI(c) of the Sealed Air Settlement Agreement that were reasonably requested by Cryovac, Inc. or Fresenius;
(nn) SA Debtors and SA Non-Debtor Affiliates shall take all actions required or requested by Sealed Air as contemplated in the Sealed Air Settlement Agreement and shall be prohibited from taking any actions prohibited by Sealed Air as provided by the Sealed Air Settlement Agreement with respect to tax matters, including those set forth in Annex I attached hereto as Exhibit A and those set forth in paragraphs II(c)(x), IV, and VI of the Sealed Air Settlement Agreement and those provisions of the Sealed Air Settlement Agreement are incorporated in the Plan as if fully set forth therein and are likewise incorporated into this Confirmation Order as if fully set forth herein;
(oo) The Plaintiffs, Asbestos PI Trust and Asbestos PD Trust shall take all actions required or requested by Sealed Air as provided by the Sealed Air Settlement Agreement and shall be prohibited from taking any actions prohibited by Sealed Air as contemplated in the Sealed Air Settlement Agreement with respect to tax matters, including those set forth in Annex II attached hereto as Exhibit A and those set forth in paragraphs II(c)(ix), II(c)(x) and II(c)(xi) of the Sealed Air Settlement Agreement and those provisions of the Sealed Air Settlement Agreement are incorporated in the Plan as if fully set forth therein and are likewise incorporated into this Confirmation Order as if fully set forth herein;
(pp) Each of the SA Debtors acknowledge and agree that (i) to the extent that any SA Debtor is required, pursuant to generally accepted accounting principles, to accrue a liability for asbestos which liabilities are satisfied by Cryovac, Inc. by a transfer made by Cryovac, Inc. directly to the Asbestos PI Trust or Asbestos PD Trust pursuant to the Plan or the Confirmation Order and such SA Debtor is required pursuant to generally accepted accounting principles to reverse such accrual, to the extent that there is more than one methodology under generally accepted accounting principles pursuant to which the SA Debtors are allowed to reverse any such accrual, such SA Debtor shall adopt the methodology, if any, not inconsistent with the provisions of paragraphs VI(b) and VI(g) of the Sealed Air Settlement Agreement, (ii) any payment or transfer by Cryovac, Inc. directly to the Asbestos PI Trust or Asbestos PD Trust shall not be treated, for financial accounting purposes, as resulting in an expense or deduction of any SA Debtor or SA Non-Debtor Affiliate and (iii) to the extent that any payment or transfer by Cryovac, Inc. directly to the Asbestos PI Trust or Asbestos PD Trust results, for financial accounting purposes, in income to any SA Debtor, the SA Debtors shall treat such income as income from the cancellation of indebtedness or liabilities of the SA Debtors;
(qq) The Debtors and Estate Parties shall take all actions required or requested by Fresenius as contemplated in the Fresenius Settlement Agreement and be prohibited from taking any actions prohibited by Fresenius as contemplated in the Fresenius Settlement Agreement with respect to tax matters, including those outlined in Article III of the Fresenius Settlement Agreement and those provisions of the Fresenius Settlement Agreement are incorporated in the Plan as if fully set forth therein and are likewise incorporated into this Confirmation Order as if fully set forth herein;
(rr) The 1998 Tax Sharing Agreement shall be an assumed agreement of each of the SA Debtors (including Grace New York and Grace-Conn) pursuant to §365 of the Bankruptcy Code, and nothing contained in or contemplated by the Sealed Air Settlement Agreement, the Plan, or this Confirmation Order shall adversely affect the rights of the Debtors, Sealed Air Corporation or any of their respective Affiliates under the 1998 Tax Sharing Agreement;
(ss) Upon confirmation, each of the Sealed Air Settlement Agreement, the Sealed Air Settlement Order, the Fresenius Settlement Agreement and the Fresenius Settlement Order shall be in full force and effect;
(tt) Subject to §7.7(uu) of the Plan, the duties and obligations of the Asbestos Insurance Entities under the Asbestos Insurance Policies, Asbestos Insurance Settlement Agreements, Asbestos In-Place Insurance Coverage, and Asbestos Insurance Reimbursement Agreements are not diminished, reduced or eliminated by (i) the discharge of the obligations and liabilities of the Debtors and the Reorganized Debtors for and in respect of all Asbestos PI Claims or (ii) the assumption by the Asbestos PI Trust of responsibility and liability for all Asbestos PI Claims;
(uu) On and after the Effective Date, the Asbestos Insurance Transfer Agreement shall be a valid and binding obligation of each the parties thereto, shall be in full force and effect and shall be valid and enforceable in accordance with its terms, in each case notwithstanding any anti-assignment provision in or incorporated into any Asbestos Insurance Policy, Asbestos Insurance Settlement Agreement, Asbestos In-Place Insurance Coverage, Asbestos Insurance Reimbursement Agreement, or under applicable non-bankruptcy law;
(vv) On and after the Effective Date, each of the Asbestos PI Deferred Payment Agreement, the Class 7A Asbestos PD Deferred Payment Agreement, the Class 7B Asbestos PD Deferred Payment Agreement, the Share Issuance Agreement, the Grace PI Guaranty, the Grace PD Guarantee Agreement for Class 7A, the Grace PD Guarantee Agreement for Class 7B, the Plan Registration Rights Agreement, the Asbestos PI/PD Inter-Creditor Agreement, the Warrant, and the Warrant Agreement shall be a valid and binding obligation of each of the parties
thereto and shall be in full force and effect and enforceable in accordance with its terms;
(ww) All Asbestos PI Claims shall be resolved by and channeled to the Asbestos PI Trust, all Asbestos PD Claims shall be resolved by and channeled to the Asbestos PD Trust, and all CDN ZAI PD Claims shall be resolved by and channeled to the CDN ZAI PD Claims Fund in the manner set forth in the CDN ZAI Minutes of Settlement;
(xx) The Court entered a Final Order allowing claims for post-petition interest on account of the General Unsecured Claims arising from the Pre-petition Credit Facilities in amounts that are not in excess of the rates set forth in §§3.1.9(b) of the Plan, as amended through December 23, 2010, Doc. No. 25956;
(yy) The Canadian Settlement Approval Order has been entered; and
(zz) On and after the Effective Date, pursuant to §3.1(a) of the Asbestos PD Trust Agreement, the Class 7B Trustee (as defined in the Asbestos PD Trust Agreement) shall keep segregated the ZAI Trust Assets (as defined in the Asbestos PD Trust Agreement) from the other Asbestos PD Trust Assets at all times, and no non-US ZAI PD Claim or liability of any kind shall ever be satisfied, either voluntarily or involuntarily, with ZAI Trust Assets.
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D.
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CONDITIONS TO THE EFFECTIVE DATE OF THE PLAN.
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Nothing in this Confirmation Order or in the Findings and Conclusions shall in any way affect the provisions of §7.8 of the Plan, which include provisions regarding (1) the conditions precedent to the Effective Date of the Plan and (2) the waiver of any such conditions. If a condition to the occurrence of the Effective Date set forth in §7.8 of the Plan cannot be satisfied, and the occurrence of such condition is not waived in writing by the parties set forth in §7.8 of the Plan, then the Plan and the Confirmation Order shall be deemed null and void. Upon the satisfaction or waiver of the conditions contained in §7.8 of the Plan and the occurrence of the Effective Date, substantial consummation of the Plan, within the meaning of §1127 of the Bankruptcy Code, is deemed to occur.
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E.
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EFFECTS OF CONFIRMATION.
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1.
Upon entry of this Confirmation Order by the District Court, but subject to the occurrence of the Effective Date as provided in §7.8 of the Plan and Section I.D of this Confirmation Order, the terms of the Plan and this Confirmation Order shall be binding upon all Entities, including the Debtors, the Reorganized Debtors, any and all holders of Claims, Demands or Interests (irrespective of whether such Claims or Interests are impaired under the Plan or whether the holders of such Claims or Interests accepted, rejected or are deemed to have accepted or rejected the Plan), any and all non-Debtor parties to executory contracts and unexpired leases with any of the Debtors and any and all Entities who are parties to or are subject to the settlements, compromises, releases, waivers, discharges and injunctions described herein, and in the Findings and Conclusions or in the Plan and the respective heirs, executors, administrators, trustees, affiliates, officers, directors, agents, representatives, attorneys, beneficiaries, guardians, successors or assigns, if any, of any of the foregoing.
2.
On the Effective Date, the Reorganized Debtors shall be vested with all of the assets and property of their former bankruptcy estates, free and clear of all Claims, liens, charges and other interests of holders of Claims except to the extent specifically provided herein, in another order of this Court, or in the Plan, and may operate their businesses free of any restrictions imposed under the Bankruptcy Code.
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F.
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APPROVAL, MODIFICATION AND EXECUTION OF PLAN DOCUMENTS
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1.
The Plan, all exhibits and schedules thereto, substantially in the form as they exist at the time of the entry of this Confirmation Order, including the documents relating to the Asbestos PI Trust and the Asbestos PD Trust, and each of the other Plan Documents filed as part of the Exhibit Book are ratified and approved in all respects. All relevant parties, including the
Debtors, the Trustees of the Asbestos PI Trust and the Asbestos PD Trust, and the CCAA Representative Counsel shall be authorized, without further action by the Bankruptcy Court, to enter into and effectuate, to the extent applicable, and perform under the Plan Documents, notwithstanding that the efficacy of such documents may be subject to the occurrence of the Effective Date as contemplated by and under the Plan and/or Plan Documents.
2.
The Plan Proponents are hereby authorized to amend or modify the Plan at any time prior to the substantial consummation of the Plan, but only in accordance with §1127 of the Bankruptcy Code and §24.1.1 of the Plan. In addition, without the need for a further order or authorization of the Bankruptcy Court or further notice to any Entities, but subject to the express provisions of this Confirmation Order and §§4.1.1 and 4.1.2 of the Plan, the Plan Proponents shall be authorized and empowered to make modifications to the documents filed with the Bankruptcy Court, including exhibits and schedules to the Plan or documents forming part of the evidentiary record at the Confirmation Hearing, as well as the other Plan Documents, consistent with the terms of such documents in their reasonable business judgment as may be necessary.
3.
Nothing in this Confirmation Order, the Plan, or any other Plan Document shall allow any of the Plan Proponents to, or shall be deemed to, alter, modify, amend, or otherwise change in any way (i) the Sealed Air Settlement Agreement, except to the extent that each of Sealed Air Corporation and Cryovac, Inc. expressly consents to such alteration, modification, amendment, or change in writing in its absolute discretion or (ii) the Fresenius Settlement Agreement, except to the extent that Fresenius consents to such alteration, modification, amendment, or change in writing in its absolute discretion.
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4.
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The failure to reference or discuss any particular provision of the Plan in this
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Confirmation Order shall have no effect on the validity, binding effect, and enforceability of such provision and such provision shall have the same validity, binding effect, and enforceability as every other provision of the Plan.
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II.
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CLAIMS BAR DATES AND OTHER CLAIMS MATTERS.
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A.
GENERAL BAR DATE PROVISIONS FOR ADMINISTRATIVE EXPENSE CLAIMS.
All requests for payment of an Administrative Expense Claim (other than as set forth in
§2.1.1(b)(1) of the Plan and Section II.B below) shall be filed with the Bankruptcy Court and served on the Reorganized Debtors at the addresses set forth in §11.12 of the Plan not later than ninety (90) days
9
after the Effective Date unless extended by order of court. All objections to Administrative Expense Claims shall be filed and served on the requesting party within 150 days after the Effective Date (unless the objection deadline is extended by the Court upon request of the Reorganized Debtors). In the event that the Reorganized Debtors object to an Administrative Expense Claim, the Bankruptcy Court shall determine the Allowed amount of such Administrative Expense Claim. If no objection is timely filed to any such claim and if the Fee Auditor has no comment with respect to the claim, a Certificate of No Objection shall be filed and the Court may act thereon. Notwithstanding the foregoing, no request for payment of an Administrative Expense Claim need be filed with respect to an Administrative Expense Claim which is paid or payable by a Debtor in the ordinary course of business.
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B.
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BAR DATE FOR PROFESSIONAL FEE CLAIMS.
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1.
All final requests for compensation or reimbursement of the fees of any
9
A separate deadline for the Fee Auditor’s fee and expense request is addressed in subsection B.
Professionals employed in the Chapter 11 Cases pursuant to §327 or §1103 of the Bankruptcy Code or otherwise, including the professionals seeking compensation or reimbursement of costs and expenses relating to services performed after the Petition Date and prior to and including the Effective Date in connection with the Chapter 11 Cases, pursuant to §§327, 328, 330, 331, 503(b) or 1103 of the Bankruptcy Code for services rendered to the Debtors, the Unsecured Creditors' Committee, the Equity Committee, the Asbestos Claimants' Committee, the Asbestos PI Future Claimants' Representative, the Asbestos PD Future Claimants' Representative, and the CCAA Representative Counsel (post-appointment as Special Counsel in these Chapter 11 Cases), and Claims for making a substantial contribution under §503(b)(3)(D) and/or §503(b)(4) of the Bankruptcy Code, including any requests by the CCAA Representative Counsel or their respective professionals not previously made for reimbursement of reasonable fees and expenses shall be filed and served on the Reorganized Debtors and their counsel not later than ninety (90) days after the Effective Date, unless otherwise ordered by the Bankruptcy Court. Objections to applications of such professionals or other entities for compensation or reimbursement of expenses must be filed and served on the Reorganized Debtors and their counsel and the requesting professional or other entity not later than sixty (60) days after the date on which the applicable application for compensation or reimbursement was served; provided, however, that, in lieu of such sixty (60) day objection deadline, the following protocol shall apply to the fee auditor appointed in these Chapter 11 Cases (the "Fee Auditor"):
(i)
if the Fee Auditor has any questions for any applicant, the Fee Auditor may communicate such questions in writing to the applicant in an initial report (the "Initial Report") within forty-five (45) days after the date on which the applicable application for compensation or reimbursement was served on the Fee Auditor;
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(ii)
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any applicant who receives an Initial Report and wishes to respond thereto
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shall respond within fifteen (15) days after the date of the Initial Report and shall serve upon the Fee Auditor via e-mail a response in an electronic format such as Microsoft Word, WordPerfect, or Excel, but not Adobe Acrobat;
(iii)
within seventy-five (75) days after the date on which the applicable application for compensation or reimbursement was served on the Fee Auditor, the Fee Auditor shall file with the Court a final report (the "Final Report") with respect to each such application for compensation or reimbursement; and
(iv)
within fifteen (15) days after the date of the Final Report, the subject applicant may file with the Court a response to such Final Report.
2.
The Fee Auditor shall file his administrative fee and expense request no later than 60 days after completing reviews of all other professional fee and expense applications, including reviews of revisions made in response to the Fee Auditor’s comments.
3.
Reorganized Debtors shall schedule a hearing on all administrative claims for the omnibus hearing date that is at least 35 days after the Fee Auditor’s fee and expense request is filed.
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C.
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BAR DATE FOR REJECTION DAMAGES CLAIMS.
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On the Effective Date, each executory contract and unexpired lease listed on Exhibit 18 in the Exhibit Book shall be rejected pursuant to §365 of the Bankruptcy Code. The Debtors shall have the right until ten (10) days prior to the Effective Date to modify the list of rejected contracts included in Exhibit 18 in the Exhibit Book to add executory contracts or leases to the extent described in §9.1.3 of the Plan, including the notice provision described therein. To the extent executory, all agreements that create an obligation of the Debtors to reimburse or indemnify third parties (other than the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties) with respect to Asbestos PI Claims, Asbestos PD Claims or CDN ZAI PD Claims (other than Asbestos Insurance Policies, Asbestos Insurance Settlement Agreements,
Asbestos In-Place Insurance Coverage, Asbestos Insurance Reimbursement Agreements, the Sealed Air Settlement Agreement, the Fresenius Settlement Agreement, or the 1998 Tax Sharing Agreement to the extent any are executory) are deemed rejected by operation of this Confirmation Order, subject to the occurrence of the Effective Date, unless expressly identified and assumed pursuant to the Plan, a Plan Document, or an order of this Court.
Pursuant to the terms of the March 2003 Bar Date Order and Bankruptcy Rule 3002(c)(4), and except as otherwise ordered by this Court, a proof of claim for each Claim arising from the rejection of an executory contract or unexpired lease pursuant to the Plan shall be filed with this Court within thirty (30) days of the later of: (i) the date of service of the Notice of Confirmation Date, or (ii) the Effective Date. Any Claims not filed within such applicable time period shall be forever barred from assertion. Except with respect to Claims arising from the rejection of an executory contract or unexpired lease that creates an obligation of the Debtors to reimburse or indemnify third parties with respect to Asbestos PI Claims, Asbestos PD Claims, or CDN ZAI PD Claims, all Claims for damages arising from the rejection of an executory contract or unexpired lease shall be included in Class 9 and shall be treated in accordance with Article 3 of the Plan. All Claims for damages arising from the rejection of an agreement that creates an obligation of the Debtors to reimburse or indemnify third parties with respect to Asbestos PI Claims, Asbestos PD Claims, or CDN ZAI PD Claims shall be included in Class 6, Class 7, or Class 8, respectively, and shall be treated in accordance with Article 3 of the Plan.
III.
APPROVAL OF EXECUTORY CONTRACTS, UNEXPIRED LEASES, LETTERS OF CREDIT, SURETY BONDS, COMPENSATION, INDEMNITY AND BENEFIT PROGRAMS.
A.
GENERAL APPROVAL
The executory contract, unexpired lease, letter of credit, and surety bond provisions of Article IX of the Plan are specifically approved. The compensation, indemnity and benefit programs described in Article IX of the Plan are also specifically approved.
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B.
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ASSUMED CONTRACTS AND LEASES AND RELATED PROCEDURES
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Except for (i) executory contracts and unexpired leases that the Debtors reject prior to the Effective Date or designate (on Exhibit 18 in the Exhibit Book) as being subject to rejection in connection with the Effective Date; (ii) the TSIA which shall be terminated (except for §4.04 thereof) upon the effective date of the Fresenius Settlement Agreement; and (iii) agreements, to the extent executory, that create an obligation of the Debtors to reimburse or indemnify third parties with respect to Asbestos PI Claims, Asbestos PD Claims, or CDN ZAI PD Claims (other than, to the extent they are executory, (a) all Asbestos Insurance Policies, (b) Asbestos Insurance Settlement Agreements, (c) Asbestos In-Place Insurance Coverage, and (d) Asbestos Insurance Reimbursement Agreements; the Sealed Air Settlement Agreement; the Fresenius Settlement Agreement; and the 1998 Tax Sharing Agreement), all executory contracts and unexpired leases (including, to the extent they are executory, (a) all Asbestos Insurance Policies, (b) Asbestos Insurance Settlement Agreements, (c) Asbestos In-Place Insurance Coverage, and (d) Asbestos Insurance Reimbursement Agreements; the Sealed Air Settlement Agreement; the Fresenius Settlement Agreement; the 1998 Tax Sharing Agreement; and the cost sharing agreement between the Debtors, Unifirst Corporation, and Beatrice Company, related to the Wells G&H Superfund site in Woburn, MA, dated November 16, 1990 and described at §2.8.2 of the Disclosure Statement) not previously assumed by the Debtors pursuant to §365 of the Bankruptcy Code shall be deemed to have been assumed by the Reorganized Debtors on the
Effective Date, and the Plan shall constitute a motion to assume such executory contracts and unexpired leases as of the Effective Date.
Subject to the occurrence of the Effective Date, entry of this Confirmation Order shall constitute express approval of the assumption of the executory contracts and unexpired leases described in §9.1.1 of the Plan pursuant to §365(a) of the Bankruptcy Code and a finding by this Court that each such assumption is in the best interests of the Debtors, their estates, and all parties in interest in the Chapter 11 Cases.
Not later than twenty (20) days after entry of this Confirmation Order, the Debtors will file with this Court an exhibit (the "Cure Exhibit") setting forth those executory contracts and unexpired leases which are being assumed by the Debtors and as to which the Debtors believe that cure amounts are owing, together with the respective cure amounts due for each such executory contract or assumed lease. The Debtors shall serve the Cure Exhibit on each non-Debtor party to an executory contract or unexpired lease being assumed pursuant to the Plan, including those listed on such exhibit. If there is a dispute regarding (i) the nature or amount of any cure, (ii) the ability of a Reorganized Debtor or assignee to provide "adequate assurance of future performance" (within the meaning of §365 of the Bankruptcy Code) under the contract or lease to be assumed or (iii) any other matter pertaining to assumption, cure will occur following the entry of a Final Order resolving the dispute and approving the assumption. With respect to any executory contracts or unexpired leases which are being assumed by the Debtors but as to which the Debtors contend that no cure amounts are due, such executory contracts and unexpired leases will not be included on the Cure Exhibit.
Not later than twenty (20) days after the Filing and service of the Cure Exhibit, the
non-Debtor party to any executory contract or unexpired lease that the Debtors propose to assume, whether or not listed on the Cure Exhibit, may dispute the cure amount, if any, set forth by the Debtors on the Cure Exhibit pursuant to §9.1.1 of the Plan, assert that a cure amount should be owing with respect to any executory contract or unexpired lease that is being assumed, or otherwise object to the assumption of the executory contract or unexpired lease indicated in §9.1.1 of the Plan by filing a written objection with this Court and serving such objection on counsel for the Debtors.
If no objection to the cure amount or the proposed assumption is properly filed and served within twenty (20) days after the filing and service of the Cure Exhibit then (i) the proposed assumption of the executory contract or unexpired leases shall be deemed approved without further action of this Court in accordance with the Plan and this Confirmation Order, effective on the Effective Date, and (ii) the cure amount, if any, identified by the Debtors in the Cure Exhibit shall be fixed and shall be paid in full in Cash on the Effective Date or on such other terms as are agreed to by the parties to such executory contract or unexpired lease.
If an objection to the cure amount or the proposed assumption is properly filed and served within twenty (20) days after the filing and service of the Cure Exhibit, then the Debtors or Reorganized Debtors, as applicable, and the objecting party may resolve such objection by stipulation, without further action of this Court. If the parties are unable to resolve such objection, then: (i) the Debtors or Reorganized Debtors may file a reply to such objection no later than thirty (30) days after the filing and service of such objection and ask this Court to schedule a hearing on the particular objection and the related reply at an appropriate time; or (ii) the Debtors or Reorganized Debtors, as applicable, may designate the executory contract or
unexpired lease underlying such objection for rejection pursuant to §9.1.3 of the Plan.
C.
ASSUMPTION OF 1998 TAX SHARING AGREEMENT AND §4.04 OF THE TAX SHARING AND INDEMNITY AGREEMENT OF 1996 (“TSIA”)
This Confirmation Order shall constitute an order authorizing the assumption by each of the Debtors of the 1998 Tax Sharing Agreement. The 1998 Tax Sharing Agreement shall be an assumed agreement of each of the SA Debtors (including Grace New York and Grace-Conn) pursuant to 11 U.S.C. §365 and nothing contained in, or contemplated by, the Plan, this Confirmation Order, or the Sealed Air Settlement Agreement shall adversely affect the rights of the Debtors, Sealed Air Corporation or any of their respective Affiliates under the 1998 Tax Sharing Agreement.
This Confirmation Order shall constitute an order authorizing the assumption by each of the Debtors of §4.04 of the TSIA. Section 4.04 of the TSIA shall be an assumed agreement of each of the Debtors (including Grace New York and Grace-Conn) pursuant to 11 U.S.C. §365 and nothing contained in, or contemplated by, the Plan, this Confirmation Order, or the Fresenius Settlement Agreement shall adversely affect the rights of the Debtors, Fresenius or any of their respective Affiliates under §4.04 of the TSIA.
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IV.
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MATTERS RELATING TO IMPLEMENTATION OF THE PLAN.
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A.
ACTIONS IN FURTHERANCE OF THE PLAN
.
1.
Pursuant to §§1123 and 1142 of the Bankruptcy Code, §303 of the Delaware General Corporation Law and any comparable provisions of the business corporation law of any other state (collectively, the "Reorganization Effectuation Statutes"), without further action by the Bankruptcy Court or the stockholders, members, managers or board of directors of any Debtor or Reorganized Debtor, the Debtors and the Reorganized Debtors, as well as each of the
Chief Executive Officer, President, or any Vice President of any Debtor or Reorganized Debtor (collectively, the "Responsible Officers"), is hereby authorized to execute, deliver, file or record such contracts, instruments, releases and other agreements or documents and take or direct such actions as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan, the Plan Documents, this Confirmation Order, and the transactions contemplated thereby or hereby.
2.
To the extent that, under applicable non-bankruptcy law, any of the foregoing actions would otherwise require the consent or approval of the stockholders, members, managers, or directors of any of the Debtors or Reorganized Debtors, this Confirmation Order shall, pursuant to §§1123(a)(5) and 1142 of the Bankruptcy Code and the Reorganization Effectuation Statutes, constitute such consent or approval, and such actions are deemed to have been taken by unanimous action of the stockholders, members, managers or directors, as the case may be, of the appropriate Debtor or Reorganized Debtor.
3.
The approvals and authorizations specifically set forth in this Confirmation Order are non-exclusive and are not intended to limit the authority of any Debtor or Reorganized Debtor or any officer thereof to take any and all actions necessary or appropriate to implement, effectuate and consummate the Plan, this Confirmation Order, the Plan Documents or the transactions contemplated thereby or hereby. In addition to the authority to execute, deliver, and adopt, as the case may be, the contracts, instruments, releases and other agreements, including the Plan Documents, specifically granted in this Confirmation Order, each of the Debtors and the Reorganized Debtors is authorized and empowered, without further action in the Bankruptcy Court or further action or consent by its directors, managers, trustees, members or stockholders,
to take any and all such actions as any of its Responsible Officers may determine are necessary or appropriate to implement, effectuate and consummate the Plan, this Confirmation Order, the Plan Documents or the transactions contemplated thereby or hereby.
4.
To the extent any approval of the Bankruptcy Court is required for any of the Plan Proponents to enter into any of the Plan Documents, or to take any actions thereunder or to consummate any of the transactions contemplated thereby, such approvals are hereby granted.
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B.
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DIRECTORS AND OFFICERS OF REORGANIZED DEBTORS
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1.
The appointment of the initial members of the Reorganized W. R. Grace & Co. Board of Directors, as set forth in the Second Plan Supplement Amendment on and immediately following the Effective Date, is hereby approved.
2.
The appointment of the initial members of the Board of Directors for the Debtors other than W. R. Grace & Co., as set forth in the Second Plan Supplement Amendment is hereby approved.
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C.
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COMPENSATION AND BENEFIT PROGRAMS
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1.
The Reorganized Debtors shall continue, automatically and without further act, deed, or court order, their existing employee compensation, indemnity agreements, and benefit plans, programs, and policies, and to cure any defaults that may exist under such agreements, plans, programs, and policies, including payment of the Debtors' voluntary supplemental pension payments which were limited during the pendency of these Chapter 11 Cases, subject to any rights to amend, modify, or terminate such benefits under the terms of the applicable compensation and benefit plan, other agreement, or applicable nonbankruptcy law.
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2.
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The Reorganized Debtors shall have the authority to pay retiree benefits (as
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defined in §1114(a) of the Bankruptcy Code) and any similar health, disability, or death benefits in accordance with the terms of the retiree benefit plans or other agreements governing the payment of such benefits, subject to any rights to amend, modify, or terminate such benefits under the terms of the applicable retiree benefits plan, other agreement, or applicable nonbankruptcy law.
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D.
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APPROVAL OF EXIT FACILITIES
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1.
If exit facilities are required to make the Joint Plan effective, an appropriate motion shall be filed prior to the Effective Date. If exit facilities are not needed to effectuate the Joint Plan, then, without further action by this Court or the directors, managers, trustees, partners, members and stockholders of any Reorganized Debtor or further notice to any entities, each applicable Reorganized Debtor is authorized, on and after the Effective Date, to (i) execute, deliver, file, record and implement (a) one or more senior secured term loan facilities (the "Term Facility"); (b) a senior secured revolving credit facility (the "Revolving Facility," and together with the Term Facility, the "Facilities"); (c) debt securities in the form of notes issued pursuant to a registered public offering or a private placement under Rule 144A or otherwise (together with the Term Facility and the Revolving Facilities, the "Exit Facilities"), and (d) such other contracts, instruments, agreements, guaranties or other documents executed or delivered in connection with the Exit Facilities (the "Other Exit Facility Documents"), (ii) perform all of its obligations under the Term Facility and the Other Exit Facility Documents, and (iii) take all such other actions as any of the Responsible Officers of such Reorganized Debtor may determine are necessary, appropriate, or desirable in connection with the consummation of the transactions contemplated by the Exit Facilities and the Other Exit Facility Documents.
2.
In addition to the foregoing, each applicable Reorganized Debtor is authorized, as of the Effective Date, to grant such liens and security interests as necessary to provide security for the Exit Facilities in accordance with the Term Facility and the Other Exit Facility Documents.
E.
CREATION OF THE ASBESTOS PI TRUST, THE ASBESTOS PD TRUST, AND THE CDN ZAI PD CLAIMS FUND
1.
On the Effective Date, the Asbestos PI Trust shall be created in accordance with the terms and conditions of the Plan and the Asbestos PI Trust Agreement; on the Effective Date, the Asbestos PD Trust shall be created in accordance with the terms and conditions of the Plan and the Asbestos PD Trust Agreement; and, on the Effective Date, the CDN ZAI PD Claims Fund shall be created in accordance with the CDN ZAI Minutes of Settlement. The Asbestos PI Trust and the Trustees thereof are authorized and empowered to receive the property to be transferred to the Asbestos PI Trust pursuant to §7.2 of the Plan; and the Asbestos PD Trust and the Trustees thereof are authorized and empowered to receive the property to be transferred to the Asbestos PD Trust pursuant to §7.3 of the Plan, which includes, but is not limited to, the property that will be ultimately transferred from the Asbestos PD Trust to the CDN ZAI PD Claims Fund.
2.
Pursuant to the Reorganization Effectuation Statutes, as applicable, and other appropriate provisions of applicable state laws governing corporations or other legal entities and §1142(b) of the Bankruptcy Code, without further action by this Court or the directors, managers, partners, members or stockholders of any Reorganized Debtor or further notice to any entities, the Reorganized Debtors are authorized and directed to execute, deliver and perform their obligations under the Asbestos PI Trust Agreement, the Asbestos PD Trust Agreement, and
the CDN ZAI Minutes of Settlement, and to execute, deliver, file, record, and implement all such other contracts, instruments, agreements, or documents and take all such other actions as any of the Responsible Officers of the Reorganized Debtors may determine are necessary, appropriate, or desirable in connection therewith. The Asbestos PI Trust Agreement and the Asbestos PI Trust Distribution Procedures shall be substantially in the forms attached as Exhibits 2 and 4 of the Exhibit Book respectively, and the Asbestos PD Trust Agreement, the Case Management Order for Class 7A Asbestos PD Claims, the ZAI Trust Distribution Procedures, and the CDN ZAI Minutes of Settlement shall be substantially in the forms attached as Exhibit 3, 25, 33, and 34 respectively of the Exhibit Book.
3.
On the Effective Date, all right, title and interest in and to the Asbestos PI Trust Assets and any proceeds or causes of action thereunder shall be automatically transferred and assigned to, and indefeasibly vested in, the Asbestos PI Trust free and clear of all Claims, interests, encumbrances, and other interests of any Entity without any further action of any Entity. On the Effective Date, all right, title and interest in and to the Asbestos PD Trust Assets and any proceeds or causes of action thereunder shall be automatically transferred and assigned to, and indefeasibly vested in, the Asbestos PD Trust free and clear of all Claims, interests, encumbrances, and other interests of any Entity without any further action of any Entity. In addition, on the Effective Date, Grace-Conn or Parent shall, on behalf of the Reorganized Debtors and the Non-Debtor Affiliates, transfer to the Asbestos PD Trust all funds as set forth in the CDN ZAI Minutes of Settlement, which shall be free and clear of all Claims, interests, encumbrances, and other interests of any Entity without any further action of any Entity. The Asbestos PD Trust shall immediately transfer the amounts set forth in the CDN ZAI Minutes of
Settlement to the CDN ZAI PD Claims Fund to be used in the manner set forth in the CDN ZAI Minutes of Settlement.
4.
During these Chapter 11 Cases, the Bankruptcy Court has approved certain settlement agreements pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure that require the Asbestos PI Trust and/or the Asbestos PD Trust to be bound by such agreements. Accordingly, the Asbestos PI Trust and the Asbestos PD Trust shall be bound as provided in those agreements without any further action by the Court, the Asbestos PI Trust, the Asbestos PD Trust, or any other Entity.
F.
TRANSFERS OF PROPERTY TO AND ASSUMPTION OF CERTAIN LIABILITIES BY THE ASBESTOS PI TRUST
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1.
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Funding of the Asbestos PI Trust
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The Asbestos PI Trust shall be funded in accordance with §7.2.2 of the Plan (including contribution of cash, stock, warrants, insurance rights, and contributions pursuant to the Sealed Air and Fresenius settlements) and the Asbestos PI Deferred Payment Agreement.
. 2.
Transfer of Claims and Demands to the Asbestos PI Trust
On the Effective Date, without any further action of any Entity, all liabilities, obligations, and responsibilities of any Asbestos Protected Party with respect to all Asbestos PI Claims shall be channeled to and assumed by the Asbestos PI Trust in accordance with §7.2.3 of the Plan.
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3.
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Assignment and Enforcement of Asbestos PI Trust Causes of Action
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On the Effective Date, by virtue of the confirmation of the Plan, without further notice, action, or deed, the Asbestos PI Trust Causes of Action shall be automatically transferred and assigned to, and indefeasibly vested in, the Asbestos PI Trust, and the Asbestos PI Trust shall thereby become the estate representative pursuant to §1123(b)(3)(B) of the Bankruptcy Code
with respect to the Asbestos PI Trust Causes of Action, with the exclusive right to enforce the Asbestos PI Trust Causes of Action against any Entity in accordance with §7.2.4 of the Plan.
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4.
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Appointment of Asbestos PI Trustees
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The appointment of Harry Huge, Lewis Sifford, and Dean Trafelet as the initial Asbestos PI Trustees of the Asbestos PI Trust as set forth in the Asbestos PI Trust Agreement is approved.
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5.
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Creation of the Asbestos PI TAC
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The Asbestos PI Trust Advisory Committee shall be established pursuant to the Asbestos PI Trust Agreement.
On the Effective Date, the Reorganized Debtors and the Asbestos PI Trust shall enter into a cooperation agreement substantially in the form included as Exhibit 10 in the Exhibit Book.
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7.
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Institution and Maintenance of Legal and Other Proceedings
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On and after the Effective Date, without any further action of the Court or any Entity, the Asbestos PI Trust shall be empowered to initiate, prosecute, defend, and resolve all legal actions and other proceedings related to any asset, liability, or responsibility of the Asbestos PI Trust, including the Asbestos PI Trust Causes of Action.
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8.
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Appointment of Asbestos PI Future Claimants' Representative
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David T. Austern shall continue to serve as the Asbestos PI Future Claimants' Representative on and after the Effective Date pursuant to §6 of the Asbestos PI Trust Agreement.
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9.
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Asbestos Insurance Transfer Agreement
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a.
On the Effective Date, the Insurance Contributors and the Asbestos PI Trust shall
execute and deliver the Asbestos Insurance Transfer Agreement (substantially in the form included as Exhibit 6 in the Exhibit Book) to the Asbestos PI Trust.
b.
All Asbestos Insurance Rights and all claims and causes of action asserted or to be asserted in furtherance of or in connection therewith, shall be preserved for the benefit of the Asbestos PI Trust, for prosecution either by the applicable Insurance Contributor or the Asbestos PI Trust in accordance with the Asbestos Insurance Transfer Agreement. Upon execution and delivery of the Asbestos Insurance Transfer Agreement, the Asbestos Insurance Rights shall be irrevocably transferred to and vested in the Asbestos PI Trust in accordance with the Asbestos Insurance Transfer Agreement. Asbestos Insurance Rights shall be so vested free and clear of all Encumbrances, liens, security interests, and other Claims or causes of action, except as expressly provided in §7.15 of the Plan.
G.
TRANSFERS OF PROPERTY TO AND ASSUMPTION OF CERTAIN LIABILITIES BY THE ASBESTOS PD TRUST
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1.
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Funding of the Asbestos PD Trust
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The Asbestos PD Trust shall be funded in accordance with §7.3.2 of the Plan.
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2.
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Transfer of Claims and Demands to the Asbestos PD Trust
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On the Effective Date, without any further action of any Entity, all liabilities, obligations, and responsibilities of any Asbestos Protected Party with respect to all Asbestos PD Claims shall be channeled to and assumed by the Asbestos PD Trust in accordance with §7.3.3 of the Plan.
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3.
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Assignment and Enforcement of Asbestos PD Trust Causes of Action
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On the Effective Date, by virtue of the confirmation of the Plan, without further notice, action, or deed, the Asbestos PD Trust Causes of Action shall be automatically transferred and assigned to, and indefeasibly vested in, the Asbestos PD Trust, and the Asbestos PD Trust shall thereby
become the estate representative pursuant to §1123(b)(3)(B) of the Bankruptcy Code with respect to the Asbestos PD Trust Causes of Action, with the exclusive right to enforce the Asbestos PD Trust Causes of Action against any Entity.
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4.
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Appointment of Asbestos PD Trustees
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The appointment of Richard Schiro as the initial Class 7A Trustee and Edward B. Cottingham, Jr., as the initial Class 7B Trustee of the Asbestos PD Trust are approved.
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5.
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Creation of the Zonolite Attic Insulation TAC
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The Zonolite Attic Insulation Trust Advisory Committee or ZTAC shall be established pursuant to the Asbestos PD Trust Agreement.
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6.
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Appointment of Asbestos PD Future Claimants' Representative
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The Honorable Alexander M. Sanders, Jr. shall continue to serve as the Asbestos PD Future Claimants' Representative on and after the Effective Date pursuant to §6 of the Asbestos PD Trust Agreement.
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H.
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PROVISIONS RELATING TO SETTLED ASBESTOS INSURANCE COMPANIES
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Certain Asbestos Insurance Entities have entered into settlement agreements with the Debtors, which have been approved by the Bankruptcy Court by Final Order (including the stipulation filed on July 20, 2009, at Doc. No. 22552 and approved by order entered on August 19, 2009, at Doc. No. 22857. No ruling, proceeding, or other matter in connection with the Plan or the Chapter 11 Cases will impair, affect, or modify the rights and obligations under any such settlement agreements. Certain Asbestos Insurance Entities have been identified as Settled
10
The identities of these individuals are in the Plan Proponents’ Fifth Set of Plan Modifications. Doc. No. 25881.
Insurance Companies on Exhibit 5 of the Exhibit Book to the Plan and, subject to any limitations and conditions identified on Exhibit 5, are entitled to all rights, protections, and benefits provided to Settled Asbestos Insurance Companies pursuant to the Plan.
Certain other Asbestos Insurance Entities have entered into or may enter into settlement agreements with the Debtors, which are or will be pending approval by this Court, or which have been or may be approved by this Court in an order which is subject to review on an appeal or otherwise. Subject to, and conditioned on, this Court's approval of those settlement agreements, and this Court's approval order becoming a Final Order, such Asbestos Insurance Entities may be identified by the Plan Proponents as Settled Asbestos Insurance Companies on Exhibit 5 of the Exhibit Book to the Plan and, if so identified, subject to any limitations and conditions identified on Exhibit 5, will be entitled to all rights, protections, and benefits provided to Settled Asbestos Insurance Companies pursuant to the Plan.
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I.
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EXEMPTIONS FROM TAXATION
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Pursuant to §1146 of the Bankruptcy Code, the issuance, transfer, or exchange of a security, or the making or delivery of an instrument of transfer under the confirmed Plan is not subject to tax under any law imposing a stamp tax or similar tax.
The Plan Proponents may request a determination, limited to questions of law, by a State or local governmental unit charged with responsibility for collection or determination of a tax on or measured by income, of the tax effects of the Joint Plan under §346 of the Bankruptcy Code and under the law imposing such tax. In the event of an actual controversy, the court may declare such effects after the earlier of (i) the date on which such governmental unit responds to the request or (ii) 270 days after such request.
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J.
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EXEMPTIONS FROM SECURITIES LAWS
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The issuance and distribution of any and all of (i) the Warrants; (ii) the Parent Common Stock; and (iii) any other stock, options, warrants, conversion rights, rights of first refusal or other related rights, contractual, equitable or otherwise, issued (or to be issued), authorized or reserved under or in connection with the Plan, shall be, and shall be deemed to be, exempt from registration under any applicable federal or state securities law to the fullest extent permissible under applicable non-bankruptcy law and under bankruptcy law, including §1145 of the Bankruptcy Code.
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K.
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DISTRIBUTION RECORD DATE
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The Record Date for purposes of determining the holders of Allowed Claims that are entitled to distributions that are required to be made under the Plan on the Effective Date or as otherwise provided under the Plan shall be the date this Confirmation Order is entered on the docket in the Chapter 11 Cases by the clerk of this Court. As of the close of business on the Record Date, the various transfer and claims registers for each of the classes of Claims as maintained by the Debtors or their agents shall be deemed closed, and there shall be no further changes in the record holders of any of the Claims. The Debtors and the Reorganized Debtors shall have no obligation to recognize any transfer of the Claims occurring after the close of business on the Record Date. Each of the Debtors and the Reorganized Debtors shall be entitled to recognize and deal under the Plan only with those record holders stated on the transfer ledgers as of the close of business on the Record Date, to the extent applicable. Notwithstanding anything to the contrary set forth in the Plan or in this Confirmation Order, the Debtors, the Reorganized Debtors and/or the Disbursing Agent may take such other and additional steps as
they may deem appropriate to effectuate distributions to holders of Claims.
Pursuant to §1142 of the Bankruptcy Code, all entities holding Claims against or Equity Interests in the Debtors or collateral pledged as security for any Claims against the Debtors that are treated under the Plan are directed to execute, deliver, file or record any document, and to take any action necessary, including cancelling, releasing, and discharging any liens arising under any security documents to implement, consummate, and otherwise effect the Plan and the Plan Documents in accordance with their respective terms, and all such entities shall be bound by the terms and provisions of all documents executed and delivered by them in connection with the Plan and the Plan Documents.
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M.
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ISSUANCE OF NEW INSTRUMENTS
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All instruments to be issued under the Plan (including the Warrant) shall upon issuance be duly authorized and validly issued, fully paid, and non-assessable, and any conditions precedent to issuance shall be deemed satisfied.
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V.
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RELEASES, EXCULPATION, AND INDEMNIFICATION PROVISIONS
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Each of the release, exculpation, and indemnification provisions set forth in the Plan is hereby approved in all respects, is incorporated herein in its entirety, is so ordered and shall be immediately effective on the Effective Date of the Plan without further action or notice by this Court, any of the parties to such releases, exculpations, and indemnifications, or any other party. This includes the provisions in Sections 7.13, 8.6, 8.8.1, 8.8.3, 8.8.6, 8.8.7, 8.8.8, 8.8.9, 8.8.10, 8.8.11, 11.8, and 11.9 of the Plan, captioned as follows:
7.13 No Successor Liability
8.6 Injunctions and Releases Related to the Sealed Air Indemnified Parties and Fresenius Indemnified Parties
8.8.1 Release of Sealed Air Indemnified Parties
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8.8.3
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Release of Fresenius Indemnified Parties
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8.8.4
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Assumption of 1998 Tax Sharing Agreement and §4.04 of the TSIA
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8.8.6
Release of Avoidance Actions
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8.8.7
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Specific Releases by Holders of Claims or Equity Interests
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8.8.8
Release by Debtors and Estate Parties. 8.8.9 Indemnification of Representatives of the Debtors and Non-Debtor Affiliates
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8.8.9
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Indemnification of Representatives of the Debtors and Non-Debtor Affiliates
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8.8.10
Indemnification of Reorganized Debtors and Their Representatives by the Asbestos PI Trust
8.8.11
Indemnification of the Reorganized Debtors and Their Representatives by the Asbestos PD Trust
11.8
Dissolution of the Unsecured Creditors' Committee, the Asbestos PI committee, the Asbestos PD Committee and the Equity Committee, Continued Retention of the Asbestos PI Future Claimants' Representative and the Asbestos PD Future Claimants' Representative
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VI.
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DISCHARGE, INJUNCTIONS, AND RELATED MATTERS
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A.
DISCHARGE OF CLAIMS
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1.
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Discharge of the Debtors
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The rights afforded in the Plan and the treatment of all Claims, Plan Claims, and Demands shall be in exchange for and shall discharge all Claims, Plan Claims, and Demands of any nature whatsoever, including any interest accrued thereon from and after the Petition Date, against the Debtors and the Debtors in Possession, or their assets, properties, or interests in
property. Except as otherwise provided in the Plan, on the Effective Date, all Claims, Plan Claims, and Demands against the Debtors and the Debtors in Possession shall be discharged. The Reorganized Debtors shall not be responsible for any obligations of the Debtors or the Debtors in Possession except those expressly assumed by the Reorganized Debtors pursuant to the Plan. All Entities shall be precluded and forever barred from asserting against the Debtors and the Reorganized Debtors, or their assets, properties, or interests in property any other or further Claims, Plan Claims, or Demands based upon any act or omission, transaction, or other activity, event, or occurrence of any kind or nature that occurred prior to the Effective Date, whether or not the facts of or legal bases therefor were known or existed prior to the Effective Date, except as expressly provided in the Plan.
With respect to any debts discharged by operation of law under §§524(a) and 1141 of the Bankruptcy Code, the discharge of the Debtors operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover, or offset any such debt as a personal liability of the Debtors, whether or not the discharge of such debt is waived; provided, however, that the obligations of the Reorganized Debtors under the Plan and the other Plan Documents to be entered into on the Effective Date are not so discharged.
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3.
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Discharge of Liabilities to Holders of Asbestos PI Claims
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The transfer to, vesting in, and assumption by the Asbestos PI Trust of the Asbestos PI Trust Assets as contemplated by the Plan, among other things, shall discharge the Debtors, the Reorganized Debtors and their Representatives for and in respect of all Asbestos PI Claims,
subject to the reservations listed in §8.2.2 of the Plan. On the Effective Date, the Asbestos PI Trust shall assume the liabilities of the Debtors with respect to all Asbestos PI Claims and shall pay Asbestos PI Claims entitled to payment in accordance with the Asbestos PI Trust Agreement and the Asbestos PI TDP.
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4.
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Discharge of Liabilities to Holders of Asbestos PD Claims
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The transfer to, vesting in, and assumption by the Asbestos PD Trust of the Asbestos PD Trust Assets as contemplated by the Plan, among other things, shall discharge the Debtors, the Reorganized Debtors and their Representatives for and in respect of all Asbestos PD Claims, subject to the reservations listed in §8.3.2 of the Plan. On the Effective Date, the Asbestos PD Trust shall assume the liabilities of the Debtors with respect to all Asbestos PD Claims and shall pay Asbestos PD Claims entitled to payment in accordance with the Asbestos PD Trust Agreement and any Final Orders of the Bankruptcy Court allowing such claims.
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5.
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Discharge of Liabilities to Holders of CDN ZAI PD Claims
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The transfer to, vesting in, and assumption by the CDN ZAI PD Claims Fund of the CDN ZAI PD Claims as contemplated by the CDN ZAI Minutes of Settlement and the Plan, among other things, shall discharge the Debtors, the Reorganized Debtors and their Representatives for and in respect of all CDN ZAI PD Claims, subject to the reservations listed in §8.3.2 of the Plan. On the Effective Date, the CDN ZAI PD Claims Fund shall assume the liabilities of the Debtors with respect to all CDN ZAI PD Claims and shall pay CDN ZAI PD Claims entitled to payment in accordance with the terms of the CDN ZAI Minutes of Settlement.
On and after the Effective Date, the Debtors, the Reorganized Debtors and their
Representatives shall be fully and finally discharged of any liability or obligation on a Disallowed Claim, and any order creating a Disallowed Claim that is not a Final Order as of the Effective Date solely because of an Entity's right to move for reconsideration of such order pursuant to §502 of the Bankruptcy Code or Bankruptcy Rule 3008 shall nevertheless become and be deemed to be a Final Order on the Effective Date.
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7.
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Non-Dischargeable ERISA Liability
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The Parent, W. R. Grace & Co., is a controlled group member within the meaning of 29
U.S.C. § 1301(a)(14) and may also be a contributing sponsor of one or more ongoing, defined benefit pension plans to which Title IV of the ERISA applies (the "Pension Plans"). The Debtors intend that the Reorganized Parent will continue to be the continuing sponsor of the Pension Plans. Each of the Pension Plans is a defined benefit pension plan insured by the Pension Benefit Guaranty Corporation ("PBGC") under ERISA. The Pension Plans are subject to minimum funding requirements of ERISA and §412 of the IRC. Should the Pension Plans be underfunded and should the Pension Plans terminate, the PBGC may assert claims for the underfunding, for any unpaid minimum funding contributions owed the Pension Plan, and for any unpaid premiums owed the PBGC.
Nothing contained in this Confirmation Order, the Plan, the Bankruptcy Code (including Bankruptcy Code § 1141), or any other document filed in the Chapter 11 Cases shall be construed to discharge, release, or relieve the Debtors, or any other party, in any capacity, from any liability or responsibility to the PBGC with respect to the Pension Plans under any law, governmental policy, or regulatory provision. The PBGC shall not be enjoined or precluded from enforcing such liability or responsibility, as a result of any of the provisions of the Plan
(including those provisions providing for exculpation, satisfaction, release, and discharge of Claims), this Confirmation Order, the Bankruptcy Code (including Bankruptcy Code § 1141), or any other document filed in the Chapter 11 Cases. Notwithstanding the foregoing, neither the PBGC nor any other Entity shall assert any liability or responsibility with respect to the Pension Plans under any law, governmental policy, or regulatory provisions against, and such liability or responsibility shall not attach to, the Asbestos PI Trust or any of the Asbestos PI Trust Assets or the Asbestos PD Trust or any of the Asbestos PD Trust Assets.
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B.
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THE ASBESTOS PI CHANNELING INJUNCTION
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In order to supplement, where necessary, the injunctive effect of the discharge provided by §§1141, 524(a), and 105 of the Bankruptcy Code and as described in Article 8 of the Plan, and pursuant to the exercise of the equitable jurisdiction and power of this Court under §524(g) of the Bankruptcy Code, the Plan provides for the following injunction, which is hereby approved and authorized in all respects and which shall take effect on and after the Effective Date:
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1.
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Asbestos PI Channeling Injunction
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On and after the Effective Date, the sole recourse of the Holder of an Asbestos PI Claim or a Successor Claim arising out of or based on any Asbestos PI Claim on account thereof shall be to the Asbestos PI Trust pursuant to the provisions of the Asbestos PI Channeling Injunction and the Asbestos PI TDP and such Holder shall have no right whatsoever at any time to assert its Asbestos PI Claim or Successor Claim arising out of or based on any Asbestos PI Claim against the Debtors, Reorganized Debtors, any other Asbestos Protected Party, or any property or interest (including any Distributions made pursuant to the Plan) in property of the Debtors, the
Reorganized Debtors, or any other Asbestos Protected Party. Without limiting the foregoing, from and after the Effective Date, the Asbestos PI Channeling Injunction shall apply to all present and future Holders of Asbestos PI Claims or Successor Claims arising out of or based on any Asbestos PI Claim, and all such Holders permanently and forever shall be stayed, restrained, and enjoined from taking any and all legal or other actions or making any Demand against any Asbestos Protected Party or any property or interest (including Distributions made pursuant to the Plan) in property of any Asbestos Protected Party for the purpose of, directly or indirectly, claiming, collecting, recovering, or receiving any payment, recovery, satisfaction, or any other relief whatsoever on, of, or with respect to any Asbestos PI Claims or Successor Claims arising out of or based on any Asbestos PI Claims other than from the Asbestos PI Trust in accordance with the Asbestos PI Channeling Injunction and pursuant to the Asbestos PI Trust Agreement and the Asbestos PI TDP, including:
(a)
commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or other proceeding (including a judicial, arbitration, administrative, or other proceeding) in any forum against or affecting any Asbestos Protected Party, or any property or interest in property of any Asbestos Protected Party;
(b)
enforcing, levying, attaching (including any prejudgment attachment), collecting, or otherwise recovering by any means or in any manner, whether directly or indirectly, any judgment, award, decree, or other order against any Asbestos Protected Party, or any property or interest in property of any Asbestos Protected Party;
(c)
creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any Encumbrance against any Asbestos Protected Party, or any property or interest in property of any Asbestos Protected Party;
(d)
setting off, seeking reimbursement of, indemnification or contribution from, or subrogation against, or otherwise recouping in any manner, directly or indirectly, any amount against any liability owed to any Asbestos Protected Party, or any property or interest in property of any Asbestos Protected Party; and
(e)
proceeding in any other manner with regard to any matter that is subject to resolution pursuant to the Asbestos PI Trust, except in conformity and compliance with the Asbestos PI Trust Agreement and the Asbestos PI TDP.
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2.
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Reservations from Asbestos PI Channeling Injunction
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Notwithstanding anything to the contrary in the foregoing provisions of Section VI(B)(1) of this Confirmation Order and §8.2.1 of the Plan, the Asbestos PI Channeling Injunction shall not enjoin:
(a)
the rights of Entities to the treatment accorded them under the Plan, including the rights of Entities with Asbestos PI Claims to assert such Asbestos PI Claims in accordance with the Asbestos PI TDP;
(b)
the rights of Entities to assert any claim, debt, obligation or liability for payment of expenses of the Asbestos PI Trust solely against the Asbestos PI Trust or the Asbestos PI Trust Assets;
(c)
the rights of the Asbestos PI Trust and, to the extent permitted by the Asbestos Insurance Transfer Agreement, the Insurance Contributors, to prosecute any cause of action or to assert any Claim, Demand, debt, obligation, or liability for payment against any Entity (but not the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties), including any Asbestos Insurance Entity, based on or arising from the Asbestos Insurance Rights;
(d)
the rights of the Asbestos PI Trust and, to the extent permitted by the Asbestos Insurance Transfer Agreement, the Insurance Contributors, to receive any settlement, award, payment of cash or other property of any kind whatsoever from any Entity (but not the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties) including any Asbestos Insurance Entity in satisfaction of any Asbestos Insurance Rights; and
(e)
BNSF from asserting any claim (as that term is defined in Bankruptcy Code § 101(5)) for insurance coverage as an insured or an additional insured against a Settled Asbestos Insurance Company under and only under an insurance policy (or part of a policy) that is not identified as being the subject of any Asbestos Insurance Settlement Agreement in Exhibit 5 of the Exhibit Book or is not subject to protection under the terms of the Debtors' Settlement Agreement with the Royal Parties, dated June 17, 2009 (the "Arrowood Rule 9019 Settlement Agreement"). To avoid any doubt, BNSF shall be enjoined from asserting any claim against any of the policies identified in Exhibits 2 and 3 of the Arrowood Rule 9019 Settlement Agreement.
Except as otherwise expressly provided in the Plan, the Sealed Air Settlement Agreement, or the Fresenius Settlement Agreement, nothing contained in the Plan shall constitute or be deemed a waiver of any claim, right, or cause of action that the Debtors, the Reorganized Debtors, or the Asbestos PI Trust may have against any Entity in connection with or arising out of or based on any Asbestos PI Claim. Notwithstanding anything to the contrary in this Confirmation Order, in any provision of the Plan, or in any Plan Document (including the Asbestos PI Trust Agreement and the Asbestos PI TDP), and for the avoidance of any doubt, following the transfer to the Asbestos PI Trust of the Cryovac Payment (reduced by the total aggregate amount of transfers to the Asbestos PD Trust by or on behalf of Cryovac, Inc. as part of the Class 7A Initial Payment and the Class 7B Initial Payment), (i) no Entity shall have any right to enforce any provision of the Plan relating to the Cryovac Payment or the payment thereof against any of the Sealed Air Indemnified Parties or any property or interest (including any Distributions made pursuant to the Plan) in property of any of the Sealed Air Indemnified Parties and (ii) the sole recourse of a Holder of an Asbestos PI Claim against any of the Sealed Air Indemnified Parties or a Successor Claim arising out of or based on any Asbestos PI Claim on account thereof, shall be to the Asbestos PI Trust, and such Holder shall have no right whatsoever at any time to assert its Asbestos PI Claim or Successor Claim arising out of or based on any Asbestos PI Claim against any of the Sealed Air Indemnified Parties or any property or interest (including any Distributions made pursuant to the Plan) in property of any of the Sealed Air Indemnified Parties. Notwithstanding anything to the contrary in this Confirmation Order, in any provision of the Plan, or in any Plan Document (including the Asbestos PI Trust and the Asbestos PI TDP), and for the avoidance of any doubt, following the transfer to the Asbestos PI
Trust of the Fresenius Payment (reduced by the total aggregate amount of transfers to the Asbestos PD Trust by or on behalf of Fresenius as part of the Class 7A Initial Payment and the Class 7B Initial Payment), (i) no Entity shall have any right to enforce any provision of the Plan relating to the Fresenius Payment or the payment thereof against any of the Fresenius Indemnified Parties or any property or interest (including any Distributions made pursuant to the Plan) in property of any of the Fresenius Indemnified Parties and (ii) the sole recourse of a Holder of an Asbestos PI Claim against any of the Fresenius Indemnified Parties or a Successor Claim arising out of or based on any Asbestos PI Claim on account thereof, shall be to the Asbestos PI Trust, and such Holder shall have no right whatsoever at any time to assert its Asbestos PI Claim or Successor Claim arising out of or based on any Asbestos PI Claim against any of the Fresenius Indemnified Parties or any property or interest (including any Distributions made pursuant to the Plan) in property of any of the Fresenius Indemnified Parties.
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C.
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THE ASBESTOS PD CHANNELING INJUNCTION
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In order to supplement, where necessary, the injunctive effect of the discharge provided by §§1141, 524(a), and 105 of the Bankruptcy Code and as described in Article 8 of the Plan, and pursuant to the exercise of the equitable jurisdiction and power of this Court under §524(g) of the Bankruptcy Code, the Plan provides for the following injunction, which is hereby approved and authorized in all respects and which shall take effect as of the Effective Date.
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1.
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Asbestos PD Channeling Injunction
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On and after the Effective Date, (i) the sole recourse of the Holder of an Asbestos PD Claim or a Successor Claim arising out of or based on any Asbestos PD Claim on account thereof shall be to the Asbestos PD Trust; and (ii) the sole recourse of a Holder of a CDN ZAI
PD Claim or a Successor Claim arising out of or based on any CDN ZAI PD Claim, shall be as set forth in the CDN ZAI Minutes of Settlement, pursuant to the provisions of the Asbestos PD Channeling Injunction and any Final Orders of the Bankruptcy Court allowing such claims, and such Holders shall have no right whatsoever at any time to assert their Asbestos PD Claim, Successor Claim arising out of or based on any Asbestos PD Claim, CDN ZAI PD Claim, or Successor Claim arising out of or based on any CDN ZAI PD Claim against the Debtors, Reorganized Debtors, any other Asbestos Protected Party, or any property or interest (including any Distributions made pursuant to the Plan) in property of the Debtors, the Reorganized Debtors, or any other Asbestos Protected Party. Without limiting the foregoing, from and after the Effective Date, the Asbestos PD Channeling Injunction shall apply to all present and future Holders of Asbestos PD Claims, Successor Claims arising out of or based on any Asbestos PD Claim, CDN ZAI PD Claims, and Successor Claims arising out of or based on any CDN ZAI PD Claims, and all such Holders permanently and forever shall be stayed, restrained, and enjoined from taking any and all legal or other actions or making any Demand for the purpose of, directly or indirectly, claiming, collecting, recovering, or receiving any payment, recovery, satisfaction, or any other relief whatsoever on, of, or with respect to any Asbestos PD Claims, Successor Claims arising out of or based on any Asbestos PD Claims, CDN ZAI PD Claims, or Successor Claims arising out of or based on any CDN ZAI PD Claim other than from the Asbestos PD Trust in accordance with the Asbestos PD Channeling Injunction and pursuant to the Asbestos PD Trust Agreement in the case of Asbestos PD Claims or in accordance with the Asbestos PD Channeling Injunction and pursuant to the CDN ZAI Minutes of Settlement in the case of CDN ZAI PD Claims, including:
(a)
commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or other proceeding (including a judicial, arbitration, administrative, or other proceeding) in any forum against or affecting any Asbestos Protected Party, or any property or interest in property of any Asbestos Protected Party;
(b)
enforcing, levying, attaching (including any prejudgment attachment), collecting, or otherwise recovering by any means or in any manner, whether directly or indirectly, any judgment, award, decree, or other order against any Asbestos Protected Party, or any property or interest in property of any Asbestos Protected Party;
(c)
creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any Encumbrance against any Asbestos Protected Party, or any property or interest in property of any Asbestos Protected Party;
(d)
setting off, seeking reimbursement of, indemnification or contribution from, or subrogation against, or otherwise recouping in any manner, directly or indirectly, any amount against any liability owed to any Asbestos Protected Party, or any property or interest in property of any Asbestos Protected Party; and
(e)
proceeding in any other manner with regard to any matter that is subject to resolution pursuant to the Asbestos PD Trust, except in conformity and compliance with the Asbestos PD Trust Agreement in the case of Asbestos PD Claims, or proceeding in any other manner with regard to any matter that is subject to resolution pursuant to the CDN ZAI Minutes of Settlement in the case of CDN ZAI PD Claims.
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2.
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Reservations from Asbestos PD Channeling Injunction
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Notwithstanding anything to the contrary in the foregoing provisions of Section VI(C)(1) of this Confirmation Order and §8.3.1 of the Plan, the Asbestos PD Channeling Injunction shall not enjoin:
(a)
the rights of Entities to the treatment accorded them under the Plan, including the rights of Entities with Asbestos PD Claims to assert such Asbestos PD Claims in accordance with the PD Settlement Agreements, the Class 7A Case Management Order or the ZAI TDP, and the rights of Entities with CDN ZAI PD Claims to assert such CDN ZAI PD Claims in accordance with the provisions set forth in the CDN ZAI Minutes of Settlement. For the avoidance of doubt, such rights shall include the rights of an Entity holding an Allowed Asbestos PD Claim under a PD Settlement Agreement to enforce the provisions of the Plan which
contemplate that on the Effective Date, the Asbestos PD Initial Payment will be made to the Asbestos PD Trust in an amount sufficient to permit the Asbestos PD Trust to make all payments, in full, on account of and as required by PD Settlement Agreements as contemplated by the Plan; and
(b)
the rights of Entities to assert any claim, debt, obligation or liability for payment of expenses of the Asbestos PD Trust solely against the Asbestos PD Trust or the Asbestos PD Trust Assets.
Except as otherwise expressly provided in this Confirmation Order, the Plan, the Sealed Air Settlement Agreement, or the Fresenius Settlement Agreement, nothing contained in the Plan shall constitute or be deemed a waiver of any claim, right, or cause of action that the Debtors, the Reorganized Debtors, or the Asbestos PD Trust may have against any Entity in connection with or arising out of or based on any Asbestos PD Claim or CDN ZAI PD Claim. Notwithstanding anything to the contrary in this Confirmation Order, in any provision of the Plan, or in any Plan Document (including the Asbestos PD Trust Agreement, the CDN ZAI Minutes of Settlement, the ZAI TDP, and the Class 7A Case Management Order), and for the avoidance of any doubt, following the transfer to the Asbestos PD Trust of Cryovac, Inc.'s share of the Asbestos PD Initial Payment by or on behalf of Cryovac, Inc., (i) no Entity shall have any right to enforce any provision of the Plan relating to the Asbestos PD Initial Payment or the payment thereof against any of the Sealed Air Indemnified Parties or any property or interest (including any Distributions made pursuant to the Plan) in property of any of the Sealed Air Indemnified Parties and (ii) the sole recourse of a Holder of an Asbestos PD Claim or CDN ZAI PD Claim against any of the Sealed Air Indemnified Parties or a Successor Claim arising out of or based on any Asbestos PD Claim or CDN ZAI PD Claim on account thereof, shall be to the Asbestos PD Trust or as set forth in the CDN ZAI Minutes of Settlement (as applicable), and such Holder shall have no right whatsoever at any time to assert its Asbestos PD Claim, CDN ZAI PD Claim, or Successor
Claim arising out of or based on any Asbestos PD Claim or CDN ZAI PD Claim against any of the Sealed Air Indemnified Parties or any property or interest (including any Distributions made pursuant to the Plan) in property of any of the Sealed Air Indemnified Parties. Notwithstanding anything to the contrary in this Confirmation Order, in any provision of the Plan, or in any Plan Document (including the Asbestos PD Trust Agreement, the CDN ZAI Minutes of Settlement, the ZAI TDP, and the Class 7A Case Management Order), and for the avoidance of any doubt, following the transfer to the Asbestos PD Trust of Fresenius' share of the Asbestos PD Initial Payment by or on behalf of Fresenius, (i) no Entity shall have any right to enforce any provision of the Plan relating to the Asbestos PD Initial Payment or the payment thereof against any of the Fresenius Indemnified Parties or any property or interest (including any Distributions made pursuant to the Plan) in property of any of the Fresenius Indemnified Parties and (ii) the sole recourse of a Holder of an Asbestos PD Claim or CDN ZAI PD Claim against any of the Fresenius Indemnified Parties or a Successor Claim arising out of or based on any Asbestos PD Claim or CDN ZAI PD Claim on account thereof, shall be to the Asbestos PD Trust or as set forth in the CDN ZAI Minutes of Settlement (as applicable), and such Holder shall have no right whatsoever at any time to assert its Asbestos PD Claim, CDN ZAI PD Claim, or Successor Claim arising out of or based on any Asbestos PD Claim or CDN ZAI PD Claim against any of the Fresenius Indemnified Parties or any property or interest (including any Distributions made pursuant to the Plan) in property of any of the Fresenius Indemnified Parties.
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D.
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ASBESTOS INSURANCE ENTITY INJUNCTION
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Pursuant to the exercise of the equitable jurisdiction and power of the Court under
§105(a) of the Bankruptcy Code, the Plan provides for the following injunction, which is hereby
approved and authorized in all respects and which shall take effect as of the Effective Date:
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1.
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Asbestos Insurance Entity Injunction -- Injunction for the Benefit of the Asbestos PI Trust
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(a)
All Entities that have held or asserted, that hold or assert, or that may in the future hold or assert, any claim or cause of action against any Asbestos Insurance Entity, based upon, or arising out of, any Asbestos PI Claim against the Debtors or any Asbestos Insurance Rights, whenever and wherever arisen or asserted (including all claims in the nature of or sounding in tort, or under contract, warranty, or any other theory of law, equity, or admiralty) shall be stayed, restrained, and enjoined from taking any action for the purpose of directly or indirectly claiming, collecting, recovering, or receiving any payment, recovery, satisfaction, or any other relief whatsoever on, of, or with respect to any such claim or cause of action, including:
(i)
commencing, conducting, or continuing, in any manner, directly or indirectly, any suit, action, or other proceeding (including a judicial, arbitration, administrative, or other proceeding in any forum) against or affecting any Asbestos Insurance Entity, or any property or interest in property of any Asbestos Insurance Entity;
(ii)
enforcing, levying, attaching (including any prejudgment attachment), collecting, or otherwise recovering by any means or in any manner, whether directly or indirectly, any judgment, award, decree, or other order against any Asbestos Insurance Entity, or any property or interest in property of any Asbestos Insurance Entity;
(iii)
creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any Encumbrance against any Asbestos Insurance Entity, or any property or interest in property of any Asbestos Insurance Entity;
(iv)
setting off, seeking reimbursement of, indemnification or contribution from, or subrogation against, or otherwise recouping in any manner, directly or indirectly, any amount against any liability owed to any Asbestos Insurance Entity, or any property or interest in property of any Asbestos Insurance Entity; and
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(v)
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proceeding in any other manner with regard to any matter that is subject to
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resolution by the Asbestos PI Trust, except in conformity and compliance with the Asbestos PI Trust Agreement and the Asbestos PI TDP.
(b)
The Asbestos PI Trust shall have the sole and exclusive authority at any time to terminate, reduce or limit the scope of, the Asbestos Insurance Entity Injunction issued pursuant to §8.4.1.1 of the Plan as it may apply to any Asbestos Insurance Entity upon express written notice to that Asbestos Insurance Entity; and
(c)
The Asbestos Insurance Entity Injunction is not issued for the benefit of any Asbestos Insurance Entity, and no Asbestos Insurance Entity is or may become a third-party beneficiary of the Asbestos Insurance Entity Injunction.
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2.
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Reservations from the Injunction for the Benefit of the Asbestos PI Trust
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Notwithstanding anything to the contrary in the foregoing provisions of Section VI(D)(1) of this Confirmation Order and §8.4.1.1 of the Plan, the Asbestos Insurance Entity Injunction shall not enjoin:
(a)
the rights of any Entity to the treatment accorded it under the Plan;
(b)
the rights of the Asbestos PI Trust or, to the extent provided in the Asbestos Insurance Transfer Agreement, any of the Insurance Contributors, to prosecute any cause of action or to assert any claim, demand, debt, obligation, or liability for payment against any Entity (but not the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties), including any Asbestos Insurance Entity or any property or interest in property of any Asbestos Insurance Entity, based on or arising from the Asbestos Insurance Rights for the Asbestos PI Trust's benefit; and
(c)
the rights of the Asbestos PI Trust or, to the extent provided in the Asbestos Insurance Transfer Agreement, any of the Insurance Contributors, to receive any settlement, award, payment of Cash or other property of any kind whatsoever from any Entity (but not the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties), including any Asbestos Insurance Entity or any property or interest in property of any Asbestos Insurance Entity, in satisfaction of any Asbestos Insurance Rights that the Asbestos PI Trust or any of the Insurance Contributors may have against any of the foregoing.
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3.
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Reservations from the Injunction for the Benefit of BNSF
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Notwithstanding anything to the contrary in the foregoing provisions of Section VI(D)(1) of this Confirmation Order and §8.4.1.1 of the Plan, the Asbestos Insurance Entity Injunction shall not enjoin:
(a)
BNSF from asserting any claim (as that term is defined in Bankruptcy Code § 101(5)) for insurance coverage as an insured or an additional insured against any Asbestos Insurance Entity that is not identified on Exhibit 5 of the Exhibit Book; and
(b)
BNSF from asserting any claim (as that term is defined in Bankruptcy Code § 101(5)) for insurance coverage as an insured or an additional insured against a Settled Asbestos Insurance Company under and only under an insurance policy (or part of a policy) that is not identified as being the subject of an Asbestos Insurance Settlement Agreement in Exhibit 5 of the Exhibit Book; provided, however, that in all events, BNSF shall be enjoined from asserting any claim against any Entity or policy entitled to protection under the terms of the Arrowood Rule 9019 Settlement Agreement (as defined in §8.2.2(e) of the Plan), including any of the policies identified in Exhibits 2 and 3 to the Arrowood Rule 9019 Settlement.
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4.
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Reservations from the Injunction Regarding Insurer Contribution Claims
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Notwithstanding anything to the contrary in the foregoing provisions of Section VI(D)(1) of this Confirmation Order and §8.4.1.1 of the Plan, the Asbestos Insurance Entity Injunction shall not enjoin an insurer from asserting any claim for contribution against any other insurer that is not a Settled Asbestos Insurance Company.
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E.
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SUCCESSOR CLAIMS INJUNCTION
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Pursuant to the exercise of the equitable jurisdiction and power of the Court under
§105(a) of the Bankruptcy Code, the Plan provides for the following injunction, which is hereby approved and authorized in all respects and which shall take effect as of the Effective Date:
All Entities that have held or asserted, that hold or assert, or that may in the future hold or assert, any Successor Claim (other than Successor Claims arising out of or based on any Asbestos PI Claim, Asbestos PD Claim, or CDN ZAI PD Claim) against any Asbestos Protected Party shall be stayed, restrained, and enjoined from taking any and all legal or other actions or making any demand for the purpose of directly or indirectly claiming, collecting, recovering, or receiving any payment, recovery, satisfaction, or any other relief whatsoever on, of, or with respect to any such Successor Claim, including:
(a)
commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or other proceeding (including a judicial, arbitration, administrative, or other proceeding) in any forum against or affecting any Asbestos Protected Party, or any property or interest in property of any Asbestos Protected Party;
(b)
enforcing, levying, attaching (including any prejudgment attachment), collecting, or otherwise recovering by any means or in any manner, whether directly or indirectly, any judgment, award, decree, or other order against any Asbestos Protected Party, or any property or interest in property of any Asbestos Protected Party;
(c)
creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any Encumbrance against any Asbestos Protected Party, or any property or interest in property of any Asbestos Protected Party;
(d)
setting off, seeking reimbursement of, indemnification or contribution from, or subrogation against, or otherwise recouping in any manner, directly or indirectly, any amount against any liability owed to any Asbestos Protected Party, or any property or interest in property of any Asbestos Protected Party; and
(e)
proceeding in any other manner with regard to any Successor Claim based on or arising from, in whole or in part, directly or indirectly, the Cryovac Transaction or Fresenius Transaction (other than Successor Claims arising out of or based on any Asbestos PI Claim, Asbestos PD Claim, or CDN ZAI PD Claim).
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2.
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Reservations from the Injunction for the Benefit of Holders of Grace-
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Related Claims
(a)
Any Holder of a GR Claim (as that term is defined in
§8.5.2 of the Plan and subject to the limitations involving Seaton and OneBeacon as set forth in §8.5.2 of the Plan) who has not, on or before the Effective Date, filed a proof of claim against the Debtors with respect to the same claim(s) as are contemplated by such GR Claim, may file a GR Proof of Claim (as that term is defined in §8.5.2 of the Plan and subject to the limitations involving Seaton and OneBeacon as set forth in §8.5.2 of the Plan) asserting such GR Claim against the Debtors on or before the sixtieth day subsequent to the Effective Date (the "GR Claims Bar Date");
(b)
The Reorganized Debtors, from and after the Effective Date, shall assume all liability of Fresenius, and be entitled to assert and have the benefit of all defenses of Fresenius, with respect to all GR Claims timely filed by the GR Claims Bar Date; and
(c)
For the avoidance of doubt, the Successor Claims Injunction shall not apply to Asbestos PI Claims and Asbestos PD Claims, which respectively shall be subject to the Asbestos PI Channeling Injunction and the Asbestos PD Channeling Injunction.
(d)
Nothing in this Confirmation Order or §8.5.2 of the Plan shall be construed to limit the scope or effect of the injunction afforded to the Fresenius Indemnified Parties or any of the other Asbestos Protected Parties pursuant to
§8.5.1 of the Plan or any of the other injunctions, releases, indemnifications, or protections afforded to the Fresenius Indemnified Parties or any of the other Asbestos Protected Parties under the Plan.
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3.
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Reservations from the Injunction for the Benefit of OneBeacon and CNA
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(a)
Notwithstanding anything to the contrary contained in this Confirmation Order or §8.5.1 of the Plan, and without limiting any defense, counterclaim, or other right of any of the Sealed Air Indemnified Parties or the application of any other provision of the Plan (including each of the injunctions and releases in the Plan), the Successor Claims Injunction shall not apply to any direct contractual indemnification obligation that any Sealed Air Indemnified Party may have to OneBeacon based upon or arising under the 1996 CU Agreement with respect to "Hatco-Related Environmental Claims" (as defined in the 1996 CU Agreement) asserted against the policies covered by that agreement.
(b)
Notwithstanding anything to the contrary contained in this Confirmation Order or §8.5.1 of the Plan, and without limiting any other defense, counterclaim, or other right of any of the Sealed Air Indemnified Parties or the application of any other provision of the Plan (including each of the other injunctions and
releases in the Plan), the Successor Claims Injunction shall not apply to any contractual indemnification and hold harmless obligations for which the Sealed Air Indemnified Parties are directly obligated to CNA and that arise directly under (or are directly based on) the CNA/Old Grace Delaware 5/30/97 Settlement Agreement except to the extent that any such obligation is, gives rise to, is based on, arises out of, or otherwise relates to any Asbestos Claim. For the avoidance of doubt, CNA’S claims against the Sealed Air Indemnified Parties under or based on any of the CNA/Old Grace Delaware Settlement Agreements that are Asbestos PI Claims or Asbestos PD Claims shall be subject to the Asbestos PI Channeling Injunction or the Asbestos PD Injunction and shall be treated as Class 6 Claims or Class 7A Claims under the Plan.
F.
INJUNCTIONS AND RELEASES RELATED TO THE SEALED AIR INDEMNIFIED PARTIES AND FRESENIUS INDEMNIFIED PARTIES
As required by the Sealed Air Settlement Agreement, the Sealed Air Settlement Order, the Fresenius Settlement Agreement, and the Fresenius Settlement Order, the injunctions, releases, and indemnifications outlined in the Plan, including the Asbestos PI Channeling Injunction and Asbestos PD Channeling Injunction provided under §524(g) of the Bankruptcy Code and the Successor Claims Injunction provided under §105(a) of the Bankruptcy Code, are hereby approved in all respects, incorporated herein in their entirety, and are so ordered and shall be immediately effective upon the Effective Date of the Plan without further action or notice by this Court or any other party. Such injunctions, releases, and indemnifications shall absolutely and unequivocally extend to and protect the Sealed Air Indemnified Parties and the Fresenius Indemnified Parties. For the avoidance of doubt, the releases, injunctions, and indemnifications as provided in the Plan are valid and enforceable against each Asbestos Insurance Entity, and §7.15 of the Plan is not intended, nor shall it be construed, to limit the protections afforded to the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties by this Confirmation Order or the Plan or to allow the Asbestos Insurance Entities to undertake any action against any of the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties that is contrary to this
Confirmation Order or the Plan.
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G.
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INJUNCTIONS AS RELATED TO KANEB
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Neither the Successor Claims Injunction nor the Asbestos Insurance Entity Injunction nor any other provision in the Plan bars Kaneb Pipe Line Operating Partnership, L.P. (now known as NuStar Pipeline Operating Partnership L.P.) or Support Terminal Services, Inc. (now known as NuStar Terminal Services, Inc.) (collectively, "Kaneb") from pursuing claims against any Asbestos Insurance Entities pursuant to the premises/operations coverage of the Asbestos Insurance Policies issued by Settled Asbestos Insurance Companies listed on Exhibit 5 of the Exhibit Book of the Plan with respect to alleged liability of Kaneb in connection with claims that are not Asbestos PI Claims or Asbestos PD Claims as those terms are defined in the Plan, to the extent that Kaneb owns property rights in such Asbestos Insurance Policies. For the avoidance of doubt: (1) nothing in the Plan or in sub-clause (2) of this paragraph shall permit Kaneb to pursue Asbestos Claims as that term is defined in the Plan, and (2) the environmental claims asserted by Kaneb against certain Asbestos Insurance Entities with respect to the Otis Pipeline site (relating to alleged jet fuel releases from the pipeline which previously served Otis Air Force Base on the Massachusetts Military Reservation in Sandwich, MA but not relating to asbestos, as described in the Motion for Relief from Stay (Doc. No. 20538 and Conf. Hrg. Ex. OS-40)) and the Macon Pipeline site (relating to alleged jet fuel releases from the pipeline in Macon, GA serving Warner Robins Air Force Base but not relating to asbestos, as described in the Motion for Relief from Stay (Doc. No. 20846 and Conf. Hrg. Ex. OS-41)) are recognized not to be enjoined by either the Asbestos PI Channeling Injunction or the Asbestos PD Channeling Injunction; provided, however, that the SA Debtors and Reorganized Debtors shall, at their sole
expense, jointly and severally defend, indemnify, and hold harmless the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties from and against any and all SA Claims, SA Debts, and SA Damages that may be asserted against such parties relating (whether directly or indirectly, in whole or in part) to the claims described in sub-clause (2).
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H.
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TERM OF CERTAIN INJUNCTIONS AND AUTOMATIC STAY
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1.
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Injunctions and/or Automatic Stays in Existence Immediately prior to Confirmation
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All of the injunctions and/or automatic stays provided for in or in connection with the Chapter 11 Cases, whether pursuant to §§105 or 362 of the Bankruptcy Code, or any other provision of the Bankruptcy Code or other applicable law, in existence immediately prior to the Confirmation Date shall remain in full force and effect until the injunctions set forth in the Plan become effective, and thereafter if so provided by the Plan, the Confirmation Order, or by their own terms. In addition, on and after the Confirmation Date, the Reorganized Debtors or the Plan Proponents, acting together, may seek such further orders as they may deem necessary or appropriate to preserve the status quo during the time between the Confirmation Date and the Effective Date.
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2.
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Injunctions Provided for in the Plan
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Each of the injunctions provided for in the Plan and described above in this Confirmation Order shall become effective on the Effective Date and shall continue in effect at all times thereafter unless otherwise provided by the Plan. Notwithstanding anything to the contrary contained in the Plan, all actions in the nature of those to be enjoined by such injunctions shall be enjoined during the period between the Confirmation Date and the Effective Date.
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VII.
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ISSUES RELATED TO PLAN AND OBJECTIONS TO CONFIRMATION.
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A.
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RESOLUTION OF ISSUES RELATED TO PLAN OBJECTIONS
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Based upon the record of the Chapter 11 Cases, the Bankruptcy Court hereby determines that certain of the objections to Confirmation have been resolved by separate agreement and/or orders from this Court. Those include:
1.
Order Authorizing Debtors' Entry Into Settlement Agreements to Resolve Pending ERISA Litigation, dated 5/26/09 (Doc. No. 21860) (releasing all pending claims and resolving all objections);
2.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014 and 9019 of the Federal Rules of Bankruptcy Procedure Authorizing and Approving the Debtors Entering Into the Settlement Agreement With the Royal Parties and Denying Libby Claimants' Motion to Defer Consideration and Compel Discovery, dated 8/19/09 (Doc. No. 22859) (resolving all objections once Order becomes a Final Order -- Order currently on appeal);
3.
Order Approving Stipulation and Order With Respect to (1) Liability Insurance Policies Issued by General Insurance Company of America and (2) 1994 Settlement Agreement Between W. R. Grace & Co. and General Insurance Company of America, dated 8/19/09 (Doc. No. 22857) (resolving all objections);
4.
Order Approving Amended and Restated Settlement Agreement and Mutual Release with Lloyd's Underwriters, dated 8/19/09 (Doc. No. 22856) (resolving all objections);
5.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014 and 9019 of the Federal Rules of Bankruptcy Procedure Approving Amended and Restated Asbestos Settlement Agreement with Allstate Insurance Company, dated 9/9/09
(Doc. No. 23205) (resolving all objections);
6.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014 and 9019 of the Federal Rules of Bankruptcy Procedure Approving Settlement Agreement By and Between W. R. Grace & Co., et al. and The Scotts Company LLC, dated 9/9/09 (Doc. No. 23203) (resolving all objections);
7.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014, and 9019 of the Federal Rules of Bankruptcy Procedure Approving Amended and Restated Settlement Agreement with Certain London Market Insurance Companies, dated 9/9/09 (Doc. No. 23204) (resolving all objections);
8.
Order Approving Stipulation Regarding Treatment of Certain Claims of the St. Paul Companies, Inc., Travelers Casualty and Surety Company of America and Certain of Their Affiliates and Subsidiaries Under the Plan, dated 9/9/09 (Doc. No. 23202) (resolving all objections);
9.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014 and 9019 of the Federal Rules of Bankruptcy Procedure Approving the Amended Settlement Agreement and Mutual Release with the Chartis Insurance Companies, dated 10/13/09 (Doc. No. 23484) (resolving all objections of Certain AIU/AIG Insurers);
10.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014, and 9019 of the Federal Rules of Bankruptcy Procedure Approving the Agreement Amending and Restating the Asbestos Settlement Agreement with the Aetna Casualty and Surety Company, dated 10/13/09 (Doc. No. 23485) (resolving all objections);
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11.
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Order Pursuant to §§105, 363, 1007 and 1108 of the Bankruptcy Code and Rules
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2002, 6004, 9014 and 9019 of the Federal Rules of Bankruptcy Procedure Approving the Settlement Agreement Between W. R. Grace & Co. and the Allianz Companies, dated 12/11/09 (Doc. No. 23995) (resolving all objections);
12.
Order Pursuant to §§105, 363, 1007 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014, and 9019 of the Federal Rules of Bankruptcy Procedure Approving Settlement Agreement By and Between W. R. Grace & Co. and the Edwards Plaintiffs, dated 12/17/09 (Doc. No. 24019) (resolving all objections);
13.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014 and 9019 of the Federal Rules of Bankruptcy Procedure Approving the Settlement Agreement Between W. R. Grace & Co. and Zurich, dated 12/17/09 (Doc. No. 24018) (resolving all objections);
14.
Stipulation between the Plan Proponents and Insurers, dated 2/5/10 (Doc. No. 24250) (regarding §502(e) of the Bankruptcy Code);
15.
Amended Stipulation Concerning Kaneb Pipe Line Operating Partnership, L.P. and Support Terminal Services, Inc.'s Objections to Confirmation of Plan of Reorganization, dated 2/12/10 (Doc. No. 24283) (resolving all objections);
16.
Stipulation Among the Plan Proponents, OneBeacon America Insurance Company and Seaton Insurance Company, dated 2/15/10 (Doc. No. 24294) (resolving all objections);
17.
Order Approving Stipulation and Agreed Order Resolving Neutrality Objections to First Amended Joint Plan of Reorganization, dated 2/16/10 (Doc. No. 24297) (resolving insurer neutrality objections). This stipulation shall be binding upon the Parties (as defined
therein) and their respective successors and assigns, upon the Asbestos PI Trust once it is established pursuant to the Plan and as described in Section IV.E.4 above, and upon all Asbestos PI Trustees;
18.
Stipulation Among the Plan Proponents and Morgan Stanley Senior Funding, Inc. Regarding Rate of Post-Petition Interest for Claims of Morgan Stanley Senior Funding, Inc. as Assignee of Certain Claims of Bank of America, N.A. Under the Joint Plan, dated 2/24/10 (Doc. No. 24347) (resolving all objections);
19.
Stipulation Among the Plan Proponents and CNA Regarding Certain Actions Against Sealed Air, dated 3/19/10 (Doc. No. 24479) (resolving Sealed Air Release and Injunction Objections);
20.
Order Approving Stipulation Regarding Classification, Allowance and Payment of Claim No. 9553 of Longacre Master Fund, Ltd. and Longacre Capital Partners (QP), L.P. and Withdrawing Plan Objections, dated 4/7/10 (Doc. No. 24583) (resolving all objections);
21.
Order Approving Stipulation Regarding Classification, Allowance and Payment of Claim No. 18508 of National Union Fire Insurance Company of Pittsburgh, PA and Withdrawing Plan Objections, dated 4/7/10 (Doc. No. 24584) (resolving all objections); and
22.
Order Pursuant to §§105, 363, 1107, and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014, and 9019 of the Federal Rules of Bankruptcy Procedure Approving the Amended and Restated Asbestos Bodily Injury Settlement Agreement Between W. R. Grace & Co. and TIG Insurance Company, dated 9/1/10 (Doc. No. 25309) (resolving all objections);
23.
Order Pursuant to §§105, 363, 1107, and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014, and 9019 of the Federal Rules of Bankruptcy Procedure Approving the
Settlement Agreement Between W. R. Grace & Co. and the Hartford Parties, dated 10/13/10 (Doc. No. 25578);
24.
Order Pursuant to §§105, 363, 1107, and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014, and 9019 of the Federal Rules of Bankruptcy Procedure Approving the Settlement Agreement Between W. R. Grace & Co. and Federal Insurance Company, dated 11/3/10 (Doc. No. 25691); and
25.
Certain other parties agreed that their Plan Objections were resolved as a result of the Modifications or through negotiations with the Plan Proponents. These include: (A) BNSF (withdrawn all objections except those remaining on the Chart of Confirmation Requirements and Objections); (B) Michigan Department of Treasury (resolved all objections); (C) the Texas Comptroller (resolved all objections); and (D) the United States Trustee (resolved all objections).
26.
Order Approving Stipulation Regarding Classification, Allowance and Payment of Claim No. 9553 of Longacre Master Fund, Ltd. and Longacre Capital Partners (QP), L.P. and Withdrawing Plan Objections, dated 4/710 (Doc. No. 24583;
27.
Order Approving Stipulation Regarding Classification, Allowance and Payment of Claim No. 18508 of National Union Fire Insurance Company of Pittsburgh, PA and Withdrawing Plan Objections, dated 4/7/10 (Doc. No. 24584);
28.
Order Approving the Settlement Agreement Between W.R. Grace & Co. and Employers Mutual Casualty Company and the MMO Parties, dated 4/27/10 (Doc. No. 24676);
29.
Order (CORRECTED) Order Pursuant to §§105,363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014 and 9019 of the Federal Rules of Bankruptcy Procedure Approving the Settlement Agreement Between W.R. Grace & Co. and Employers
Mutual Casualty Company and the MMO Parties, dated 5/12/10 (Doc. No. 24754);
30.
Order Approving the Settlement Agreement Between W.R. Grace & Co. and North Star Reinsurance Corporation, dated 6/2/10 (Doc. No. 24879)
31.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014, and 9019 of the Federal Rules of Bankruptcy Procedure Approving the Amended and Restated Settlement Agreement Between W.R. Grace & Co. and Harper Insurance Ltd., dated 6/30/10 (Doc. No. 25010);
32.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014 and 9019 of the Federal Rules of Bankruptcy Procedure Approving the Amended and Restated asbestos settlement agreement Between W.R. Grace & Co. and Munich Reinsurance America, Inc., dated 7/1/10 (Doc. No. 25022);
33.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014 and 9019 of the Federal Rules of Bankruptcy Procedure Approving the Amended and Restated asbestos settlement agreement Between W.R. Grace & Co. and Munich Reinsurance America, Inc., dated 8/3/10 (Doc. No. 25156);
34.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014 and 9019 of Federal Rules of Bankruptcy Procedure Approving the Amended and Restated Asbestos Settlement Agreement Between W.R. Grace & Co. and HDI-Gerling Industrie Versicherung AG. Granting Motion to Approve Compromise under Rule 9019, dated 9/1/10 (Doc. No. 25307);
35.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014 and 9019 of the Federal Rules of Bankruptcy Procedure Approving the
Amended and Restated Asbestos Bodily Injury Settlement Agreement Between W.R. Grace & Co. and TIG Insurance Company, dated 9/1/10 (Doc. No. 25308);
36.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014 and 9019 of the Fed.R.Bankr.P. Approving the Settlement Agreement Between
W.R. Grace & Co. and Federal Insurance Company, dated 11/3/10 (Doc. No. 25691);
37.
Order Pursuant to §§ 2002, 6004, 9014 and 9019 of the Fed.R.Bankr.P. Approving the Settlement Agreement Between W.R. Grace & Co. and the Hartford Parties, dated 10/13/10 (Doc. No. 25578);
38.
Order Pursuant to §§105, 363, 1107 and 1108 of the Bankruptcy Code and Rules 2002, 6004, 9014, and 9019 of the Fed.R.Bankr.P. Approving the Settlement Agreement Between W.R. Grace & Co. and Associated International Insurance Company, dated 12/8/10 (Doc. No. 25882);
39.
Order Approving the Settlement Agreement Between W.R. Grace & Co. and Swiss Reinsurance Company and European Reinsurance Company of Zurich, dated 1/6/11 (Doc. No. 26034); and
40.
Order Approving Settlement Agreement between W.R. Grace & Co. and the CNA Companies, dated 1/22/11 (Doc. No. 26106).
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B.
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OVERRULING OF CERTAIN OBJECTIONS TO CONFIRMATION.
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All objections not otherwise addressed herein or previously withdrawn are hereby overruled for the reasons set forth on the record at the Confirmation Hearing and in the Memorandum Opinion Regarding Objections and Supplemental Findings and Conclusions.
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VIII.
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COMMITTEES AND FUTURE CLAIMANTS' REPRESENTATIVES.
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In accordance with §11.8 of the Plan, on the Effective Date, except as set forth below, the Asbestos PI Committee, the Asbestos PD Committee, the Unsecured Creditors' Committee, and the Equity Committee shall thereupon be released and discharged of and from all further authority, duties, responsibilities, and obligations relating to or arising from or in connection with the Chapter 11 Cases, and those committees shall be deemed dissolved. After the Effective Date, the rights, duties, and responsibilities of the Asbestos PI Future Claimants' Representative shall be as set forth in the Asbestos PI Trust Agreement, and the rights, duties, and responsibilities of the Asbestos PD Future Claimants' Representative shall be as set forth in the Asbestos PD Trust Agreement.
Notwithstanding the foregoing, if the Effective Date occurs prior to the entry of a Final Order with respect to final fee applications of Professionals retained by order of the Bankruptcy Court during the Chapter 11 Cases, the Unsecured Creditors' Committee, the Asbestos PI Committee, the Asbestos PD Committee, and the Equity Committee may, at their option, continue to serve until a Final Order is entered with respect to such proceedings. Further, after the Effective Date, the Unsecured Creditors' Committee, the Asbestos PI Committee, the Equity Committee, the Asbestos PI Future Claimants' Representative, and the Asbestos PD Future Claimants' Representative shall continue in existence and have standing and capacity to (i) object to any proposed modification of the Plan, (ii) object to or defend the Administrative Expense Claims of Professionals employed by or on behalf of the Debtors or their estates, (iii) participate in any appeals of the Confirmation Order (if applicable), (iv) prepare and prosecute applications for the payment of fees and reimbursement of expenses, and (v) continue any adversary proceeding (but not the Sealed Air Action or the Fresenius Action, each of which shall be
dismissed with prejudice as a condition to the Effective Date), claim objection, appeal, or other proceeding that was in progress prior to the Effective Date. Nothing in section (v) of the foregoing sentence shall be deemed to confer standing and capacity on the Unsecured Creditors' Committee, the Asbestos PI Committee, the Equity Committee, the Asbestos PI Future Claimants' Representative, or the Asbestos PD Future Claimants' Representative to provide services or take action in connection with an adversary proceeding, claim objection, appeal or other proceeding that was in progress prior to the Effective Date where such services are for the benefit of an individual creditor or creditors and do not serve the direct interests of the creditor or equity interest class which such Entity is appointed to represent. The Reorganized Debtors shall pay the reasonable fees and expenses incurred by the Unsecured Creditors' Committee, the Asbestos PI Committee, Equity Committee, the Asbestos PI Future Claimants' Representative, and the Asbestos PD Future Claimants' Representative relating to any post-Effective Date activities authorized hereunder without further order of the Bankruptcy Court. Nothing contained herein or in §11.8 of the Plan shall purport to limit or otherwise affect the rights of the United States Trustee under § 502 of the Bankruptcy Code or otherwise to object to Claims or requests for allowances of Administrative Expense Claims.
IX.
RETENTION OF JURISDICTION BY THE BANKRUPTCY COURT AND THE DISTRICT COURT.
Pursuant to §§105(a), 524(a), 1141(d), and 1142 of the Bankruptcy Code, the Bankruptcy Court shall retain and shall have exclusive jurisdiction over any matter (i) arising under the Bankruptcy Code, (ii) arising in or related to the Chapter 11 Cases or the Plan, or (iii) that relates to the matters set forth in Article 10 of the Plan, provided that the District Court shall retain jurisdiction for such matters to which the automatic reference to the Bankruptcy Court has been
withdrawn or to the extent required by law.
Nothing in the Plan, or any other orders, including this Confirmation Order, shall, or shall be deemed to, affect (1) the procedures established pursuant to the Asbestos PI Trust Agreement, the Asbestos PI TDP, the Asbestos PD Trust Agreement, the Case Management Order for Class 7A Asbestos PD Claims, the ZAI Trust Distribution Procedures, and the CDN ZAI Minutes of Settlement for resolving Asbestos PI Claims, Asbestos PD Claims, and CDN ZAI PD Claims; and (2) the forum in which such resolution will be determined, which shall be governed exclusively by and in accordance with the Asbestos PI TDP, the Asbestos PD Trust Agreement, the Case Management Order for Class 7A Asbestos PD Claims, the ZAI Trust Distribution Procedures, and the CDN ZAI Minutes of Settlement.
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X.
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NOTICE OF ENTRY OF CONFIRMATION ORDER.
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A.
Pursuant to Bankruptcy Rules 2002(f)(7) and 3020(c), the Debtors or the Reorganized Debtors are directed to serve, within ten (10) days after the occurrence of the Effective Date, a notice of the entry of this Confirmation Order, which shall include notice of the bar dates established by the Plan and this Confirmation Order, the issuance of the injunctions pursuant to the Plan, and notice of the Effective Date, substantially in the form of Exhibit B attached hereto and incorporated herein by reference (the "Confirmation Notice"), on all parties that received notice of the Confirmation Hearing, including the various counsel to holders of Asbestos PI Claims, the CCAA Representative Counsel on behalf of holders of Class 8 CDN ZAI PD Claims, the class representative counsel for the holders of Class 7B Asbestos PD Claims, and counsel for holders of Class 7A Asbestos PD Claims; provided, however, that the Debtors or the Reorganized Debtors are directed to serve the Confirmation Notice directly on
those holders of Asbestos PI Claims, Class 7A Asbestos PD Claims, Class 7B Asbestos PD Claims, and Class 8 CDN ZAI PD Claims that received Solicitation Packages directly from the Debtors pursuant to the terms of the Solicitation Procedures Order.
B.
As soon as practicable after the entry of this Confirmation Order, the Debtors shall make copies of this Confirmation Order and the Confirmation Notice available on the Debtors' website.
C.
No later than twenty (20) business days after the Effective Date, the Reorganized Debtors are directed to publish the version of the Confirmation Notice attached hereto as Exhibit C once in the national editions of The Wall Street Journal, The New York Times, and the USA Today. The Reorganized Debtors are authorized to pay all fees associated with the publication program described in this paragraph to Miller Legal Services, which will coordinate publication of the Confirmation Notice for the Reorganized Debtors.
D.
All fees payable pursuant to §1930 of title 28 of the United States Code, as determined by the Bankruptcy Court, shall be paid on the Effective Date or within 30 days after the U.S. Trustee notifies Debtors of the fees due. All post-confirmation and post-Effective Date fees that are due and payable shall be paid by the Reorganized Debtors until the Chapter 11 Cases are closed pursuant to §350 of the Bankruptcy Code.
This Court respectfully requests that the Canadian Court enter an Order within Grace Canada's proceedings (Court File Number 01-CL-4081) and pursuant to §18.6 of the Companies' Creditors Act recognizing this Confirmation Order and specifically providing for, inter alia, the approval of the Plan and granting the Asbestos PI Channeling Injunction, the Asbestos PD
Channeling Injunction, the Successor Claims Injunction, and all of the Plan releases with respect to the Debtors and the other Asbestos Protected Parties, including the Canadian Entities, and declaring that this Confirmation Order be effective in Canada in accordance with its terms. \
Wherefore the court respectfully recommends that the United States District Court for the District of Delaware approve these Recommended Findings of Fact and Conclusions of Law and Memorandum Opinion Regarding Objections and Recommended Supplemental Findings of Fact and Conclusions of Law. We further recommend that the District Court confirm the Joint Plan and issue the §524(g) injunction.
THIS ORDER IS HEREBY DECLARED TO BE IN RECORDABLE FORMAT AND SHALL BE ACCEPTED BY ANY RECORDING OFFICER FOR FILING AND RECORDING PURPOSES WITHOUT FURTHER OR ADDITIONAL
ORDERS, CERTIFICATIONS OR OTHER SUPPORTING DOCUMENTS.
Dated: Jan 31, 2011
/s/ Judith K. Fitzgerald
Judith K. Fitzgerald
United States Bankruptcy Judge
EXHIBIT A
Annex I
Pursuant to Section 7.7(nn) of the Plan, and not by way of limitation of the Sealed Air Settlement Agreement, each of the SA Debtors and the SA Non-Debtors Affiliates shall:
a.
use its best efforts to cause each of the Asbestos PI Trust and the Asbestos PD Trust (each, for purposes of this Annex I, a "Trust" and, collectively, the "Trusts") to qualify, and to maintain its status, as a Qualified Settlement Fund (as defined in the Sealed Air Settlement Agreement), provided, however, that nothing herein shall in any way be construed as a representation, warranty, or covenant concerning the treatment for federal income tax purposes of the transfer by Cryovac, Inc. of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) to the Asbestos PI Trust pursuant to Section 7.2.2 of the Plan and the Asbestos PD Initial Payment to the Asbestos PD Trust pursuant to Section 7.3.2 of the Plan and the Confirmation Order,
b.
use its best efforts to cause the constitutive document(s) (including the Asbestos PI Trust Agreement and the Asbestos PD Trust Agreement), or any amendments thereto, of each of the Asbestos PI Trust and the Asbestos PD Trust to contain provisions, reasonably satisfactory to Cryovac, Inc., qualifying and maintaining its status as a Qualified Settlement Fund (as defined in the Sealed Air Settlement Agreement) and providing that Cryovac, Inc. or its designee shall be a Transferor (as defined in the Sealed Air Settlement Agreement) to each Trust,
c.
promptly provide to Cryovac, Inc. all Material Drafts (as defined in the Sealed Air Settlement Agreement), or any amendments thereto, of each Asbestos PI Trust Agreement, Asbestos PD Trust Agreement and each Trust Document (as defined in the Sealed Air Settlement Agreement) (but excluding or redacting the Asbestos PI TDP and ZAI TDP), provided, however, that Cryovac, Inc. shall keep any such Material Draft (as defined in the Sealed Air Settlement Agreement), or any amendments thereto, confidential and shall disclose any such Material Draft (as defined in the Sealed Air Settlement Agreement), or any amendments thereto, only to Sealed Air Corporation, and officers, employees, and advisors of Cryovac, Inc., Sealed Air Corporation, or its Affiliates, and only after such Entity agrees to keep such Material Draft (as defined in the Sealed Air Settlement Agreement), or any amendments thereto, confidential but may disclose to any and all Entities, without limitation of any kind, the tax treatment and any facts that may be relevant to the tax structure of the transactions contemplated by the Sealed Air Settlement Agreement,
d.
incorporate promptly if it is the party drafting such document, or if otherwise, urge the party drafting such document promptly to incorporate, into any such document, or any amendments thereto, each provision with respect to the subject matter set forth or referred to in paragraphs II(c)(ix), (x), and (xi), paragraph VI(g), clauses (i)(A) through (C) of paragraph VI(c) of the Sealed Air Settlement Agreement and clauses o. and p. and sub-clauses h(1) through (3) of this Annex I, as the case may be, that are reasonably requested by Cryovac, Inc.,
e.
take all Defined Actions (as defined in the Sealed Air Settlement Agreement) required to be taken pursuant to, or that are reasonably requested by Sealed Air Corporation and consistent with the provisions of, paragraphs II(c)(ix), (x), or (xi), or VI(g), of the Sealed Air Settlement Agreement and clauses o. and p. of this Annex I, as the case may be, provided, however, that it shall not be required to take a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this clause e. if each of the following four requirements has been previously satisfied (1) it has fully performed all of its obligations set forth in paragraph IV(f) of the Sealed Air Settlement Agreement or clause n. of this Annex I, (2) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to paragraph VI(b) of the Sealed Air Settlement Agreement or clauses e., f., and g. of this Annex I, as the case may be (3) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (4) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
f.
be prohibited from taking any Defined Action (as defined in the Sealed Air Settlement Agreement) prohibited from being taken pursuant to, or that is inconsistent with the provisions of, paragraphs II(c)(ix), (x), or (xi), or VI(g), of the Sealed Air Settlement Agreement and clauses o. and p. of this Annex I, provided, however, that it shall not be prohibited from taking a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this clause f. if each of the following four requirements has been previously satisfied (1) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement or clause n. of this Annex I, (2) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to paragraph VI(b) of the Sealed Air Settlement Agreement or clauses e., f. and g. of this Annex I, as the case may be, (3) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (4) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
g.
use its best efforts not to make any statement in a court document filed in the SA Debtors' Chapter 11 Cases or in any oral statement to the court in the SA Debtors' Chapter 11 Cases that is prohibited by, or inconsistent with the provisions of, paragraphs II(c)(ix), (x), or (xi), or VI(g), of the Sealed Air Settlement Agreement or clauses o. and p. of this Annex I, as the case may be, provided, however, that it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this paragraph g. if each of the following four requirements has been previously satisfied (1) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement or clause n. of this Annex I Agreement, as the case may be, (2) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to
such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this sentence, (3) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (4) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
h.
promptly notify Cryovac, Inc. and Sealed Air Corporation upon receipt by any of them or any of their Affiliates of any notice of any pending or threatened audit or assessment, suit, litigation, proposed adjustment, deficiency, dispute, administrative or judicial proceeding or other similar Claim (as defined in the Sealed Air Settlement Agreement) involving any of them or any of their Affiliates from any Tax authority or any other Entity challenging (1) the qualification of the Asbestos PI Trust or the Asbestos PD Trust as a Qualified Settlement Fund (as defined in the Sealed Air Settlement Agreement), (2) the qualification of Cryovac, Inc. as a Transferor (as defined in the Sealed Air Settlement Agreement) to the Asbestos PI Trust or the Asbestos PD Trust, (3) the transfer by Cryovac, Inc. of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) to the Asbestos PI Trust pursuant to Section 7.2.2 of the Plan or the Confirmation Order and the Asbestos PD Initial Payment to the Asbestos PD Trust pursuant to Section 7.3.2 of the Plan or the Confirmation Order as a direct payment by Cryovac, Inc. to the Asbestos PI Trust or the Asbestos PD Trust for Asbestos Claims that constitutes an ordinary and necessary expense of Cryovac, Inc. (for purposes of this Annex I, any such audit or assessment, suit, litigation, proposed adjustment, deficiency, dispute, administrative or judicial proceeding or other similar Claim (as defined in the Sealed Air Settlement Agreement), for purposes of this Annex I a "Tax Claim"),
i.
permit, and cause their respective Affiliates to permit, Cryovac, Inc. and Sealed Air Corporation to participate at their expense in the defense or prosecution of any Tax Claim (including to participate in all discussions with the Tax authorities regarding any Tax Claim and to be allowed to provide affirmative suggestions or comments with respect to any written submissions or communications to the Tax authorities regarding any Tax Claims, which comments and suggestions shall be incorporated into such written submissions or communications with the consent of the SA Debtors, such consent not to be unreasonably withheld),
j.
consult with Cryovac, Inc. and Sealed Air Corporation in connection with the defense or prosecution of any Tax Claim and provide such cooperation and information as Cryovac, Inc. and Sealed Air Corporation shall reasonably request with respect to any Tax Claim,
k.
agree to use its best efforts to attempt to sever any Tax Claim from other issues raised in any audit or assessment, suit, litigation, proposed adjustment, deficiency, dispute, administrative or judicial proceeding or other similar Claim (as defined in the Sealed Air Settlement Agreement) and shall instruct their, and their Affiliates', respective Chief Executive Officer, Chief Financial Officer, and Director of Taxes to deliver, and shall cause each of their Affiliates, to deliver to Cryovac, Inc. and Sealed Air Corporation:
1.
promptly after the receipt of any document received from the IRS relating to a Tax Claim, a copy of such document;
2.
any document delivered to the IRS with respect to a Tax Claim promptly after such document is delivered to the IRS, provided, however, that, if such document was prepared in response to a request by the IRS, then prior to the delivery of such document to the IRS, Cryovac, Inc. and Sealed Air Corporation shall be allowed to provide affirmative suggestions or comments with respect to any such document, as provided in paragraph VI(c)(ii) of the Sealed Air Settlement Agreement and clauses i. and j. of this Annex I;
3.
at least five days prior to any meeting or conference (whether in person or by teleconference) scheduled with the IRS during which a Tax Claim may be discussed, with written notice of such scheduled meeting or conference, and an opportunity to attend the portions of such meeting or conference during which any Tax Claim is discussed; and
4.
with cooperation and information reasonably requested by Cryovac, Inc. or Sealed Air Corporation in connection with any Tax Claim, including, at Cryovac, Inc.'s or Sealed Air Corporation's request, status updates with respect to all Tax Claims.
l.
be entitled to redact any document to be provided to Cryovac, Inc. or Sealed Air Corporation in furtherance of the obligations set forth in clause k. of this Annex I to exclude information not pertinent to the Tax Claim,
m.
not settle or otherwise dispose of any Tax Claim unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement),
n.
if any of the SA Debtors or the SA Non-Debtor Affiliates has determined that an issue (for the purposes of this Annex I such issue, a "Paragraph VI(f) Issue") may exist with respect to its taking, or the failure to take, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to paragraph II(c)(ix), (x), or (xi), or VI(b) or VI(g), of the Sealed Air Settlement Agreement or clauses e., f., g., o., and p., of this Annex I, as the case may be, then, prior to delivering a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) in accordance with the provisos set forth in paragraph II(c)(ix), (x), or (xi), VI(b) or VI(g) of the Sealed Air Settlement Agreement, or clauses e., f., g., o., and p., of this Annex I, as the case may be, (1) provide to Sealed Air Corporation, as promptly as practicable, a written notice identifying such Defined Action (as defined in the Sealed Air Settlement Agreement) and describing in detail the Paragraph VI(f) Issue and (2) consult and act (and cause its advisors to, consult and act) in good faith to determine and resolve
(i) if such issue relates to a Tax issue, whether, as a result of a Change in Circumstances, there is no "reasonable basis", as defined in IRC section 6662 (or successor provision thereof), for the taking of, or the failure to take, such Defined Action (as defined in the Sealed Air Settlement Agreement) by such Entity or (ii) if such issue relates to an accounting issue, whether, as a result of a Change in Circumstances, the taking, or the failure to take, such Defined Action (as defined
in the Sealed Air Settlement Agreement) is inconsistent with generally accepted accounting principles. For purposes of this Annex I, "Change in Circumstances" shall mean (i) for U.S. federal income tax purposes, (x) any amendment to the IRC or the final or temporary regulations promulgated under the IRC, (y) a decision by any federal court, or (z) a Revenue Ruling, Notice, Revenue Procedure, or Announcement, which amendment is enacted, promulgated, issued, or announced, or which decision, Revenue Ruling, Notice, Revenue Procedure, or Announcement is issued or announced, in each case, after the Effective Date, and (ii) for financial accounting purposes, any amendment to or change in generally accepted accounting principles, which amendment is issued or announced or, which change occurs, in each case, after the Effective Date.
o.
unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement), (1) file all Tax Returns required to be filed by such Entity, if any, consistent with the provisions of paragraph II(c)(ix) of the Sealed Air Settlement Agreement and take all other Defined Actions (as defined in the Sealed Air Settlement Agreement) that are reasonably requested by Sealed Air Corporation and consistent with the provisions of paragraph II(c)(ix) of the Sealed Air Settlement Agreement, and (2) be prohibited, from taking any Defined Action (as defined in the Sealed Air Settlement Agreement) that may result in the disqualification of the Asbestos PI Trust or the Asbestos PD Trust as a Qualified Settlement Fund (as such term is defined in the Sealed Air Settlement Agreement) or be inconsistent with Cryovac, Inc. being treated as a Transferor (as defined in the Sealed Air Settlement Agreement) of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) directly to the Asbestos PI Trust pursuant to Section 7.2.2 of the Plan and the Confirmation Order and the Asbestos PD Initial Payment directly to the Asbestos PD Trust pursuant to Section 7.3.2 of the Plan and the Confirmation Order; provided, however, that it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this clause o. if each of the following four requirements has been previously satisfied: (1) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement and clause n. of this Annex I, as the case may be, (2) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this clause o., (3) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (4) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
p.
treat for all Tax purposes any and all payments by Cryovac, Inc. of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) to the Asbestos PI Trust pursuant to Section 7.2.2 of the Plan and the Confirmation Order and the Asbestos PD Initial Payment to the Asbestos PD Trust pursuant to Section 7.3.2 of the Plan and the Confirmation Order as a direct payment by Cryovac, Inc. to the Asbestos PI Trust or the Asbestos PD Trust for Asbestos Claims that constitutes an ordinary and necessary expense of Cryovac, Inc., and, unless otherwise
required by a Final Determination (as defined in the Sealed Air Settlement Agreement):
1.
for financial accounting or any other regulatory purpose, be prohibited from treating any payment by Cryovac, Inc. to the Asbestos PI Trust or the Asbestos PD Trust pursuant to the Plan or the Confirmation Order as a payment by Cryovac, Inc. to any of the SA Debtors or SA Non-Debtor Affiliates, or as a payment by any SA Debtor or SA Non-Debtor Affiliate to any Entity (including to the Asbestos PI Trust or the Asbestos PD Trust) (or treating such payment as, or resulting in, an expense or deduction of any Debtor or Non-Debtor Affiliate),
2.
for Tax purposes, be prohibited from claiming that any payment by Cryovac, Inc. to the Asbestos PI Trust or the Asbestos PD Trust pursuant to the Plan or the Confirmation Order results in or gives rise (directly or indirectly) to the accrual or allowance of a deduction or expense, or income to, or any other transfer of any type to, any SA Debtor or SA Non-Debtor Affiliate,
3.
take all Defined Actions (as defined in the Sealed Air Settlement Agreement) that are reasonably requested by Sealed Air Corporation and consistent with the provisions of this clause p.,
4.
not take any position inconsistent with the foregoing on any Tax Return or with any Tax authority, and
5.
not make any statement in any public or regulatory filing or release or otherwise, or take any other Defined Action (as defined in the Sealed Air Settlement Agreement), that is inconsistent with the obligations of such Entity pursuant to this clause p.,
provided, however, that with respect to sub-clauses p.3 and p.5 above, it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this clause p. if each of the following four requirements has been previously satisfied: (1) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement and clause n. of this Annex I, as the case may be, (2) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this clause p., (3) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (4) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
q.
be entitled to prepare and execute (but not file) a Protective Claim (as defined in the Sealed Air Settlement Agreement and, for purposes of this Annex I, with respect to each of the SA Debtors and the SA Non-Debtors Affiliates, a "Grace Protective Claim"), (which filing shall
be effected only by Cryovac, Inc. pursuant to, and in accordance with, the provisions of the Sealed Air Settlement Agreement) for the taxable year of the SA Debtors in which the transfers by Cryovac, Inc. of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) to the Asbestos PI Trust pursuant to Section 7.2.2 of the Plan or the Confirmation Order and the Asbestos PD Initial Payment to the Asbestos PD Trust pursuant to Section 7.3.2 of the Plan or the Confirmation Order (for purposes of this Annex I, the "Transfer") are made, or for any other prior (solely with respect to a carryback from the taxable year of the Transfer) or subsequent taxable year in which the Tax Benefits (as defined in the Sealed Air Settlement Agreement) realized as a result of such Transfer may be claimed by the SA Debtors (for purposes of this Annex I any such taxable year, a "Relevant Tax Year"), and require Cryovac, Inc. to file such Grace Protective Claim with the IRS or other governmental authority for and on behalf of the SA Debtors; provided, however, that a Grace Protective Claim shall not be required to be filed by Cryovac, Inc. at any time prior to 15 days before the expiration (taking into account all extensions thereof) of the applicable statute of limitations for the SA Debtors to file an amended return ("SOL") for the Relevant Tax Year, and provided further that notwithstanding anything to the contrary set forth in paragraph IV(h) of the Sealed Air Settlement Agreement and clauses q., r., s., t., and u. of this Annex I, the Debtors may prepare and execute a Grace Protective Claim and require Cryovac Inc. to file such Grace protective Claim with the IRS or other governmental authority for a Relevant Tax Year, only if each of the following requirements has been previously satisfied:
1.
the SA Debtors have granted each extension (and each further extension) to the applicable SOL for such Relevant Tax Year that has been requested by the IRS;
2.
at the time of each such request by the IRS referred to in sub-clause p.1, above, to extend (or further extend) the applicable SOL for such Relevant Tax Year, the SA Debtors shall have used their best efforts to extend (and cause the IRS to agree to extend) such SOL for a period of two (2) years or longer;
3.
in the event that the IRS has not requested the SA Debtors to extend (or further extend) the applicable SOL for such Relevant Tax Year prior to 180 days prior to the end of such SOL, the SA Debtors shall have used their best efforts to extend (and cause the IRS to agree to extend) such SOL for a period of two (2) years or longer;
4.
the SA Debtors shall have provided to Cryovac, Inc. a written statement by their Chief Financial Officer that each of the requirements set forth immediately above in sub- clauses p.1, 2, and 3 has been satisfied in all respects; and
r.
at the request of Sealed Air Corporation, prepare and execute a Grace Protective Claim to be filed by Sealed Air Corporation pursuant to paragraph VI(h)(ii) of the Sealed Air Settlement Agreement or this clause r.
s.
pay to Cryovac, Inc. in immediately available funds fifty (50) percent of the amount of any Tax Benefit (as defined in the Sealed Air Settlement Agreement) realized as a result of the
Transfer no later than ten (10) days after such Tax Benefit (as defined in the Sealed Air Settlement Agreement) has been deemed to have been Actually Realized (as defined in and determined pursuant to the Sealed Air Settlement Agreement),
t.
if requested by Sealed Air Corporation, use their best efforts to extend (and cause the IRS to agree to extend) the applicable SOL for any Relevant Tax Year,
u.
include in Part II of Form 1120X (or applicable section of any similar state or local tax form) of any Grace Protective Claim the language set forth on Exhibit 7 of the Sealed Air Settlement Agreement and only such other language as may be mutually agreed to by the SA Debtors and Cryovac, Inc. (or Sealed Air Corporation),
v.
withdraw all Grace Protective Claims upon a Cryovac Final Determination (as defined in the Sealed Air Settlement Agreement) that the Transfer results in a Tax Benefit (as defined in the Sealed Air Settlement Agreement) to Cryovac, Inc. (or the affiliated group filing a consolidated Tax Return of which Sealed Air Corporation is the common parent), and provide a written statement to Cryovac, Inc. signed by the Chief Financial Officer of the SA Debtors stating that all Grace Protective Claims have been withdrawn,
w.
upon notice by Cryovac, Inc. as provided in paragraph VI(i) of the Sealed Air Settlement Agreement, as the case may be, or if otherwise requested in writing by Cryovac, Inc., use reasonable best efforts to pursue all Grace Protective Claims and keep Cryovac, Inc. fully informed of, and permit Cryovac, Inc. to participate in, all developments with respect to all such Grace Protective Claims in a manner consistent with the provisions set forth in paragraphs VI(c)(ii) through (VI) of the Sealed Air Settlement Agreement and clauses i., j., k., l., and m. of this Annex I, as the case may be,
x.
no later than ten (10) days after the SA Debtors shall have Actually Realized (as defined in the Sealed Air Settlement Agreement) a Tax Benefit (as defined in the Sealed Air Settlement Agreement) as a result of the Transfer, provide Cryovac, Inc. with a detailed statement (for the purposes of this Annex I, the "Tax Benefit Statement") specifying (1) the amount of the Tax Benefit (as defined in the Sealed Air Settlement Agreement) that was Actually Realized (as defined in the Sealed Air Settlement Agreement) by the SA Debtors and any information relevant to the computation thereof (including full access to any applicable Tax Return,
non-proprietary work papers and other materials and information of the SA Debtors and their accountants), (2) the date that such Tax Benefit (as defined in the Sealed Air Settlement Agreement) was Actually Realized (as defined in the Sealed Air Settlement Agreement), (3) the amount of deduction, loss, credit or exclusion initially claimed by the SA Debtors as a result of the Transfer (for purposes of this Annex I, the "Initial Tax Benefit Item"), (4) the amount of the Initial Tax Benefit Item that is utilized by the SA Debtors to create such Tax Benefit (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement) (including as a result of all or a portion of the Initial Tax Benefit Item being carried back or forward), and (5) the amount of the Initial Tax Benefit Item not yet utilized by the SA Debtors (to create a Tax Benefit (as defined in the Sealed Air Settlement Agreement)
Actually Realized (as defined in the Sealed Air Settlement Agreement)) that will be carried forward,
y.
no later than 30 days after the SA Debtors have filed their U.S. federal consolidated income Tax Return for each year beginning the year that includes the Tax Benefit Start Date (as defined in the Sealed Air Settlement Agreement), deliver to Cryovac, Inc. an annual statement (for purposes of this Annex I, the "CFO Annual Statement"), signed by their Chief Financial Officer under penalties of perjury, that sets forth (1) the amount of the Tax Benefits (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement), if any, by the SA Debtors as a result of the Transfer during the preceding taxable year (including, without limitation, as a result of an amended return for any taxable year, a loss or deduction being utilized for such preceding taxable year, a loss or credit carryback from such preceding taxable year, or a loss or credit carryforward to such preceding taxable year), (2) the date (or dates) such Tax Benefits were Actually Realized (as defined in the Sealed Air Settlement Agreement) during such taxable year, (3) the amount of the Initial Tax Benefit Item, (4) the amount of the Initial Tax Benefit Item that is utilized by the SA Debtors to create such Tax Benefit (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement), and (5) the amount of the Initial Tax Benefit Item not yet utilized by the SA Debtors (to create a Tax Benefit (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement)) that will be carried forward,
z.
provide Cryovac, Inc. with all information relevant to the computation of such Tax Benefits (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement) by the SA Debtors set forth in clause y.1 of this Annex I (including full access to any applicable Tax Return, the non-proprietary work papers, and other materials and information of the SA Debtors and their accountants),
aa. within fifteen (15) days after the SA Debtors' receipt of a Tax Benefit Dispute Notice (as defined in the Sealed Air Settlement Agreement), unless the matters in the Tax Benefit Dispute Notice (as defined in the Sealed Air Settlement Agreement) have otherwise been resolved by mutual agreement of the parties, select, jointly with Cryovac, Inc., a nationally-recognized independent certified public accountant (for purposes of this Annex I, the "Tax Benefit Accountant"); provided, however, if the SA Debtors and Cryovac, Inc. are unable to agree upon the Tax Benefit Accountant within such fifteen (15) day period, then the SA Debtors and Cryovac, Inc. shall each select a nationally-recognized independent certified public accountant which shall then jointly choose the Tax Benefit Accountant within fifteen (15) days thereafter, and the terms of the engagement of such Tax Benefit Accountant shall require the Tax Benefit Accountant to comply with paragraph VI(j)(iv) of the Sealed Air Settlement Agreement,
bb. pay to Cryovac, Inc. in immediately available funds no later than five (5) days after delivery of the Tax Benefit Report (as defined in the Sealed Air Settlement Agreement) to the SA Debtors and Cryovac, Inc. the sum of (x) the excess, if any, of fifty (50) percent of the amount of the Tax Benefit (as defined in the Sealed Air Settlement Agreement) Actually
Realized (as defined in the Sealed Air Settlement Agreement) set forth in the Tax Benefit Report (as defined in the Sealed Air Settlement Agreement) over the amount previously paid, if any, by the SA Debtors to Cryovac, Inc. with respect thereto and (y) interest with respect to any such excess, as provided for in paragraph VI(k) of the Sealed Air Settlement Agreement,
cc. if a loss, deduction, credit or exclusion that resulted in Tax Benefit that was Actually Realized (as defined in the Sealed Air Settlement Agreement) by the SA Debtors is later denied by a Taxing authority by (x) a decision, decree or other order by a court of competent jurisdiction, which has become final and unappealable or (y) any other means (including a closing agreement or accepted offer in compromise under section 7121 or 7122 of the Internal Revenue Code) if Cryovac, Inc. has consented to such other means, which consent shall not be unreasonably withheld or delayed, provide (1) a written statement, signed under penalties of perjury by the Chief Financial Officer of the SA Debtors, that states (i) the amount of such loss, deduction, credit or exclusion that was denied, (ii) the amount of the Tax Benefits (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement) that was initially determined and paid by the SA Debtors to Cryovac, Inc. for such taxable period, and (iii) the revised amount of the Tax Benefit (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement) for such taxable period taking into account the denial of such loss, deduction, credit or exclusion, and (2) provide to Cryovac, Inc. any information relevant to the computation of such initial and revised amount of the Tax Benefits (as defined in the Sealed Air Settlement Agreement) Actually Realized (as defined in the Sealed Air Settlement Agreement) by the SA Debtors (including full access to any applicable Tax Return, the non-proprietary work papers, and other materials and information of the SA Debtors and their accountants), and
dd. perform all other actions required, and refrain from taking any other activities precluded, by the Sealed Air Settlement Agreement.
Annex II
Pursuant to Section 7.7(oo) of the Plan, and not by way of limitation of the Sealed Air Settlement Agreement, unless indicated otherwise:
a.
each of the Plaintiffs, the Asbestos PI Trust and the Asbestos PD Trust shall, unless otherwise required by a Final Determination, (1) file all Tax Returns required to be filed by it, if any, consistent with the provisions of this clause a. and shall take all other Defined Actions (as defined in the Sealed Air Settlement Agreement) that are reasonably requested by Sealed Air Corporation and consistent with the provisions of this clause a., and (2) be prohibited from taking any Defined Action (as defined in the Sealed Air Settlement Agreement) that may result in the disqualification of the Asbestos PI Trust or the Asbestos PD Trust as a Qualified Settlement Fund (as defined in the Sealed Air Settlement Agreement) or be inconsistent with Cryovac, Inc. being treated as a "transferor" (as defined under Treasury Regulations section 1.468B-1(d)) (for purposes of this Annex II the "Transferor") of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) directly to the Asbestos PI Trust pursuant to Section 7.2.2 of the Plan and the Confirmation Order and the Asbestos PD Initial Payment directly to the Asbestos PD Trust pursuant to Section 7.3.2 of the Plan and the Confirmation Order, provided, however, that it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this clause a. if each of the following four requirements has been previously satisfied (i) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement, (ii) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this clause a., (iii) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (iv) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
b.
the Asbestos PI Trust and the Asbestos PD Trust shall, unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement), treat for all Tax purposes any and all payments by Cryovac Inc. pursuant to Sections 7.2.2 and 7.2.3 of the Plan and the Confirmation Order, as a direct payment by Cryovac, Inc. to the Asbestos PI Trust or the Asbestos PD Trust, as applicable, for Asbestos Claims that constitutes an ordinary and necessary expense of Cryovac, Inc, and each of the Plaintiffs, the Asbestos PI Trust and the Asbestos PD Trust shall, unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement): (1) be prohibited from taking any Defined Action (as defined in the Sealed Air Settlement Agreement) that is inconsistent with the foregoing provisions of this clause b., and (2) take all Defined Actions (as defined in the Sealed Air Settlement Agreement) that are reasonably requested by Sealed Air Corporation and consistent with the provisions of this clause b.; provided, however, that it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement
Agreement) as required pursuant to sub-clauses (1) and (2) of this clause b. if each of the following four requirements has been previously satisfied (i) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement, (ii) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this clause b., (iii) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (iv) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement),
c.
if it has determined that an issue (for the purposes of this Annex II such issue, a "Paragraph VI(f) Issue") may exist with respect to its taking, or the failure to take, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to paragraph II(c)(ix) or (x), of the Sealed Air Settlement Agreement or clauses a. and b., of this Annex II, as the case may be, then, prior to delivering a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) in accordance with the provisos set forth in paragraph II(c)(ix) or (x) of the Sealed Air Settlement Agreement, or clauses a. and b., of this Annex II, as the case may be, each of the Plaintiffs, the Asbestos PI Trust and the Asbestos PD Trust, as the case may be, shall (1) provide to Sealed Air Corporation, as promptly as practicable, a written notice identifying such Defined Action (as defined in the Sealed Air Settlement Agreement) and describing in detail the Paragraph VI(f) Issue and (2) consult and act (and cause its advisors (including accountants and tax attorneys, as the case may be) to, consult and act) in good faith to determine and resolve (i) if such issue relates to a Tax issue, whether, as a result of a Change in Circumstances (as defined in the Sealed Air Settlement Agreement), there is no "reasonable basis", as defined in IRC section 6662 (or successor provision thereof), for the taking of, or the failure to take, such Defined Action (as defined in the Sealed Air Settlement Agreement) by such Entity or (ii) if such issue relates to an accounting issue, whether, as a result of a Change in Circumstances, the taking, or the failure to take, such Defined Action (as defined in the Sealed Air Settlement Agreement) is inconsistent with generally accepted accounting principles, and
d.
perform all other actions required, and refrain from taking any other activities precluded, by the Sealed Air Settlement Agreement.
Annex III
Asbestos Protected Parties are:
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1.
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W. R. Grace & Co. (f/k/a Grace Specialty Chemicals, Inc.)
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2.
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W. R. Grace & Co.-Conn.
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3.
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A-1 Bit & Tool Co., Inc.
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5.
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Alewife Land Corporation
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7.
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CB Biomedical, Inc. (f/k/a Circe Biomedical, Inc.)
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11.
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Creative Food 'N Fun Company
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12.
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Darex Puerto Rico, Inc.
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13.
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Del Taco Restaurants, Inc.
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14.
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Dewey and Almy, LLC (f/k/a Dewey and Almy Company)
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16.
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Five Alewife Boston Ltd.
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17.
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G C Limited Partners I, Inc. (f/k/a Grace Cocoa Limited Partners I, Inc.)
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18.
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G C Management, Inc. (f/k/a Grace Cocoa Management, Inc.)
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19.
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GEC Management Corporation
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21.
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GPC Thomasville Corp.
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22.
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Gloucester New Communities Company, Inc.
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25.
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Grace Chemical Company of Cuba
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26.
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Grace Culinary Systems, Inc.
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27.
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Grace Drilling Company
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28.
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Grace Energy Corporation
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29.
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Grace Environmental, Inc.
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33.
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Grace Hotel Services Corporation
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34.
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Grace International Holdings, Inc. (f/k/a Dearborn International Holdings, Inc.)
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35.
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Grace Offshore Company
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36.
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Grace PAR Corporation
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37.
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Grace Petroleum Libya Incorporated
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38.
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Grace Tarpon Investors, Inc.
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40.
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Grace Washington, Inc.
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41.
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W. R. Grace Capital Corporation
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42.
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W. R. Grace Land Corporation
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45.
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Guanica-Caribe Land Development Corporation
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46.
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Hanover Square Corporation
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47.
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Homco International, Inc.
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48.
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Kootenai Development Company
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50.
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Litigation Management, Inc. (f/k/a GHSC Holding, Inc., Grace JVH, Inc., Asbestos Management, Inc.)
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51.
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Monolith Enterprises, Incorporated
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53.
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MRA Holdings Corp. (f/k/a Nestor-BNA Holdings Corporation)
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54.
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MRA Intermedco, Inc. (f/k/a Nestor-BNA, Inc.)
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55.
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MRA Staffing Systems, Inc. (f/k/a British Nursing Association, Inc.)
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56.
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Remedium Group, Inc. (f/k/a Environmental Liability Management, Inc., E&C Liquidating Corp., Emerson & Cuming, Inc.)
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57.
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Southern Oil, Resin & Fiberglass, Inc.
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58.
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Water Street Corporation
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59.
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Axial Basin Ranch Company
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60.
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CC Partners (f/k/a Cross Country Staffing)
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61.
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Hayden-Gulch West Coal Company
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B.
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Asbestos Protected Party, subparagraph 51(b) - The Reorganized Debtors
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Per Plan definition 182, Reorganized Debtors shall mean the Debtors from and after the Effective Date.
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C.
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Asbestos Protected Party, subparagraph 51(c) - The Non-Debtor Affiliates
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Per Plan definition 158, Non-Debtor Affiliate shall mean each Affiliate of the Debtors that is not a debtor or debtor-in-possession in the Chapter 11 Cases, including the following Entities designated as Non-Debtor Affiliates in Exhibit 16 in the Plan Exhibit Book:
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1.
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A.A. Consultancy & Cleaning Company Limited
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2.
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Advanced Refining Technologies GmbH
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3.
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Advanced Refining Technologies K.K.
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4.
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Advanced Refining Technologies LLC
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5.
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Alltech Applied Science B.V.
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6.
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Alltech Applied Science Labs (HK) Limited
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7.
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Alltech Associates (Australia) Pty. Ltd.
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8.
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Alltech Associates Applied Science Limited
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9.
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Alltech Associates, Inc.
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10.
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Alltech France S.A.R.L.
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12.
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Alltech Italia S.R.L.
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13.
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Alltech Japan Company Limited
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14.
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Alltech Scientific (China) Limited
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17.
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Amicon Ireland Limited
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20.
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Asian Food Investment Limited
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24.
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Carbon Dioxide Slurry Systems L.P.
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26.
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Colowyo Coal Company L.P.
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27.
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Construction Products Dubai, Inc.
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29.
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Cormix Middle East LLC
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32.
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Davison Chemicals India Pvt. Ltd. (f/k/a Flexit Laboratories Private Ltd.)
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34.
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Emerson & Cuming (Trading) Ltd.
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35.
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Emerson & Cuming (UK) Ltd.
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36.
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Emirates Chemicals LLC
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37.
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Envases Industriales y Comerciales, S.A.
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39.
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GEC Divestment Corporation Ltd.
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41.
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Grace (New Zealand) Limited
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43.
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Grace Asia Pacific, Inc.
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44.
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Grace Australia Pty. Ltd.
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45.
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Grace Bauprodukte GmbH
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50.
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Grace Chemicals, Inc.
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52.
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Grace Collections, Inc.
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54.
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Grace Construction Products (Ireland) Limited
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55.
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Grace Construction Products Limited
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56.
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Grace Construction Products N.V.
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57.
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Grace Construction Products S.A. (f/k/a Pieri S.A.)
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58.
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Grace Container, S. A. de C. V.
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60.
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Grace Davison (Proprietary) Limited
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62.
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Grace Energy GmbH (f/k/a Grace Holding GmbH)
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63.
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Grace Értékesito Kft.
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64.
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Grace Europe Holding GmbH
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65.
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Grace Germany Holdings, Inc.
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69.
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Grace Japan Kabushiki Kaisha
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71.
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Grace Latin America, Inc.
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72.
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Grace Management GP GmbH
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73.
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Grace Management Services, Inc.
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74.
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Grace Manufacturing GmbH & Co. KG
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75.
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Grace Offshore Turnkey
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76.
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Grace Produits de Construction SAS
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77.
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Grace Quimica Compania Limitada
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78.
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Grace Receivables Purchasing, Inc.
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79.
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Grace S.A. (f/k/a Grace N.V.)
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84.
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Grace Trading (Shanghai) Co., Ltd.
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85.
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Grace Venezuela, S.A.
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86.
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Grace Yapi Kimyasallari Sanayi ve Ticaret A.S.
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88.
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Ichiban Chemical Co., Inc.
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90.
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Inversiones GSC, S.A.
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93.
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Papelera Camagueyana, S.A.
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94.
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Paramont Coal Company
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95.
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Pieri Especialidades, S.L.
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97.
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PT. Grace Specialty Chemicals Indonesia
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99.
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Société Civile Beau-Béton
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100.
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Storm van Bentem en Kluyver B.V.
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101.
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Trans-Meridian Insurance (Dublin) Ltd.
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102.
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W. R. G. Colombia S.A.
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103.
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W. R. Grace & Co. (India) Private Limited
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104.
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W. R. Grace & Co. Employees Disaster Relief Foundation, Inc.
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105.
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W. R. Grace (Hong Kong) Limited
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106.
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W. R. Grace (Malaysia) Sendiran Berhad
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107.
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W. R. Grace (Philippines), Inc.
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108.
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W. R. Grace (Singapore) Private Limited
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109.
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W. R. Grace (Thailand) Limited
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110.
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W. R. Grace Africa (Proprietary) Limited
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111.
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W. R. Grace Argentina S.A.
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113.
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W. R. Grace Finance (NRO) Ltd.
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114.
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W. R. Grace Foundation, Inc.
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115.
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W. R. Grace Holdings, S. A. de C. V.
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116.
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W. R. Grace Italiana S.p.A.
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120.
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W. R. Grace Southeast Asia Holdings Limited
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121.
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W. R. Grace Specialty Chemicals (Malaysia) Sdn. Bhd.
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122.
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W. R. Grace Taiwan, Inc.
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123.
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W. R. Grace Vietnam Company Limited
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124.
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W.R. GRACE Argentina, S.A.
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D.
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Asbestos Protected Party, subparagraph 51(d) - The Settled Asbestos Insurance
Companies
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Settled Asbestos Insurance Companies
11
as may be added to and identified in Exhibit 5 to the Plan from time to time including after the Effective Date, as provided in the Plan; and
11
See
Plan definition 209 (Section 1.1(209).
The following Settled Asbestos Insurance Companies, pursuant to the terms of and in accordance with the Asbestos Insurance Settlement Agreements and as identified on Exhibit 5
12
in the Plan Exhibit Book:
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1.
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AG de 1830 Compagnie Belge d'Assurances Generales Incendie Accidents et Risques Divers S.A. (n/k/a AG Insurance)
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2.
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Admiral Insurance Company
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3.
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The Aetna Casualty and Surety Company (n/k/a Travelers Casualty and Surety Company), its predecessors, successors and its past and present parents (including but not limited to, Aetna Life & Casualty Company)
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4.
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Allianz Underwriters Insurance Company, Allianz Aktiengesellschaft (n/k/a Allianz SE), Fireman's Fund Insurance Company, and Riunione Adriatica di Sicurta S.p.A (n/k/a Allianz S.p.A) and the Allianz Parties as provided in the 11/09/09 Settlement Agreement (conditional upon the Confirmation Order becoming a Final Order and subject to receipt by the Trust of the Settlement Amount in accordance with the 11/09/09 Settlement Agreement)
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5.
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Allstate Insurance Company
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6.
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Allstate Insurance Company, as successor in interest to Northbrook Excess Surplus Insurance Company, formerly known as Northbrook Insurance Company
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7.
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American Centennial (n/k/a OneBeacon America Insurance Company)
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8.
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Associated International Insurance Company
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9.
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The Chartis Insurance Companies as defined in the Amended Settlement and Mutual Release dated 09/11/09
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10.
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CIGNA (f/k/a Pacific Employers Insurance Company and Insurance Company of North America) (n/k/a Century Indemnity Company)
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11.
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Commercial Union Insurance Company (n/k/a OneBeacon America Insurance Company)
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12.
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Continental Casualty Company
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13.
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Continental Casualty Company and Continental Insurance Company (in its own capacity and as successor by merger to Pacific Insurance Company and Boston Old Colony Insurance Company, and as successor-in-interest to certain alleged Harbor Insurance Company, Buffalo Insurance Company, Buffalo Reinsurance Company, and London
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12
Debtors plan to file an updated version of Exhibit 5, which will include as Settled Asbestos Insurance Companies those entities identified at nos. "8," "13," and "33" in the above text, with whom recent settlements were reached and approved.
Guarantee & Accident Company of New York policies) (the "CNA Companies"), subject to the January 22, 2011, Approval Order becoming a Final Order
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14.
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Employers Insurance of Wausau and Nationwide Indemnity Company, solely in its capacity as claims administrator for Employers Insurance of Wausau
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15.
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Employers Mutual Casualty Company and Mutual Marine Office, Inc., in its capacity as managing general agent and attorney-in-fact for Employers Mutual Casualty Company, to the fullest extent, but only to the extent, that Mutual Marine Office, Inc. is eligible for protection under Bankruptcy Code Section 524(g)
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16.
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Federal Insurance Company
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17.
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Federal Insurance Company (conditional upon the Confirmation Order becoming a Final Order and subject to receipt by the Trust of the Settlement Amount in accordance with the 09/28/10 Settlement Agreement)
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18.
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Fireman's Fund Insurance Company
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19.
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General Insurance Company of America
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20.
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Gibraltar Casualty Co./Prudential Reinsurance Co. (n/k/a Mt. McKinley/Everest)
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21.
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Guarantee Insurance Company
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22.
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Harper Insurance Company Ltd. (f/k/a Turegum Insurance Company)
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23.
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Hartford Accident and Indemnity Company, First State Insurance Company, Twin City Fire Insurance Company, New England Insurance Company, Hartford Fire Insurance Company, and London & Edinburgh Insurance Company Limited, in its own right and as successor to London & Edinburgh Insurance Company Limited, and the Hartford-Related Parties (as defined in the Settlement Agreement, including Hartford Financial Services Group, Inc.) to the extent but only to the extent, the Hartford-Related Parties provided insurance to any of the Debtors
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24.
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HDI-Gerling Industrie Versicherung AG, as successor to Gerling Konzern Allgemeine Versicherungs-Aktiengesellschaft
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25.
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Home Insurance Company (insolvent)
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26.
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Lloyd's Underwriters and Underwriter Third Party Beneficiaries, all as defined in the Amended and Restated Settlement Agreement and Mutual Release dated July 17, 2009
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27.
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London Market Insurance Companies:
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Accident & Casualty Insurance Company of Winterthur (2 A/C) American Home Insurance per Tower X
Argonaut Northwest Insurance Co. Ltd. Bishopsgate Insurance Company Ltd.
CNA Reinsurance of London Ltd.
Compagnie D'Assurances Maritimes Aeriennes & Terrestres Societe Anonyme Dominion Insurance Company, Ltd.
Harper Insurance Ltd., formerly known as Turegum Ins. Co. London & Edinburgh General Insurance Co., Ltd.
London & Edinburgh General Insurance Co., Ltd. (per Tower Underwriting Management, Ltd.)
London & Edinburgh General Insurance Co., Ltd. ("WM" "A/C") National Casualty Company of America Ltd.
Sphere Drake Insurance Company Stronghold Insurance Company, Ltd.
Tenecom Insurance Company, Ltd., as Part VII Transferee from Winterthur SwissInsurance Company
Tenecom Insurance Company, Ltd. formerly known as Yasuda Fire & Marine Insurance Company of Europe Ltd.
Terra Nova Insurance Co., Ltd.
Unionamerica Insurance Company, Ltd., as Part VII Transferee from St. Katherine Insurance Co., Ltd
Unionamerica Insurance Company, Ltd. as Part VII Transferee from St. Katherine Insurance Co., Ltd. (X A/C)
World Auxilliary Insurance Corp. Ltd.
(collectively, "Certain London Market Insurance Companies")
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28.
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Maryland Casualty Company
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29.
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Munich Reinsurance America, Inc. (f/k/a American Re-Insurance Company)
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30.
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North Star Reinsurance Corporation
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31.
|
Royal Indemnity Company
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32.
|
Royal Indemnity Company, Arrowood Capital Corp., and Arrowood Indemnity Company, individually, and as corporate successor-in-interest to Royal Indemnity Company (conditional upon 8/19/09 Approval Order becoming a Final Order)
|
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33.
|
Swiss Reinsurance Company and European Reinsurance Company of Zurich
|
|
|
|
|
34.
|
TIG Insurance Company (f/k/a Transamerica Insurance Company)
|
|
|
|
|
35.
|
Unigard Security Insurance Company (n/k/a Seaton Insurance Company)
|
|
|
|
|
36.
|
U.S. Fire Insurance Company
|
|
|
|
|
37.
|
Zurich Insurance Company Ltd. and Zurich International (Bermuda) Ltd.
|
|
|
|
|
E.
|
Asbestos Protected Party, subparagraph 51(f) - The Sealed Air Indemnified Parties
|
|
|
|
|
1.
|
"Released Parties" as defined in the Sealed Air Settlement Agreement,
13
including
|
|
|
|
|
2.
|
Sealed Air Corporation,
|
|
|
|
|
4.
|
“all of their parent corporations, subsidiary corporations, joint venturers, Affiliates, and sister corporations, and any and all of their past, present and future agents, servants, officers, directors, employees, successors, assigns, heirs, executors, administrators, legal representatives, beneficiaries, insurers (but solely to the extent of coverage procured by Sealed Air Corporation (after March 31, 1998) or Cryovac, Inc. (after such date) of any liabilities of Sealed Air Corporation or Cryovac, Inc. for Asbestos-Related Claims), or any of them, including any Entity acting on behalf of or at the direction of any of them.”
14
|
|
|
|
|
F.
|
Asbestos Protected Party, subparagraph 51(g) - The Fresenius Indemnified Parties
|
|
|
|
|
1.
|
"FMCH," meaning Fresenius Medical Care Holdings, Inc. (taxpayer identification number 13-3461988), a New York corporation, formerly named W. R. Grace & Co. and Fresenius National Medical Care Holdings, Inc., its Affiliates, and any and all of their
|
13
"Released Parties" as defined in the Sealed Air Settlement Agreement (Ex. 22 in the Exhibit Book to the Plan) includes the same list as in the Sealed Air Indemnified Parties definition in Plan (Plan Definition 202), except "Person" is substituted for "Entity" in the Sealed Air Settlement Agreement. "Person" is defined in the Sealed Air Settlement Agreement, section ddd, as "any individual, corporation, company, partnership, limited liability company, firm, association, joint venture, joint stock company, trust, estate, business trust, unincorporated organization, any other entity, and any 'governmental unit' (as that term is defined in section 101(27) of the Bankruptcy Code)". References to the excluded parties in the Sealed Air Settlement Agreement are to the "Debtors" and "Non-Debtor Affiliates" rather than "SA Debtors" and "SA Non-Debtor Affiliates." "SA Debtors" and "SA Non-Debtor Affiliates" are the defined terms under the Plan. In addition, references in the Sealed Air Settlement Agreement are to "Claims," "Damages," and "Debts" rather than "SA Claims," "SA Damages," and "SA Debts." "SA Claims," "SA Damages," and "SA Debts" are the defined terms under the Plan.
Each of the defined terms under the Plan refers to and is intended to represent the defined terms exactly as they are used in the Sealed Air Settlement Agreement.
14
See
Plan definition 202 (Section 1.1(202)) (exclusions not set forth herein)
predecessors, successors, and assigns. (See Plan Definition 121)
|
|
|
|
2.
|
"NMC," meaning National Medical Care, Inc., a Delaware corporation (taxpayer identification number 04-2835488). (See Plan Definition 155)
|
|
|
|
|
3.
|
Each of FMCH and NMC's respective present and former subsidiaries, parents, Affiliates, officers, directors, employees, partners, trustees, shareholders, beneficiaries, agents, attorneys, predecessors, successors, and assigns, including Fresenius Medical Care AG & Co. KGaA. and Fresenius AG
15
|
|
|
|
|
G.
|
Asbestos Protected Party, subparagraph 51(h) - Montana Vermiculite Company
|
|
|
|
|
H.
|
Asbestos Protected Party, subparagraph 51(i) - [Parties Identified in and Covered
by §524(g)(3)(A)(ii)]
|
“any Entity that, pursuant to the Plan or otherwise on or after the Effective Date, becomes a direct or indirect transferee of, or successor to, any of the Debtors, the Reorganized Debtors, the Non-Debtor Affiliates, the Sealed Air Indemnified Parties, or the Fresenius Indemnified Parties, or any of their respective assets (but only to the extent that any liability is asserted to exist as a result of its becoming such a transferee or successor)”
|
|
|
|
I.
|
Asbestos Protected Party, subparagraph 51(j) - [Parties Identified in and Covered
by § 524(g)(3)(A)(iii)]
|
“any Entity that, pursuant to the Plan or otherwise on or after the Effective Date, makes a loan to any of the Reorganized Debtors, the Non-Debtor Affiliates, the Asbestos PI Trust, the Asbestos PD Trust, or to a successor to, or transferee of any of the respective assets of, the Debtors, the Reorganized Debtors, the Non-Debtor Affiliates, the Asbestos PI Trust, or the Asbestos PD Trust (but only to the extent that any liability is asserted to exist as a result of its becoming such a lender or to the extent that any Encumbrance of assets made in connection with such a loan is sought to be invalidated, upset or impaired in whole or in part as a result of its being such a lender)”
|
|
|
|
J.
|
Asbestos Protected Party, subparagraph 51(k) - [Parties Identified in and Covered
by § 524(g)(4)(A)(ii)(I)]
|
“each of the respective present and future Affiliates of each of the Debtors, the Reorganized Debtors, the Non-Debtor Affiliates, the Sealed Air Indemnified Parties, and the Fresenius Indemnified Parties (but only to the extent that any liability is asserted to exist as a result of its being or becoming such an Affiliate)”
15
See
Plan definition 125 (Section 1.1(125)) (exclusions not set forth herein)
|
|
|
|
K.
|
Asbestos Protected Party, subparagraph 51(l) - [Parties Identified in and Covered
by § 524(g)(4)(A)(ii)(II)]
|
“each of the respective Representatives of each of the Debtors, the Reorganized Debtors, the Non-Debtor Affiliates, the Sealed Air Indemnified Parties, and the Fresenius Indemnified Parties.”
IN THE UNITED STATES DISTRICT COURT FOR DISTRICT OF DELAWARE
IN RE:
|
|
|
|
W.R. Grace & Co.,
et al.
16
|
Bankruptcy No. 01-1139 (JKF) Debtor(s) Chapter 11
|
Jointly Administered
ORDER CONFIRMING PLAN OF REORGANIZATION AS MODIFIED
THROUGH DECEMBER 23, 2010, ISSUING CHANNELING INJUNCTION
UNDER 11 U.S.C. §524(g) AND ADOPTING FINDINGS OF FACT, CONCLUSIONS
OF LAW AND THE MEMORANDUM OPINION OVERRULING OBJECTIONS
TO THE FIRST AMENDED JOINT PLAN OF REORGANIZATION
AND NOW,
this day of
2011
, it its
ORDERED
the recommendation of confirmation of the Bankruptcy Court of the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W.R. Grace & Co.,
et al
., the
16
The Debtors consist of the following 62 entities: W. R. Grace & Co. (f/k/a Grace Specialty Chemicals, Inc.), W. R. Grace & Co. Conn., A-1 Bit & Tool Co., Inc., Alewife Boston Ltd., Alewife Land Corporation, Amicon, Inc., CB Biomedical, Inc. (f/k/a Circe Biomedical, Inc.), CCHP, Inc., Coalgrace, Inc., Coalgrace II, Inc., Creative Food 'N Fun Company, Darex Puerto Rico, Inc., Del Taco Restaurants, Inc., Dewey and Almy, LLC (f/k/a Dewey and Almy Company), Ecarg, Inc., Five Alewife Boston Ltd., GC Limited Partners I, Inc., (flk/a Grace Cocoa Limited Partners I, Inc.), GC Management, Inc. (f/k/a Grace Cocoa Management, Inc.), GEC Management Corporation, GN Holdings, Inc. GPC Thomasville Corp., Gloucester New Communities Company, Inc., Grace A-B Inc., Grace A-B II Inc., Grace Chemical Company of Cuba, Grace Culinary Systems, Inc., Grace Drilling Company, Grace Energy Corporation, Grace Environmental, Inc., Grace Europe, Inc., Grace H-G Inc., Grace H-G II Inc., Grace Hotel Services Corporation, Grace International Holdings, Inc. (f/k/a Dearborn International Holdings, Inc.), Grace Offshore Company, Grace PAR Corporation, Grace Petroleum Libya Incorporated, Grace Tarpon Investors, Inc., Grace Ventures Corp., Grace Washington, Inc., W. R. Grace Capital Corporation., W. R. Grace Land Corporation, Gracoal, Inc., Gracoal II, Inc., Guanica-Caribe Land Development Corporation, Hanover Square Corporation, Homco International, Inc., Kootenai Development Company, L B Realty, Inc., Litigation Management, Inc. (f/k/a GHSC Holding, Inc., Grace JVH, Inc., Asbestos Management, Inc.), Monolith Enterprises, Incorporated, Monroe Street, Inc., MRA Holdings Corp. (f/k/a Nestor·BNA Holdings Corporation), MRA Intermedco, Inc. (f/k/a Nestor-BNA, Inc.), MRA Staffing Systems, Inc. (f/k/a British Nursing Association, Inc.), Remedium Group, Inc. (f/k/a Environmental Liability Management, Inc., E&C Liquidating Corp., Emerson & Cuming, Inc.), Southern Oil, Resin & Fiberglass, Inc., Water Street Corporation, Axial Basin Ranch Company, CC Partners (f/k/a Cross Country Staffing), Hayden-Gulch West Coal Company, H-G Coal Company.
Official Committee of Asbestos Personal Injury Claimants, the Asbestos Personal Injury Future Claimants’ Representative, and the Official Committee of Equity Security Holders dated
, 2011, Docket Number , is adopted and the Joint Plan, as amended, is
CONFIRMED
.
It is
FURTHER ORDERED
that an injunction pursuant to 11 U.S.C. §524(g) is hereby issued in accordance with the terms of the Joint Plan and attendant Plan documents and the recommended findings of fact, conclusions of law as expressed in the Bankruptcy Court’s recommended confirmation order and the Bankruptcy Court’s Memorandum Opinion Overruling Objections to the First Amended Joint Plan of Reorganization are approved in their entirety. The Joint Plan and its Asbestos PI and Asbestos PD Injunctions protect any person or entity that is an Asbestos Protected Party, a term defined in Plan Sections 1.1(51)(a) through (l)
17
and as may be amended from time to time pursuant to the terms of the Joint Plan.
It is
FURTHER ORDERED
that Annexes I, II and II attached to the Bankruptcy Court’s Recommendation are incorporated herein by reference and approved and the channeling injunction shall issue as to all Asbestos Protected Parties identified in Annex III.
THIS ORDER IS HEREBY DECLARED TO BE IN RECORDABLE FORMAT AND SHALL BE ACCEPTED BY ANY RECORDING OFFICER FOR FILING AND RECORDING PURPOSES WITHOUT FURTHER OR ADDITIONAL ORDERS, CERTIFICATIONS OR OTHER SUPPORTING DOCUMENTS.
BY THE COURT
United States District Judge
17
There is no subsection (51)(e) in Section 1.1.
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
W. R. GRACE & CO., et al. ) Case No. 01-01139 (KJC)
) Jointly Administered
Debtors. )
)
)
)
EXHIBIT 6 TO EXHIBIT BOOK
ASBESTOS INSURANCE TRANSFER AGREEMENT
EXHIBIT 6
Attached.
ASBESTOS INSURANCE TRANSFER AGREEMENT
This ASBESTOS INSURANCE TRANSFER AGREEMENT (this “
Agreement
”) is made as of February 3, 2014, by and between the Insurance Contributors identified in Exhibit A to this Agreement and the Asbestos PI Trust. Capitalized terms used herein without definition shall have the meanings given to them in the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co.,
et al.
, the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010 (the “
Plan
”) (as such Plan may be amended, modified, or supplemented from time to time in accordance with the terms thereof).
WHEREAS, the Debtors and the Non-Debtor Affiliates maintained liability insurance programs to protect themselves from certain risks resulting from their businesses, including, without limitation, liability for personal injury tort or wrongful death arising from exposure to asbestos or asbestos-containing products;
WHEREAS, numerous individuals and other persons have asserted asbestos-related personal injury tort and wrongful death claims against the Debtors;
WHEREAS, on April 2, 2001, each of the Debtors filed a petition for relief under Chapter 11 of the U.S. Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware (“
Bankruptcy Court
”);
WHEREAS, on February 27, 2009, the Debtors, the Asbestos PI Committee, the Asbestos PI Future Claimants’ Representative, and the Equity Committee filed the Plan in the Bankruptcy Court;
WHEREAS, the Bankruptcy Court has entered a Confirmation Order in the Chapter 11 Cases, confirming the Plan;
WHEREAS, it is a condition to the effectiveness of the Plan that the parties enter into this Agreement;
WHEREAS, the Plan,
inter alia
, provides that the Insurance Contributors will transfer the Asbestos Insurance Rights to the Asbestos PI Trust;
WHEREAS, the Insurance Contributors wish to implement, inter alia, the terms of the Plan providing for such transfer of the Asbestos Insurance Rights to the Asbestos PI Trust;
NOW, THEREFORE, subject to and on the terms and conditions set forth herein, for good and valuable consideration the receipt of which the parties hereto hereby acknowledge, the parties hereby agree as follows:
Section 1.
Transfer to the Asbestos PI Trust
(a)
Effective upon the Effective Date, the Insurance Contributors hereby irrevocably transfer, convey, and grant to the Asbestos PI Trust all of their Asbestos Insurance Rights, including, without limitation, any and all rights to Proceeds (the “
Transfer
”). The Transfer is made free and clear of all Encumbrances, liens, security interests, and claims or causes of action, except that all Asbestos Insurer Coverage Defenses are preserved. Notwithstanding the foregoing, the Asbestos Insurance Rights transferred to the Asbestos PI Trust pursuant to this Section l(a) do not include rights of any kind with respect to the agreements listed on Schedule 4.
(b)
The Asbestos PI Trust and the Insurance Contributors intend that the Transfer is made to the maximum extent permitted under applicable law.
(c)
The Transfer is absolute and does not require any further action by any Debtor, any Reorganized Debtor, any Insurance Contributor, the Asbestos PI Trust, the Bankruptcy Court, or any other entity.
(d)
The Transfer is not an assignment of any insurance policy.
(e)
Immediately upon the Effective Date, the Insurance Contributors shall wire transfer the Proceeds (defined below) to the Asbestos PI Trust, together with all interest earned on such Proceeds up to and through the date on which the Proceeds are actually transferred to the Asbestos PI Trust. For purposes of this Agreement, the term “
Proceeds
” shall include any and all proceeds, payments, cash, or cash equivalents paid to an Insurance Contributor or held in escrow, pursuant to, in satisfaction of, or on account of any of the Asbestos Insurance Rights.
Section 2.
Cooperation
(a)
The Insurance Contributors shall cooperate in the pursuit by the Asbestos PI Trust of the Asbestos Insurance Rights as reasonably requested by the Asbestos PI Trust. Such cooperation shall include, without limitation, making their books, records, employees, agents, and professionals available to the Asbestos PI Trust,
provided, however
, that the Asbestos PI Trust’s access to such books, records, documents, employees, agents, and professionals shall be subject to the terms and provisions of the cooperation agreement executed as of the Effective Date by the Reorganized Debtors and the trustees of the Asbestos PI Trust (“
Cooperation Agreement
”). The obligations set forth in paragraph 3 of the Cooperation Agreement, relating to the disposal and retention of relevant documents, shall apply to all Insurance Contributors, regardless of whether they signed the Cooperation Agreement.
(b)
If after the Effective Date, the Asbestos PI Trust or any Insurance Contributor discovers the existence of an insurance policy or coverage-in-place agreement, or insurance reimbursement agreement providing insurance coverage, proceeds, or reimbursement to one or more of the Insurance Contributors that falls within the definition of Asbestos Insurance Policy, Asbestos In-Place Insurance Coverage, or Asbestos Insurance Reimbursement Agreement and potentially or actually provides coverage, proceeds, or reimbursement for Asbestos Claims, then such party shall promptly notify the other parties to this Agreement of such discovery and the Insurance Contributors will, upon notice and request, cooperate with the Asbestos PI Trust to effectuate a transfer of rights under such policy or agreement to the Asbestos PI Trust in a manner consistent with the Transfer under this Agreement.
(c)
At the reasonable direction and request of the Asbestos PI Trust, and at the reasonable expense of the Asbestos PI Trust, an Insurance Contributor shall pursue any of the Asbestos Insurance Rights for the benefit of and to the fullest extent required by the Asbestos PI Trust, by negotiation, or, if necessary, by the initiation or prosecution of all appropriate and necessary legal action to secure or recover such Asbestos Insurance Rights, and shall take such other action as the Asbestos PI Trust may request, including granting a security interest in any or all of the Asbestos Insurance Rights. Each Insurance Contributor shall immediately transfer any amounts recovered under or on account of any of the Asbestos Insurance Rights to the Asbestos PI Trust;
provided, however
, that while any such amounts are held by or under the control of an Insurance Contributor, such amounts shall be held in trust for the benefit of the Asbestos PI Trust. No Insurance Contributor shall commence or pursue any claim against any Asbestos Insurance Entity with respect to any Asbestos Insurance Policy, Asbestos Insurance Settlement Agreement, Asbestos In-Place Insurance Coverage, or Asbestos Insurance Reimbursement Agreement without the prior written consent of the Asbestos PI Trust. Upon the Effective Date, the Insurance Contributors shall cede to the Asbestos PI Trust all control of the pursuit of any and all claims with respect to any Asbestos Insurance Policy, Asbestos Insurance Settlement Agreement, Asbestos In-Place Insurance Coverage, or Asbestos Insurance Reimbursement Agreement, and the Asbestos PI Trust shall have the right to control and direct the choice of counsel and conduct of all such proceedings.
Section 3.
Representations and Warranties
(a)
The Insurance Contributors, jointly and severally, warrant and represent that:
(i)
All insurance policies that the Insurance Contributors have reason to believe potentially or actually provide insurance coverage for Asbestos PI Claims are listed and described accurately on the attached Schedule 1;
(ii)
All insurance settlement agreements, coverage-in-place agreements, and reimbursement agreements, written, oral, or otherwise, that the Insurance Contributors have reason to believe potentially affect any Asbestos Insurance Rights under any Asbestos Insurance Policy, Asbestos Insurance Settlement Agreement, Asbestos In-Place Insurance Coverage, or Asbestos Insurance Reimbursement Agreement are listed and described accurately on the attached Schedules 2, 3, and 4;
(iii)
The Insurance Contributors have not heretofore transferred, granted, or assigned, in whole or in part, any Asbestos Insurance Right, Asbestos Insurance Policy, Asbestos Insurance Settlement Agreement, Asbestos In-Place Insurance Coverage, or Asbestos Insurance Reimbursement Agreement;
(iv)
Any written information pertaining to any Asbestos Insurance Right, Asbestos Insurance Policy, Asbestos Insurance Settlement Agreements, Asbestos In-Place Insurance Coverage, or Asbestos Insurance Reimbursement Agreement provided by the Insurance Contributors or their authorized representatives to the Asbestos PI Committee, the Asbestos PI Future Claimants’ Representative, or the Asbestos PI Trust was true and correct in all material respects as of the respective dates specified therein or, in the absence of any such specification, at the time it was so provided; and
(v)
Each Entity signing this Agreement as, or on behalf of, an Insurance Contributor has been duly authorized by such Insurance Contributor to execute and deliver this Agreement, and upon execution and delivery by each such Entity, this Agreement will be the legal, valid, and binding obligation of each Insurance Contributor, enforceable against each such Insurance Contributor in accordance with its terms. Each individual signing this Agreement represents and warrants that he or she is authorized to execute this Agreement on behalf of each Entity for which he or she executes this Agreement.
(b)
Each of the representations and warranties contained in this Agreement shall survive the execution, delivery, and performance thereof. In the event that any representation or warranty herein by or on behalf of an Insurance Contributor was not true and correct as of the Effective Date, or any Insurance Contributor fails to perform any covenant or agreement required to be performed by it herein (such failure of a representation or warranty to be true and correct or breach of a covenant or agreement is referred to herein as a “
Breach
”), then the Asbestos PI Trust shall be entitled to exercise forthwith any and all rights and remedies provided for in this Agreement or under any of the other Plan Documents and all other rights and remedies that may otherwise be available to the Asbestos PI Trust by agreement or at law or in equity (including the right to seek damages, including attorneys’ fees and enforcement costs, resulting or arising, directly or indirectly, from such Breach).
Section 4.
Miscellaneous
(a)
This Agreement shall be binding on each of the parties hereto and each of their respective successors and assigns. This Agreement is not intended, and shall not be construed, deemed, or interpreted, to confer on any person or entity not a party hereto any rights or remedies hereunder, except as otherwise provided expressly herein.
(b)
This Agreement, the Plan, and the other Plan Documents shall constitute the entire agreement and understanding among the parties to this Agreement with respect to the subject matter hereof and shall supersede all prior agreements and understandings, oral or written, among the parties hereto relating to the subject matter of this Agreement. This Agreement may not be amended or modified, and no provision hereof may be waived, except by an agreement in writing signed by the party against whom enforcement of any amendment, modification, or waiver is sought.
(c)
This Agreement and the rights and obligations of the parties hereto under this Agreement shall be governed by and construed and enforced in accordance with the substantive laws of the State of Delaware, without regard to any conflicts of law provisions thereof that would result in the application of the laws of any other jurisdiction.
(d)
(e)
The headings used in this Agreement are inserted for convenience only and neither constitute a portion of this Agreement nor in any manner affect the construction of the provisions of this Agreement. The rules of construction set forth in 11 U.S.C. § 102 shall apply to this Agreement.
(f)
This Agreement may be executed in multiple counterparts, each of which will be an original, but all of which together will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective duly authorized representatives on the date first above written.
W. R. Grace & Co. on behalf of itself and the other Insurance Contributors listed on Exhibit A to this Agreement
Mark Shelnitz
Vice President, General Counsel and Secretary
W. R. Grace & Co.
7500 Grace Drive
Columbia, MD 21044
Telephone: (410) 531-4000
Facsimile: (410) 531-4545
WRG Asbestos Personal Injury Trust
Lewis R. Sifford
Trustee
Harry Huge
Trustee
Dean M. Trafelet
Trustee
EXHIBIT A
INSURANCE CONTRIBUTORS
A. Debtors
|
|
|
|
1.
|
W. R. Grace & Co. (f/k/a Grace Specialty Chemicals, Inc.)
|
|
|
|
|
2.
|
W. R. Grace & Co. Conn.
|
|
|
|
|
3.
|
A-I Bit & Tool Co., Inc.
|
|
|
|
|
5.
|
Alewife Land Corporation
|
|
|
|
|
7.
|
CB Biomedical, Inc. (f/k/a Circe Biomedical, Inc.)
|
|
|
|
|
11.
|
Creative Food ‘N Fun Company
|
|
|
|
|
12.
|
Darex Puerto Rico, Inc.
|
|
|
|
|
13.
|
Del Taco Restaurants, Inc.
|
|
|
|
|
14.
|
Dewey and Almy, LLC (f/k/a Dewey and Almy Company)
|
|
|
|
|
16.
|
Five Alewife Boston Ltd.
|
|
|
|
|
17.
|
GC Limited Partners I, Inc. (f/k/a Grace Cocoa Limited Partners I, Inc.)
|
|
|
|
|
18.
|
GC Management, Inc. (f/k/a Grace Cocoa Management, Inc.)
|
|
|
|
|
19.
|
GEC Management Corporation
|
|
|
|
|
21.
|
GPC Thomasville Corp.
|
|
|
|
|
22.
|
Gloucester New Communities Company, Inc.
|
|
|
|
|
25.
|
Grace Chemical Company of Cuba
|
|
|
|
|
26.
|
Grace Culinary Systems, Inc.
|
|
|
|
|
27.
|
Grace Drilling Company
|
|
|
|
|
28.
|
Grace Energy Corporation
|
|
|
|
|
29.
|
Grace Environmental, Inc.
|
|
|
|
|
33.
|
Grace Hotel Services Corporation
|
|
|
|
|
34.
|
Grace International Holdings, Inc. (f/k/a Dearborn International Holdings, Inc.)
|
|
|
|
|
35.
|
Grace Offshore Company
|
|
|
|
|
36.
|
Grace PAR Corporation
|
|
|
|
|
37.
|
Grace Petroleum Libya Incorporated
|
|
|
|
|
38.
|
Grace Tarpon Investors, Inc.
|
|
|
|
|
40.
|
Grace Washington, Inc.
|
|
|
|
|
41.
|
W. R. Grace Capital Corporation.
|
|
|
|
|
42.
|
W. R. Grace Land Corporation
|
|
|
|
|
45.
|
Guanica-Caribe Land Development Corporation
|
|
|
|
|
46.
|
Hanover Square Corporation
|
|
|
|
|
47.
|
Homco International, Inc.
|
|
|
|
|
48.
|
Kootenai Development Company
|
|
|
|
|
50.
|
Litigation Management, Inc. (f/k/a GHZ Holding, Inc., Grace JVH, Inc., Asbestos Management, Inc.)
|
|
|
|
|
51.
|
Monolith Enterprises, Incorporated
|
|
|
|
|
53.
|
MAR Holdings Corp. (F/ka Nestor-BNA Holdings Corporation)
|
|
|
|
|
54.
|
MAR Intennedco, Inc. (f/k/a Nestor-BNA, Inc.)
|
|
|
|
|
55.
|
MAR Staffing Systems, Inc. (f/k/a British Nursing Association, Inc.)
|
|
|
|
|
56.
|
Remedium Group, Inc. (f/k/a Environmental Liability Management, Inc., E&C Liquidating Corp., Emerson & Cuming, Inc.)
|
|
|
|
|
57.
|
Southern Oil, Resin & Fiberglass, Inc.
|
|
|
|
|
58.
|
Water Street Corporation
|
|
|
|
|
59.
|
Axial Basin Ranch Company
|
|
|
|
|
60.
|
CC Partners (f/k/a Cross Country Staffing
|
|
|
|
|
61.
|
Hayden-Gulch West Coal Company
|
B. Reorganized Debtors
C. Non-Debtor Affiliates
|
|
|
|
1.
|
A.A. Consultancy & Cleaning Company Limited
|
|
|
|
|
2.
|
Amicon Ireland Limited
|
|
|
|
|
4.
|
Construction Products Dubai, Inc.
|
|
|
|
|
5.
|
Darex CIS LLC (Now Grace CIS LLC)
|
|
|
|
|
9.
|
GEC Divestment Corporation Ltd.
|
|
|
|
|
10.
|
Grace (New Zealand) Limited
|
|
|
|
|
12.
|
Grace Asia Pacific, Inc.
|
|
|
|
|
13.
|
Grace Australia Pty. Ltd.
|
|
|
|
|
17.
|
Grace Chemicals, Inc.
|
|
|
|
|
19.
|
Grace Collections, Inc.
|
|
|
|
|
21.
|
Grace Construction Products (Ireland) Limited
|
|
|
|
|
22.
|
Grace Construction Products Limited
|
|
|
|
|
23.
|
Grace Construction Products N.V.
|
|
|
|
|
24.
|
Grace Container, S. A. de C. V.
|
|
|
|
|
26.
|
Grace Davison (Proprietary) Limited
|
|
|
|
|
29.
|
Grace Értékesito Kft.
|
|
|
|
|
32.
|
Grace Japan Kabushiki Kaisha
|
|
|
|
|
34.
|
Grace Management Services, Inc.
|
|
|
|
|
35.
|
Grace Quimica Compania Limitada
|
|
|
|
|
36.
|
Grace S.A. (f/k/a Grace N.V.)
|
|
|
|
|
39.
|
Grace Trading (Shanghai) Co., Ltd.
|
|
|
|
|
40.
|
Grace Venezuela, S.A.
|
|
|
|
|
43.
|
Inversiones GSC, S.A.
|
|
|
|
|
44.
|
PT. Grace Specialty Chemicals Indonesia
|
|
|
|
|
45.
|
Trans-Meridian Insurance (Dublin) Ltd. (now Grace European Finance (Dublin) Limited)
|
|
|
|
|
46.
|
W. R. Grace & Co. (India) Private Limited
|
|
|
|
|
47.
|
W. R. Grace (Hong Kong) Limited
|
|
|
|
|
48.
|
W. R. Grace (Malaysia) Sendiran Berhad
|
|
|
|
|
49.
|
W. R. Grace (Philippines), Inc.
|
|
|
|
|
50.
|
W. R. Grace (Singapore) Private Limited
|
|
|
|
|
51.
|
W. R. Grace (Thailand) Limited
|
|
|
|
|
52.
|
W. R. Grace Africa (Proprietary) Limited
|
|
|
|
|
53.
|
W. R. Grace Argentina S.A.
|
|
|
|
|
55.
|
W. R. Grace Finance (NRO) Ltd.
|
|
|
|
|
56.
|
W. R. Grace Holdings, S. A. de C. V.
|
|
|
|
|
57.
|
W. R. Grace Italiana S.p.A.
|
|
|
|
|
60.
|
W. R. Grace Specialty Chemicals (Malaysia) Sdn. Bhd.
|
|
|
|
|
61.
|
W. R. Grace Taiwan, Inc.
|
|
|
|
|
62.
|
W. R. Grace Vietnam Company Limited
|
SCHEDULE 1
PRIMARY & EXCESS INSURANCE POLICIES THAT WERE OR ARE APPLICABLE TO ASBESTOS RELATED CLAIMS (sorted alphabetically)
|
|
|
|
|
|
|
|
|
|
|
Policy Year
|
|
|
|
|
Begin
|
End
|
Insurer
|
Policy Number
|
Layer
|
|
06/30/74
|
06/30/75
|
Acc. & Casualty Ins. of Winterthur
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
Acc. & Casualty Ins. of Winterthur
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
Acc. & Casualty Ins. of Winterthur
|
74DD662C
|
4
|
|
07/17/74
|
06/30/75
|
Acc. & Casualty Ins. of Winterthur
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
Acc. & Casualty Ins. of Winterthur
|
74DD663C
|
8
|
|
06/30/75
|
06/30/76
|
Admiral Insurance
|
75DD1064C
|
2
|
|
06/30/77
|
06/30/78
|
Aetna Casualty & Surety
|
01XN1400WCA
|
7
|
|
06/30/77
|
06/30/78
|
Aetna Casualty & Surety
|
01XN1422WCA
|
8
|
|
06/30/71
|
06/30/72
|
Aetna Casualty & Surety
|
0IXN150WCA
|
4
|
|
06/30/72
|
06/30/73
|
Aetna Casualty & Surety
|
0IXN150WCA
|
4
|
|
06/30/73
|
06/30/74
|
Aetna Casualty & Surety
|
01XN150WCA
|
4
|
|
06/30/78
|
06/30/79
|
Aetna Casualty & Surety
|
01XN1846WCA
|
6
|
|
06/30/78
|
06/30/79
|
Aetna Casualty & Surety
|
01XN1847WCA
|
7
|
|
06/30/79
|
06/30/80
|
Aetna Casualty & Surety
|
01XN2306WCA
|
7
|
|
06/30/80
|
06/30/81
|
Aetna Casualty & Surety
|
0lXN2669WCA
|
7
|
|
06/30/84
|
06/30/85
|
Aetna Casualty & Surety
|
01XN4270WCA
|
5
|
|
07/17/74
|
06/30/75
|
Aetna Casualty & Surety
|
0IXN607WCA
|
5
|
|
06/30/75
|
06/30/76
|
Aetna Casualty & Surety
|
0IXN607WCA
|
7
|
|
06/30/76
|
06/30/77
|
Aetna Casualty & Surety
|
0IXN607WCA
|
6
|
|
07/17/74
|
06/01/75
|
Aetna Casualty & Surety
|
01XN608WCA
|
6
|
|
06/01/75
|
06/30/75
|
Aetna Casualty & Surety
|
01XN608WCA.
|
6
|
|
06/30/75
|
06/30/76
|
Aetna Casualty & Surety
|
0IXN608WCA.
|
8
|
|
06/30/76
|
06/30/77
|
Aetna Casualty & Surety
|
0IXN608WCA.
|
7
|
|
Various
|
Pre-1971
|
Aetna Casualty and Surety Company
|
Various
|
Primary
|
|
06/30/77
|
06/30/78
|
AG Belge de 1830
|
AVB102
|
8
|
|
06/30/78
|
06/30/79
|
AG Belge de 1830
|
AVB124
|
7
|
|
06/30/82
|
06/30/83
|
Allianz Underwriters Ins
|
C7300025
|
4
|
|
06/30/83
|
06/30/84
|
Allianz Underwriters Ins
|
C7300025
|
4
|
|
06/30/84
|
06/30/85
|
Allianz Underwriters Ins
|
C7300025
|
4
|
|
06/30/84
|
06/30/85
|
Allianz Underwriters Ins
|
AUX5203042
|
5
|
|
06/30/77
|
06/30/78
|
Allianz Underwriters Ins
|
H00011428
|
8
|
|
06/30/78
|
06/30/79
|
Allianz Underwriters Ins
|
H0001428
|
7
|
|
06/30/79
|
06/30/80
|
Allianz Underwriters Ins
|
H0001428
|
6
|
|
06/30/80
|
06/30/81
|
Allianz Underwriters Ins
|
H0001428
|
6
|
|
06/30/81
|
06/30/82
|
Allianz Underwriters Ins
|
H0001428
|
6
|
|
06/30/78
|
06/30/79
|
American Centennial
|
CC000304
|
5
|
|
06/30/78
|
06/30/79
|
American Centennial
|
CC000305
|
7
|
|
06/30/78
|
06/30/79
|
American Centennial
|
CC000306
|
6
|
|
06/30/81
|
06/30/82
|
American Centennial
|
CC002418
|
5
|
|
06/30/81
|
06/30/82
|
American Centennial
|
CC002419
|
6
|
|
06/30/82
|
06/30/83
|
American Centennial
|
CC005317
|
4
|
|
06/30/83
|
06/30/84
|
American Centennial
|
CC015780
|
4
|
|
06/30/84
|
06/30/85
|
American Centennial
|
CC015996
|
4
|
|
10/20/62
|
10/20/63
|
American Employers
|
A-15-2127-51
|
1
|
|
10/20/63
|
10/20/64
|
American Employers
|
A-15-2127-51
|
1
|
|
10/20/64
|
10/20/65
|
American Employers
|
A-15-2127-51
|
1
|
|
01/27/65
|
10/20/65
|
American Employers
|
A-15-8138-001
|
3
|
|
10/20/65
|
10/20/66
|
American Employers
|
A-16-8220-00l
|
1
|
|
10/20/66
|
10/20/67
|
American Employers
|
A-16-8220-001
|
1
|
|
10/20/67
|
10/20/68
|
American Employers
|
A-16-8220-001
|
1
|
|
10/20/65
|
10/20/66
|
American Employers
|
A-16-8220-002
|
4
|
|
10/20/66
|
10/20/67
|
American Employers
|
A-16-8220-002
|
4
|
|
10/20/67
|
10/20/68
|
American Employers
|
A-16-8220-002
|
4
|
|
10/20/68
|
10/20/69
|
American Employers
|
A-16-8220-003
|
1
|
|
10/20/69
|
10/20/70
|
American Employers
|
A-16-8220-003
|
1
|
|
10/20/70
|
06/30/71
|
American Employers
|
A-16-8220-003
|
1
|
|
10/20/68
|
10/20/69
|
American Employers
|
A-16-8220-004
|
4
|
|
10/20/69
|
10/20/70
|
American Employers
|
A-16-8220-004
|
4
|
|
10/20/70
|
06/30/71
|
American Employers
|
A-16-8220-004
|
4
|
|
06/30/74
|
06/30/75
|
American Home Assurance
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
American Home Assurance
|
74DD662C
|
5
|
|
07/17/74
|
06/30/75
|
American Home Assurance
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
American Home Assurance
|
74DD663C
|
8
|
|
06/30/71
|
06/30/72
|
American Home Assurance
|
CE2691919
|
4
|
|
06/30/72
|
06/30/73
|
American Home Assurance
|
CE2691919
|
4
|
|
06/30/73
|
06/30/74
|
American Home Assurance
|
CE2691919
|
4
|
|
07/17/74
|
06/30/75
|
American Home Assurance
|
CE3436358
|
6
|
|
06/30/75
|
06/30/76
|
American Home Assurance
|
CE3436358
|
8
|
|
06/30/76
|
06/30/77
|
American Home Assurance
|
CE3436358
|
7
|
|
10/20/65
|
10/20/66
|
American Home Assurance
|
CE351082
|
5
|
|
10/20/66
|
10/20/67
|
American Home Assurance
|
CE351082
|
5
|
|
10/20/67
|
10/20/68
|
American Home Assurance
|
CE351082
|
5
|
|
10/20/68
|
10/20/69
|
American Home Assurance
|
WRG-1
|
4
|
|
10/20/69
|
10/20/70
|
American Home Assurance
|
WRG-1
|
4
|
|
10/20/70
|
06/30/71
|
American Home Assurance
|
WRG-1
|
4
|
|
06/30/78
|
06/30/79
|
American Int’l Underwriter
|
75100695
|
7
|
|
06/30/78
|
06/30/79
|
American Int’l Underwriter
|
75100696
|
4
|
|
06/30/79
|
06/30/80
|
American Int’l Underwriter
|
75101107
|
3
|
|
06/30/79
|
06/30/80
|
American Int’l Underwriter
|
75101108
|
4
|
|
06/30/79
|
06/30/80
|
American Int’l Underwriter
|
75101109
|
6
|
|
06/30/82
|
06/30/83
|
American Int’l Underwriter
|
75102158
|
3
|
|
06/30/82
|
06/30/83
|
American Int’l Underwriter
|
75102159
|
5
|
|
06/30/80
|
06/30/81
|
American Int’l Underwriter
|
75102422
|
4
|
|
06/30/80
|
06/30/81
|
American Int’l Underwriter
|
75102423
|
6
|
|
06/30/80
|
06/30/81
|
American Int’l Underwriter
|
75102424
|
3
|
|
06/30/81
|
06/30/82
|
American Int’l Underwriter
|
75-102641
|
3
|
|
06/30/81
|
06/30/82
|
American Int’l Underwriter
|
75-102642
|
4
|
|
06/30/81
|
06/30/82
|
American Int’1 Underwriter
|
75-102643
|
8
|
|
06/30/83
|
06/30/84
|
American Int’l Underwriter
|
75103044
|
3
|
|
06/30/83
|
06/30/84
|
American Int’l Underwriter
|
75103045
|
5
|
|
06/30/84
|
06/30/85
|
American Int’l Underwriter
|
75103845
|
3
|
|
06/30/84
|
06/30/85
|
American Int’l Underwriter
|
75103864
|
4
|
|
07/17/74
|
06/30/75
|
American Manufacturers Mutual
|
4SG-010001
|
6
|
|
06/30/75
|
06/30/76
|
American Manufacturers Mutual
|
4SG-010001
|
8
|
|
06/30/76
|
06/30/77
|
American Manufacturers Mutual
|
4SG-010001
|
7
|
|
10/20/68
|
10/20/69
|
American Reinsurance Co
|
M0085374
|
4
|
|
10/20/69
|
10/20/70
|
American Reinsurance Co
|
M0085374
|
4
|
|
10/20/70
|
06/30/71
|
American Reinsurance Co
|
M0085374
|
4
|
|
06/30/71
|
06/30/72
|
American Reinsurance Co
|
M0085374
|
4
|
|
06/30/72
|
06/30/73
|
American Reinsurance Co
|
M0085374
|
4
|
|
06/30/73
|
06/30/74
|
American Reinsurance Co
|
M0085374
|
4
|
|
06/30/74
|
06/30/75
|
American Reinsurance Co
|
M1025776
|
3
|
|
06/30/75
|
06/30/76
|
American Reinsurance Co
|
M1025776
|
5
|
|
06/30/76
|
06/30/77
|
American Reinsurance Co
|
M1025776
|
4
|
|
01/27/65
|
10/20/65
|
American Reinsurance Co
|
M-6672-0001
|
5
|
|
05/17/66
|
10/20/66
|
American Reinsurance Co
|
M-6672-0002
|
6
|
|
10/20/66
|
10/20/67
|
American Reinsurance Co
|
M-6672-0002
|
6
|
|
10/20/67
|
10/20/68
|
American Reinsurance Co
|
M-6672-0002
|
6
|
|
06/30/84
|
06/30/85
|
Ancon Ins. Co. (U.K.)
|
KY048183
|
3
|
|
05/17/66
|
10/20/66
|
Andrew Weir Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
Andrew Weir Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
Andrew Weir Ins. Co. Ltd.
|
66/180390
|
8
|
|
06/30/84
|
06/30/85
|
Arab Ins. Group
|
3900077100
|
5
|
|
06/30/74
|
06/30/75
|
Argonaut Northwest Ins. Co.
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
Argonaut Northwest Ins. Co.
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
Argonaut Northwest Ins. Co.
|
74DD662C
|
4
|
|
07/17/74
|
06/30/75
|
Argonaut Northwest Ins. Co.
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
Argonaut Northwest Ins. Co.
|
74DD663C
|
8
|
|
06/30/76
|
06/30/77
|
Assicurazioni Generali S.p.A.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Assicurazioni Generali S.p.A.
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
Assicurazioni Generali S.p.A.
|
76DD1595C
|
2
|
|
06/30/79
|
06/30/80
|
Associated International
|
AEL00208C
|
6
|
|
06/30/80
|
06/30/81
|
Associated International
|
AEL00208C
|
6
|
|
06/30/81
|
06/30/82
|
Associated International
|
AEL00208C
|
6
|
|
06/30/84
|
06/30/85
|
Atlanta Int’l Ins. Co.
|
XL06282
|
|
|
06/30/76
|
06/30/77
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/77
|
06/30/78
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/78
|
06/30/79
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/76
|
06/30/77
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
77DD1631C
|
4
|
|
06/30/77
|
06/30/78
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
77DD1632C
|
5
|
|
06/30/78
|
06/30/79
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
78DD1417C
|
3
|
|
06/30/78
|
06/30/79
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
78DD1418C
|
4
|
|
06/30/79
|
06/30/80
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/80
|
06/30/81
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/81
|
06/30/82
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/79
|
06/30/80
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
79DD1634C
|
2
|
|
06/30/79
|
06/30/80
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
79DD1635C
|
3
|
|
06/30/79
|
06/30/80
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
79DD1636C
|
4
|
|
06/30/80
|
06/30/81
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/81
|
06/30/82
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/80
|
06/30/81
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
80DD1645C
|
4
|
|
06/30/79
|
06/30/80
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
DM025 A/B
|
6
|
|
06/30/79
|
06/30/80
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
DM025. A/B
|
7
|
|
06/30/80
|
06/30/81
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KJ10029
|
7
|
|
06/30/80
|
06/30/81
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KJ10029.
|
3
|
|
06/30/80
|
06/30/81
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KJ10029..
|
6
|
|
06/30/81
|
06/30/82
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KJ10040
|
6
|
|
06/30/81
|
06/30/82
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KJ10040.
|
3
|
|
06/30/81
|
06/30/82
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KJ10040..
|
7
|
|
06/30/82
|
06/30/83
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/83
|
06/30/84
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/84
|
06/30/85
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/82
|
06/30/83
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/83
|
06/30/84
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/84
|
06/30/85
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/82
|
06/30/83
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KY017782
|
3
|
|
06/30/83
|
06/30/84
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/84
|
06/30/85
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/81
|
06/30/82
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
PY030181
|
3
|
|
06/30/81
|
06/30/82
|
Bermuda Fire & Marine Ins. Co. Ltd.
|
PY030281
|
4
|
|
06/30/78
|
06/30/79
|
Birmingham Fire Ins Co
|
SE6073371
|
7
|
|
06/30/79
|
06/30/80
|
Birmingham Fire Ins Co
|
SE6073508
|
6
|
|
06/30/80
|
06/30/81
|
Birmingham Fire Ins Co
|
SE6073646
|
6
|
|
06/30/81
|
06/30/82
|
Birmingham Fire Ins Co
|
SE6073657
|
6
|
|
06/30/82
|
06/30/83
|
Birmingham Fire Ins Co
|
SE6073957
|
4
|
|
06/30/83
|
06/30/84
|
Birmingham Fire Ins Co
|
SE6074116
|
4
|
|
06/30/83
|
06/30/84
|
Birmingham Fire Ins Co
|
SE6074145
|
3
|
|
06/30/83
|
06/30/84
|
Birmingham Fire Ins Co
|
SE6074146
|
4
|
|
06/30/84
|
06/30/85
|
Birmingham Fire Ins Co
|
SE6074398
|
3
|
|
06/30/84
|
06/30/85
|
Birmingham Fire Ins Co
|
SE6074318
|
4
|
|
06/30/74
|
06/30/75
|
Bishopsgate Ins. Co. Ltd.
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
Bishopsgate Ins. Co. Ltd.
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
Bishopsgate Ins. Co. Ltd.
|
74DD662C
|
4
|
|
07/17/74
|
06/30/75
|
Bishopsgate Ins. Co. Ltd.
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
Bishopsgate Ins. Co. Ltd.
|
74DD663C
|
8
|
|
07/17/74
|
06/30/75
|
Boston Old Colony Ins Co
|
LX2666569
|
5
|
|
06/30/75
|
06/30/76
|
Boston Old Colony Ins Co
|
LX2666569
|
7
|
|
06/30/76
|
06/30/77
|
Boston Old Colony Ins Co
|
LX2666569
|
6
|
|
05/17/66
|
10/20/66
|
British National Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
British National Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
British National Ins. Co. Ltd.
|
66/180390
|
8
|
|
06/30/83
|
06/30/84
|
British National Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/84
|
06/30/85
|
British National Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/83
|
06/30/84
|
British National Ins. Co. Ltd.
|
KY048283
|
4
|
|
10/20/68
|
10/20/69
|
British Northwestern
|
411-4307
|
4
|
|
10/20/69
|
11/14/69
|
British Northwestern
|
411-4307
|
4
|
|
11/14/69
|
10/20/70
|
British Northwestern
|
411-4307.
|
4
|
|
10/20/70
|
06/30/71
|
British Northwestern
|
411-4307.
|
4
|
|
06/30/80
|
06/30/81
|
Bryanston Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/81
|
06/30/82
|
Bryanston Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/80
|
06/30/81
|
Bryanston Ins. Co. Ltd.
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
Bryanston Ins. Co. Ltd.
|
80DD1645C
|
4
|
|
06/30/81
|
06/30/82
|
Bryanston Ins. Co. Ltd.
|
PY030181
|
3
|
|
06/30/81
|
06/30/82
|
Bryanston Ins. Co. Ltd.
|
PY030281
|
4
|
|
06/30/81
|
06/30/82
|
Buffalo Reinsurance
|
BR507551
|
7
|
|
06/30/82
|
06/30/83
|
Buffalo Reinsurance
|
BR508040
|
5
|
|
06/30/79
|
06/30/80
|
C.A.M.A.T.
|
79DD1638C
|
7
|
|
06/30/75
|
06/30/76
|
California Union Ins Co
|
ZCX001391/75DD1065C
|
3
|
|
06/30/84
|
06/30/85
|
California Union Ins Co
|
ZCX007225
|
5
|
|
07/17/74
|
06/30/75
|
Centennial Ins Co
|
462013040
|
6
|
|
06/30/75
|
06/30/76
|
Centennial Ins Co
|
462013040
|
8
|
|
06/30/76
|
06/30/77
|
Centennial Ins Co
|
462013040
|
7
|
|
06/30/77
|
06/30/78
|
Centennial Ins Co
|
462-01-68-10
|
8
|
|
06/30/78
|
06/30/79
|
Centennial Ins Co
|
462017826
|
7
|
|
06/30/79
|
06/30/80
|
Centennial Ins Co
|
462019494
|
6
|
|
06/30/81
|
06/30/82
|
Centennial Ins Co
|
462021419
|
6
|
|
06/30/80
|
06/30/81
|
Centennial Ins Co
|
462023810
|
6
|
|
06/30/82
|
06/30/83
|
Centennial Ins Co
|
462023979
|
4
|
|
06/30/75
|
06/30/76
|
Central National Ins Co
|
CNU123383
|
2
|
|
06/30/83
|
06/30/84
|
Century Indemnity Co
|
CIZ426249
|
4
|
|
06/30/80
|
06/30/81
|
Cie Europeene D’Ass. Industrielles
|
80DD1643C
|
2
|
|
06/30/81
|
06/30/82
|
Cie Europeene D’Ass. Industrielles
|
80DD1643C
|
2
|
|
06/30/80
|
06/30/81
|
Cie Europeene D’Ass. Industrielles
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
Cie Europeene D’Ass. Industrielles
|
80DD1645C
|
4
|
|
06/30/82
|
06/30/83
|
Cie Europeene D’Ass. Industrielles
|
KY017582
|
1
|
|
06/30/83
|
06/30/84
|
Cie Europeene D’Ass. Industrielles
|
KY017582
|
1
|
|
06/30/84
|
06/30/85
|
Cie Europeene D’Ass. Industrielles
|
KY017582
|
1
|
|
06/30/82
|
06/30/83
|
Cie Europeene D’Ass. Industrielles
|
KY017782
|
2
|
|
06/30/83
|
06/30/84
|
Cie Europeene D’Ass. Industrielles
|
KYOI7782
|
2
|
|
06/30/84
|
06/30/85
|
Cie Europeene D’Ass. Industrielles
|
KY017782
|
2
|
|
06/30/82
|
06/30/83
|
Cie Europeene D’Ass. Industrielles
|
KY017882
|
3
|
|
06/30/83
|
06/30/84
|
Cie Europeene D’Ass. Industrielles
|
KY048183
|
3
|
|
06/30/84
|
06/30/85
|
Cie Europeene D’Ass. Industrielles
|
KY048183
|
3
|
|
06/30/81
|
06/30/82
|
Cie Europeene D’Ass. Industrielles
|
PY030181
|
3
|
|
06/30/81
|
06/30/82
|
Cie Europeene D’Ass. Industrielles
|
PY030281
|
4
|
|
06/30/77
|
06/30/78
|
CNA Reinsurance of London Ltd.
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
CNA Reinsurance of London Ltd.
|
76DD1595C
|
2
|
|
11/01/81
|
06/30/82
|
CNA Reinsurance of London Ltd.
|
KY003382
|
5
|
|
06/30/79
|
06/30/80
|
Continental Casualty Co.
|
RDX1784282
|
7
|
|
06/30/84
|
06/30/85
|
Continental Casualty Co.
|
RDX1784529
|
2
|
|
06/30/84
|
06/30/85
|
Continental Casualty Co.
|
RDX1784530
|
5
|
|
06/30/80
|
06/30/81
|
Continental Casualty Co.
|
RDX1784981
|
7
|
|
06/30/81
|
06/30/82
|
Continental Casualty Co.
|
RDX1784981
|
7
|
|
06/30/82
|
06/30/83
|
Continental Casualty Co.
|
RDX1785056
|
5
|
|
06/30/83
|
06/30/84
|
Continental Casualty Co.
|
RDX1785096
|
5
|
|
06/30/77
|
06/30/78
|
Continental Casualty Co.
|
RDX1788117
|
7
|
|
06/30/77
|
06/30/78
|
Continental Casualty Co.
|
RDX1788118
|
8
|
|
08/09/73
|
06/30/74
|
Continental Casualty Co.
|
RDX8936833
|
3
|
|
06/30/74
|
06/30/75
|
Continental Casualty Co.
|
RDX9156645
|
2
|
|
06/30/75
|
06/30/76
|
Continental Casualty Co.
|
RDX9156645
|
4
|
|
06/30/76
|
06/30/77
|
Continental Casualty Co.
|
RDX9156645
|
3
|
|
06/30/76
|
06/30/83
|
Continental Casualty Company
|
CCP2483440
|
Primary
|
|
06/30/83
|
06/30/87
|
Continental Casualty Company
|
CCP2483440
|
Primary
|
|
06/30/73
|
06/30/76
|
Continental Casualty Company
|
CCP9023670
|
Primary
|
|
06/30/82
|
06/30/83
|
Continental Ins Co
|
SRX1591702
|
5
|
|
06/30/83
|
06/30/84
|
Continental Ins Co
|
SRX1591976
|
5
|
|
06/30/81
|
06/30/82
|
Continental Ins Co
|
SRX3193093
|
8
|
|
06/30/84
|
06/30/85
|
Continental Ins Co
|
SRX1592218
|
5
|
|
06/30/83
|
06/30/84
|
Dairyland Insurance Co
|
XL17275
|
4
|
|
05/17/66
|
10/20/66
|
Dominion Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
Dominion Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
Dominion Ins. Co. Ltd.
|
66/180390
|
8
|
|
06/30/79
|
06/30/80
|
Dominion Ins. Co. Ltd.
|
79DD1638C
|
7
|
|
06/30/80
|
06/30/81
|
Dominion Ins. Co. Ltd.
|
80DD1647C
|
7
|
|
06/30/77
|
06/30/78
|
Eisen Und Stahl
|
6-1-31-181-001
|
8
|
|
06/30/79
|
06/30/80
|
El Paso Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/80
|
06/30/81
|
El Paso Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/81
|
06/30/82
|
El Paso Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/79
|
06/30/80
|
El Paso Ins. Co. Ltd.
|
79DD1634C
|
2
|
|
06/30/79
|
06/30/80
|
El Paso Ins. Co. Ltd.
|
79DD1635C
|
3
|
|
06/30/79
|
06/30/80
|
El Paso Ins. Co. Ltd.
|
79DD1636C
|
4
|
|
06/30/81
|
06/30/82
|
El Paso Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/80
|
06/30/81
|
El Paso Ins. Co. Ltd.
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
El Paso Ins. Co. Ltd.
|
80DD1645C
|
4
|
|
06/30/82
|
06/30/83
|
El Paso Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/83
|
06/30/84
|
El Paso Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/84
|
06/30/85
|
El Paso Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/82
|
06/30/83
|
El Paso Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/83
|
06/30/84
|
El Paso Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/84
|
06/30/85
|
El Paso Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/82
|
06/30/83
|
El Paso Ins. Co. Ltd.
|
KY017882
|
3
|
|
06/30/83
|
06/30/84
|
El Paso Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/84
|
06/30/85
|
El Paso Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/81
|
06/30/82
|
El Paso Ins. Co. Ltd.
|
PY030181
|
3
|
|
06/30/81
|
06/30/82
|
El Paso Ins. Co. Ltd.
|
PY030281
|
4
|
|
06/30/71
|
06/30/72
|
Employers Comm’l Union
|
EY8220005
|
1
|
|
06/30/72
|
06/30/73
|
Employers Comm’l Union
|
EY8220005
|
1
|
|
06/30/73
|
06/30/74
|
Employers Comm’l Union
|
EY8220005
|
1
|
|
06/30/71
|
06/30/72
|
Employers Comm’l Union
|
EY8220006
|
4
|
|
06/30/72
|
06/30/73
|
Employers Comm’l Union
|
EY8220006
|
4
|
|
06/30/73
|
06/30/74
|
Employers Comm’l Union
|
EY8220006
|
4
|
|
06/30/78
|
06/30/79
|
Employers Mutual Cas Co
|
MM0-70348
|
6
|
|
06/30/78
|
06/30/79
|
Employers Mutual Cas Co
|
MM0-70349
|
7
|
|
06/30/78
|
06/30/79
|
Employers Mutual Cas Co
|
MMO-70347
|
5
|
|
05/17/66
|
10/20/66
|
English & American Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
English & American Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
English & American Ins. Co. Ltd.
|
66/180390
|
8
|
|
06/30/77
|
06/30/78
|
English & American Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
English & American Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
English & American Ins. Co. Ltd.
|
77DD1826
|
8
|
|
06/30/80
|
06/30/81
|
English & American Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/81
|
06/30/82
|
English & American Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/82
|
06/30/83
|
English & American Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/83
|
06/30/84
|
English & American Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/84
|
06/30/85
|
English & American Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/79
|
06/30/80
|
European General
|
FU78819413178
|
6
|
|
06/30/80
|
06/30/81
|
European General
|
FU78819413180
|
6
|
|
06/30/79
|
06/30/80
|
European General
|
FU78819413679
|
7
|
|
06/30/80
|
06/30/81
|
European General
|
FU78819413680
|
7
|
|
06/30/84
|
06/30/85
|
Evanston Ins. Co.
|
EX11452
|
4
|
|
06/30/84
|
06/30/85
|
Evanston Ins. Co.
|
EX11453
|
5
|
|
06/30/77
|
06/30/78
|
Federal Insurance Co
|
#VALUE!
|
8
|
|
06/30/78
|
06/30/79
|
Federal Insurance Co
|
#VALUE!
|
7
|
|
06/30/79
|
06/30/80
|
Federal Insurance Co
|
#VALUE!
|
6
|
|
06/30/79
|
06/30/80
|
Federal Insurance Co
|
#VALUE!
|
7
|
|
06/30/80
|
06/30/81
|
Federal Insurance Co
|
#VALUE!
|
6
|
|
06/30/80
|
06/30/81
|
Federal Insurance Co
|
#VALUE!
|
7
|
|
06/30/81
|
06/30/82
|
Federal Insurance Co
|
#VALUE!
|
6
|
|
06/30/81
|
06/30/82
|
Federal Insurance Co
|
#VALUE!
|
7
|
|
07/17/74
|
06/30/75
|
Federal Insurance Co
|
79221530
|
6
|
|
06/30/75
|
06/30/76
|
Federal Insurance Co
|
79221530
|
8
|
|
06/30/76
|
06/30/77
|
Federal Insurance Co
|
79221530
|
7
|
|
06/30/84
|
06/30/85
|
Federal Insurance Co
|
7928-26-20
|
3
|
|
06/30/84
|
06/30/85
|
Federal Insurance Co
|
7928-26-20.
|
5
|
|
01/27/65
05/17/66
|
10/20/65
10/20/66
|
Fireman’s Fund
Fireman’s Fund
|
XL76937
XL91085
|
4
7
|
|
10/20/66
|
10/20/67
|
Fireman’s Fund
|
XL91085
|
7
|
|
10/20/67
|
10/20/68
|
Fireman’s Fund
|
XL91085
|
7
|
|
10/20/68
|
10/20/69
|
Fireman’s Fund
|
XLX1026877
|
4
|
|
10/20/69
|
10/20/70
|
Fireman’s Fund
|
XLX1026877
|
4
|
|
10/20/70
|
06/30/71
|
Fireman’s Fund
|
XLX1026877
|
4
|
|
06/30/76
|
06/30/77
|
Fireman’s Fund
|
XLX1202930
|
6
|
|
06/30/77
|
06/30/78
|
Fireman’s Fund
|
XLX1299553
|
7
|
|
06/30/78
|
06/30/79
|
Fireman’s Fund
|
XLX1362955
|
6
|
|
06/30/79
|
06/30/80
|
Fireman’s Fund
|
XLX1370426
|
6
|
|
06/30/79
|
06/30/80
|
Fireman’s Fund
|
XLX1370427
|
7
|
|
06/30/80
|
06/30/81
|
Fireman’s Fund
|
XLX1437060
|
6
|
|
06/30/80
|
06/30/81
|
Fireman’s Fund
|
XLX1437061
|
7
|
|
06/30/81
|
06/30/82
|
Fireman’s Fund
|
XLX1481490
|
6
|
|
06/30/81
|
06/30/82
|
Fireman’s Fund
|
XLX1481491
|
7
|
|
06/30/81
|
06/30/82
|
Fireman’s Fund
|
XLX1481492
|
8
|
|
06/30/83
|
06/30/84
|
Fireman’s Fund
|
XLX1532227
|
4
|
|
06/30/83
|
06/30/84
|
Fireman’s Fund
|
XLX1532228
|
5
|
|
06/30/84
|
06/30/85
|
Fireman’s Fund
|
XLX1688067
|
5
|
|
06/30/82
|
06/30/83
|
Fireman’s Fund
|
XLX1532474
|
4
|
|
06/30/82
|
06/30/83
|
Fireman’s Fund
|
XLX1532475
|
5
|
|
06/30/75
|
06/30/76
|
First State Ins Co
|
922099
|
3
|
|
06/30/76
|
06/30/77
|
First State Ins Co
|
923099
|
4
|
|
06/30/76
|
06/30/77
|
First State Ins Co
|
923100
|
6
|
|
06/30/84
|
06/30/85
|
First State Ins Co
|
EU001538
|
5
|
|
06/30/84
|
06/30/85
|
Folksam International Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/81
|
06/30/82
|
GEICO
|
GXU30031
|
8
|
|
06/30/82
|
06/30/83
|
GEICO
|
GXU30152
|
5
|
|
06/30/83
|
06/30/84
|
GEICO
|
GXU30267
|
5
|
|
06/30/78
|
06/30/79
|
Gerling Konzem Ins
|
01/49/99/6282
|
3
|
|
06/30/81
|
06/30/82
|
Gerling Konzem Ins
|
49/6409/01
|
3
|
|
06/30/82
|
06/30/83
|
Gerling Konzem Ins
|
49/6409/01
|
3
|
|
06/30/83
|
06/30/84
|
Gerling Konzem Ins
|
49/6409/01
|
3
|
|
06/30/77
|
06/30/78
|
Gerling Konzem Ins
|
49/99/6212/01
|
5
|
|
06/30/79
|
06/30/80
|
Gerling Konzem Ins
|
49/99/6340/01.
|
3
|
|
06/30/80
|
06/30/81
|
Gerling Konzem Ins
|
49/99/6409/01.
|
3
|
|
06/30/80
|
06/30/81
|
Gibraltar Cas. Co.
|
GMX00656
|
5
|
|
06/30/81
|
11/01/81
|
Gibraltar Cas. Co.
|
GMX01275
|
5
|
|
11/01/81
|
06/30/82
|
Gibraltar Cas. Co.
|
GMX01407
|
|
|
06/30/82
|
06/30/83
|
Gibraltar Cas. Co.
|
GMX01784
|
|
|
06/30/83
|
06/30/84
|
Gibraltar Cas. Co.
|
GMX02269
|
|
|
06/30/84
|
06/30/85
|
Gibraltar Cas. Co.
|
GMX02683
|
5
|
|
06/30/78
|
06/30/79
|
Granite State Ins
|
61780491
|
3
|
|
06/30/78
|
06/30/79
|
Granite State Ins
|
61780492
|
4
|
|
06/30/78
|
06/30/79
|
Granite State Ins
|
6178-0493
|
6
|
|
06/30/79
|
06/30/80
|
Granite State Ins
|
61791383
|
2
|
|
06/30/79
|
06/30/80
|
Granite State Ins
|
61791384
|
3
|
|
06/30/79
|
06/30/80
|
Granite State Ins
|
61791385
|
4
|
|
06/30/79
|
06/30/80
|
Granite State Ins
|
61791386
|
5
|
|
06/30/80
|
06/30/81
|
Granite State Ins
|
6480-5013
|
2
|
|
06/30/80
|
06/30/81
|
Granite State Ins
|
6480-5014
|
3
|
|
06/30/80
|
06/30/81
|
Granite State Ins
|
6480-5015
|
4
|
|
06/30/80
|
06/30/81
|
Granite State Ins
|
6480-5016
|
5
|
|
06/30/81
|
06/30/82
|
Granite State Ins
|
6481-5220
|
2
|
|
06/30/81
|
06/30/82
|
Granite State Ins
|
6481-5221
|
3
|
|
06/30/81
|
06/30/82
|
Granite State Ins
|
6481-5222
|
4
|
|
06/30/81
|
06/30/82
|
Granite State Ins
|
6481-5223
|
5
|
|
06/30/82
|
06/30/83
|
Granite State Ins
|
6482-5442
|
2
|
|
06/30/82
|
06/30/83
|
Granite State Ins
|
6482-5443
|
3
|
|
06/30/82
|
06/30/83
|
Granite State Ins
|
6482-5444
|
4
|
|
06/30/83
|
06/30/84
|
Granite State Ins
|
6483-5666
|
2
|
|
06/30/83
|
06/30/84
|
Granite State Ins
|
6483-5667
|
3
|
|
06/30/83
|
06/30/84
|
Granite State Ins
|
6483-5668
|
4
|
|
06/30/84
|
06/30/85
|
Granite State Ins
|
6484-5866
|
3
|
|
06/30/84
|
06/30/85
|
Granite State Ins
|
6484-5867
|
2
|
|
06/30/84
|
06/30/85
|
Granite State Ins
|
6484-5890
|
4
|
|
06/30/77
|
06/30/78
|
Granite State Ins
|
SCLD8093266
|
5
|
|
06/30/77
|
06/30/78
|
Granite State Ins
|
SCLD80-93292
|
8
|
|
06/30/76
|
06/30/77
|
Granite State Ins
|
SCLD80-93954
|
4
|
|
06/30/82
|
06/30/83
|
Guarantee Insurance Co
|
SL0950030
|
3
|
|
06/30/82
|
06/30/83
|
Guarantee Insurance Co
|
SL0950031
|
4
|
|
06/30/79
|
06/30/80
|
Haftpflichtverband
|
EWI1016
|
7
|
|
06/30/80
|
06/30/81
|
Haftpflichtverband
|
EWI-1030
|
7
|
|
06/30/84
|
06/30/85
|
Haftpflichtverband
|
EWI1067
|
4
|
|
07/17/74
|
06/30/75
|
Harbor Insurance Co
|
120346
|
6
|
|
06/30/75
|
06/30/76
|
Harbor Insurance Co
|
120346
|
8
|
|
06/30/76
|
06/30/77
|
Harbor Insurance Co
|
120346
|
7
|
|
06/30/76
|
06/30/77
|
Hartford Insurance
|
10XS100043
|
4
|
|
06/30/76
|
06/30/77
|
Hartford Insurance
|
10XS100044
|
5
|
|
06/30/77
|
06/30/78
|
Hartford Insurance
|
10XS100176
|
5
|
|
06/30/77
|
06/30/78
|
Hartford Insurance
|
10XS100181
|
8
|
|
06/30/78
|
06/30/79
|
Hartford Insurance
|
10XS100665
|
7
|
|
06/30/78
|
06/30/79
|
Hartford Insurance
|
10XS100666
|
4
|
|
06/30/79
|
06/30/80
|
Hartford Insurance
|
10XS100841
|
5
|
|
06/30/79
|
06/30/80
|
Hartford Insurance
|
10XS100842
|
3
|
|
06/30/79
|
06/30/80
|
Hartford Insurance
|
10XS100843
|
6
|
|
06/30/80
|
06/30/81
|
Hartford Insurance
|
10XS100988
|
5
|
|
06/30/80
|
06/30/81
|
Hartford Insurance
|
10XS100989
|
6
|
|
06/30/80
|
06/30/81
|
Hartford Insurance
|
10XS100990
|
3
|
|
06/30/81
|
06/30/82
|
Hartford Insurance
|
10XS102369
|
3
|
|
06/30/82
|
06/30/83
|
Hartford Insurance
|
10XS102369
|
3
|
|
06/30/83
|
06/30/84
|
Hartford Insurance
|
10XS102369
|
3
|
|
06/30/81
|
06/30/82
|
Hartford Insurance
|
10XS102370
|
5
|
|
06/30/82
|
06/30/83
|
Hartford Insurance
|
10XS102370
|
4
|
|
06/30/83
|
06/30/84
|
Hartford Insurance
|
10XS102370
|
4
|
|
06/30/84
|
06/30/85
|
Hartford Insurance
|
10XS103326
|
4
|
|
06/30/81
|
06/30/82
|
Hartford Insurance
|
10XS102371
|
6
|
|
06/30/74
|
06/30/75
|
Highlands Ins. Co.
|
74DD662C
|
3
|
|
06/30/74
|
06/30/75
|
Highlands Ins. Co.
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
Highlands Ins. Co.
|
74DD662C
|
5
|
|
06/30/75
|
06/30/76
|
Highlands Ins. Co.
|
74DD662C
|
5
|
|
07/17/74
|
06/30/75
|
Highlands Ins. Co.
|
74DD663C
|
6
|
|
07/17/74
|
06/30/75
|
Highlands Ins. Co.
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
Highlands Ins. Co.
|
74DD663C
|
8
|
|
06/30/75
|
06/30/76
|
Highlands Ins. Co.
|
74DD663C
|
8
|
|
06/30/75
06/30/74
|
06/30/76
06/30/75
|
Highlands Ins. Co.
Highlands Ins. Co.
|
SR10579
SR10579
|
3
5
|
|
07/17/74
|
06/30/75
|
Highlands Ins. Co.
|
SR10580
|
5
|
|
06/30/75
|
06/30/76
|
Highlands Ins. Co.
|
SR10580
|
7
|
|
06/30/81
|
06/30/82
|
Home Insurance Co
|
HEC1198525 (CITY)
|
8
|
|
06/30/81
|
06/30/82
|
Home Insurance Co
|
HEC1198526 (CITY)
|
7
|
|
06/30/82
|
06/30/83
|
Home Insurance Co
|
HEC1199602
|
5
|
|
02/27/73
|
06/30/73
|
Home Insurance Co
|
HEC4356740
|
5
|
|
06/30/73
|
06/30/74
|
Home Insurance Co
|
HEC4356740
|
5
|
|
06/30/74
|
06/30/75
|
Home Insurance Co
|
HEC4356740
|
4
|
|
06/30/75
|
06/30/76
|
Home Insurance Co
|
HEC4356740
|
6
|
|
06/30/76
|
06/30/77
|
Home Insurance Co
|
HEC4356740
|
5
|
|
06/30/77
|
06/30/78
|
Home Insurance Co
|
HEC4356740
|
6
|
|
07/17/74
|
06/30/75
|
Home Insurance Co
|
HEC4495872
|
5
|
|
06/30/75
|
06/30/76
|
Home Insurance Co
|
HEC4495872
|
7
|
|
06/30/76
|
06/30/77
|
Home Insurance Co
|
HEC4495872
|
6
|
|
06/30/77
|
06/30/78
|
Home Insurance Co
|
HEC4495872
|
7
|
|
l0/20/68
|
10/20/69
|
Home Insurance Co
|
HEC9304605
|
2
|
|
10/20/69
|
10/20/70
|
Home Insurance Co
|
HEC9304605
|
2
|
|
10/20/70
|
06/30/71
|
Home Insurance Co
|
HEC9304605
|
2
|
|
06/30/77
|
06/30/78
|
Home Insurance Co
|
HEC9531436
|
8
|
|
10/20/62
|
10/20/63
|
Home Insurance Co
|
HEC9543206
|
2
|
|
10/20/63
|
10/20/64
|
Home Insurance Co
|
HEC9543206
|
2
|
|
10/20/64
|
10/20/65
|
Home Insurance Co
|
HEC9543206
|
2
|
|
10/20/65
|
10/20/66
|
Home Insurance Co
|
HEC9544498
|
2
|
|
10/20/66
|
10/20/67
|
Home Insurance Co
|
HEC9544498
|
2
|
|
10/20/67
|
10/20/68
|
Home Insurance Co
|
HEC9544498
|
2
|
|
06/30/78
|
06/30/79
|
Home Insurance Co
|
HEC9694108 (CITY)
|
6
|
|
06/30/78
|
06/30/79
|
Home Insurance Co
|
HEC9694109
|
5
|
|
06/30/78
|
06/30/79
|
Home Insurance Co
|
HEC9694110 (CITY)
|
7
|
|
06/30/79
|
06/30/80
|
Home Insurance Co
|
HEC9826188 (CITY)
|
5
|
|
06/30/79
|
06/30/80
|
Home Insurance Co
|
HEC9826189 (CITY)
|
6
|
|
06/30/80
|
06/30/81
|
Home Insurance Co
|
HEC9826575 (CITY)
|
6
|
|
06/30/71
|
06/30/72
|
Home Insurance Co
|
HEC9919945
|
2
|
|
06/30/72
|
06/30/73
|
Home Insurance Co
|
HEC9919945
|
2
|
|
06/30/73
|
06/30/74
|
Home Insurance Co
|
HEC9919945
|
2
|
|
06/30/84
|
06/30/85
|
Home Insurance Co
|
HXL1638423
|
5
|
|
06/30/80
|
06/30/81
|
Ideal Mutual
|
52
|
5
|
|
06/30/81
|
06/30/82
|
Ideal Mutual
|
76
|
5
|
|
06/30/82
|
06/30/83
|
Ideal Mutual
|
109
|
4
|
|
06/30/83
|
06/30/84
|
Illinois National
|
886-7134
|
5
|
|
10/20/65
|
10/20/66
|
INA
|
XBC1834
|
3
|
|
10/20/66
|
10/20/67
|
INA
|
XBC1834
|
3
|
|
10/20/67
|
10/20/68
|
INA
|
XBC1834
|
3
|
|
10/20/68
|
10/20/69
|
INA
|
XBC1834
|
3
|
|
10/20/69
|
10/20/70
|
INA
|
XBC1834
|
3
|
|
10/20/70
|
06/30/71
|
INA
|
XBC1834
|
3
|
|
06/30/77
|
06/30/78
|
INA
|
XCP12378
|
8
|
|
06/30/78
|
06/30/79
|
INA
|
XCP14341
|
7
|
|
06/30/83
|
06/30/84
|
INA
|
XCP145667
|
5
|
|
06/30/84
|
06/30/85
|
INA
|
XCP156206
|
5
|
|
06/30/71
|
06/30/72
|
INA
|
XCP3745
|
3
|
|
06/30/72
|
06/30/73
|
INA
|
XCP3745
|
3
|
|
06/30/73
|
08/09/73
|
INA
|
XCP3745
|
3
|
|
06/30/84
|
06/30/85
|
Industrial Indemnity
|
JE8843126
|
4
|
|
06/30/84
|
06/30/85
|
Industrial Indemnity
|
JE8843127
|
5
|
|
06/30/76
|
06/30/77
|
Insurance Co State of PA
|
4176-7052
|
4
|
|
06/30/77
|
06/30/78
|
Insurance Co State of PA
|
4177-7981
|
5
|
|
06/30/77
|
06/30/78
|
Insurance Co State of PA
|
4177-7982
|
7
|
|
06/30/77
|
06/30/78
|
Insurance Co State of PA
|
SEP 396-3996
|
8
|
|
06/30/78
|
06/30/79
|
Integrity Insurance Co
|
XL200420
|
5
|
|
06/30/79
|
06/30/80
|
Integrity Insurance Co
|
XL200699
|
4
|
|
06/30/80
|
06/30/81
|
Integrity Insurance Co
|
XL201688
|
4
|
|
06/30/81
|
06/30/82
|
Integrity Insurance Co
|
XL203279
|
4
|
|
06/30/81
|
06/30/82
|
Integrity Insurance Co
|
XL203280
|
8
|
|
06/30/82
|
06/30/83
|
Integrity Insurance Co
|
XL204091
|
3
|
|
06/30/82
|
06/30/83
|
Integrity Insurance Co
|
XL204091.
|
5
|
|
06/30/83
|
06/30/84
|
Integrity Insurance Co
|
XL207784
|
3
|
|
06/30/84
|
06/30/85
|
Integrity Insurance Co
|
XL208627
|
3
|
|
06/30/84
|
06/30/85
|
International Insurance Co.
|
522-036121-5
|
3
|
|
06/30/79
|
06/30/80
|
Kraft Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/80
|
06/30/81
|
Kraft Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/81
|
06/30/82
|
Kraft Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/79
|
06/30/80
|
Kraft Ins. Co. Ltd.
|
79DD1634C
|
2
|
|
06/30/79
|
06/30/80
|
Kraft Ins. Co. Ltd.
|
79DD1635C
|
3
|
|
06/30/79
|
06/30/80
|
Kraft Ins. Co. Ltd.
|
79DD1636C
|
4
|
|
06/30/80
|
06/30/81
|
Kraft Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/81
|
06/30/82
|
Kraft Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/80
|
06/30/81
|
Kraft Ins. Co. Ltd.
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
Kraft Ins. Co. Ltd.
|
80DD1645C
|
4
|
|
06/30/82
|
06/30/83
|
Kraft Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/83
|
06/30/84
|
Kraft Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/84
|
06/30/85
|
Kraft Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/82
|
06/30/83
|
Kraft Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/83
|
06/30/84
|
Kraft Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/84
|
06/30/85
|
Kraft Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/82
|
06/30/83
|
Kraft Ins. Co. Ltd.
|
KY017882
|
3
|
|
06/30/83
|
06/30/84
|
Kraft Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/84
|
06/30/85
|
Kraft Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/81
|
06/30/82
|
Kraft Ins. Co. Ltd.
|
PY030181
|
3
|
|
06/30/81
|
06/30/82
|
Kraft Ins. Co. Ltd.
|
PY030281
|
4
|
|
06/30/74
|
06/30/75
|
Lexington Ins. Co.
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
Lexington Ins. Co.
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
Lexington Ins. Co.
|
74DD662C
|
4
|
|
06/30/76
|
06/30/77
|
Lexington Ins. Co.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Lexington Ins. Co.
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
Lexington Ins. Co.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Lexington Ins. Co.
|
77DD1631C
|
4
|
|
06/30/77
|
06/30/78
|
Lexington Ins. Co.
|
77DD1632C
|
5
|
|
06/30/78
|
06/30/79
|
Lexington Ins. Co.
|
78DD1417C
|
3
|
|
06/30/78
|
06/30/79
|
Lexington Ins. Co.
|
78DD1418C
|
4
|
|
06/30/79
|
06/30/80
|
Lexington Ins. Co.
|
79DD1634C
|
2
|
|
06/30/79
|
06/30/80
|
Lexington Ins. Co.
|
79DD1635C
|
3
|
|
06/30/79
|
06/30/80
|
Lexington Ins. Co.
|
79DD1638C
|
7
|
|
06/30/80
|
06/30/81
|
Lexington Ins. Co.
|
80DD1643C
|
2
|
|
06/30/81
|
06/30/82
|
Lexington Ins. Co.
|
80DD1643C
|
2
|
|
06/30/80
|
06/30/81
|
Lexington Ins. Co.
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
Lexington Ins. Co.
|
80DD1647C
|
7
|
|
11/01/81
|
06/30/82
|
Lexington Ins. Co.
|
KY003382
|
5
|
|
06/30/82
|
06/30/83
|
Lexington Ins. Co.
|
KY017782
|
2
|
|
06/30/83
|
06/30/84
|
Lexington Ins. Co.
|
KY017782
|
2
|
|
06/30/84
|
06/30/85
|
Lexington Ins. Co.
|
KY017782
|
2
|
|
06/30/82
|
06/30/83
|
Lexington Ins. Co.
|
KY017882
|
3
|
|
06/30/82
|
06/30/83
|
Lexington Ins. Co.
|
KY017982
|
4
|
|
06/30/83
|
06/30/84
|
Lexington Ins. Co.
|
KY048183
|
3
|
|
06/30/83
|
06/30/84
|
Lexington Ins. Co.
|
KY048283
|
4
|
|
06/30/81
|
06/30/82
|
Lexington Ins. Co.
|
PY030181
|
3
|
|
05/17/66
|
10/20/66
|
Lloyds Underwriters
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
Lloyds Underwriters
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
Lloyds Underwriters
|
66/180390
|
8
|
|
06/30/74
|
06/30/75
|
Lloyds Underwriters
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
Lloyds Underwriters
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
Lloyds Underwriters
|
74DD662C
|
4
|
|
07/17/74
|
06/30/75
|
Lloyds Underwriters
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
Lloyds Underwriters
|
74DD663C
|
8
|
|
06/30/76
|
06/30/77
|
Lloyds Underwriters
|
74DD663C
|
7
|
|
06/30/76
|
06/30/77
|
Lloyds Underwriters
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Lloyds Underwriters
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
Lloyds Underwriters
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Lloyds Underwriters
|
77DD1631C
|
4
|
|
06/30/77
|
06/30/78
|
Lloyds Underwriters
|
77DD1632C
|
5
|
|
06/30/77
|
06/30/78
|
Lloyds Underwriters
|
77DD1826
|
8
|
|
06/30/78
|
06/30/79
|
Lloyds Underwriters
|
78DD1417C
|
3
|
|
06/30/78
|
06/30/79
|
Lloyds Underwriters
|
78DD1418C
|
4
|
|
06/30/78
|
06/30/79
|
Lloyds Underwriters
|
78DD1419C
|
5
|
|
06/30/78
|
06/30/79
|
Lloyds Underwriters
|
78DD1420C
|
7
|
|
06/30/79
|
06/30/80
|
Lloyds Underwriters
|
79DD1634C
|
2
|
|
06/30/79
|
06/30/80
|
Lloyds Underwriters
|
79DD1635C
|
3
|
|
06/30/79
|
06/30/80
|
Lloyds Underwriters
|
79DD1636C
|
4
|
|
06/30/79
|
06/30/80
|
Lloyds Underwriters
|
79DD1637C
|
6
|
|
06/30/79
|
06/30/80
|
Lloyds Underwriters
|
79DD1638C
|
7
|
|
06/30/80
|
06/30/81
|
Lloyds Underwriters
|
80DD1643C
|
2
|
|
06/30/81
|
06/30/82
|
Lloyds Underwriters
|
80DD1643C
|
2
|
|
06/30/80
|
06/30/81
|
Lloyds Underwriters
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
Lloyds Underwriters
|
80DD1645C
|
4
|
|
06/30/80
|
06/30/81
|
Lloyds Underwriters
|
80DD1646C
|
6
|
|
06/30/80
|
06/30/81
|
Lloyds Underwriters
|
80DD1647C
|
7
|
|
11/14/69
|
10/20/70
|
Lloyds Underwriters
|
914/1/4116
|
4
|
|
10/20/70
|
06/30/71
|
Lloyds Underwriters
|
914/1/4116
|
4
|
|
10/20/68
|
10/20/69
|
Lloyds Underwriters
|
914-102502
|
4
|
|
10/20/69
|
10/20/70
|
Lloyds Underwriters
|
914-102502
|
4
|
|
10/20/70
|
06/30/71
|
Lloyds Underwriters
|
914-102502
|
4
|
|
06/30/71
|
06/30/72
|
Lloyds Underwriters
|
914105953
|
4
|
|
06/30/72
|
06/30/73
|
Lloyds Underwriters
|
914105953
|
4
|
|
06/30/73
|
06/30/74
|
Lloyds Underwriters
|
914105953
|
4
|
|
06/30/82
|
06/30/83
|
Lloyds Underwriters
|
KY017782
|
2
|
|
06/30/83
|
06/30/84
|
Lloyds Underwriters
|
KY017782
|
2
|
|
06/30/84
|
06/30/85
|
Lloyds Underwriters
|
KY017782
|
2
|
|
06/30/82
|
06/30/83
|
Lloyds Underwriters
|
KY017882
|
3
|
|
06/30/82
|
06/30/83
|
Lloyds Underwriters
|
KY017982
|
4
|
|
06/30/83
|
06/30/84
|
Lloyds Underwriters
|
KY048183
|
3
|
|
06/30/84
|
06/30/85
|
Lloyds Underwriters
|
KY048183
|
3
|
|
06/30/83
|
06/30/84
|
Lloyds Underwriters
|
KY048283
|
4
|
|
06/30/84
|
06/30/85
|
Lloyds Underwriters
|
KY048283
|
4
|
|
06/30/81
|
06/30/82
|
Lloyds Underwriters
|
PY030181
|
3
|
|
06/30/81
|
06/30/82
|
Lloyds Underwriters
|
PY030281
|
4
|
|
06/30/81
|
06/30/82
|
Lloyds Underwriters
|
PY030381
|
6
|
|
06/30/74
|
06/30/75
|
London & Edinburgh General Ins. Co.
|
74DD662C
|
3
|
|
06/30/74
|
06/30/75
|
London & Edinburgh General Ins. Co.
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
London & Edinburgh General Ins. Co.
|
74DD662C
|
5
|
|
06/30/75
|
06/30/76
|
London & Edinburgh General Ins. Co.
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
London & Edinburgh General Ins. Co.
|
74DD662C
|
4
|
|
06/30/76
|
06/30/77
|
London & Edinburgh General Ins. Co.
|
74DD662C
|
4
|
|
07/17/74
|
06/30/75
|
London & Edinburgh General Ins. Co.
|
74DD663C
|
6
|
|
07/17/74
|
06/30/75
|
London & Edinburgh General Ins. Co.
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
London & Edinburgh General Ins. Co.
|
74DD663C
|
8
|
|
06/30/75
|
06/30/76
|
London & Edinburgh General Ins. Co.
|
74DD663C
|
8
|
|
06/30/76
|
06/30/77
|
London & Edinburgh General Ins. Co.
|
74DD663C
|
7
|
|
05/17/66
|
10/20/66
|
London & Overseas Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
London & Overseas Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
London & Overseas Ins. Co. Ltd.
|
66/180390
|
8
|
|
06/30/82
|
06/30/83
|
London Guarantee & Acc
|
LX1898010
|
5
|
|
06/30/83
|
06/30/84
|
London Guarantee & Acc
|
LX2107836
|
5
|
|
06/30/81
|
06/30/82
|
London Guarantee & Acc
|
LX3193640
|
8
|
|
06/30/84
|
06/30/85
|
London Guarantee & Acc
|
LX2110809
|
4
|
|
06/30/80
|
06/30/81
|
Louisville Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/81
|
06/30/82
|
Louisville Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/80
|
06/30/81
|
Louisville Ins. Co. Ltd.
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
Louisville Ins. Co. Ltd.
|
80DD1645C
|
4
|
|
06/30/82
|
06/30/83
|
Louisville Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/83
|
06/30/84
|
Louisville Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/84
|
06/30/85
|
Louisville Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/82
|
06/30/83
|
Louisville Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/83
|
06/30/84
|
Louisville Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/84
|
06/30/85
|
Louisville Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/82
|
06/30/83
|
Louisville Ins. Co. Ltd.
|
KY017882
|
3
|
|
06/30/83
|
06/30/84
|
Louisville Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/84
|
06/30/85
|
Louisville Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/81
|
06/30/82
|
Louisville Ins. Co. Ltd.
|
PY030181
|
3
|
|
06/30/81
|
06/30/82
|
Louisville Ins. Co. Ltd.
|
PY030281
|
4
|
|
06/30/83
|
06/30/84
|
Ludgate Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/84
|
06/30/85
|
Ludgate Ins. Co. Ltd.
|
KY048183
|
3
|
|
10/20/68
|
10/20/69
|
Maryland Casualty Co.
|
WRG-1.
|
4
|
|
10/20/69
|
10/20/70
|
Maryland Casualty Co.
|
WRG-1.
|
4
|
|
10/20/70
|
06/30/71
|
Maryland Casualty Co.
|
WRG-1.
|
4
|
|
06/30/71
|
06/30/72
|
Maryland Casualty Co.
|
WRG-2
|
4
|
|
06/30/72
|
06/30/73
|
Maryland Casualty Co.
|
WRG-2
|
4
|
|
06/30/73
|
06/30/74
|
Maryland Casualty Co.
|
WRG-2
|
4
|
|
06/30/67
|
06/30/68
|
Maryland Casualty Company
|
31-278301
|
Primary
|
|
06/30/68
|
06/30/69
|
Maryland Casualty Company
|
31-278301
|
Primary
|
|
06/30/69
|
06/30/70
|
Maryland Casualty Company
|
31-278301
|
Primary
|
|
06/30/70
|
06/30/71
|
Maryland Casualty Company
|
31-R-911051
|
Primary
|
|
06/30/71
|
06/30/72
|
Maryland Casualty Company
|
31-R-911051
|
Primary
|
|
06/30/72
|
06/30/73
|
Maryland Casualty Company
|
31-R-911051
|
Primary
|
|
06/30/62
|
06/30/63
|
Maryland Casualty Company
|
96-205800
|
Primary
|
|
06/30/63
|
06/30/64
|
Maryland Casualty Company
|
96-224900
|
Primary
|
|
06/30/64
|
06/30/65
|
Maryland Casualty Company
|
96-243400
|
Primary
|
|
06/30/65
|
06/30/66
|
Maryland Casualty Company
|
96-257400
|
Primary
|
|
06/30/66
|
06/30/67
|
Maryland Casualty Company
|
96-269500
|
Primary
|
|
06/30/75
|
06/30/76
|
Mentor Ins. Co. (U.K.) Ltd.
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
Mentor Ins. Co. (U.K.) Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Mentor Ins. Co. (U.K.) Ltd.
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
Mentor Ins. Co. (U.K.) Ltd.
|
76DD1595C
|
2
|
|
06/30/79
|
06/30/80
|
Mentor Ins. Co. (U.K.) Ltd.
|
79DD1635C
|
3
|
|
06/30/74
|
06/30/75
|
Midland Insurance Co
|
111017056574-7
|
3
|
|
06/30/75
|
06/30/76
|
Midland Insurance Co
|
111017056574-7
|
5
|
|
06/30/76
|
06/30/77
|
Midland Insurance Co
|
111017056574-7
|
4
|
|
07/17/74
|
06/30/75
|
Midland Insurance Co
|
1110171611748
|
5
|
|
06/30/75
|
06/30/76
|
Midland Insurance Co
|
1110171611748
|
7
|
|
06/30/76
|
06/30/77
|
Midland Insurance Co
|
1110171611748
|
6
|
|
06/30/78
|
06/30/79
|
Midland Insurance Co
|
XL147450
|
7
|
|
06/30/79
|
06/30/80
|
Midland Insurance Co
|
XL147540
|
6
|
|
06/30/77
|
06/30/78
|
Midland Insurance Co
|
XL152467
|
8
|
|
06/30/71
|
06/30/72
|
Midland Insurance Co
|
XL1611 (WRG-2)
|
4
|
|
06/30/72
|
06/30/73
|
Midland Insurance Co
|
XL1611 (WRG-2)
|
4
|
|
06/30/73
|
06/30/74
|
Midland Insurance Co
|
XL1611 (WRG-2)
|
4
|
|
06/30/80
|
06/30/81
|
Midland Insurance Co
|
XL706665
|
6
|
|
06/30/81
|
06/30/82
|
Midland Insurance Co
|
XL724449
|
6
|
|
06/30/82
|
06/30/83
|
Midland Insurance Co
|
XL739548
|
4
|
|
06/30/83
|
06/30/84
|
Midland Insurance Co
|
XL748917
|
4
|
|
06/30/83
|
06/30/84
|
Midland Insurance Co
|
XL748919
|
5
|
|
06/30/84
|
06/30/85
|
Midland Insurance Co
|
XL770372
|
3
|
|
06/30/84
|
06/30/85
|
Midland Insurance Co
|
XL770373
|
4
|
|
05/17/66
|
10/20/66
|
Minster Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
Minster Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
Minster Ins. Co. Ltd.
|
66/180390
|
8
|
|
06/30/74
|
06/30/75
|
Mission Insurance Co
|
M81721
|
3
|
|
06/30/75
|
06/30/76
|
Mission Insurance Co
|
M81721
|
5
|
|
06/30/76
|
06/30/77
|
Mission Insurance Co
|
M81721.
|
4
|
|
07/17/74
|
06/30/75
|
Mission Insurance Co
|
M81722
|
5
|
|
06/30/75
|
06/30/76
|
Mission Insurance Co
|
M81722
|
7
|
|
06/30/76
|
06/30/77
|
Mission Insurance Co
|
M81722
|
6
|
|
06/30/81
|
06/30/82
|
Mission Insurance Co
|
M877286
|
8
|
|
06/30/82
|
06/30/83
|
Mission Insurance Co
|
M885801
|
5
|
|
06/30/76
|
06/30/77
|
Mutual Reinsurance Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/77
|
06/30/78
|
Mutual Reinsurance Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/78
|
06/30/79
|
Mutual Reinsurance Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/76
|
06/30/77
|
Mutual Reinsurance Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Mutual Reinsurance Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
Mutual Reinsurance Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Mutual Reinsurance Co. Ltd.
|
77DD1631C
|
4
|
|
06/30/77
|
06/30/78
|
Mutual Reinsurance Co. Ltd.
|
77DD1632C
|
5
|
|
06/30/78
|
06/30/79
|
Mutual Reinsurance Co. Ltd.
|
78DDl417C
|
3
|
|
06/30/78
|
06/30/79
|
Mutual Reinsurance Co. Ltd.
|
78DD1418C
|
4
|
|
06/30/79
|
06/30/80
|
Mutual Reinsurance Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/80
|
06/30/81
|
Mutual Reinsurance Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/81
|
06/30/82
|
Mutual Reinsurance Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/79
|
06/30/80
|
Mutual Reinsurance Co. Ltd.
|
79DDI634C
|
2
|
|
06/30/79
|
06/30/80
|
Mutual Reinsurance Co. Ltd.
|
79DDI635C
|
3
|
|
06/30/79
|
06/30/80
|
Mutual Reinsurance Co. Ltd.
|
79DD1636C
|
4
|
|
06/30/80
|
06/30/81
|
Mutual Reinsurance Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/81
|
06/30/82
|
Mutual Reinsurance Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/80
|
06/30/81
|
Mutual Reinsurance Co. Ltd.
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
Mutual Reinsurance Co. Ltd.
|
80DD1645C
|
4
|
|
06/30/82
|
06/30/83
|
Mutual Reinsurance Co. Ltd.
|
KY017582
|
1
|
|
06/30/83
|
06/30/84
|
Mutual Reinsurance Co. Ltd.
|
KY017582
|
1
|
|
06/30/84
|
06/30/85
|
Mutual Reinsurance Co. Ltd.
|
KY017582
|
1
|
|
06/30/82
|
06/30/83
|
Mutual Reinsurance Co. Ltd.
|
KY017782
|
2
|
|
06/30/83
|
06/30/84
|
Mutual Reinsurance Co. Ltd.
|
KY017782
|
2
|
|
06/30/84
|
06/30/85
|
Mutual Reinsurance Co. Ltd.
|
KY017782
|
2
|
|
06/30/82
|
06/30/83
|
Mutual Reinsurance Co. Ltd.
|
KY017882
|
3
|
|
06/30/83
|
06/30/84
|
Mutual Reinsurance Co. Ltd.
|
KY048183
|
3
|
|
06/30/84
|
06/30/85
|
Mutual Reinsurance Co. Ltd.
|
KY048183
|
3
|
|
06/30/81
|
06/30/82
|
Mutual Reinsurance Co. Ltd.
|
PY030181
|
3
|
|
06/30/81
|
06/30/82
|
Mutual Reinsurance Co. Ltd.
|
PY030281
|
4
|
|
06/30/74
|
06/30/75
|
National Casualty Co. of America
|
74DD662C
|
3
|
|
06/30/74
|
06/30/75
|
National Casualty Co. of America
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
National Casualty Co. of America
|
74DD662C
|
5
|
|
06/30/75
|
06/30/76
|
National Casualty Co. of America
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
National Casualty Co. of America
|
74DD662C
|
4
|
|
06/30/76
|
06/30/77
|
National Casualty Co. of America
|
74DD662C
|
4
|
|
07/17/74
|
06/30/75
|
National Casualty Co. of America
|
74DD663C
|
6
|
|
07/17/74
|
06/30/75
|
National Casualty Co. of America
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
National Casualty Co. of America
|
74DD663C
|
8
|
|
06/30/75
|
06/30/76
|
National Casualty Co. of America
|
74DD663C
|
8
|
|
06/30/83
|
06/30/84
|
National Casualty Co. of America
|
XU000042
|
5
|
|
06/30/77
|
06/30/78
|
Natl Union Fire Pttsbrgh
|
1228593
|
6
|
|
06/30/77
|
06/30/78
|
Natl Union Fire Pttsbrgh
|
1228593.
|
7
|
|
06/30/77
|
06/30/78
|
Natl Union Fire Pttsbrgh
|
1228593..
|
8
|
|
06/30/78
|
06/30/79
|
Natl Union Fire Pttsbrgh
|
1231895
|
5
|
|
06/30/78
|
06/30/79
|
Natl Union Fire Pttsbrgh
|
1231895.
|
6
|
|
06/30/78
|
06/30/79
|
Natl Union Fire Pttsbrgh
|
1231895..
|
7
|
|
06/30/81
|
06/30/82
|
Natl Union Fire Pttsbrgh
|
9602931
|
4
|
|
06/30/81
|
06/30/82
|
Nat] Union Fire Pttsbrgh
|
9602931.
|
5
|
|
06/30/81
|
06/30/82
|
Natl Union Fire Pttsbrgh
|
9602931..
|
6
|
|
06/30/81
|
06/30/82
|
Natl Union Fire Pttsbrgh
|
9602931…
|
7
|
|
06/30/82
|
06/30/83
|
Natl Union Fire Pttsbrgh
|
9603133
|
3
|
|
06/30/82
|
06/30/83
|
Natl Union Fire Pttsbrgh
|
9603133.
|
4
|
|
06/30/82
|
06/30/83
|
Natl Union Fire Pttsbrgh
|
9603133..
|
5
|
|
06/30/83
|
06/30/84
|
Natl Union Fire Pttsbrgh
|
9607141
|
3
|
|
06/30/83
|
06/30/84
|
Natl Union Fire Pttsbrgh
|
9607141.
|
4
|
|
06/30/83
|
06/30/84
|
Natl Union Fire Pttsbrgh
|
9607141..
|
5
|
|
06/30/84
|
06/30/85
|
Natl Union Fire Pttsbrgh
|
9607216
|
3
|
|
06/30/84
|
06/30/85
|
Natl Union Fire Pttsbrgh
|
9607216
|
5
|
|
06/30/79
|
06/30/80
|
Natl Union Fire Pttsbrgh
|
9782319
|
4
|
|
06/30/79
|
06/30/80
|
Natl Union Fire Pttsbrgh
|
9782319.
|
5
|
|
06/30/79
|
06/30/80
|
Natl Union Fire Pttsbrgh
|
9782319..
|
6
|
|
06/30/79
|
06/30/80
|
Natl Union Fire Pttsbrgh
|
9782319…
|
7
|
|
06/30/80
|
06/30/81
|
Natl Union Fire Pttsbrgh
|
9910362
|
4
|
|
06/30/80
|
06/30/81
|
Natl Union Fire Pttsbrgh
|
9910362.
|
5
|
|
06/30/80
|
06/30/81
|
Natl Union Fire Pttsbrgh
|
9910362..
|
6
|
|
06/30/80
|
06/30/81
|
Natl Union Fire Pttsbrgh
|
9910362…
|
7
|
|
06/30/84
|
06/30/85
|
New England Reinsurance
|
NE000081
|
4
|
|
06/30/84
|
06/30/85
|
New England Reinsurance
|
NE000082
|
5
|
|
06/30/75
|
06/30/76
|
New Hampshire Insurance
|
51750444
|
2
|
|
06/30/75
|
06/30/76
|
New Hampshire Insurance
|
51750445
|
3
|
|
07/17/74
|
06/30/75
|
North Atlantic Ins. Co. Ltd.
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
North Atlantic Ins. Co. Ltd.
|
74DD663C
|
8
|
|
06/30/76
|
06/30/77
|
North Atlantic Ins. Co. Ltd.
|
74DD663C
|
7
|
|
06/30/77
|
06/30/78
|
North Atlantic Ins. Co. Ltd.
|
77DD1826
|
8
|
|
06/30/78
|
06/30/79
|
North Atlantic Ins. Co. Ltd.
|
78DD1418C
|
4
|
|
06/30/78
|
06/30/79
|
North Atlantic Ins. Co. Ltd.
|
78DD1420C
|
7
|
|
06/30/79
|
06/30/80
|
North Atlantic Ins. Co. Ltd.
|
79DD1638C
|
7
|
|
06/30/80
|
06/30/81
|
North Atlantic Ins. Co. Ltd.
|
80DD1647C
|
7
|
|
07/17/74
|
06/01/75
|
North Star Reinsurance
|
NXS12398
|
6
|
|
06/30/75
|
06/30/76
|
Northbrook Ins Co
|
63001170
|
1
|
|
06/30/75
|
06/30/76
|
Northbrook Ins Co
|
63001171
|
2
|
|
06/30/75
|
06/30/76
|
Northbrook Ins Co
|
63001172
|
3
|
|
06/30/75
|
06/30/76
|
Northbrook Ins Co
|
63001173
|
6
|
|
06/30/76
|
06/30/77
|
Northbrook Ins Co
|
63002048
|
1
|
|
06/30/77
|
06/30/78
|
Northbrook Ins Co
|
63002048
|
1
|
|
06/30/78
|
06/30/79
|
Northbrook Ins Co
|
63002048
|
1
|
|
06/30/76
|
06/30/77
|
Northbrook Ins Co
|
63002049
|
5
|
|
06/30/77
|
06/30/78
|
Northbrook Ins Co
|
63003296
|
6
|
|
06/30/78
|
06/30/79
|
Northbrook Ins Co
|
63004784
|
5
|
|
06/30/79
|
06/30/80
|
Northbrook Ins Co
|
63005793
|
1
|
|
06/30/80
|
06/30/81
|
Northbrook Ins Co
|
63005793
|
1
|
|
06/30/81
|
06/30/82
|
Northbrook Ins Co
|
63005793
|
1
|
|
06/30/79
|
06/30/80
|
Northbrook Ins Co
|
63005794
|
2
|
|
06/30/79
|
06/30/80
|
Northbrook Ins Co
|
63005795
|
4
|
|
06/30/80
|
06/30/81
|
Northbrook Ins Co
|
63006854
|
2
|
|
06/30/80
|
06/30/81
|
Northbrook Ins Co
|
63006855
|
4
|
|
06/30/81
|
06/30/82
|
Northbrook Ins Co
|
63008153
|
2
|
|
06/30/81
|
06/30/82
|
Northbrook Ins Co
|
63008154
|
4
|
|
05/17/66
|
10/20/66
|
Orion Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
Orion Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
Orion Ins. Co. Ltd.
|
66/180390
|
8
|
|
06/30/84
|
06/30/85
|
Pacific Employers Ins Co
|
XCC012283
|
2
|
|
06/30/84
|
06/30/85
|
Pacific Employers Ins Co
|
XM0017204
|
1
|
|
06/30/84
|
06/30/85
|
Pacific Insurance Co.
|
P133100
|
5
|
|
06/30/81
|
06/30/82
|
Protective Nat’1 Ins Co
|
XUB1806925
|
7
|
|
06/30/82
|
06/30/83
|
Protective Nat’l Ins Co
|
XUB1807108
|
5
|
|
06/30/83
|
06/30/84
|
Protective Nat’l Ins Co
|
XUB1807216
|
5
|
|
06/30/76
|
06/30/77
|
Prudential Reinsurance
|
DXC901145
|
2
|
|
06/30/76
|
06/30/77
|
Prudential Reinsurance
|
DXC901146
|
5
|
|
06/30/76
|
06/30/77
|
Prudential Reinsurance
|
DXC901147
|
6
|
|
06/30/77
|
06/30/78
|
Prudential Reinsurance
|
DXCDX0250
|
3
|
|
06/30/77
|
06/30/78
|
Prudential Reinsurance
|
DXCDX0251
|
4
|
|
06/30/77
|
06/30/78
|
Prudential Reinsurance
|
DXCDX0252
|
5
|
|
06/30/84
|
06/30/85
|
Republic Insurance Co
|
CDE1000
|
4
|
|
06/30/83
|
06/30/84
|
Republic Insurance Co
|
CDE0749
|
4
|
|
06/30/83
|
06/30/84
|
Republic Insurance Co
|
CDE0750
|
5
|
|
06/30/77
|
06/30/78
|
Reunion-Adriatica
|
EL2046
|
7
|
|
06/30/78
|
06/30/79
|
Reunion-Adriatica
|
EL2787
|
6
|
|
06/30/79
|
06/30/80
|
Reunion-Adriatica
|
EL794120
|
5
|
|
06/30/80
|
06/30/81
|
Reunion-Adriatica
|
EL794416
|
5
|
|
04/01/60
|
04/01/61
|
Royal Indemnity Company
|
RLG021620
|
Primary
|
|
04/01/61
|
04/01/62
|
Royal Indemnity Company
|
RLG021621
|
Primary
|
|
04/01/62
|
04/01/63
|
Royal Indemnity Company
|
RLG021622
|
Primary
|
|
04/01/59
|
04/01160
|
Royal Indemnity Company
|
RLG021629
|
Primary
|
|
04/01/55
|
04/01/56
|
Royal Indemnity Company
|
RLG035805
|
Primary
|
|
04/01/56
|
04/01/57
|
Royal Indemnity Company
|
RLG045762
|
Primary
|
|
04/01/57
|
04/01/58
|
Royal Indemnity Company
|
RLG045836
|
Primary
|
|
04/01/58
|
04/01/59
|
Royal Indemnity Company
|
RLG053959
|
Primary
|
|
03/31/53
|
03/31/54
|
Royal Indemnity Company
|
RLG27635
|
Primary
|
|
03/31/54
|
04/01/55
|
Royal Indemnity Company
|
RLG31840
|
Primary
|
|
06/30/83
|
06/30/84
|
Royal Insurance Co
|
ED102071
|
5
|
|
06/30/83
|
06/30/84
|
Royal Insurance Co
|
ED102071.
|
4
|
|
06/30/84
|
06/30/85
|
Royal Insurance Co
|
ED102834
|
5
|
|
06/30/84
|
06/30/85
|
Royale Belge S.A.
|
1251427
|
4
|
|
06/30/77
|
06/30/78
|
Royale Belge S.A.
|
AVB102.
|
8
|
|
06/30/78
|
06/30/79
|
Royale Belge S.A.
|
AVB124.
|
7
|
|
06/30/84
|
06/30/85
|
Safety Mutual Cas. Co.
|
Ufl257NY
|
5
|
|
05/17/66
|
10/20/66
|
Sphere Drake Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
Sphere Drake Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
Sphere Drake Ins. Co. Ltd.
|
66/180390
|
8
|
|
05/17/66
|
10/20/66
|
St. Helens Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
St. Helens Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
St. Helens Ins. Co. Ltd.
|
66/180390
|
8
|
|
06/30/74
|
06/30/75
|
St. Katherine Ins. Co. Ltd.
|
74DD662C
|
3
|
|
06/30/74
|
06/30/75
|
St. Katherine Ins. Co. Ltd.
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
St. Katherine Ins. Co. Ltd.
|
74DD662C
|
5
|
|
06/30/75
|
06/30/76
|
St. Katherine Ins. Co. Ltd.
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
St. Katherine Ins. Co. Ltd.
|
74DD662C
|
4
|
|
06/30/76
|
06/30/77
|
St. Katherine Ins. Co. Ltd.
|
74DD662C
|
4
|
|
07/17/74
|
06/30/75
|
St. Katherine Ins. Co. Ltd.
|
74DD663C
|
6
|
|
07/17/74
|
06/30/75
|
St. Katherine Ins. Co. Ltd.
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
St. Katherine Ins. Co. Ltd.
|
74DD663C
|
8
|
|
06/30/75
|
06/30/76
|
St. Katherine Ins. Co. Ltd.
|
74DD663C
|
8
|
|
06/30/76
|
06/30/77
|
St. Katherine Ins. Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/76
|
06/30/77
|
St. Katherine Ins. Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/77
|
06/30/78
|
St. Katherine Ins. Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/77
|
06/30/78
|
St. Katherine Ins. Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/78
|
06/30/79
|
St. Katherine Ins. Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/78
|
06/30/79
|
St. Katherine Ins. Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/76
|
06/30/77
|
St. Katherine Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/76
|
06/30/77
|
St. Katherine Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
St. Katherine Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
St. Katherine Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
St. Katherine Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
St. Katherine Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
St. Katherine Ins. Co. Ltd.
|
77DD1631C
|
4
|
|
06/30/77
|
06/30/78
|
St. Katherine Ins. Co. Ltd.
|
77DD1631C
|
4
|
|
06/30/77
|
06/30/78
|
St. Katherine Ins. Co. Ltd.
|
77DD1632C
|
5
|
|
06/30/77
|
06/30/78
|
St. Katherine Ins. Co. Ltd.
|
77DD1632C
|
5
|
|
06/30/78
|
06/30/79
|
St. Katherine Ins. Co. Ltd.
|
78DD1417C
|
3
|
|
06/30/78
|
06/30/79
|
St. Katherine Ins. Co. Ltd.
|
78DD1418C
|
4
|
|
06/30/79
|
06/30/80
|
St. Katherine Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/80
|
06/30/81
|
St. Katherine Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/81
|
06/30/82
|
St. Katherine Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/79
|
06/30/80
|
St. Katherine Ins. Co. Ltd.
|
79DD1634C
|
2
|
|
06/30/79
|
06/30/80
|
St. Katherine Ins. Co. Ltd.
|
79DD1635C
|
3
|
|
06/30/79
|
06/30/80
|
St. Katherine Ins. Co. Ltd.
|
79DD1636C
|
4
|
|
06/30/80
|
06/30/81
|
St. Katherine Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/81
|
06/30/82
|
St. Katherine Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/80
|
06/30/81
|
St. Katherine Ins. Co. Ltd.
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
St. Katherine Ins. Co. Ltd.
|
80DD1645C
|
4
|
|
05/17/66
|
10/20/66
|
Stronghold Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
Stronghold Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
Stronghold Ins. Co. Ltd.
|
66/180390
|
8
|
|
06/30/74
|
06/30/75
|
Stronghold Ins. Co. Ltd.
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
Stronghold Ins. Co. Ltd.
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
Stronghold Ins. Co. Ltd.
|
74DD662C
|
4
|
|
07/17/74
|
06/30/75
|
Stronghold Ins. Co. Ltd.
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
Stronghold Ins. Co. Ltd.
|
74DD663C
|
8
|
|
06/30/76
|
06/30/77
|
Stronghold Ins. Co. Ltd.
|
74DD663C
|
7
|
|
06/30/76
|
06/30/77
|
Stronghold Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Stronghold Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
Stronghold Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Stronghold Ins. Co. Ltd.
|
77DD1631C
|
4
|
|
06/30/77
|
06/30/78
|
Stronghold Ins. Co. Ltd.
|
77DD1632C
|
5
|
|
06/30/77
|
06/30/78
|
Stronghold Ins. Co. Ltd.
|
77DD1826
|
8
|
|
06/30/78
|
06/30/79
|
Stronghold Ins. Co. Ltd.
|
78DD1417C
|
3
|
|
06/30/78
|
06/30/79
|
Stronghold Ins. Co. Ltd.
|
78DD1418C
|
4
|
|
06/30/78
|
06/30/79
|
Stronghold Ins. Co. Ltd.
|
78DD1420C
|
7
|
|
06/30/79
|
06/30/80
|
Stronghold Ins. Co. Ltd.
|
79DD1635C
|
3
|
|
06/30/79
|
06/30/80
|
Stronghold Ins. Co. Ltd.
|
79DD1638C
|
7
|
|
06/30/80
|
06/30/81
|
Stronghold Ins. Co. Ltd.
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
Stronghold Ins. Co. Ltd.
|
80DD1647C
|
7
|
|
06/30/82
|
06/30/83
|
Stronghold Ins. Co. Ltd.
|
KY017882
|
3
|
|
06/30/83
|
06/30/84
|
Stronghold Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/81
|
06/30/82
|
Stronghold Ins. Co. Ltd.
|
PY030181
|
3
|
|
06/30/81
|
06/30/82
|
Stronghold Ins. Co. Ltd.
|
PY030281
|
4
|
|
06/30/77
|
06/30/78
|
Swiss Reinsurance
|
ZH/R4020/0601
|
8
|
|
06/30/78
|
06/30/79
|
Swiss Reinsurance
|
ZH/R4020/0601
|
7
|
|
05/17/66
|
10/20/66
|
Swiss Union Gen. Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
Swiss Union Gen. Ins. Co. Ltd.
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
Swiss Union Gen. Ins. Co. Ltd.
|
66/180390
|
8
|
|
06/30/74
|
06/30/75
|
Terra Nova Ins. Co. Ltd.
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
Terra Nova Ins. Co. Ltd.
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
Terra Nova Ins. Co. Ltd.
|
74DD662C
|
4
|
|
06/30/84
|
06/30/85
|
Transamerica Ins Co.
|
USE13397786
|
3
|
|
06/30/84
|
06/30/85
|
Transamerica Ins Co.
|
USE13397798
|
4
|
|
06/30/79
|
06/30/80
|
Transit Casualty
|
SCU955191
|
3
|
|
06/30/79
|
06/30/80
|
Transit Casualty
|
SCU955192
|
4
|
|
06/30/79
|
06/30/80
|
Transit Casualty
|
SCU955193
|
5
|
|
06/30/80
|
06/30/81
|
Transit Casualty
|
SCU955565
|
2
|
|
06/30/80
|
06/30/81
|
Transit Casualty
|
SCU955566
|
3
|
|
06/30/80
|
06/30/81
|
Transit Casualty
|
SCU955567
|
4
|
|
06/30/80
|
06/30/81
|
Transit Casualty
|
SCU955568
|
5
|
|
06/30/81
|
06/30/82
|
Transit Casualty
|
SCU955978
|
2
|
|
06/30/81
|
06/30/82
|
Transit Casualty
|
SCU955979
|
3
|
|
06/30/81
|
06/30/82
|
Transit Casualty
|
SCU955980
|
4
|
|
06/30/81
|
06/30/82
|
Transit Casualty
|
SCU955981
|
5
|
|
06/30/81
|
06/30/82
|
Transit Casualty
|
SCU955982
|
6
|
|
06/30/82
|
06/30/83
|
Transit Casualty
|
SCU956259
|
2
|
|
06/30/82
|
06/30/83
|
Transit Casualty
|
SCU956260
|
3
|
|
06/30/82
|
06/30/83
|
Transit Casualty
|
SCU956261
|
4
|
|
06/30/83
|
06/30/84
|
Transit Casualty
|
SCU956535
|
2
|
|
06/30/83
|
06/30/84
|
Transit Casualty
|
SCU956536
|
3
|
|
06/30/83
|
06/30/84
|
Transit Casualty
|
SCU956537
|
4
|
|
06/30/84
|
06/30/85
|
Transit Casualty
|
SCU956881
|
2
|
|
06/30/84
|
06/30/85
|
Transit Casualty
|
SCU956882
|
4
|
|
06/30/84
|
06/30/85
|
Transit Casualty
|
SCU956883
|
5
|
|
06/30/82
|
06/30/83
|
Transit Casualty
|
UMB950239
|
1
|
|
06/30/83
|
06/30/84
|
Transit Casualty
|
UMB950239
|
1
|
|
06/30/84
|
06/30/85
|
Transit Casualty
|
UMB950239
|
1
|
|
06/30/84
|
06/30/85
|
Transport Indemnity
|
TEL00909C
|
5
|
|
07/17/74
|
06/30/75
|
Turegum Ins. Co.
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
Turegum Ins. Co.
|
74DD663C
|
8
|
|
06/30/76
|
06/30/77
|
Turegum Ins. Co.
|
74DD663C
|
7
|
|
06/30/76
|
06/30/77
|
Turegum Ins. Co.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Turegum Ins. Co.
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
Turegum Ins. Co.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Turegum Ins. Co.
|
77DD1631C
|
4
|
|
06/30/77
|
06/30/78
|
Turegum Ins. Co.
|
77DD1632C
|
5
|
|
06/30/78
|
06/30/79
|
Turegum Ins. Co.
|
78DD1417C
|
3
|
|
06/30/78
|
06/30/79
|
Turegum Ins. Co.
|
78DD1418C
|
4
|
|
06/30/83
|
06/30/84
|
Twin City Fire Ins Co
|
97CXS100005
|
5
|
|
02/27/73
|
06/30/73
|
Unigard Security
|
1-0589
|
5
|
|
06/30/73
|
06/30/74
|
Unigard Security
|
1-0589
|
5
|
|
06/30/74
|
06/30/75
|
Unigard Security
|
1-0589
|
4
|
|
06/30/74
|
06/30/75
|
Unigard Security
|
1-2517
|
1
|
|
10/20/68
|
10/20/69
|
US Fire Insurance Co
|
XS2108
|
4
|
|
10/20/69
|
10/20/70
|
US Fire Insurance Co
|
XS2108
|
4
|
|
10/20/70
|
06/30/71
|
US Fire Insurance Co
|
XS2108
|
4
|
|
06/30/74
|
06/30/75
|
Walbrook Ins. Co. Ltd.
|
74DD662C
|
3
|
|
06/30/75
|
06/30/76
|
Walbrook Ins. Co. Ltd.
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
Walbrook Ins. Co. Ltd.
|
74DD662C
|
4
|
|
07/17/74
|
06/30/75
|
Walbrook Ins. Co. Ltd.
|
74DD663C
|
6
|
|
06/30/75
|
06/30/76
|
Walbrook Ins. Co. Ltd.
|
74DD663C
|
8
|
|
06/30/76
|
06/30/77
|
Walbrook Ins. Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/77
|
06/30/78
|
Walbrook Ins. Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/78
|
06/30/79
|
Walbrook Ins. Co. Ltd.
|
76DD1594C
|
1
|
|
06/30/76
|
06/30/77
|
Walbrook Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Walbrook Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/78
|
06/30/79
|
Walbrook Ins. Co. Ltd.
|
76DD1595C
|
2
|
|
06/30/77
|
06/30/78
|
Walbrook Ins. Co. Ltd.
|
77DD1631C
|
4
|
|
06/30/77
|
06/30/78
|
Walbrook Ins. Co. Ltd.
|
77DD1632C
|
5
|
|
06/30/78
|
06/30/79
|
Walbrook Ins. Co. Ltd.
|
78DD1417C
|
3
|
|
06/30/78
|
06/30/79
|
Walbrook Ins. Co. Ltd.
|
78DD1418C
|
4
|
|
06/30/79
|
06/30/80
|
Walbrook Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/80
|
06/30/81
|
Walbrook Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/81
|
06/30/82
|
Walbrook Ins. Co. Ltd.
|
79DD1633C
|
1
|
|
06/30/79
|
06/30/80
|
Walbrook Ins. Co. Ltd.
|
79DD1634C
|
2
|
|
06/30/79
|
06/30/80
|
Walbrook Ins. Co. Ltd.
|
79DD1635C
|
3
|
|
06/30/79
|
06/30/80
|
Walbrook Ins. Co. Ltd.
|
79DD1636C
|
4
|
|
06/30/80
|
06/30/81
|
Walbrook Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/81
|
06/30/82
|
Walbrook Ins. Co. Ltd.
|
80DD1643C
|
2
|
|
06/30/80
|
06/30/81
|
Walbrook Ins. Co. Ltd.
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
Walbrook Ins. Co. Ltd.
|
80DD1645C
|
4
|
|
06/30/82
|
06/30/83
|
Walbrook Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/83
|
06/30/84
|
Walbrook Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/84
|
06/30/85
|
Walbrook Ins. Co. Ltd.
|
KY017582
|
1
|
|
06/30/82
|
06/30/83
|
Walbrook Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/83
|
06/30/84
|
Walbrook Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/84
|
06/30/85
|
Walbrook Ins. Co. Ltd.
|
KY017782
|
2
|
|
06/30/82
|
06/30/83
|
Wa1brook Ins. Co. Ltd.
|
KY017882
|
3
|
|
06/30/83
|
06/30/84
|
Walbrook Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/84
|
06/30/85
|
Walbrook Ins. Co. Ltd.
|
KY048183
|
3
|
|
06/30/81
|
06/30/82
|
Walbrook Ins. Co. Ltd.
|
PY030181
|
3
|
|
06/30/81
|
06/30/82
|
Walbrook Ins. Co. Ltd.
|
PY030281
|
4
|
|
07/17/74
|
06/30/75
|
Wausau Insurance Co
|
53700086732
|
6
|
|
06/30/75
|
06/30/76
|
Wausau Insurance Co
|
53700086732
|
8
|
|
06/30/76
|
06/30/77
|
Wausau Insurance Co
|
53700086732
|
7
|
|
06/30/84
|
06/30/85
|
Wausau Insurance Co
|
573500101008
|
4
|
|
06/30/77
|
06/30/78
|
Winterthur Swiss Ins. Co.
|
77DD1631C
|
4
|
|
06/30/77
|
06/30/78
|
Winterthur Swiss Ins. Co.
|
77DD1632C
|
5
|
|
06/30/78
|
06/30/79
|
Winterthur Swiss Ins. Co.
|
78DD1417C
|
3
|
|
06/30/78
|
06/30/79
|
Winterthur Swiss Ins. Co.
|
78DD1418C
|
4
|
|
06/30/80
|
06/30/81
|
Winterthur Swiss Ins. Co.
|
80DDI643C
|
2
|
|
06/30/81
|
06/30/82
|
Winterthur Swiss Ins. Co.
|
80DDI643C
|
2
|
|
06/30/80
|
06/30/81
|
Winterthur Swiss Ins. Co.
|
80DD1644C
|
3
|
|
06/30/80
|
06/30/81
|
Winterthur Swiss Ins. Co.
|
80DD1645C
|
4
|
|
06/30/82
|
06/30/83
|
Winterthur Swiss Ins. Co.
|
KY017582
|
1
|
|
06/30/83
|
06/30/84
|
Winterthur Swiss Ins. Co.
|
KY017582
|
1
|
|
06/30/84
|
06/30/85
|
Winterthur Swiss Ins. Co.
|
KY017582
|
1
|
|
06/30/82
|
06/30/83
|
Winterthur Swiss Ins. Co.
|
KY017782
|
2
|
|
06/30/83
|
06/30/84
|
Winterthur Swiss Ins. Co.
|
KY017782
|
2
|
|
06/30/84
|
06/30/85
|
Winterthur Swiss Ins. Co.
|
KY017782
|
2
|
|
06/30/82
|
06/30/83
|
Winterthur Swiss Ins. Co.
|
KY017882
|
3
|
|
06/30/83
|
06/30/84
|
Winterthur Swiss Ins. Co.
|
KY048183
|
3
|
|
06/30/84
|
06/30/85
|
Winterthur Swiss Ins. Co.
|
KY048183
|
3
|
|
06/30/81
|
06/30/82
|
Winterthur Swiss Ins. Co.
|
PY030181
|
3
|
|
06/30/81
|
06/30/82
|
Winterthur Swiss Ins. Co.
|
PY030281
|
4
|
|
05/17/66
|
10/20/66
|
World Auxiliary Ins. Corp. Ltd.
|
66/180390
|
8
|
|
10/20/66
|
10/20/67
|
World Auxiliary Ins. Corp. Ltd.
|
66/180390
|
8
|
|
10/20/67
|
10/20/68
|
World Auxiliary Ins. Corp. Ltd.
|
66/180390
|
8
|
|
06/30/75
|
06/30/76
|
Yasuda Fire & Marine Ins. Co. Ltd.
|
74DD662C
|
5
|
|
06/30/76
|
06/30/77
|
Yasuda Fire & Marine Ins. Co. Ltd.
|
74DD662C
|
4
|
|
06/30/75
|
06/30/76
|
Yasuda Fire & Marine Ins. Co. Ltd.
|
74DD663C
|
8
|
|
06/30/76
|
06/30/77
|
Yasuda Fire & Marine Ins. Co. Ltd.
|
74DD663C
|
7
|
|
06/30/76
|
06/30/77
|
Zurich Insurance Co
|
IRDSR4010
|
7
|
|
06/30/77
|
06/30/78
|
Zurich Insurance Co
|
IRDSR401072
|
7
|
|
06/30/78
|
06/30/79
|
Zurich Insurance Co
|
Zl7052/3
|
6
|
|
06/30/79
|
06/30/80
|
Zurich Insurance Co
|
Z17052/4
|
6
|
|
06/30/83
|
06/30/84
|
Zurich Insurance Co
|
ZIB-70-631-83-C
|
4
|
|
06/30/84
|
06/30/85
|
Zurich Insurance Co
|
ZIB70631-84-C
|
4
|
|
06/30/84
|
06/30/85
|
Zurich Insurance Co
|
ZIB70964-84-C
|
3
|
|
06/30/80
|
06/30/81
|
Zurich Insurance Co
|
ZIB7434/5
|
6
|
|
06/30/81
|
06/30/82
|
Zurich Insurance Co
|
ZIB7631-81-C
|
6
|
|
06/30/82
|
06/30/83
|
Zurich Insurance Co
|
ZIB7631-82-C
|
4
|
|
06/30/81
|
06/30/82
|
Zurich Insurance Co
|
ZIB7632-8l-C
|
7
|
SCHEDULE 2
SCHEDULE OF ASBESTOS INSURANCE SETTLEMENT AGREEMENTS
|
|
|
|
|
|
INSURER
|
DATE OF AGREEMENT
|
|
AG Insurance
|
12/7/2009
|
|
Allianz Companies
|
11/9/2009
|
|
Allstate Insurance Company
|
8/14/2009
|
|
Associated International Insurance Company
|
11/5/2010
|
|
Bermuda Fire & Marine Insurance Company Limited
|
5/27/1998
|
|
Chartis Insurance Companies
|
9/11/2009
|
|
CNA Companies
|
11/18/2010
|
|
Continental Casualty Company
|
8/1/1990
|
|
Dairyland Insurance Company
|
10/5/2012
|
|
Employers Insurance of Wausau
|
6/24/2010
|
|
Employers Mutual Casualty Company
|
3/26/2010
|
|
English & American Insurance Company Limited
|
10/15/1998
|
|
Federal Insurance Company
|
9/28/2010
|
|
Harper Insurance Ltd.
|
5/24/2010
|
|
Harper Insurance Ltd. - Amendment
|
12/18/2013
|
|
Hartford Parties
|
8/11/2010
|
|
HDI-Gerling Industrie Versicherung AG
|
8/5/2010
|
|
KWELM Companies
|
8/19/1996
|
|
KWELMBS Companies
|
8/20/2004
|
|
Lloyd’s Underwriters
|
7/17/2009
|
|
London Market Insurance Companies
|
8/10/2009
|
|
Markel Insurance Company
|
2/22/2013
|
|
Munich Reinsurance America, Ltd.
|
6/8/2010
|
|
North Star Reinsurance Corporation
|
4/14/2010
|
|
Royal Indemnity Company and other Royal Affiliated Companies
|
6/17/2009
|
|
Swiss Reinsurance Co. and European Reinsurance Co. of Zurich
|
12/1/2010
|
|
TIG Insurance Company
|
7/29/2010
|
|
Transit Casualty Company in Receivership
|
1/5/2000
|
|
Travelers Casualty and Surety Company
|
9/14/2009
|
|
Zurich Insurance Company Ltd. and Zurich International (Bermuda) Ltd.
|
11/11/2009
|
SCHEDULE 3
SCHEDULE OF ASBESTOS INSURANCE REIMBURSEMENT AGREEMENTS
|
|
|
|
|
|
INSURER
|
DATE OF AGREEMENT
|
|
Aetna Casualty and Surety Company
(superseded by Travelers Casualty & Surety agreement dated
9/14/2009)
|
5/22/1996
|
|
Allstate Insurance Company
(superseded by Allstate agreement dated 8/14/2009)
|
2/9/1996
|
|
American Home Assurance Company and other AIG Companies
(superseded by Chartis agreement dated 9/11/2009)
|
11/21/1995
|
|
American Home Assurance Company and other AIG Companies
(superseded by Chartis agreement dated 9/11/2009)
|
11/9/2000
|
|
American Re-Insurance Company
(superseded by Munich Reinsurance America agreement dated
6/8/2010)
|
6/14/1996
|
|
Continental Casualty Company
(superseded by CNA Cos. agreement dated 11/18/2010)
|
5/22/1997
|
|
Gerling-Konzern (superseded by HDI-Gerling agreement dated
8/5/2010)
|
11/3/1998
|
|
Hartford Accident and Indemnity Company and other Hartford
Companies (superseded by Hartford Parties agreement dated
8/11/2010)
|
10/8/1998
|
|
Highlands Insurance Company
|
12/1/1998
|
|
Eagle Star Insurance Company and Underwriters at Lloyd's, London and Certain London Market Insurance Companies (superseded as to certain insurance companies by London Market Insurance Companies agreement dated 8/10/2009)
|
11/17/1995
|
|
Mutual Marine Office (EMC)
(superseded by Employers Mutual Casualty agreement dated
3/26/2010)
|
8/28/1998
|
|
TIG Insurance Company
(superseded by TIG agreement dated 7/29/2010)
|
7/18/2000
|
|
Zurich International (Bermuda) Ltd.
(superseded by Zurich agreement dated 11/11/2009)
|
6/25/1999
|
SCHEDULE 4
SCHEDULE OF AGREEMENTS NOT SUBJECT TO TRANSFER
|
|
|
|
|
|
INSURER
|
DATE OF AGREEMENT
|
|
Admiral Insurance Company
|
8/24/1995
|
|
Aetna Casualty and Surety Company
|
2/20/1992
|
|
Allstate Insurance Company
|
6/7/1994
|
|
American Centennial Insurance Company
|
5/26/1995
|
|
American Re-Insurance Company
|
11/1/1995
|
|
Ancon Insurance Company (UK) Limited
|
11/12/1999
|
|
Commercial Union
|
5/14/1993
|
|
Commercial Union
|
10/7/1998
|
|
Continental Casualty Company
|
2/18/1997
|
|
Federal Insurance Company
|
11/18/1997
|
|
Fireman’s Fund Insurance Company
|
9/22/1995
|
|
Fireman’s Fund Insurance Company
|
12/30/1996
|
|
General Insurance Company of America
|
3/3/1994
|
|
Gerling-Konzern
|
11/17/2000
|
|
Guarantee Insurance Company
|
6/3/1998
|
|
Home Insurance Company
|
9/27/1993
|
|
Home Insurance Company and other Home Companies
|
11/14/1997
|
|
Insurance Company of North America and other CIGNA Companies
|
3/3/1994
|
|
KWELM Management Services Ltd as Agent of Bryanston
|
3/25/1998
|
|
Ludgate Insurance Company, Ltd
.
|
4/7/1998
|
|
Maryland Casualty Company
|
9/1/1991
|
|
Maryland Casualty Company
|
3/18/1996
|
|
Maryland Casualty Company
|
3/18/1996
|
|
Minster Insurance Ltd
.
|
11/17/1995
|
|
Prudential Reinsurance Company and Gibraltar Casualty Company
|
10/8/1993
|
|
Royal Indemnity Company
|
5/2/1994
|
|
Royal Indemnity Company
|
1/5/1995
|
|
Swiss Union General Insurance Company Ltd.
|
11/17/1995
|
|
Unigard Security Insurance Company
|
8/6/1992
|
|
Unigard Security Insurance Company
|
5/15/1995
|
|
United States Fire Insurance Company
|
9/11/1995
|
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
W. R. GRACE & CO.
Adopted in accordance with the provisions
of §303, §242 and §245 of the
General Corporation Law of the State of Delaware
* * * * * * *
W. R. Grace & Co., a corporation organized and existing under the laws of the State of Delaware (the “
Corporation
”), hereby certifies as follows:
The name of the Corporation is “W. R. Grace & Co.”
The original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on August 6, 1997, under the name Grace Specialty Chemicals, Inc.
The Corporation and certain of the Corporation’s direct and indirect subsidiaries filed a joint plan of reorganization (as amended, modified and supplemented, and including the exhibits and schedules thereto, the “
Plan
”) which, pursuant to chapter 11 of Title 11 of the United States Code (the “
Bankruptcy Code
”), was confirmed by an order, entered January 31, 2011, of the United States Bankruptcy Court for the District of Delaware, a court having jurisdiction of a proceeding under the Bankruptcy Code (the “
Order
”), and such order provides for the making and filing of this Amended and Restated Certificate of Incorporation.
The Board of Directors of the Corporation duly adopted resolutions in accordance with Section 303, Section 242 and Section 245 of the General Corporation Law of the State of Delaware, as authorized by the Order, to put into effect and carry out the Plan by amending and restating the Certificate of Incorporation in its entirety to read as set forth as follows:
ARTICLE I
The name of the Corporation is W. R. Grace & Co.
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is The Prentice-Hall Corporation System, Inc., 2711 Centerville Road, Suite 400, Wilmington, Delaware, County of New Castle. The name of the Corporation’s registered agent at such address is The Prentice-Hall Corporation System, Inc.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
Section 1
The total number of shares of stock which the Corporation shall have authority to issue is Three Hundred and Fifty-Three Million (353,000,000), consisting of Fifty-Three Million (53,000,000) shares of Preferred Stock, par value $.01 per share (the “
Preferred Stock
”), and Three Hundred Million (300,000,000) shares of Common Stock, par value $.01 per share (the “
Common Stock
”).
Section 2
The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby authorized to provide for the issuance of shares of Preferred Stock in series and, by filing a certificate pursuant to the applicable law of the State of Delaware (“
Preferred Stock Designation
”), to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations and restrictions thereof. The authority of the Board of Directors with respect to each series shall include, but not be limited to, determination of the following:
(a)
The designation of the series, which may be by distinguishing number, letter or title.
(b)
The number of shares of the series, which number the Board of Directors may thereafter (except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding).
(c)
Whether dividends, if any, shall be cumulative or noncumulative and the dividend rate of the series.
(d)
The dates on which dividends, if any, shall be payable.
(e)
The redemption rights and price or prices, if any, for shares of the series.
(f)
The terms and amount of any sinking fund provided for the purchase or redemption of shares of the series.
(g)
The amounts payable on, and the preferences, if any, of, shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.
(h)
Whether the shares of the series shall be convertible into shares of any other class or series, or any other security, of the Corporation or any other corporation, and, if so, the specification of such other class or series of such other security, the conversion price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible and all other terms and conditions upon which such conversion may be made.
(i)
Restrictions on the issuance of shares of the same series or of any other class or series.
(j)
The voting rights, if any, of the holders of shares of the series.
Section 3
The Common Stock shall be subject to the express terms of the Preferred Stock and any series thereof. Each share of Common Stock shall be equal to each other share of Common Stock. The holders of shares of Common Stock shall be entitled to one vote for each such share upon all questions presented to the stockholders.
Except as may be provided in this Amended and Restated Certificate of Incorporation or in a Preferred Stock Designation, or as may be required by law, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes, and holders of Preferred Stock shall not be entitled to receive notice of any meeting of stockholders at which they are not entitled to vote.
Section 4
The Corporation shall be entitled to treat the person in whose name any share of its stock is registered as the owner thereof for all purposes and shall not be bound to recognize any equitable or other claim to, or interest in, such share on the part of any other person, whether or not the Corporation shall have notice thereof, except as expressly provided by applicable law.
Section 5
There shall be designated a series of the Corporation’s Preferred Stock, as follows:
(a)
Designation and Amount
. The shares of such series shall be designated as “Series A Junior Participating Preferred Stock” (the “
Series A Preferred Stock
”) and the number of shares constituting the Series A Preferred Stock shall be 3,000,000. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series A Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series A Preferred Stock.
(b)
Dividends and Distributions
.
(i)
Subject to the rights of the holders of any shares of any series of Preferred Stock (or any similar stock) ranking prior and superior to the Series A Preferred Stock with respect to dividends, the holders of shares of Series A Preferred Stock, in preference to the holders of Common Stock, and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the first day of March, June, September and December in each year (each such date being referred to herein as a “
Quarterly Dividend Payment Date
”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $1 or (b) subject to the provision for adjustment hereinafter set forth, 100 times the aggregate per share amount of all cash dividends, and 100 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share of a fraction of a share of Series A Preferred Stock. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(ii)
The Corporation shall declare a dividend or distribution on the Series A Preferred Stock as provided in subparagraph (a) of this paragraph (2) immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1 per share on the Series A Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(iii)
Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than 60 days prior to the date fixed for the payment thereof.
(c)
Voting Rights
. The holders of shares of Series A Preferred Stock shall have the following voting rights:
(i)
Subject to the provision for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(ii)
Except as otherwise provided herein, in any other certificate of designations creating a series of Preferred Stock or any similar stock, or by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.
(iii)
Except as set forth herein, or as otherwise provided by law, holders of Series A Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action.
(d)
Certain Restrictions
.
(i)
Whenever quarterly dividends or other dividends or distributions payable on the Series A Preferred Stock as provided in paragraph (b) are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock outstanding shall have been paid in full, the Corporation shall not:
(A)
declare or pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(B)
declare or pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except dividends paid ratably on the Series A Preferred Stock, and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled;
(C)
redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Preferred Stock; or
(D)
redeem or purchase or otherwise acquire for consideration any shares of Series A Preferred Stock, or any shares of stock ranking on a parity with the Series A Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series of classes.
(ii)
The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under subparagraph (i) of this paragraph (d), purchase or otherwise acquire such shares at such time and in such manner.
(e)
Reacquired Shares
. Any shares of Series A Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, or in any other certificate of designations creating a series of Preferred Stock or any similar stock or as otherwise required by law.
(f)
Liquidation, Dissolution or Winding Up
. Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made (1) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock shall have received $100 per share, plus an amount equal to all accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, provided that the holders of shares of Series A Preferred Stock shall also be entitled to receive an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount to be distributed per share to holders of shares of Common Stock, or (2) to the holders of shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on the Series A Preferred Stock and all such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the aggregate amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under the proviso in clause (1) of the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(g)
Consolidation, Merger, etc
. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of Series A Preferred Stock shall at the same time be similarly exchanged or changed into an amount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by re-classification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(h)
No Redemption
. The shares of Series A Preferred Stock shall not be redeemable.
(i)
Rank
. The Series A Preferred Stock shall rank, with respect to the payment of dividends and the distribution of assets, junior to all series of any other class of the Corporation’s Preferred Stock.
(j)
Amendment
. This Amended and Restated Certificate of Incorporation of the Corporation shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least two-thirds of the outstanding shares of Series A Preferred Stock, voting together as a single class.
Section 6
Notwithstanding anything to the contrary in this Amended and Restated Certificate of Incorporation, the Corporation shall not issue nonvoting equity securities to the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. § 1123(a)(6)). The prohibition on the issuance of nonvoting equity securities is included in this Amended and Restated Certificate of Incorporation in compliance with Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. § 1123(a)(6)). This Section 6 of this Article IV may be amended or eliminated in accordance with applicable law from time to time in effect.
ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
Section 1
Number of Directors
. Subject to any rights of the holders of any class or series of Preferred Stock to elect additional directors under specified circumstances, the number of directors which shall constitute the Board of Directors shall be fixed from time to time by resolution adopted by the affirmative vote of a majority of the total number of directors then in office.
Section 2
Classes of Directors
. At each annual meeting of stockholders, directors of the Corporation shall be elected to hold office until the expiration of the term for which they are elected, and until their successors have been duly elected and qualified; except that if any such election shall be not so held, such election shall take place at a stockholders’ meeting called and held in accordance with the Delaware General Corporation Law. Unless and except to the extent that the By-laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot. The directors of the Corporation, other than those who may be elected by the holders of any series of Preferred Stock or any other series or class of stock as set forth in this Amended and Restated Certificate of Incorporation, shall be divided into three classes as nearly equal in size as is practicable, hereby designated Class I, Class II and Class III. The term of office of the initial Class I directors shall expire at the next succeeding annual meeting of stockholders, the term of office of the initial Class II directors shall expire at the second succeeding annual meeting of stockholders and the term of office of the initial Class III directors shall expire at the third succeeding annual meeting of the stockholders. The initial Class I, Class II and Class III directors shall be as set forth in the Plan. At each annual meeting after the first annual meeting of stockholders, directors to replace those of a Class whose terms expire at such annual meeting shall be elected to hold office until the third succeeding annual meeting and until their respective successors shall have been duly elected and qualified. If the number of directors is hereafter changed, any newly created directorships or decrease in directorships shall be so apportioned among the classes as to make all classes as nearly equal in number as practicable.
Section 3
Newly-Created Directorships and Vacancies
. Subject to the rights of the holders of any series of Preferred Stock then outstanding, newly created directorships resulting from any increase in the number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office or any other cause may be filled, so long as there is at least one remaining director, only by the Board of Directors, provided that a quorum is then in office and present, or by a majority of the directors then in office, if less than a quorum is then in office, or by the sole remaining director. Directors elected to fill a newly created directorship or other vacancies shall hold office until such director’s successor has been duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
Section 4
Removal of Directors
. Subject to the rights of the holders of any series of Preferred Stock then outstanding, any director may be removed from office at any time only for cause, at a meeting called for that purpose, but only by the affirmative vote of the holders of at least 80% of the voting power of all outstanding shares of Common Stock entitled to vote generally in the election of directors, voting together as a single class.
Section 5
Rights of Holders of Preferred Stock
. Notwithstanding the provisions of this ARTICLE VI, whenever the holders of one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately or together by series, to elect directors at an annual or special meeting of stockholders, the election, term of office, filling of vacancies and other features of such directorship shall be governed by the rights of such Preferred Stock as set forth in the certificate of designations governing such series.
Section 6
By-Laws
. The Board of Directors is expressly authorized to adopt, amend, alter, change or repeal the by-laws of the Corporation. Notwithstanding the foregoing and anything contained in this Amended and Restated Certificate of Incorporation to the contrary, the by-laws of the Corporation shall not be amended, altered, changed or repealed by the stockholders, and no provision inconsistent therewith shall be adopted by the stockholders, without the affirmative vote of the holders of 80% of the voting power of all outstanding shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
Section 7
No Cumulative Voting
. Except as may otherwise be set forth in the resolution or resolutions of the Board of Directors providing the issue of a series of Preferred Stock, and then only with respect to such series of Preferred Stock, cumulative voting in the election of directors is specifically denied.
ARTICLE VII
Section 1
Limitation of Liability
.
(a)
To the fullest extent permitted by the Delaware General Corporation Law as it now exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), no director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages arising from a breach of fiduciary duty owed to the Corporation or its stockholders.
(b)
Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.
Section 2
Right to Indemnification
. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved (including involvement, without limitation, as a witness) in any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative (a “
proceeding
”), by reason of the fact that such person is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as an employee or agent of the Corporation or as a director, officer, partner, member, trustee, administrator, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust or other enterprise, including service with respect to an employee benefit plan (an “
indemnitee
”), whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), against all expense, liability and loss (including attorneys’ fees and related disbursements, judgments, fines, excise taxes or penalties under the Employee Retirement Income Security Act of 1974, as amended from time to time (“
ERISA
”), penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith and such indemnification shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the indemnitee’s heirs, executors and administrators; provided, however, that, except as provided in Section 3 of this ARTICLE VII with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this Section 2 of this ARTICLE VII shall be a contract right and shall include the obligation of the Corporation to pay the expenses incurred in defending any such proceeding in advance of its final disposition (an “
advance of expenses
”); provided, however, that an advance of expenses incurred by an indemnitee shall be made only upon delivery to the Corporation of an undertaking (an “
undertaking
”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a “
final adjudication
”) that such indemnitee is not entitled to be indemnified for such expenses under this Section 2 or otherwise. The Corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the Corporation with the same or lesser scope and effect as the foregoing indemnification of directors and officers.
Section 3
Procedure for Indemnification
. Any indemnification of a director or officer of the Corporation or advance of expenses (including attorneys’ fees, costs and charges) under Section 2 of this ARTICLE VII shall be made promptly, and in any event within forty-five days (or, in the case of an advance of expenses, twenty days, provided that the director or officer has delivered the undertaking contemplated by Section 2 of this ARTICLE VII), upon the written request of the director or officer. If a determination by the Corporation that the director or officer is entitled to indemnification pursuant to this ARTICLE VII is required, and the Corporation fails to respond within sixty days to a written request for indemnity, the Corporation shall be deemed to have approved the request. If the Corporation denies a written request for indemnification or advance of expenses, in whole or in part, or if payment in full pursuant to such request is not made within forty-five days (or, in the case of an advance of expenses, twenty days, provided that the director or officer has delivered the undertaking contemplated by Section 2 of this ARTICLE VII), the right to indemnification or advances as granted by this ARTICLE VII shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of expenses where the undertaking required pursuant to Section 2 of this ARTICLE VII, if any, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because such person has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. The procedure for indemnification of other employees and agents for whom indemnification is provided pursuant to Section 2 of this ARTICLE VII shall be the same procedure set forth in this Section 3 for directors or officers, unless otherwise set forth in the action of the Board of Directors providing indemnification for such employee or agent.
Section 4
Insurance
. The Corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was or has agreed to become a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify such person against such expenses, liability or loss under the Delaware General Corporation Law.
Section 5
Service for Subsidiaries
. Any person serving as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture or other enterprise, at least 50% of whose equity interests are owned by the Corporation (a “
subsidiary
” for this ARTICLE VII) shall be conclusively presumed to be serving in such capacity at the request of the Corporation.
Section 6
Reliance
. Persons who after the date of the adoption of this ARTICLE VII become or remain directors or officers of the Corporation or who, while a director or officer of the Corporation, become or remain a director, officer, employee or agent of a subsidiary, shall be conclusively presumed to have relied on the rights to indemnity, advance of expenses and other rights contained in this ARTICLE VII in entering into or continuing such service. The rights to indemnification and to the advance of expenses conferred in this ARTICLE VII shall apply to claims made against an indemnitee arising out of acts or omissions which occurred or occur both prior and subsequent to the adoption hereof.
Section 7
Other Rights; Continuation of Right to Indemnification
. The rights to indemnification and to the advance of expenses conferred in this ARTICLE VII shall not be exclusive of any other right which any person may have or hereafter acquire under this Amended and Restated Certificate of Incorporation or under any statute, by-law, agreement, vote of stockholders or disinterested directors or otherwise. All rights to indemnification under this ARTICLE VII shall be deemed to be a contract between the Corporation and each director or officer of the Corporation who serves or served in such capacity at any time while this ARTICLE VII is in effect. Any repeal or modification of this ARTICLE VII or any repeal or modification of relevant provisions of the Delaware General Corporation Law or any other applicable laws shall not in any way diminish any rights to indemnification of such director or officer or the obligations of the Corporation arising hereunder with respect to any proceeding arising out of, or relating to, any actions, transactions or facts occurring prior to the final adoption of such modification or repeal.
Section 8
Merger or Consolidation
. For purposes of this ARTICLE VII, references to the “Corporation” shall include, in addition to the resulting Corporation, any constituent Corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent Corporation, or is or was serving at the request of such constituent Corporation as a director, officer, employee or agent of another Corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this ARTICLE VII with respect to the resulting or surviving Corporation as he or she would have with respect to such constituent Corporation if its separate existence had continued.
Section 9
Savings Clause
. If this ARTICLE VII or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each person entitled to indemnification under Section 2 of this ARTICLE VII as to all expense, liability and loss (including attorneys’ fees and related disbursements, judgments, penalties, fines, ERISA excise taxes and penalties, and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by such person and for which indemnification is available to such person pursuant to this ARTICLE VII to the fullest extent permitted by any applicable portion of this ARTICLE VII that shall not have been invalidated and to the fullest extent permitted by applicable law.
Section 10
Exclusive Forum
. Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation arising pursuant to any provision of the Delaware General Corporation Law or the Corporation’s Certificate of Incorporation or By-laws (as either may be amended from time to time), or (iv) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation governed by the internal affairs doctrines shall be a state court located within the State of Delaware (or, if no state court located within the State of Delaware has jurisdiction, the United States District Court for the District of Delaware).
ARTICLE VIII
The stockholders of the Corporation may not take any action by written consent in lieu of a meeting, and must take any actions at a duly called annual or special meeting of stockholders and the power of stockholders to consent in writing without a meeting is specifically denied. Special meetings of stockholders of the Corporation may be called only by either the chairman of the Board of Directors or the chief executive officer of the Corporation or pursuant to a resolution adopted by the affirmative vote of the majority of the total number of directors then in office. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the by-laws of the Corporation.
ARTICLE IX
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed herein and by the laws of the state of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation. Notwithstanding any other provision of this Amended and Restated Certificate of Incorporation or the by-laws of the Corporation, and notwithstanding the fact that a lesser percentage or separate class vote may be specified by law or otherwise, but in addition to any affirmative vote of the holders of any particular class or series of the capital stock required by law or otherwise, the affirmative vote of the holders of at least 80% of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to adopt any provision inconsistent with, to amend, alter, change or repeal any provision of, or to adopt a by-law inconsistent with, ARTICLE VI, ARTICLE VII, ARTICLE VIII, ARTICLE IX and ARTICLE X, of this Amended and Restated Certificate of Incorporation.
ARTICLE X
Section 1
Right to Impose Trading Restrictions
.
(a)
In the event that the Corporation determines (in consultation with outside counsel) that at least 25 percentage points of “owner shift” have occurred with respect to the Corporation’s equity for purposes of Section 382 of the Internal Revenue Code of 1986, as amended, and the Treasury regulations thereunder (collectively, “
Section 382
”), during the relevant “testing period”, then the Board of Directors shall meet on an expedited basis to determine whether to impose restrictions on the trading of the Corporation’s stock in accordance with this ARTICLE X and to determine the specific terms of such restrictions. Unless otherwise defined herein, all terms used in this ARTICLE X (including but not limited to “5% shareholder,” “testing period,” “ownership change,” and “owner shift”) have the meaning ascribed to such terms under Section 382 and shall be construed accordingly.
(b)
In determining whether 25 percentage points of “owner shift” have occurred, it shall be presumed that at least 12.5 percentage points of “owner shift” have occurred as a result of the issuance of warrants to the WRG Asbestos PI Trust, a Delaware statutory trust, established pursuant to Section 524(g) of the Bankruptcy Code (the “
Asbestos PI Trust
”) (such warrants, the “
Trust Warrants
”). To the extent that the Trust Warrants are exercised in whole or in part, the actual amount of “owner shift” resulting from such exercise shall be used in determining whether 25 percentage points of “owner shift” have occurred, and the amount of the 12.5 percentage points of “owner shift” that were previously presumed shall be reduced by such amount. In the event that any or all of the Trust Warrants shall expire unexercised, then no further presumption with respect to the Trust Warrants shall apply.
Section 2
Procedure to Impose Trading Restrictions
. If the Board of Directors determines to impose trading restrictions on transfers of the Corporation’s stock pursuant to Section 1(a) of this ARTICLE X, which determination shall require the affirmative vote of at least 66-2/3% of all the directors, then the Corporation shall promptly announce the imposition and terms of such trading restrictions by means of a press release and the filing of a Current Report on Form 8-K with the Securities and Exchange Commission. The terms of such restrictions, including the form of any notice or application documentation that may be associated with such restrictions, shall also be described by the Corporation in each quarterly and annual report filed by the Corporation with the Securities and Exchange Commission.
Section 3
Principal Terms of Trading Restrictions
. If the Board of Directors determines to impose trading restrictions on transfers of the Corporation’s stock in accordance with Section 1(a), the principal terms of such trading restrictions shall be as set forth in this Section 3 of this ARTICLE X. The Board of Directors shall have the authority in its sole discretion to determine and establish the definitive and ancillary terms of such trading restrictions, so long as such terms are consistent with the provisions of this ARTICLE X:
(a)
Any acquisition of the Corporation’s stock by a person or entity that is not a 5% shareholder of the Corporation will be null and void
ab initio
as to the purchaser to the extent such acquisition causes such person or entity to become a 5% shareholder of the Corporation, unless the acquisition of such stock (i) was previously approved in writing by the Board of Directors, (ii) will not result in an increase in an “owner shift” for purposes of Section 382 in excess of any “owner shift” that would have occurred if the seller had sold the same amount of stock through general public market transactions (e.g., because the stock is purchased from another 5% shareholder whose stock acquisition had caused an “owner shift”), (iii) is the result of the exercise by the Asbestos PI Trust of the Trust Warrants, or (iv) is the result of any stock acquisition by the Asbestos PD Trust or the Asbestos PI Trust of stock directly from the Corporation (or any successor to the Corporation). Clauses (i) through (iv) of the immediately preceding sentence, each a “
Permitted Acquisition
”.
(b)
Any person or entity that is a 5% stockholder of the Corporation shall not be permitted to acquire additional stock of the Corporation and any such purchase of such additional stock shall be null and void
ab initio
as to the purchaser unless the acquisition of such stock was (1) previously approved in writing by the Corporation’s Board of Directors or (2) is a Permitted Acquisition.
(c)
Any stockholder of the Corporation seeking to use the “Permitted Acquisition” exception in the case of Section 3(a) or Section 3(b) of this ARTICLE X shall, prior to such transaction, notify the Corporation of its intent to engage in a Permitted Acquisition and provide at its own expense either (i) a legal opinion reasonably acceptable to the Corporation to the effect that such acquisition will qualify as a Permitted Acquisition, or (ii) a representation reasonably acceptable to the Corporation establishing that such acquisition will qualify as a Permitted Acquisition.
(d)
Any person or entity that holds 5% or more of the Corporation’s stock shall not be permitted to sell such stock, except that (i) there shall be no restriction on the ability of any person or entity to dispose of any stock of the Corporation held by such stockholder on the date on which the Corporation emerged from Chapter 11 bankruptcy protection (the “
Emergence Date
”), taking into account any adjustment in the number of shares held by such person or entity as a result of any stock splits, stock dividends, or other transactions that have caused a change in the number of shares held by such person or entity but which did not change the relative the economic ownership of such person or entity in the Corporation;
(i)
Any person or entity holding 9.99% or less, by value, of the outstanding stock of the Corporation shall be permitted to dispose of an amount of such stock representing up to 5%, by value, of the outstanding stock of the Corporation. Beginning two Business Days after such person or entity owns less than 5%, by value, of the Corporation’s stock, such person or entity shall be permitted to sell the remainder of such stock. The term “
Business Day
” shall mean any day other than a Saturday, Sunday or a day on which banks located in New York, New York shall be authorized or required by law to close; and
(ii)
the sale of such stock shall be permitted if either (1) the purchase of such shares is a Permitted Acquisition, or (2) the sale was previously approved in writing by the Corporation’s Board of Directors.
(e)
The Corporation shall announce by press release and the filing of a Current Report on Form 8-K with the Securities and Exchange Commission if its Board of Directors shall determine that trading restrictions are no longer required. Any such trading restrictions shall expire automatically if the total amount of “owner shift” during the relevant “testing period” shall be less than 20 percentage points for purposes of Section 382.
(f)
Notwithstanding anything to the contrary contained herein, no restrictions shall be imposed on the acquisition or disposition of the Corporation’s stock by the Asbestos PI Trust or the WRG Asbestos Property Damage Settlement Trust, a Delaware statutory trust, established pursuant to Section 524(g) of the Bankruptcy Code (the “
Asbestos PD Trust
”), or on the ability of any person or entity to acquire any or all other stock of the Corporation from the Asbestos PI Trust or the Asbestos PD Trust to the extent the aforementioned stock is acquired by the Asbestos PI Trust or the Asbestos PD Trust directly from the Corporation.
Section 4
Requirement to Provide Information Regarding Share Ownership
. All stockholders of the Corporation that have filed or would be required to file a Schedule 13D or 13G with the Securities and Exchange Commission with respect to the Corporation shall be required to provide information to the Corporation regarding such stockholder’s ownership of the Corporation’s stock, including the dates of the acquisition and disposition of such stock and the amounts of such acquisitions and dispositions, to the extent reasonably requested by the Corporation. In determining whether any information requested by the Corporation is reasonable, any such information shall be reasonably necessary only to the extent such information is relevant to the Corporation in determining the level of owner shift that has or will occur for purposes of Section 382. Such information shall be provided within five Business Days of the Corporation’s request, and, at the stockholder’s reasonable request, the Corporation shall execute a standard confidentiality agreement with respect to such information.
Section 5
Bankruptcy Rules; Expiration
. The restrictions described herein, once in effect, shall be subject to the standard rules for corporations emerging from bankruptcy, including that any acquisitions of stock in violation of such restrictions shall be null and void
ab initio
without any action being taken by the Corporation.
(a)
Any trading restrictions imposed by the Board of Directors shall automatically expire on (i) the second anniversary of the imposition of such restrictions, subject to the ability of the Board of Directors to impose new restrictions by an affirmative vote of the Board of Directors pursuant to Section 2 above or (ii) the date on which the amount of “owner shift” for purposes of Section 382 during the “testing period” is less than 20 percentage points.
(b)
This ARTICLE X shall automatically expire on the date that is three years after the Emergence Date; provided, however, that the Board of Directors shall be permitted to extend such provisions for additional three-year periods upon the affirmative vote of at least 66-2/3% of all the directors.
IN WITNESS WHEREOF, W. R. Grace & Co. has caused this Amended and Restated Certificate of Incorporation to be signed by this 31
st
day of January, 2014.
W. R. GRACE & CO.
By:
/s/ Mark A. Shelnitz
Mark A. Shelnitz
Vice President, General Counsel and Secretary
Adopted on February 3, 2014
AMENDED AND RESTATED
BY-LAWS
of
W. R. GRACE & CO.
Incorporated under the Laws of the State of Delaware
ARTICLE I
OFFICES AND RECORDS
Section 1.1.
Delaware Office.
The principal office of the Corporation in the State of Delaware shall be located in Wilmington, Delaware, and the name and address of its registered agent is The Prentice-Hall Corporation System, Inc., 2711 Centerville Road, Suite 400, Wilmington, Delaware.
Section 1.2.
Other Offices.
The Corporation may have such other offices, either within or without the State of Delaware, as the Board of Directors may designate or as the business of the Corporation may from time to time require.
Section 1.3.
Books and Records.
The books and records of the Corporation may be kept outside the State of Delaware at such place or places as may from time to time be designated by the Board of Directors.
ARTICLE II
STOCKHOLDERS
Section 2.1.
Annual Meeting.
The annual meeting of the stockholders of the Corporation shall be held annually (a) on the fifth day of May, or (b) if such day be a Saturday, Sunday or a holiday at the place where the meeting is to be held, on the last business day preceding or on the first business day after such fifth day of May, as may be fixed by the Board of Directors, or (c) on such other date as may be fixed by the Board of Directors.
Section 2.2.
Special Meeting.
Subject to the rights of the holders of any series of stock having a preference over the Common Stock of the Corporation as to dividends or upon liquidation (
"Preferred Stock"
) with respect to such series of Preferred Stock, special meetings of the stockholders may be called only by the Chairman, by the President or by the Board of Directors pursuant to a resolution adopted by a majority of the total number
of directors which the Corporation would have if there were no vacancies (the
"Whole Board"
).
Section 2.3.
Place of Meeting.
The Chairman, the President or the Board of Directors, as the case may be, may designate the place of meeting for any annual meeting or for any special meeting of the stockholders called by the Chairman, the President or the Board of Directors. If no designation is so made, the place of meeting shall be the principal office of the Corporation.
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Section 2.4.
Notice of Meeting.
Written or printed notice, stating the place, date and time of the meeting and the purpose or purposes for which the meeting is called, shall be delivered by the Corporation not less than ten (10) days nor more than sixty (60) days before the date of the meeting, either personally or by mail (including email or other electronic delivery), to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the U.S. mail with postage thereon prepaid, addressed to the stockholder at his address as it appears on the stock transfer books of the Corporation. Such further notice shall be given as may be required by law. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting. Meetings may be held without notice if all stockholders entitled to vote are present, or if notice is waived by those not present in accordance with Section 6.4 of these By-laws. Any previously scheduled meeting of the stockholders may be postponed, and (unless the Certificate of Incorporation otherwise provides) any special meeting of the stockholders may be cancelled, by resolution of the Board of Directors upon public notice given prior to the date previously scheduled for such meeting of stockholders.
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Section 2.5.
Quorum and Adjournment.
Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the outstanding shares of the Corporation entitled to vote generally in the election of directors (the
"Voting Stock"
), represented in person or by proxy, shall constitute a quorum at a meeting of stockholders, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of a majority of the voting power of the shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. The chairman of the meeting or a majority of the shares so represented may adjourn the meeting from time to time, whether or not there is a quorum. No notice of the time and place of adjourned meetings need be given except as required by law. The stockholders present at a duly called meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
Section 2.6.
Proxies.
At all meetings of stockholders, a stockholder may vote by proxy executed in writing (or in any other manner permitted by law) by the stockholder, or by his duly authorized attorney-in-fact.
Section 2.7.
Notice of Stockholder Business and Nominations.
(A)
Annual Meetings of Stockholders
.
(1) Nominations of persons for election to the Board of Directors of the Corporation and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders (a) pursuant to the Corporation's notice of meeting; (b) by or at the direction of the Board of Directors; or (c) by any stockholder of the Corporation who was a stockholder of record at the time of giving of the notice provided for in this Section 2.7 and at the time of the annual meeting, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 2.7 as to such nomination or business. Clause (c) of the preceding sentence shall be the exclusive means for a stockholder to make nominations or propose other business to be considered at an annual meeting of stockholders (other than matters
properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and included in the Corporation's notice of meeting).
(2) No nominations or any other business shall be deemed properly brought before an annual meeting by a stockholder pursuant to clause (c) of the first sentence of paragraph (A)(1) of this Section 2.7, unless the stockholder shall have given timely notice thereof in writing to the Secretary of the Corporation, and such other business is otherwise a proper matter for stockholder action. To be timely, a stockholder's notice shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the 120th day prior to, and not later than the close of business
on the 90th day prior to, the first anniversary of the preceding year's annual meeting. Notwithstanding the foregoing, if (a) the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date or (b) no annual meeting was held during the preceding year, then notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to the date of such annual meeting and
not later than the close of business on the later of (i) the 90th day prior to the date of such annual meeting or (ii) if the first public announcement of the date of such annual meeting is less than 100 days prior to the date of such annual meeting, on the 10th day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall any adjournment or postponement of an annual meeting, or the public announcement thereof, commence a new time period for the giving of a stockholder's notice as described above. To be in proper form, a stockholder's notice (whether given pursuant to this paragraph (A)(2) or paragraph (B) of this Section 2.7) to the Secretary must: (a) set forth, as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, (i) the name and address of such stockholder, as they appear on the Corporation's books, and of such beneficial owner, if any, (ii) (A) the class or series and number of shares of the Corporation that are, directly or indirectly, owned beneficially and of record by such stockholder and such beneficial owner; (B) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a
value derived in whole or in part from the value of any class or series of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise (a "Derivative Instrument") directly or indirectly owned beneficially by such stockholder and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Corporation; (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder has a right to vote any shares of any security of the Corporation; (D) any short interest in any security of the Corporation (for purposes of this Section 2.7, a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of such security); (E) any rights to dividends on the shares of the Corporation owned beneficially by such stockholder that are separated or separable from the underlying shares of the Corporation; (F) any interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder is a general partner or, directly or indirectly, beneficially owns an interest in a general partner; and (G) any performance-related fees (other than an asset-based fee) that such stockholder is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, as of the date of such notice, including without limitation any interests in such fees held by members of such stockholder's immediate family sharing the same household (which information shall be supplemented by such stockholder and beneficial owner, if any, not later than 10 days after the record date for the meeting to disclose such ownership as of the record date), and (iii) any other information relating to such stockholder and beneficial owner, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (b) set forth, if the notice relates to any business other than a nomination of a director or directors that the stockholder proposes to bring before the meeting (i) a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest of such stockholder and beneficial owner, in such business and (ii) a description of any agreements, arrangements and understandings between such stockholder and beneficial owner, and any other person or persons (including their names) in connection with the proposal of such business by such stockholder; (c) set forth, as to any person whom the stockholder proposes to nominate for election or reelection as a director (i) all information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including such person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected) and (ii) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such stockholder and beneficial owner, and such owner's affiliates and associates, or others acting in concert
with any such affiliates and associates, on the one hand, and each proposed nominee, and his or her affiliates and associates, or others acting in concert with any such affiliates and associates, on the other hand, including without limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the stockholder making the nomination or any beneficial owner on whose behalf the nomination is made, or any affiliate or associate of either thereof, or person acting in concert with either thereof, were the "registrant" for purposes of such rule and the nominee were a director or executive officer of such registrant; and (d) with respect to each nominee for election to the Board of Directors, include a completed and signed questionnaire, representation and agreement as required by paragraph (D) of this Section 2.7. The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable stockholder's understanding of the independence, or lack thereof, of such nominee.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this Section 2.7 to the contrary, in the event that (1) the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no public announcement by the Corporation naming all of the nominees for election as director or specifying the size of the increased Board of Directors at least 100 days prior to the first anniversary of the preceding year's annual meeting or (2) no annual meeting was held during the preceding year, then a stockholder's notice required by this Section 2.7 shall be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation.
(B)
Special Meetings of Stockholders
.
Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation's notice of meeting as follows: (1) by or at the direction of the Board of Directors; or (2) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who (a) is a stockholder of record at the time of giving of notice provided for in this Section 2.7, (b) is a stockholder of record at the time of the special meeting, (c) is entitled to vote at the special meeting, and (d) has complied with the notice procedures set forth in this paragraph (B) as to such nomination. If the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, only a stockholder who meets all four requirements under clause (2) of the second sentence of this paragraph (B) (a "Qualifying Stockholder") may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation's notice of meeting, so long as the Qualifying Stockholder's notice required by paragraph (A)(2) of this Section 2.7 with respect to any nomination (including the completed and signed questionnaire, representation and agreement required by paragraph
(D) of this Section 2.7) shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the 120th day prior to the date of such special meeting and not later than the close of business on the later of the 90th day prior to the date of such special meeting or, if the first public announcement of the date of such special meeting is less than 100 days prior to the date of the special meeting, the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall any adjournment or postponement of a special meeting, or the public announcement of an adjournment thereof, commence a new time period for the giving of a Qualifying Stockholder's notice as described above.
(C)
General
.
(1) Only such persons who are nominated in accordance with the procedures set forth in this Section 2.7 may be elected and shall be eligible to serve as directors; and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.7. Except as otherwise provided by law, the Certificate of Incorporation or these By-laws, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.7 and, if any proposed nomination or business is not in compliance with this Section 2.7, to declare that such defective proposal or nomination shall not be acted upon.
(2) For purposes of this Section 2.7,
"public announcement" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.
(3) In addition to the foregoing provisions of this Section 2.7, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.7. Any references in these By-laws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals as to any other business to be considered pursuant to paragraph (A)(1)(c) or paragraph B of this Section 2.7. Nothing in this Section 2.7 shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act;or (b) of the holders of any series of Preferred Stock if and to the extent provided for under law, the Certificate of Incorporation, or these By-laws.
(D)
Submission of Questionnaire, Representation, and Agreement
. To be eligible to be a nominee for election or reelection as a director of the Corporation, a person must deliver (in accordance with the time periods prescribed for delivery of notice under this
Section 2.7) to the Secretary at the principal executive offices of the Corporation a written questionnaire with respect to the background and qualification of such person and the background of any
other person or entity making the nomination or on whose behalf the nomination is being made (which questionnaire shall be
provided by the Secretary upon written request) and a written representation and agreement (in the
form provided by the Secretary upon written request) that such person: (1) is not and will not become a party to (a) any agreement, arrangement or understanding with, and has not given any
commitment or assurance to, any person or entity as to how such person, if elected as a director of
the Corporation, will act or vote on any issue or question (a "Voting Commitment") that has not
been disclosed therein or (b) any Voting Commitment that could limit or interfere with
such person's ability to comply, if elected as a director of the Corporation, with such person's fiduciary duties under applicable law; (2) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any
direct or indirect compensation, reimbursement or indemnification in connection with service or
action as a director that has not been disclosed therein; (3) if the Board of Directors so requires, agrees to purchase
within 90 days if elected as a director of the Corporation, a specified number of common shares
of the Corporation ("Qualifying Shares") (subject to adjustment for any stock splits or stock dividends occurring after the date of such representation or agreement), will not dispose of such minimum
number of shares so long as such person is a director, and has disclosed therein whether all or any
portion of the Qualifying Shares were or will be purchased with any financial assistance provided by any
other person, whether any other person has or will have any interest in the Qualifying Shares and, in each case, the name and address of such person;
and (4) in
such person's individual capacity and on behalf of any person or entity making the nomination or on whose behalf the nomination is being made, would be in compliance, if elected as a director of the Corporation, and will
comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation.
Section 2.8.
Procedure for Election of Directors; Required Vote.
Election of directors at all meetings of the stockholders at which directors are to be elected shall be by ballot, and, subject to the rights of the holders of any series of Preferred Stock to elect directors under specified circumstances, a plurality of the votes cast thereat shall elect directors. Except as otherwise provided by law, the Certificate of Incorporation, or these By-laws, in all matters other than the election of directors, the affirmative vote of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the matter shall be the act of the stockholders.
Section 2.9.
Inspectors of Elections; Opening and Closing the Polls.
The Board of Directors by resolution shall appoint one or more inspectors, which inspector or inspectors may include individuals who serve the Corporation in other capacities, including, without limitation, as officers, employees, agents or representatives, to act at meetings of stockholders and make written reports thereof. One or more persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act or is able to act at a meeting of stockholders, the chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by law.
The chairman of the meeting shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1.
General Powers.
The business and affairs of the Corporation shall be managed under the direction of the Board of Directors. In addition to the powers and authorities by these By-laws expressly conferred upon them, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-laws required to be exercised or done by the stockholders. The Board of Directors may choose one of its members to be Chairman, and shall fill any vacancy in the position of Chairman at such time and in such manner as the Board of Directors shall determine. The Chairman shall preside at all meetings of the Board of Directors and of stockholders. The Chairman shall not be an officer of the Corporation unless the Board of Directors shall elect him an officer pursuant to Section 4.1 of these By-laws.
Section 3.2.
Number, Tenure and Qualifications.
Subject to the rights of the holders of any series of Preferred Stock to elect directors under specified circumstances, the number of directors shall be fixed from time to time exclusively pursuant to a resolution adopted by a majority of the Whole Board. The directors, other than those who may be elected by the holders of any series of Preferred Stock under specified circumstances, shall be divided, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as is reasonably possible, designated Class I, Class II and Class III, with the term of office of the Class I directors to expire at the 2015 annual meeting of stockholders, the term of office of the Class II directors to expire at the 2016 annual meeting of stockholders and the term of office of the Class III directors to expire at the 2017 annual meeting of stockholders, with each director to hold office until his or her successor shall have been duly elected and qualified. At each annual meeting of stockholders, commencing with the 2015 annual meeting, directors elected to succeed those directors whose terms then expire shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election, with each director to hold office until his or her successor shall have been duly elected and qualified.
Section 3.3.
Regular Meetings.
A regular meeting of the Board of Directors shall be held without other notice than this Section 3.3 immediately after, and at the same place
as, the Annual Meeting of Stockholders. The Board of Directors may fix the time and place for the holding of additional regular meetings without notice.
Section 3.4.
Special Meetings.
Special meetings of the Board of Directors shall be called at the request of the Chairman, the President or a majority of the directors then in office. The person or persons authorized to call special meetings of the Board of Directors may fix the place and time of such meetings.
Section 3.5.
Notice.
Notice of any special meeting or notice of a change in the time or place of any regular meeting of the Board of Directors shall be given to each director at his or her business or residence in writing by hand delivery, first-class or overnight mail or courier service, facsimile transmission, email or other electronic delivery, or orally (in person or by telephone). If mailed by first-class mail, such notice shall be deemed adequately delivered when deposited in the U.S. mail so addressed, with postage thereon prepaid, at least five (5) days before such meeting. If by overnight mail or courier service, such notice shall be deemed adequately delivered when the notice is delivered to the overnight mail or courier service company at least twenty-four (24) hours before such meeting. If by facsimile transmission, email or other electronic delivery, such notice shall be deemed adequately delivered when the notice is transmitted least twelve (12) hours before such meeting. If given orally, the notice shall be communicated to the director or his or her representative or to the answering machine of the director or representative. If given orally or by hand delivery, the notice shall be given at least twenty-four (24) hours prior to the time set for the meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting, except for amendments to these By-laws, as provided under Section 8.1. A meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Section 6.4 of these By-laws.
Section 3.6.
Action by Consent of Board of Directors.
Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.
Section 3.7.
Conference Telephone Meetings.
Members of the Board of Directors, or any committee thereof, may participate in a meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
Section 3.8.
Quorum.
Subject to Section 3.9, a number of directors equal to at least a majority of the Whole Board shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of the directors present may adjourn the meeting from time to time without further
notice. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. The directors present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough directors to leave less than a quorum.
Section 3.9.
Vacancies.
Subject to applicable law and the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, and unless the Board of Directors otherwise determines, vacancies resulting from death, resignation, retirement, disqualification, removal from office or other cause, and newly created directorships resulting from any increase in the authorized number of directors, may be filled only by the affirmative vote of a majority of the remaining directors, though less than a quorum of the Board of Directors, and directors so chosen shall hold office for a term expiring at the annual meeting of stockholders at which the term of office of the class to which they have been elected expires and until such director's successor shall have been duly elected and qualified. No decrease in the number of authorized directors constituting the Whole Board shall shorten the term of any incumbent director.
Section 3.10.
Committees.
The Board of Directors may establish one or more committees. Each committee shall consist of two or more directors of the Corporation designated by the Board of Directors. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee may to the extent permitted by law exercise such powers and shall have such responsibilities as shall be specified in the designating resolution. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Each committee shall keep written minutes of its proceedings and shall report such proceedings to the Board of Directors when requested.
A majority of any committee may determine its action and fix the time and place of its meetings, unless the Board of Directors shall otherwise provide. Notice of such meetings shall be given to each member of the committee in the manner provided for in Section 3.5 of these By-laws. The Board of Directors shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee. Nothing herein shall be deemed to prevent the Board of Directors from appointing one or more committees consisting in whole or in part of persons who are not directors of the Corporation;
provided, however,
that no such committee shall have or may exercise any authority of the Board of Directors.
The term of office of a committee member shall be as provided in the resolution of the Board designating him or her but shall not exceed his or her term as a director. If prior to the end of his or her term, a committee member should cease to be a director, he or she shall cease to be a committee member. Any member of a committee may resign at any time by giving written notice to the Board of Directors, the Chairman, the President or
the Secretary. Such resignation shall take effect as provided in Section 6.6 of these By-laws in the case of resignations by directors. Any member of a committee may be removed from such committee, either with or without cause, at any time, by resolution adopted by a majority of the Whole Board. Any vacancy in a committee shall be filled by the Board of Directors in the manner prescribed by these By-laws for the original designation of the members of such committee.
Section 3.11.
Removal.
Subject to the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, any director, or the entire Board of Directors, may be removed from office at any time by the stockholders, but only for cause.
Section 3.12.
Records.
The Board of Directors shall cause to be kept a record containing the minutes of the proceedings of the meetings of the Board of Directors and of the stockholders, appropriate stock books and registers and such books of records and accounts as may be necessary for the proper conduct of the business of the Corporation.
ARTICLE IV
OFFICERS
Section 4.1.
Elected Officers.
The elected officers of the Corporation shall be a President, a Secretary, a Treasurer, and such other officers (including, without limitation, a Chairman and a Chief Financial Officer) as the Board of Directors may deem proper from time to time. If the Board of Directors elects a Chairman as an officer, the Chairman shall be chosen from among the directors. Each officer elected by the Board of Directors shall have such powers and duties as generally pertain to his or her respective office, subject to the specific provisions of this ARTICLE IV. Such officers shall also have such powers and duties as may be conferred from time to time by the Board of Directors. The Board of Directors may from time to time elect, or the Chairman (if an elected officer) or President may appoint, such assistant officers (including one or more Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and Assistant Controllers) as may be necessary or desirable for the conduct of the business of the Corporation. Such assistant officers shall have such duties and shall hold their offices for such terms as shall be provided in these By-laws or as may be prescribed by the Board of Directors or by the Chairman (if an elected officer) or President, as the case may be.
Section 4.2.
Election and Term of Office.
The elected officers of the Corporation shall be elected annually by the Board of Directors at the regular meeting of the Board of Directors held after the annual meeting of the stockholders or at any other time as the Board of Directors may deem proper. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his or her death or until he or she shall resign, but any officer may be removed from office at any time by the affirmative vote of a majority of the Whole Board or, except in the case of an officer elected by the Board of Directors, by the Chairman (if an elected officer) or President. Such removal shall be without prejudice to the contractual rights, if any, of the person so removed.
Section 4.3.
Chairman.
The Chairman shall preside at all meetings of the stockholders and of the Board of Directors and may be designated as the Chief Executive Officer of the Corporation. If elected as Chief Executive Officer, the Chairman shall be responsible for the general management of the affairs of the Corporation and shall perform all duties incidental to his or her office which may be required by law and all such other duties as are properly required of him or her by the Board of Directors. In such capacity, he or she shall make reports to the Board of Directors and the stockholders, and shall see that all orders and resolutions of the Board of Directors and of any committee thereof are carried into effect. The Chairman may also serve as President, if so elected by the Board of Directors.
Section 4.4.
President.
The President may be designated as the Chief Executive Officer of the Corporation. If elected as Chief Executive Officer, the President shall be responsible for the general affairs of the Corporation and shall perform all duties incidental to a chief executive officer and all such other duties as may be required by law or as are properly required of him or her by the Board of Directors. In such capacity, he or she shall make reports to the Board of Directors and the stockholders, and shall see that all orders and resolutions of the Board of Directors and of any committee thereof are carried into effect. If the President is not elected as Chief Executive Officer, the President shall act in a general executive capacity and shall assist the Chief Executive Officer in the administration and operation of the Corporation's business and the general supervision of its policies and affairs. In the absence of or the inability to act of the Chairman, the President shall perform all duties of the Chairman and preside at all meetings of stockholders and of the Board of Directors.
Section 4.5.
Vice Presidents.
Each Vice President shall have such powers and shall perform such duties as shall be assigned to him or her by the Board of Directors.
Section 4.6.
Chief Financial Officer.
The Chief Financial Officer (if any) shall be a Vice President and act in an executive financial capacity. He or she shall assist the Chairman and the President in the general supervision of the Corporation's financial policies and affairs.
Section 4.7.
Treasurer.
The Treasurer shall exercise general supervision over the receipt, custody and disbursement of corporate funds. The Treasurer shall cause the funds of the Corporation to be deposited in such banks as may be authorized by the Board of Directors, or in such banks as may be designated as depositaries in the manner provided by resolution of the Board of Directors. He or she shall have such further powers and duties and shall be subject to such directions as may be granted or imposed upon him or her from time to time by the Board of Directors, the Chairman or the President.
Section 4.8.
Secretary.
The Secretary shall keep or cause to be kept in one or more books provided for that purpose, the minutes of all meetings of the Board of Directors, the committees of the Board of Directors and the stockholders; he or she shall see that all
notices are duly given in accordance with the provisions of these By-laws and as required by law; he or she shall be custodian of the records and the seal of the Corporation and affix and attest the seal to all stock certificates of the Corporation (unless the seal of the Corporation on such certificates shall be a facsimile, as hereinafter provided) and affix and attest the seal to all other documents to be executed on behalf of the Corporation under its seal; and he or she shall see that the books, reports, statements, certificates and other documents and records required by law to be kept and filed are properly kept and filed; and in general, he or she shall perform all the duties incident to the office of Secretary and such other duties as from time to time may be assigned to him or her by the Board of Directors, the Chairman or the President.
Section 4.9.
Controller.
The Controller shall have general control, charge and supervision of the accounts of the Corporation. He or she shall see that proper accounts are maintained and that all accounts are properly credited from time to time. He or she shall prepare or cause to be prepared the financial statements of the Corporation.
Section 4.10.
Removal.
Any officer elected by the Board of Directors may be removed by the affirmative vote of a majority of the Whole Board whenever, in their judgment, the best interests of the Corporation would be served thereby. Any assistant officer appointed by the Chairman or the President may be removed by him or her whenever, in his or her judgment, the best interests of the Corporation would be served thereby. No elected officer shall have any contractual rights against the Corporation for compensation by virtue of such election beyond the date of the election of his or her successor, his or her death, his or her resignation or his or her removal, whichever event shall first occur, except as otherwise provided in an employment contract or under an employee deferred compensation plan.
Section 4.11.
Vacancies.
A newly created elected office and a vacancy in any elected office because of death, resignation, or removal may be filled by the Board of Directors for the unexpired portion of the term at any meeting of the Board of Directors.
ARTICLE V
STOCK CERTIFICATES, UNCERTIFICATED SHARES, AND TRANSFERS
Section 5.1.
Stock Certificates, Uncertificated Shares and Transfers.
(A) The interest of each stockholder of the Corporation acquired on or prior to March 31, 2014 shall be evidenced by certificates for shares of stock in such form as the appropriate officers of the Corporation have prescribed until such certificates are surrendered. The interest of each stockholder of the Corporation acquired on or after April 1, 2014 shall be represented by uncertificated shares. On or after April 1, 2014, upon written request of any stockholder of the Corporation and surrender of the certificate(s) evidencing such holder's shares, the interest of such stockholder shall be represented by uncertificated shares. Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated stock and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical.
(B) Every holder of stock of the Corporation represented by certificates shall be entitled to have a certificate signed by, or in the name of the Corporation by the Chairman of the Board, the President or any Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation representing the number of shares registered in certificate form. Any or all of the signatures on the certificates (if any) representing the stock of the Corporation may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
(C) The shares of the stock of the Corporation represented by certificates shall be transferred on the books of the Corporation by the holder thereof in person or by his or her attorney, upon surrender for cancellation of certificates for at least the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof of the authenticity of the signature as the Corporation or its agents may reasonably require. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares, such uncertificated shares shall be canceled and issuance of new equivalent uncertificated shares or certificated shares (if authorized) shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the Corporation.
(D) Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to the General Corporation Law of the State of Delaware (the
"
GCL"
) or, unless otherwise provided by the GCL, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
Section 5.2.
Lost, Stolen or Destroyed Certificates.
No certificate for shares or uncertificated shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen, except on production of such evidence of
such loss, destruction or theft and on delivery to the Corporation of a bond of indemnity in such amount, upon such terms and secured by such surety, as the Board of Directors or any financial officer may in its or his or her discretion require.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1.
Fiscal Year.
The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December of each year.
Section 6.2.
Dividends.
The Board of Directors may from time to time declare, and the Corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and the Certificate of Incorporation.
Section 6.3.
Seal.
The corporate seal shall have inscribed thereon the words "Corporate Seal," the year of incorporation and around the margin thereof the words "W. R. Grace & Co."
Section 6.4.
Waiver of Notice.
Whenever any notice is required to be given to any stockholder or director of the Corporation under the provisions of the GCL or these By-laws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. The attendance of any stockholder at a meeting in person or by proxy, without protesting at the beginning of the meeting the lack of notice of such meeting, shall constitute a waiver of notice of such stockholder. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the stockholders or the Board of Directors or committee thereof need be specified in any waiver of notice of such meeting.
Section 6.5.
Audits.
The accounts, books and records of the Corporation shall be audited upon the conclusion of each fiscal year by an independent registered public accountant selected by the Board of Directors, and it shall be the duty of the Board of Directors to cause such audit to be done annually.
Section 6.6.
Resignations.
Any director or any officer or assistant officer, whether elected or appointed, may resign at any time by giving written notice of such resignation to the Chairman, the President, or the Secretary, and such resignation shall be deemed to be effective as of the close of business on the date said notice is received by the Chairman, the President, or the Secretary, or at such later time as is specified therein. No formal action shall be required of the Board of Directors or the stockholders to make any such resignation effective.
Section 6.7.
Indemnification and Insurance.
(A) Each person who was or is made a party or is threatened to be made a party to or is otherwise involved (including involvement, without limitation, as a witness) in any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative (a "
proceeding
"), by reason of the fact that such person is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as an employee or agent of the Corporation or as a director, officer, partner, member, trustee, administrator, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust or other enterprise, including service with respect to an employee benefit plan (an "
indemnitee
"), whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), against all expense, liability and loss (including attorneys' fees and related disbursements, judgments, fines, excise taxes or penalties under the Employee Retirement Income Security Act of 1974, as amended from time to time ("
ERISA
"), penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith and such indemnification shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the indemnitee's heirs, executors and administrators; provided, however, that, except as provided in paragraph (B) of this Section 6.7 with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors. The right to indemnification conferred in this paragraph (A) of this Section 6.7 shall be a contract right and shall include the obligation of the Corporation to pay the expenses incurred in defending any such proceeding in advance of its final disposition (an "
advance of expenses
"); provided, however, that an advance of expenses incurred by an indemnitee shall be made only upon delivery to the Corporation of an undertaking (an "
undertaking
"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a "
final adjudication
") that such indemnitee is not entitled to be indemnified for such expenses under this paragraph (A) of this Section 6.7 or otherwise.
(B) Any indemnification of a director or officer of the Corporation or advance of expenses (including attorneys' fees, costs and charges) under paragraph (A) of this Section 6.7 shall be made promptly, and in any event within forty-five days (or, in the case of an advance of expenses, twenty days, provided that the director or officer has delivered the undertaking contemplated by paragraph (A) of this Section 6.7), upon the written request of the director or officer. If a determination by the Corporation that the director or officer is entitled to indemnification pursuant to this Section 6.7 is required, and the Corporation fails to respond within sixty days to a written request for indemnity, the Corporation shall be deemed to have approved the request.
(C) To obtain indemnification under this Section 6.7, a claimant shall submit to the Corporation a written request, including therein or therewith such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to indemnification. Upon written request by a claimant for indemnification pursuant to the first sentence of this paragraph (C), a determination, if required by applicable law, with respect to the claimant's entitlement thereto shall be made as follows: (1) if requested by the claimant, by Independent Counsel (as hereinafter defined), or (2) if no request is made by the claimant for a determination by Independent Counsel, (i) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), or (ii) if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the claimant, or (iii) if a quorum of Disinterested Directors so directs, by the stockholders of the Corporation. In the event the determination of entitlement to indemnification is to be made by Independent Counsel at the request of the claimant, the Independent Counsel shall be selected by the Board of Directors unless there shall have occurred within two years prior to the date of the commencement of the action, suit or proceeding for which indemnification is claimed a "Change of Control" (as defined below) in which case the Independent Counsel shall be selected by the claimant unless the claimant shall request that such selection be made by the Board of Directors. If it is so determined that the claimant is entitled to indemnification, payment to the claimant shall be made within 10 days after such determination. If the Corporation denies a written request for indemnification or advance of expenses, in whole or in part, or if payment in full pursuant to such request is not made within forty-five days (or, in the case of an advance of expenses, twenty days, provided that the director or officer has delivered the undertaking contemplated by paragraph (A) of this Section 6.7), the right to indemnification or advances as granted by this Section 6.7 shall be enforceable by the director or officer in any court of competent jurisdiction. Such person's costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of expenses where the undertaking required pursuant to paragraph (A) of this Section 6.7, if any, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the GCL for the Corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because such person has met the applicable standard of conduct set forth in the GCL, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. The procedure for indemnification of other employees and agents for whom indemnification is provided pursuant to paragraph (A) of this Section 6.7 shall
be the same procedure set forth in this paragraph (C) of this Section 6.7 for directors or officers, unless otherwise set forth in the action of the Board of Directors providing indemnification for such employee or agent.
(D) If a determination shall have been made pursuant to paragraph (C) of this Section 6.7 that the claimant is entitled to indemnification, the Corporation shall be bound by such determination in any judicial proceeding commenced pursuant to paragraph (C) of this Section 6.7.
(E) The Corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to paragraph (C) of this Section 6.7 that the procedures and presumptions of this Section 6.7 are not valid, binding and enforceable and shall stipulate in such proceeding that the Corporation is bound by all the provisions of this Section 6.7.
(F) The rights to indemnification and to the advance of expenses conferred in this Section 6.7 shall not be exclusive of any other right which any person may have or hereafter acquire under these By-laws or under any statute, by-law, agreement, vote of stockholders or disinterested directors or otherwise. All rights to indemnification under this Section 6.7 shall be deemed to be a contract between the Corporation and each director or officer of the Corporation who serves or served in such capacity at any time while this Section 6.7 is in effect. Any repeal or modification of this Section 6.7 or any repeal or modification of relevant provisions of the GCL or any other applicable laws shall not in any way diminish any rights to indemnification of such director or officer or the obligations of the Corporation arising hereunder with respect to any proceeding arising out of, or relating to, any actions, transactions or facts occurring prior to the final adoption of such modification or repeal.
(G) The Corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was or has agreed to become a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify such person against such expenses, liability or loss under the GCL.
(H) Any person serving as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture or other enterprise, at least 50% of whose equity interests are owned by the Corporation (a "
subsidiary
" for this Section 6.7) shall be conclusively presumed to be serving in such capacity at the request of the Corporation.
(I) Persons who after the date of the adoption of these By-laws become or remain directors or officers of the Corporation or who, while a director or officer of the Corporation, become or remain a director, officer, employee or agent of a subsidiary, shall be conclusively presumed to have relied on the rights to indemnity, advance of expenses and other rights contained in this Section 6.7 in entering into or continuing such service. The rights to indemnification and to the advance of expenses conferred in this Section 6.7 shall apply to claims made against an indemnitee arising out of acts or omissions which occurred or occur both prior and subsequent to the adoption hereof.
(J) For purposes of this Section 6.7, references to the "Corporation" shall include, in addition to the resulting Corporation, any constituent Corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent Corporation, or is or was serving at the request of such constituent Corporation as a director, officer, employee or agent of another Corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Section 6.7 with respect to the resulting or surviving Corporation as he or she would have with respect to such constituent Corporation if its separate existence had continued.
(K) If this Section 6.7 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each person entitled to indemnification under paragraph (B) of this Section 6.7 as to all expense, liability and loss (including attorneys' fees and related disbursements, judgments, penalties, fines, ERISA excise taxes and penalties, and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by such person and for which indemnification is available to such person pursuant to this Section 6.7 to the fullest extent permitted by any applicable portion of this Section 6.7 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(L) Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee of the Corporation to the Corporation or the Corporation's stockholders, (iii) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation arising pursuant to any provision of the GCL or the Corporation's Certificate of Incorporation or these By-laws (as either may be amended from time to time), or (iv) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation governed by the internal affairs doctrines shall be a state court located within the State of Delaware (or, if no state court located within the State of Delaware has jurisdiction, the United States District Court for the District of Delaware).
(M) For purposes of this Section 6.7:
(1)
"Disinterested Director"
means a director of the Corporation who is not and was not a party to the matter in respect of which indemnification is sought by the claimant.
(2)
"Independent Counsel"
means a law firm, a member of a law firm, or an independent practitioner, that is experienced in matters of corporation law and shall include any person who, under the applicable standards of professional conduct then prevailing, would not have a conflict of interest in representing either the Corporation or the claimant in an action to determine the claimant's rights under this Section 6.7.
(3)
"Change of Control"
has the meaning given such term in the Corporation's 2011 Stock Incentive Plan, as the same may be amended or superseded from time to time.
(N) Any notice, request or other communication required or permitted to be given to the Corporation under this Section 6.7 shall be in writing and either delivered in person or sent by facsimile transmission, email, overnight mail or courier service, or certified or registered mail, postage prepaid, return receipt requested, to the Secretary of the Corporation and shall be effective only upon receipt by the Secretary.
ARTICLE VII
CONTRACTS, PROXIES, ETC.
Section 7.1.
Contracts.
Except as otherwise required by law, the Certificate of Incorporation or these By-laws, any contracts or other instruments may be executed and delivered in the name and on the behalf of the Corporation by such officer or officers of the Corporation as the Board of Directors may from time to time direct. Such authority may be general or confined to specific instances as the Board of Directors may determine. The Chairman (if an elected officer), the President or any Vice President may execute bonds, contracts, deeds, leases and other instruments to be made or executed for or on behalf of the Corporation. Subject to any restrictions imposed by the Board of Directors or the Chairman (if an elected officer), the President or any Vice President of the Corporation may delegate contractual powers to others under his jurisdiction, it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power.
Section 7.2.
Proxies.
Unless otherwise provided by resolution adopted by the Board of Directors, the Chairman (if an elected officer), the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the Corporation, in the name and on behalf of the Corporation, to cast the votes which the Corporation may be entitled to cast as the holder of stock or other securities in any other corporation, any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing,
in the name of the Corporation as such holder, to any action by such other corporation, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises.
ARTICLE VIII
EXCLUSIVE FORUM
Section 8.1.
Exclusive Forum
. Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee of the Corporation to the Corporation or the Corporation's stockholders, (iii) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation arising pursuant to any provision of the GCL or the Corporation's Certificate of Incorporation or By-laws (as either may be amended from time to time), or (iv) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation governed by the internal affairs doctrine shall be a state court located within the State of Delaware (or, if no state court located within the State of Delaware has jurisdiction, the United States District Court for the District of Delaware).
ARTICLE IX
AMENDMENTS
Section 9.1.
Amendments.
These By-laws may be altered, amended, or repealed at any meeting of the Board of Directors or of the stockholders, provided notice of the proposed change was given in the notice of the meeting and, in the case of a meeting of the Board of Directors, in a notice given not less than two days prior to the meeting;
provided, however,
that, in the case of amendments by stockholders, notwithstanding any other provisions of these By-laws or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the capital stock of the Corporation required by law, the Certificate of Incorporation or these By-laws, the affirmative vote of the holders of at least 80 percent of the voting power of all the then outstanding shares of the Voting Stock, voting together as a single class, shall be required to alter, amend or repeal any provision of these By-laws.
CREDIT AGREEMENT
Dated as of February 3, 2014
among
W. R. GRACE & CO.,
as Holdings,
W. R. GRACE & CO.-CONN.,
as the Borrower,
GRACE GMBH & CO. KG,
as the German Borrower,
GOLDMAN SACHS BANK USA,
as Administrative Agent,
THE OTHER LENDERS PARTY HERETO
_____________________________
GOLDMAN SACHS BANK USA,
DEUTSCHE BANK SECURITIES INC.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
HSBC SECURITIES (USA) INC.,
as Joint Lead Arrangers and Joint Bookrunners
_____________________________
DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent
_____________________________
BANK OF AMERICA, N.A.,
and
HSBC SECURITIES (USA) INC.
as Co-Documentation Agents
TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS
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1
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SECTION 1.01
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Defined Terms 1
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SECTION 1.02
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Other Interpretive Provisions 72
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SECTION 1.03
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Accounting Terms 73
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SECTION 1.05
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References to Agreements and Laws 74
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SECTION 1.06
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Times of Day 74
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SECTION 1.07
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Timing of Payment or Performance 74
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SECTION 1.08
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Exchange Rates; Currency Equivalents Generally 74
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SECTION 1.09
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Pro Forma Calculations 76
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SECTION 1.10
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Letter of Credit Amounts 78
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SECTION 1.11
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Certifications 78
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SECTION 1.12
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Compliance with Article VII 78
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ARTICLE 2. THE COMMITMENTS AND CREDIT EXTENSIONS
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78
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SECTION 2.01
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The Loans 78
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SECTION 2.02
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Borrowings, Conversions and Continuations of Loans 80
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SECTION 2.03
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Letters of Credit. 82
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SECTION 2.04
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Swingline Loans 91
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SECTION 2.05
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Prepayments 95
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SECTION 2.06
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Termination or Reduction of Commitment 108
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SECTION 2.07
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Repayment of Loans 110
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SECTION 2.08
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Interest 111
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SECTION 2.10
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Computation of Interest and Fees 115
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SECTION 2.11
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Evidence of Indebtedness 115
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SECTION 2.12
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Payments Generally 116
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SECTION 2.13
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Pro Rata Shares; Sharing of Payments; Availability of Funds 117
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SECTION 2.14
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Increase in Commitments 118
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SECTION 2.15
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Refinancing Amendments 123
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SECTION 2.16
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Extensions of Loans and Commitments. 125
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SECTION 2.17
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Cash Collateral. 128
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SECTION 2.18
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Defaulting Lenders. 129
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SECTION 2.19
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Appointment of Borrower as Representative of German Borrower 131
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ARTICLE 3. TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY
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131
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SECTION 3.02
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Making or Maintaining Eurocurrency Rate Loans 135
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SECTION 3.03
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Increased Cost; Capital Adequacy 137
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SECTION 3.04
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Funding Losses 139
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SECTION 3.05
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Matters Applicable to Requests for Compensation 139
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SECTION 3.06
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Replacement of Lenders Under Certain Circumstances 140
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SECTION 3.07
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Survival 141
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ARTICLE 4. CONDITIONS PRECEDENT
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141
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SECTION 4.01
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Conditions Precedent to Closing Date 141
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SECTION 4.02
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Conditions Precedent to All Credit Extensions 144
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ARTICLE 5. REPRESENTATIONS AND WARRANTIES
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145
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SECTION 5.01
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Corporate Status. 145
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SECTION 5.02
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Corporate Power and Authority. 145
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SECTION 5.03
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No Violation. 146
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SECTION 5.04
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Governmental Authorization; Other Approvals. 146
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SECTION 5.05
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Financial Statements; No Material Adverse Effect 146
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SECTION 5.06
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Solvency, etc. 146
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SECTION 5.06
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Litigation and Environmental Matters. 147
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SECTION 5.07
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Disclosure. 147
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SECTION 5.08
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Use of Proceeds, Margin Regulation. 148
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SECTION 5.10
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ERISA Compliance 148
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SECTION 5.11
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Ownership of Property 149
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SECTION 5.12
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Subsidiaries 149
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SECTION 5.13
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Compliance with Law 149
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SECTION 5.14
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Investment Company Act 149
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SECTION 5.15
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Environmental Matters. 149
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SECTION 5.16
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Labor Matters 150
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SECTION 5.17
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Intellectual Property. 151
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SECTION 5.18
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Collateral Documents. 151
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SECTION 5.19
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Patriot Act 151
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SECTION 5.21
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Sanctioned Persons 152
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SECTION 5.22
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Certain Matters Regarding the German Borrower 152
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ARTICLE 6. AFFIRMATIVE COVENANTS
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152
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SECTION 6.01
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Financial Statements 153
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SECTION 6.02
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Certificates; Other Information 154
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SECTION 6.04
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Payment of Obligations 156
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SECTION 6.05
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Preservation of Existence, Etc. 156
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SECTION 6.06
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Maintenance of Properties 156
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SECTION 6.07
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Maintenance of Insurance 157
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SECTION 6.08
|
Compliance with Laws 157
|
|
|
|
|
SECTION 6.09
|
Books and Records 158
|
|
|
|
|
SECTION 6.10
|
Inspection Rights 158
|
|
|
|
|
SECTION 6.11
|
Use of Proceeds 158
|
|
|
|
|
SECTION 6.12
|
Unrestricted Subsidiaries; Covenant to Guarantee Obligations and Give Security 158
|
|
|
|
|
SECTION 6.13
|
Maintenance of Ratings 162
|
|
|
|
|
SECTION 6.14
|
Further Assurances 162
|
|
|
|
|
SECTION 6.15
|
Post-Closing Covenants 164
|
|
|
|
|
ARTICLE 7. NEGATIVE COVENANTS
|
164
|
|
|
|
|
SECTION 7.02
|
Investments 168
|
|
|
|
|
SECTION 7.03
|
Indebtedness 172
|
|
|
|
|
SECTION 7.04
|
Fundamental Changes 175
|
|
|
|
|
SECTION 7.05
|
Dispositions 176
|
|
|
|
|
SECTION 7.06
|
Restricted Payments 179
|
|
|
|
|
SECTION 7.07
|
Change in Nature of Business 182
|
|
|
|
|
SECTION 7.08
|
Transactions with Affiliates 182
|
|
|
|
|
SECTION 7.09
|
Burdensome Agreements 183
|
|
|
|
|
SECTION 7.10
|
Holdings. 184
|
|
|
|
|
SECTION 7.11
|
Amendments of Certain Documents 185
|
|
|
|
|
SECTION 7.12
|
Fiscal Year 185
|
|
|
|
|
SECTION 7.13
|
Prepayments, Etc. of Subordinated Indebtedness 185
|
|
|
|
|
SECTION 7.14
|
Total Leverage Ratio 186
|
|
|
|
|
ARTICLE 8. EVENTS OF DEFAULT AND REMEDIES
|
186
|
|
|
|
|
SECTION 8.01
|
Events of Default 186
|
|
|
|
|
SECTION 8.02
|
Remedies Upon Event of Default 189
|
|
|
|
|
SECTION 8.03
|
Application of Funds 190
|
|
|
|
|
SECTION 8.04
|
Rights not Exclusive 190
|
|
|
|
|
ARTICLE 9. ADMINISTRATIVE AGENT AND OTHER AGENTS
|
191
|
|
|
|
|
SECTION 9.01
|
Appointment of Agents. 191
|
|
|
|
|
SECTION 9.02
|
Powers and Duties 191
|
|
|
|
|
SECTION 9.03
|
General Immunity 191
|
|
|
|
|
SECTION 9.04
|
Agents Entitled to Act as Lender 193
|
|
|
|
|
SECTION 9.05
|
Lenders’ Representations, Warranties and Acknowledgment 193
|
|
|
|
|
SECTION 9.06
|
Right to Indemnity 194
|
|
|
|
|
SECTION 9.07
|
Successor Administrative Agent, Collateral Agent and Swing Line Lender. 194
|
|
|
|
|
SECTION 9.08
|
Collateral Documents and Guaranty 196
|
|
|
|
|
SECTION 9.09
|
Withholding Taxes 198
|
|
|
|
|
SECTION 9.10
|
Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim 198
|
|
|
|
|
SECTION 9.11
|
Secured Bank Product Provider 199
|
|
|
|
|
ARTICLE 10. MISCELLANEOUS
|
200
|
|
|
|
|
SECTION 10.01
|
Amendments, Etc. 200
|
|
|
|
|
SECTION 10.02
|
Notices and Other Communications; Facsimile Copies 204
|
|
|
|
|
SECTION 10.03
|
No Waiver; Cumulative Remedies; Enforcement 207
|
|
|
|
|
SECTION 10.04
|
Attorney Costs, Expenses and Taxes 207
|
|
|
|
|
SECTION 10.05
|
Indemnification by the Borrower. 208
|
|
|
|
|
SECTION 10.06
|
Marshalling; Payments Set Aside 210
|
|
|
|
|
SECTION 10.07
|
Successors and Assigns 211
|
|
|
|
|
SECTION 10.08
|
Confidentiality 216
|
|
|
|
|
SECTION 10.10
|
Interest Rate Limitation 218
|
|
|
|
|
SECTION 10.11
|
Counterparts 219
|
|
|
|
|
SECTION 10.12
|
Integration 219
|
|
|
|
|
SECTION 10.13
|
Survival of Representations and Warranties 219
|
|
|
|
|
SECTION 10.14
|
Severability 219
|
|
|
|
|
SECTION 10.15
|
Service of Process 220
|
|
|
|
|
SECTION 10.16
|
GOVERNING LAW 220
|
|
|
|
|
SECTION 10.17
|
WAIVER OF RIGHT TO TRIAL BY JURY 221
|
|
|
|
|
SECTION 10.18
|
No Advisory or Fiduciary Responsibility 222
|
|
|
|
|
SECTION 10.19
|
Electronic Execution of Assignments and Certain Other Documents 222
|
|
|
|
|
SECTION 10.20
|
Binding Effect 222
|
|
|
|
|
SECTION 10.21
|
PATRIOT Act Notice 223
|
|
|
|
|
SECTION 10.22
|
Affiliate Activities 223
|
|
|
|
|
SECTION 10.23
|
Obligations Several; Independent Nature of Lenders’ Rights 223
|
|
|
|
|
SECTION 10.24
|
Headings 224
|
SIGNATURES S-1
SCHEDULES
|
|
|
|
1.01(a)
|
Existing U.S. Letters of Credit
|
|
|
|
|
1.01(b)
|
Existing Multicurrency Letters of Credit
|
|
|
|
|
4.01(i)
|
Foreign Credit Facilities
|
|
|
|
|
5.11(b)
|
Material Real Properties
|
|
|
|
|
6.12
|
Post-Closing Requirements
|
|
|
|
|
7.02(f)
|
Existing Investments
|
|
|
|
|
7.03(h)
|
Existing Indebtedness
|
|
|
|
|
7.08
|
Transactions with Affiliates
|
|
|
|
|
7.09
|
Burdensome Agreements
|
|
|
|
|
10.02
|
Principal Offices, Certain Addresses for Notices
|
EXHIBITS
Form of
|
|
|
|
B-4
|
Delayed Draw Term Note
|
|
|
|
|
D
|
Assignment and Assumption
|
|
|
|
|
F-2
|
Lux Holdco Pledge Agreement
|
|
|
|
|
G
|
Administrative Questionnaire
|
|
|
|
|
H
|
Discount Range Prepayment Notice
|
|
|
|
|
I
|
Discount Range Prepayment Offer
|
|
|
|
|
J
|
Specified Discount Prepayment Notice
|
|
|
|
|
K
|
Specified Discount Prepayment Response
|
|
|
|
|
L
|
Solicited Discounted Prepayment Notice
|
|
|
|
|
M
|
Acceptance and Prepayment Notice
|
|
|
|
|
N
|
Solicited Discounted Prepayment Offer
|
|
|
|
|
R
|
Certificate re: Non-Bank Status
|
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of February 3, 2014 among W. R. Grace & Co., a Delaware corporation (“
Holdings
”), W. R. Grace & Co.-Conn., a Connecticut corporation (the “
Borrower
”), Grace GmbH & Co. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357 (the “
German Borrower
”), each lender from time to time party hereto and Goldman Sachs Bank USA, as Administrative Agent.
PRELIMINARY STATEMENTS
The Borrower, together with Holdings and its direct and indirect wholly owned United States Subsidiaries, will emerge from the Bankruptcy Cases pursuant to the Plan (the “
Exit
”).
Holdings has requested that (a) substantially contemporaneously with the Exit, the Lenders (as defined herein) make Term Loans and Revolving Loans to the Borrower to finance the Transactions and to pay fees and expenses in connection with the Transactions (the “
Transaction Costs
”) and the L/C Issuer issue Letters of Credit for the account of the Borrower and its Restricted Subsidiaries, (b) from time to time, the Lenders make Delayed Draw Term Loans and Revolving Loans to the Borrower (or the German Borrower, as applicable) and the L/C Issuer issue Letters of Credit for the account of the Borrower and its Restricted Subsidiaries.
The applicable Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to so issue Letters of Credit, in each case, on the terms and subject to the conditions set forth in this Agreement. In consideration of the mutual covenants and agreements contained in this Agreement, the parties hereto covenant and agree as follows:
Article 1.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01
Defined Terms
. As used in this Agreement, the following terms shall have the meanings set forth below:
“
Acceptance Date
” has the meaning specified in
Section 2.05(a)(iv)(D)(2)
.
“
Acceptable Discount
” has the meaning specified in
Section 2.05(a)(iv)(D)(2)
.
“
Acceptable Prepayment Amount
” has the meaning specified in
Section 2.05(a)(iv)(D)(3)
.
“
Accepting Lender
” has the meaning specified in
Section 2.05(b)(vii)
.
“
Account(s)
” means “accounts” as defined in the UCC, and includes without limitation a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered or (c) arising out of the use of a credit or charge card or information contained on or for use with the card. The term “Account” does not include (a) rights to payment evidenced by
chattel paper or an instrument, (b) commercial tort claims, (c) deposit accounts, (d) investment property or (e) letter-of-credit rights or letters of credit.
“
Accounting Changes
” has the meaning specified in
Section 1.03(d)
.
“
Acquired EBITDA
” means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary, as applicable, all as determined on a consolidated basis for such Acquired Entity or Business or Converted Restricted Subsidiary, as applicable.
“
Acquired Entity or Business
” has the meaning specified in the definition of the term “Consolidated EBITDA.”
“
Additional Commitments Effective Date
” has the meaning specified in
Section 2.14(b)
.
“
Additional
Facility
” means an Additional Term Facility or an Additional Revolving Facility, as the context may require.
“
Additional Lenders
” means the Additional Term Lenders and the Additional Revolving Lenders.
“
Additional
Loans
” means Additional Revolving Loans or Additional Term Loans, as the context may require.
“
Additional Multicurrency Revolving Commitments
” has the meaning specified in
Section 2.14(a)
.
“
Additional Multicurrency Revolving Loans
” means any loans made in respect of any Additional Multicurrency Revolving Commitments that shall have been added pursuant to
Section 2.14
.
“
Additional Notes
” means any series of notes evidencing or consisting of Indebtedness that is, at the time of incurrence, either (x) secured by the Collateral on a
pari passu
basis or junior basis with the Loans or (y) unsecured, provided that (a) the maturity date of such Additional Notes (other than Earlier Maturing Indebtedness) shall be no earlier than the latest Maturity Date at the time incurred, (b) such Additional Notes, if secured, shall not be secured by any Lien on any asset of any Loan Party that does not also secure the Loans, and, whether or not secured, shall not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, (c) the amortization requirements for such Additional Notes may differ from the existing Term Loans, so long as the then remaining Weighted Average Life to Maturity (other than Earlier Maturing Indebtedness) of such Additional Notes is no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans, (d) to the extent secured, shall be subject to a customary intercreditor agreement with terms to be mutually agreed by the Administrative Agent, the Borrower and the trustee or holders of such Additional Notes, and (e) on the date that such Additional Notes are Incurred, after giving Pro Forma Effect to any Incurrence of Indebtedness on such date, (1) the aggregate principal amount of such Additional Notes, taken together with all Additional Loans and Additional Term Commitments then outstanding, does not exceed the General Incremental
Availability plus the Ratio Incremental Availability (in each case assuming for the purpose of this calculation that the cash proceeds of such Additional Notes, as applicable, are not treated as Cash on Hand for such purpose), (2) the aggregate principal amount of such Additional Notes that are Earlier Maturity Indebtedness, taken together with all other Earlier Maturing Indebtedness then outstanding does not exceed $300,000,000 and (3) no Event of Default exists or would exist after giving effect to such incurrence, subject, where agreed to by the institutions purchasing such Additional Notes, to customary “Sunguard” limitations to the extent the proceeds of such Additional Notes are being used to finance a Permitted Acquisition or any other permitted Investment.
“
Additional Revolving Borrowing
” means a borrowing consisting of simultaneous Additional Revolving Loans of the same Class and Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the Additional Revolving Lenders.
“
Additional Revolving Commitments
” has the meaning specified in
Section 2.14(a)
.
“
Additional Revolving Facility
” means (a) the Additional U.S. Revolving Commitments and the Credit Extensions thereunder and (b) the Additional Multicurrency Revolving Commitments and the Credit Extensions thereunder.
“
Additional Revolving Lenders
” means the lenders providing the Additional U.S. Revolving Commitments and/or Additional Multicurrency Revolving Commitments.
“
Additional Revolving Loans
” means Additional U.S. Revolving Loans and/or Additional Multicurrency Revolving Loans, as applicable.
“
Additional Term A Loans
” means Additional Term Loans that are term A loans.
“
Additional Term Borrowing
” means a borrowing consisting of simultaneous Additional Term Loans of the same Class and Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the Additional Term Lenders.
“
Additional Term Commitments
” has the meaning specified in
Section 2.14(a)
.
“
Additional Term Facility
” means the Additional Term Commitments and the Additional Term Loans.
“
Additional Term Lenders
” means the lenders providing the Additional Term Loans.
“
Additional Term Loans
” means any loans made in respect of any Additional Term Commitments that shall have been added pursuant to
Section 2.14
.
“
Additional U.S. Revolving Commitments
” has the meaning specified in
Section 2.14(a)
.
“
Additional U.S. Revolving Loans
” means any loans made in respect of any Additional U.S. Revolving Commitments that shall have been added pursuant to
Section 2.14
.
“
Adjusted Eurocurrency Rate
” means for any Interest Rate Determination Date with respect to an Interest Period with respect to a Eurocurrency Rate Borrowing, (I) in relation to a Loan denominated in Canadian Dollars, the CDOR Rate and (II) in all other cases, the rate
per annum
obtained by dividing (i) (a) the rate
per annum
equal to the rate determined by the Administrative Agent to be the offered rate which appears on the Reuters Screen which displays an average British Bankers Association Interest Settlement Rate or the successor thereto (such page currently being (x) in relation to a Loan denominated in Dollars or any Alternative Currency (other than Euros or Canadian Dollars), the LIBOR01 page and (y) in relation to a Loan denominated in Euros, the EURIBOR01 page) for deposits (for delivery on the first day of such period) with a term equivalent to such period in the relevant currency, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, (b) in the event the rates referenced in the preceding
clause (a)
do not appear on such page or service or if such page or service shall cease to be available, the rate
per annum
equal to the rate determined by Administrative Agent to be the offered rate on such other commercially available page or other service which displays an average British Bankers Association Interest Settlement Rate, or the successor thereto, for deposits (for delivery on the first day of such period) with a term equivalent to such period in the relevant currency, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date or (c) in the event the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum equal to the offered quotation rate to first class banks in the London interbank market by the Administrative Agent for deposits (for delivery on the first day of the relevant period) in such currency of amounts in same day funds comparable to the principal amount of the applicable Loan of the Administrative Agent, in its capacity as a Lender, for which the Adjusted Eurocurrency Rate is then being determined with maturities comparable to such period as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, by (ii) an amount equal to (a) one
minus
(b) the Applicable Reserve Requirement. Notwithstanding the foregoing, with respect to any determination of the Adjusted Eurocurrency Rate (i) with respect to Term Loans, the Adjusted Eurocurrency Rate shall not be less than 0.75%
per annum
and (ii) with respect to a Eurocurrency Borrowing with an Interest Period of less than one month, the Adjusted Eurocurrency Rate shall be the rate that would otherwise apply for an Interest Period of one month.
“
Administrative Agent
” means Goldman Sachs Bank USA in its capacity as administrative agent under any of the Loan Documents, or any permitted successor administrative agent.
“
Administrative Agent’s Office
” means the Administrative Agent’s address and, as appropriate, account as set forth on
Schedule 10.02
, or such other address or account as the Administrative Agent may from time to time notify in writing to the Borrower, the Lenders and the L/C Issuers.
“
Administrative Questionnaire
” means an Administrative Questionnaire substantially in the form of
Exhibit G
.
“
Affected Lender
” has the meaning specified in
Section 3.02(b)
.
“
Affected Loans
” has the meaning specified in
Section 3.02(b)
.
“
Affiliate
” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“
Agent-Related Persons
” means the Administrative Agent, the Collateral Agent and, in each case, the officers, directors, employees, agents and attorneys-in-fact of such Person.
“
Agents
” means, collectively, the Administrative Agent, the Collateral Agent, the Syndication Agent and the Documentation Agents.
“
Agreement Currency
” has the meaning specified in
Section 1.08(h)
.
“
Aggregate Amounts Due
” has the meaning specified in
Section 2.13(d)
.
“
Aggregate Multicurrency Revolving Commitments
” means the Multicurrency Revolving Commitments of all the Revolving Lenders. The amount of the Aggregate Multicurrency Revolving Commitments on the Closing Date is $150,000,000.
“
Aggregate Revolving Commitments
” means the Revolving Commitments of all the Revolving Lenders. The amount of the Aggregate Revolving Commitments on the Closing Date is $400,000,000.
“
Aggregate U.S. Revolving Commitments
” means the U.S. Revolving Commitments of all the Revolving Lenders. The amount of the Aggregate U.S. Revolving Commitments on the Closing Date is $250,000,000.
“
Agreement
” means this Credit Agreement, as it may be amended, restated, supplemented or otherwise modified from time to time.
“
Alternative Currency
” means (i) with respect to Euro Term Loans, Euros and (ii) with respect to Multicurrency Revolving Loans and Multicurrency Letters of Credit, Euros, Canadian Dollars and Pounds Sterling.
“
Alternative Currency Equivalent
” means, with respect to an amount denominated in any Alternative Currency, such amount, and with respect to an amount denominated in Dollars or another Alternative Currency, the equivalent in such Alternative Currency of such amount determined at the Exchange Rate on the applicable Valuation Date. In making the determination of the Alternative Currency Equivalent for purposes of determining the aggregate available Multicurrency Revolving Commitments on any Credit Date, the Administrative Agent shall use the Exchange Rate in effect at the date on which the Borrower requests the Credit Extension for such Credit Date pursuant to the provisions of this Agreement.
“
Anti-Corruption Laws
” means all Laws, rules, and regulations of any jurisdiction applicable to the Loan Parties or their Restricted Subsidiaries from time to time concerning or relating to bribery or corruption.
“
Anti-Terrorism Laws
” means any Laws relating to terrorism or money laundering, including Executive Order No. 13224, the PATRIOT Act, the Laws comprising or implementing the Bank Secrecy Act, and the Laws administered by OFAC (as any of the foregoing Laws may from time to time be amended, renewed, extended, or replaced).
“
Applicable Discount
” has the meaning specified in
Section 2.05(a)(iv)(C)(2)
.
“
Applicable Law
” means, as to any Person: (a) all Laws, statutes, rules, regulations, orders, codes, ordinances or other requirements having the force of law; and (b) all court orders, decrees, judgments, injunctions, notices, binding agreements and/or rulings, in each case of or by any Governmental Authority which has jurisdiction over such Person, or any property of such Person.
“
Applicable Rate
” means a percentage per annum equal to:
(a)
with respect to U.S. Term Loans and Delayed Draw Term Loans, initially, (1) for Eurocurrency Rate Loans, the Adjusted Eurocurrency Rate plus 2.25% and (2) for the Base Rate Loans, the Base Rate plus 1.25%;
provided
that, from and after delivery of the Compliance Certificate pursuant to
Section 6.02(b)
for the period ended December 31, 2014, the Applicable Rate with respect to U.S. Term Loans and Delayed Draw Term Loans shall be (1) for Eurocurrency Rate Loans, the Adjusted Eurocurrency Rate plus the applicable margin set forth below and (2) for the Base Rate Loans, the Base Rate plus the applicable margin set forth below, in each case, based on the First Lien Leverage Ratio set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(b)
:
|
|
|
|
|
|
|
First Lien Leverage Ratio
|
Margin for Eurodollar Rate Loans
|
Margin for Base Rate Loans
|
|
> 1.25:1.00
|
2.25%
|
1.25%
|
|
≤ 1.25:1.00
|
2.00%
|
1.00%
|
(b)
with respect to Euro Term Loans, the Adjusted Eurocurrency Rate plus 2.50%;
provided
that, from and after delivery of the Compliance Certificate pursuant to
Section 6.02(b)
for the period ended December 31, 2014, the Applicable Rate with respect to Euro Term Loans shall be the Adjusted Eurocurrency Rate plus the applicable margin set forth below based on the First Lien Leverage Ratio set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(b)
:
|
|
|
|
|
|
First Lien Leverage Ratio
|
Margin for Euro Term Loans
|
|
> 1.25:1.00
|
2.50%
|
|
≤ 1.25:1.00
|
2.25%
|
(c)
with respect to U.S. Revolving Loans, (1) for Eurocurrency Rate Loans, the Adjusted Eurocurrency Rate plus 1.75% and (2) for Base Rate Loans, the Base Rate plus 0.75%,
(d)
with respect to Multicurrency Revolving Loans, the Adjusted Eurocurrency Rate plus 1.75%,
(e)
with respect to Letter of Credit fees, 1.75%,
(f)
with respect to the unused Delayed Draw Commitments, 1.00%,
(g)
with respect to the unused U.S. Revolving Commitments, (i) until receipt by the Administrative Agent of financial statements pursuant to
Section 6.01(b)
for the first full fiscal quarter of the Borrower completed after the Closing Date, 0.375% and (ii) thereafter, the following percentages per annum, based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(b)
:
|
|
|
|
|
|
Total Leverage Ratio
|
U.S. Revolving Commitment Fee Rate
|
|
≥ 1.00:1.00
|
0.50%
|
|
< 1.00:1.00
|
0.375%
|
(h)
with respect to the unused Multicurrency Revolving Commitments, (i) until receipt by the Administrative Agent of financial statements pursuant to
Section 6.01(b)
for the first full fiscal quarter of the Borrower completed after the Closing Date, 0.375% and (ii) thereafter, the following percentages per annum, based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(b)
:
|
|
|
|
|
|
Total Leverage Ratio
|
Multicurrency Revolving Commitment Fee Rate
|
|
≥ 1.00:1.00
|
0.50%
|
|
< 1.00:1.00
|
0.375%
|
(i)
with respect to any Additional Term Loans, any Extended Term Loans, any Extended Revolving Loans, Extended Revolving Commitments and Replacement Term Loans, such amounts as may be agreed to by the Borrower and the Additional Term Lenders, Extended Term Lenders or Extended Revolving Lenders as the case may be.
42
Any increase or decrease in the Applicable Rate set forth in subsections (g) and (h) above resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to
Section 6.02(b)
; provided that at the option of the Required Revolving Lenders, or automatically in the case of an Event of Default under
Section 8.01(a)
,
(e)
or
(f)
, the highest pricing shall apply, (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default under
Section 8.01(a)
,
(e)
or
(f)
shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the pricing level otherwise determined in accordance with this definition shall apply).
“
Applicable Reserve Requirement
” means, at any time, for any Eurocurrency Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to which the applicable Adjusted Eurocurrency Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit or other assets which include Eurocurrency Rate Loans. A Eurocurrency Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurocurrency Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
“
Appropriate Lender
” means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class, (b) with respect to the L/C Sublimit, (i) the L/C Issuers, (ii) with respect to U.S. Letters of Credit, the U.S. Revolving Lenders and (iii) with respect to Multicurrency Letters of Credit, the Multicurrency Revolving Lenders and (c) with respect to the Swingline Sublimit, (i) the Swingline Lender and (ii) with respect to Swingline Loans, the U.S. Revolving Lenders.
“
Approved Currency
” means Dollars and any Alternative Currency.
“
Approved Fund
” means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
“
Arrangers
” means Goldman Sachs Bank USA, Deutsche Bank Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, and HSBC Securities (USA) Inc., each in its capacity as a joint lead arranger and joint bookrunner for the Facilities.
“
Assignment and Assumption
” means an Assignment and Assumption substantially in the form of
Exhibit D
.
“
Attorney Costs
” means and includes all reasonable and documented fees, out-of-pocket expenses and out-of-pocket disbursements of any law firm or other external counsel.
“
Attributable Indebtedness
” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
“
Auction Agent
” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Loan Prepayment pursuant to
Section 2.05(a)(iv)
;
provided
that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent).
“
Authorization Order
” means that certain Order Authorizing the Debtors to (A) Enter Into the Exit Financing Commitment and Engagement Letter and the Fee Letters, (B) Pay Certain Fees, Indemnities, Costs and Expenses in Connection Therewith; and (C) File the Commitment and Engagement Letter and the Fee Letters Under Seal, as entered in the United Stated Bankruptcy Court for the District of Delaware on January 28, 2014, Docket No. 31576.
“
Auto-Renewal Letter of Credit
” has the meaning specified in
Section 2.03(b)(iii)
.
“
Available Amount
” means, at any time (the “
Reference Date
”) and, in each case, without duplication, the sum of:
(a)
the greater of (i) $100,000,000 per fiscal year commencing with the fiscal year 2014 and (ii) Excess Cash Flow Not Otherwise Applied for such fiscal year;
plus
(b)
the amount of any capital contributions or cash and Cash Equivalent proceeds, and the fair market value of property or assets or marketable securities, from Equity Issuances (or issuances of debt securities converted or convertible into or exchanged or exchangeable for Qualified Capital Stock) received by the Borrower or any Subsidiary Guarantor during the period following the Closing Date through and including the Reference Date;
plus
(c)
the aggregate amount of all cash dividends and other cash distributions received by the Borrower or any Restricted Subsidiary from any Unrestricted Subsidiary or minority investment during the period following the Closing Date through and including the Reference Date;
plus
(d)
the aggregate amount of all cash or Cash Equivalent interest, returns of principal, cash repayments and similar payments received by the Borrower or any Restricted Subsidiary from any Unrestricted Subsidiary or minority investment during the period following the Closing Date through and including the Reference Date in respect of Loans or advances made by the Borrower or any Restricted Subsidiary to such Unrestricted Subsidiary or minority investment;
plus
(e)
to the extent not required to be applied to prepay Loans in accordance with
Section 2.05(b)(ii)
, the aggregate amount of all cash proceeds received by the Borrower or any Restricted Subsidiary in connection with (x) the sale, transfer or other disposition of its direct or indirect ownership interest (including Capital Stock) in any Unrestricted Subsidiary or minority investment or (y) the sale, transfer or other disposition of any assets of any Unrestricted Subsidiary or minority investment, in each case, during the period following the Closing Date through and including the Reference Date;
plus
(f)
an amount equal to any returns in cash and Cash Equivalents (including dividends, interest, distributions, returns of principal, sale proceeds, repayments, income and similar amounts) actually received by the Borrower or any Restricted Subsidiary in respect of any Investments pursuant to
Section 7.02
; provided, that in no case shall such amount exceed the amount of such Investment made using the Available Amount pursuant to
Section 7.02(m)
;
plus
(g)
an amount equal to Retained Declined Proceeds;
plus
(h)
the fair market value of any Unrestricted Subsidiary which is re-designated as a Restricted Subsidiary or merged, liquidated, consolidated or amalgamated into the Borrower or any Restricted Subsidiary;
minus
(i)
the aggregate amount of any Investments made pursuant to
Section 7.02
, any Restricted Payment made pursuant to
Section 7.06
and any prepayments of Junior Financings made pursuant to
Section 7.13
during the period following the Closing Date and ending on the Reference Date, in each case to the extent funded from the Available Amount;
provided
, however that if at the time such Available Amount is calculated the Interest Coverage Ratio (calculated on a Pro Forma Basis after giving effect to any Investment, Restricted Payment or prepayment of Indebtedness for which the Available Amount is being calculated) is less than 2.00:1.00, the amounts described in
clause (a)(ii)
shall not be included in calculating the Available Amount for purposes of any Restricted Payment pursuant to
Section 7.06
or any prepayments of Permitted Additional Junior Debt pursuant to
Section 7.13
.
“
Available Liquidity
” means, as of any date of determination, the sum of (i) the aggregate amount of undrawn Revolving Commitments and Delayed Draw Commitments that are in effect as of such date, (b) the amount of undrawn commitments in respect of Additional Term Loans that are in effect on such date and (c) the aggregate amount of Cash on Hand.
“
Bankruptcy Cases
” means the cases of each of Holdings, the Borrower and their direct and indirect wholly owned United States Subsidiaries in the United States Bankruptcy Court for the District of Delaware under Chapter 11 of Title 11 of the United States Code consolidated under Case No. 01-1139.
“
Bankruptcy Code
” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
“
Bank Product
” means any of the following products, services or facilities provided to the Borrower or any Restricted Subsidiary: (a) products under Swap Contracts with a Secured Bank Product Provider; or (b) Cash Management Services or other similar banking products or services as may be requested by the Borrower or any Restricted Subsidiary, other than letters of credit, and provided by a Secured Bank Product Provider.
“
Base Rate
” means, for any day, a rate
per annum
equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day
plus
½ of 1% and (iii) the sum of (a) the Adjusted Eurocurrency Rate that would be payable on such day for a Eurocurrency Rate Loan with a one-month interest period (which, in respect of Term Loans only, shall in no event be less than 0.75%
per annum
)
plus
(b) 1.00%. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“
Base Rate Loan
” means a Loan that bears interest based on the Base Rate.
“
Benefit Plan
” means any employee pension benefit plan within the meaning of Section 3(2) of ERISA, in respect of which the Borrower or any ERISA Affiliate is an “employer” as defined in Section 3(5) of ERISA.
“
Board
” means the Board of Governors of the Federal Reserve System of the United States (or any successor).
“
Borrower
” has the meaning specified in the preamble hereto.
“
Borrower Materials
” has the meaning specified in
Section 6.02
.
“
Borrower Offer of Specified Discount Prepayment
” means the offer by the Borrower to make a voluntary prepayment of Loans at a specified discount to par pursuant to
Section 2.05(a)(iv)(B)
.
“
Borrower Solicitation of Discount Range Prepayment Offers
” means the solicitation by the Borrower of offers for, and the corresponding acceptance by a Lender of, a voluntary prepayment of Loans at a specified range of discounts to par pursuant to
Section 2.05(a)(iv)(C)
.
“
Borrower Solicitation of Discounted Prepayment Offers
” means the solicitation by the Borrower of offers for, and the subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Loans at a discount to par pursuant to
Section 2.05(a)(iv)(D)
.
“
Borrowing
” means a Revolving Borrowing, a Swingline Borrowing, a Term Borrowing, Extended Term Borrowing, Extended Revolving Borrowing, Replacement Term Borrowing, Additional Revolving Borrowing or Additional Term Borrowing, as the context may require.
“
Business Day
” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, when used in relation to the Borrower, New York and, if such day relates to any Eurocurrency Rate Loan, means any such day that is also a London Banking Day.
“
Canadian Dollars
” means the lawful money of Canada.
“
Capital Expenditures
” means, for any period, the aggregate of, without duplication, (a) all expenditures (whether paid in cash or accrued as liabilities and including Capitalized Research and Development Costs and Capitalized Software Expenditures) by the Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment or similar items which should be capitalized, reflected in the consolidated balance sheet of the Borrower and its Restricted Subsidiaries and (b) Capital Lease Obligations incurred by the Borrower and its Restricted Subsidiaries during such period.
“
Capital Lease Obligations
” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.
“
Capital Stock
” means, as to any Person that is a corporation, the authorized shares of such Person’s capital stock, including all classes of common, preferred, voting and nonvoting capital stock and, as to any Person that is not a corporation or an individual, the membership or other ownership interests in such Person, including, without limitation, the right to share in profits and losses, the right to receive distributions of cash and other property, and the right to receive allocations of items of income, gain, loss, deduction and credit and similar items from such Person, whether or not such interests include voting or similar rights entitling the holder thereof to exercise Control over such Person, collectively with, in any such case, all warrants, options and other rights to purchase or otherwise acquire, and all other instruments convertible into or exchangeable for, any of the foregoing; provided, that any instrument evidencing Indebtedness convertible or exchangeable for
Capital Stock shall not be deemed to be Capital Stock, unless and until any such instruments are so converted or exchanged.
“
Capitalized Leases
” means all leases that are required to be, in accordance with GAAP, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability in accordance with GAAP.
“
Capitalized Research and Development Costs
” means research and development costs that are required to be, in accordance with GAAP, capitalized.
“
Capitalized Software Expenditures
” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.
“
Captive Insurance Subsidiaries
” means, collectively or individually as of any date of determination, those regulated Subsidiaries of the Borrower primarily engaged in the business of providing insurance and insurance-related services to the Borrower and its other Subsidiaries.
“
Cash Collateral Account
” means a deposit account at a commercial bank selected by the Administrative Agent in the name of the Administrative Agent and under the sole dominion and control of the Administrative Agent, and otherwise established in a manner reasonably satisfactory to the Administrative Agent.
“
Cash Collateralize
” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, any L/C Issuer or the Swingline Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swingline Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances denominated (x) in the case of collateral for Swingline Loans, in Dollars and (y) in the case of collateral for L/C Obligations, in the Approved Currency in which the applicable Letter of Credit was issued, or, if the applicable L/C Issuer or Swingline Lender, as applicable, benefitting from such collateral agrees in its reasonable discretion, other credit support (including by backstopping with other letters of credit), in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent, (b) the applicable L/C Issuer or Swingline Lender (as applicable) and (c) the Borrower (which documents are hereby consented to by the Lenders). “
Cash Collateral
” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“
Cash Equivalents
” means:
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(a)
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(1) Dollars, Canadian Dollars, Euros, or any national currency of any member state of the European Union; or (2) any other foreign currency held by the Borrower and the Restricted Subsidiaries in the ordinary course of business;
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(b)
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securities issued or directly and fully Guaranteed or insured by the United States or Canadian governments, a member state of the European Union or, in each case, any agency or
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instrumentality thereof (
provided
that the full faith and credit of such country or such member state is pledged in support thereof), having maturities of not more than two years from the date of acquisition;
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(c)
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certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers’ acceptances having maturities of not more than one year from the date of acquisition thereof issued by any Lender, the Administrative Agent or by any bank or trust company (1) whose commercial paper is rated at least “A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s (or if at the time neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) or (2) (in the event that the bank or trust company does not have commercial paper which is rated) having combined capital and surplus in excess of $250,000,000;
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(d)
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repurchase obligations for underlying securities of the types described in
clauses (b)
and
(c)
entered into with any bank meeting the qualifications specified in
clause (c)
above;
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(e)
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commercial paper rated at the time of acquisition thereof at least “A-2” or the equivalent thereof by S&P or “P-2” or the equivalent thereof by Moody’s or carrying an equivalent rating by a Nationally Recognized Statistical Rating Organization, if both of the two named rating agencies cease publishing ratings of investments or, if no rating is available in respect of the commercial paper, the issuer of which has an equivalent rating in respect of its long-term debt, and in any case maturing within one year after the date of acquisition thereof;
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(f)
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readily marketable direct obligations issued by any state of the United States of America, any province of Canada, any member of the European Union or any political subdivision thereof, in each case, having one of the two highest rating categories obtainable from either Moody’s or S&P (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) with maturities of not more than two years from the date of acquisition;
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(g)
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Indebtedness or Preferred Capital Stock issued by Persons with a rating of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) with maturities of 12 months or less from the date of acquisition;
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(h)
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bills of exchange issued in the United States, Canada, a member state of the European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);
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(i)
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interests in any investment company, money market or enhanced high yield fund which invests 95% or more of its assets in instruments of the type specified in
clauses (a)
through
(g)
above; and
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(j)
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solely with respect to any Restricted Subsidiary that is a Foreign Subsidiary, investments of comparable tenor and credit quality to those described in the foregoing clauses (b) through (i) customarily utilized in countries in which such Foreign Subsidiary operates for short term cash management purposes.
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Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in
clause (a)
above;
provided
that such amounts are converted into any currency listed in
clause (a)
within ten Business Days following the receipt of such amounts.
“
Cash Management Obligations
” means obligations owed by the Borrower or any Restricted Subsidiary to a Secured Bank Product Provider in respect of any overdraft and liabilities arising from treasury, depository and Cash Management Services or similar services designated by the Borrower as constituting Cash Management Obligations.
“
Cash Management Services
” means any one or more of the following types of services or facilities provided to the Borrower or any Restricted Subsidiary by any Person who on the date of the agreement giving rise thereto is entered into is a Credit Party or any Secured Bank Product Provider: (a) ACH transactions; (b) cash management services, including, without limitation, controlled disbursement services, treasury, depository, overdraft, bank acceptance draft issuance and commercial acceptance draft discounting, sight draft and electronic funds transfer services; (c) foreign exchange facilities; (d) credit card processing services; (e) purchase cards; and (f) credit or debit cards.
“
Cash on Hand
” means, on any date of determination, the sum of the amount of cash and Cash Equivalents of the Borrower and each Restricted Subsidiary, as set forth on the balance sheet of the Borrower and its Consolidated Subsidiaries (it being understood that such amount shall exclude in any event any cash or Cash Equivalents identified on such balance sheet as “restricted” (including cash or Cash Equivalents subject to a control agreement in favor of any Person other than the Administrative Agent, but excluding cash or Cash Equivalents restricted in favor of the Secured Parties)).
“
Casualty Event
” means any event that gives rise to the receipt by the Borrower of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property (including any improvements thereon).
“
CDOR Rate
” means, with respect to each day during an Interest Period pertaining to a Loan denominated in Canadian Dollars, the interest rate
per annum
which is the rate based on the average rate applicable to Canadian Dollar bankers’ acceptances, for a term comparable to such Interest Period, appearing on the “Reuters Screen CDOR Page” (as defined in the International Swaps and Derivatives Association, Inc. 1991 definitions, as modified and amended from time to time) at approximately 11:00 a.m. (New York City time) on the first day of such Interest Period, or if such date is not a Business Day, then on the immediately preceding Business Day;
provided
, that if such rate does not appear on the Reuters Screen CDOR Page on such date as contemplated, then the CDOR Rate for such Interest Period shall be the rate for a term comparable to such Interest Period applicable to Canadian Dollar bankers’ acceptance quoted by a bank listed in Schedule 1 of the Bank Act (Canada) and selected by the Administrative Agent.
“
CFC
” means a “controlled foreign corporation” (within the meaning of Section 957 of the Code).
“
Change of Control
”
means (i) any Person or “group” (within the meaning of the Securities Exchange Act of 1934, as amended), is or becomes the beneficial owner (within the meaning of Rule 13d-3 or 13d-5 of the Securities Exchange Act of 1934, as amended, directly or indirectly, of more than forty percent (40%) (on a fully diluted basis) of the total then outstanding Capital Stock of Holdings or the Borrower entitled to vote for the election of directors of Holdings or the Borrower, as applicable (other than a transaction following which holders of securities that represented 100% of such voting Capital Stock of Holdings or the Borrower, as applicable, immediately prior to such transaction (or other securities into which such securities are converted as part of such transaction) own, directly or indirectly, at least a majority of such voting Capital Stock of the surviving Person in such transaction immediately after such transaction); or (ii) the majority of the seats on the board of directors of Borrower cease to be occupied by Persons who either (x) were members of the board of directors of Borrower on the Closing Date or (y) were nominated for election by the board of directors of Borrower, a majority of whom were directors on the Closing Date or whose election or nomination for election was previously approved by a majority of such directors; or (iii) all or substantially all of the Borrower’s (taken as a whole) assets are sold or transferred, other than pursuant to a transaction permitted by
Section 7.04
.
“
Class
” (a) when used with respect to Lenders, refers to whether such Lenders are U.S. Revolving Lenders, Multicurrency Revolving Lenders, U.S. Term Lenders, Euro Term Lenders, Delayed Draw Term Lenders, Additional Term Lenders of a Series or Extending Lenders of a Series, (b) when used with respect to Commitments, refers to whether such Commitments are U.S. Term Commitments, Euro Term Commitments, Delayed Draw Commitments, U.S. Revolving Commitments, Multicurrency Revolving Commitments, Additional Term Commitments of a Series or Extended Revolving Commitments of a Series and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are U.S. Term Loans, Euro Term Loans, Delayed Draw Term Loans, U.S. Revolving Loans, Multicurrency Revolving Loans, Additional Term Loans of a Series, Extended Term Loans of a Series, Extended Revolving Loans of a Series or Replacement Term Loans of a Series.
“
Closing Date
” means the first date all the conditions precedent in
Section 4.01
are satisfied or waived in accordance with
Section 4.01
, which date is February 3, 2014.
“
Code
” means the U.S. Internal Revenue Code of 1986, as amended (unless as specifically provided otherwise).
“
Collateral
” means all of the “Collateral” referred to in the Collateral Documents and all of the other property and assets that are or are required under the terms hereof or under the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties;
provided
, that in no event shall “Collateral” include any equity interests or assets of any Excluded Subsidiary (other than equity interests in any “first tier” Excluded Foreign Subsidiary to the extent required to be pledged pursuant to
Section 6.12
).
“
Collateral Agent
” means Goldman Sachs Bank USA, in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent hereunder.
“
Collateral Documents
” means, collectively, the Security Agreement, the Lux Holdco Pledge Agreement, each Intellectual Property Security Agreement, the Mortgages, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties as security for the Secured Obligations, including collateral assignments, Security Agreement Supplements and other similar agreements delivered to the Administrative Agent and the Lenders pursuant to
Section 6.12
.
“
Commitment
” means a Initial Term Commitment, a Delayed Draw Commitment, a Revolving Commitment, an Additional Term Commitment, an Additional Revolving Commitment or an Extended Revolving Commitment, as the context may require.
“
Committed Loan Notice
” means a notice of (a) a Term Borrowing, (b) a Revolving Borrowing, (c) a Swingline Borrowing, (d) a conversion of Loans from one Type to the other or (e) a continuation of Eurocurrency Rate Loans pursuant to
Section 2.02(a)
, which, if in writing, shall be substantially in the form of
Exhibit A
.
“
Compliance Certificate
” means a certificate substantially in the form of
Exhibit C
or such other form approved by the Administrative Agent and the Borrower.
“
Consolidated
” means, when used to modify a financial term, test, statement, or report of a Person, the application or preparation of such term, test, statement or report (as applicable) based upon the consolidation, in accordance with GAAP, of the financial condition or operating results of such Person and its Subsidiaries.
“Consolidated Cash Interest Expense”
means, with respect to any Person for any period, without duplication, (a) Consolidated cash interest expense in respect of indebtedness for borrowed money of such Person and its Restricted Subsidiaries for such period on a Consolidated basis (excluding amortization of original issue discount or premium resulting from the Issuance of Indebtedness at less than par, amortization of deferred financing costs, costs associated with obtaining or terminating Swap Contracts, fees and expenses in connection with any amendment or waiver of Indebtedness and any interest expense in respect of DPO Obligations),
minus
(b) interest income for such period, all determined in accordance with GAAP.
“
Consolidated Depreciation and Amortization Expense
” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees or costs, capitalized expenditures, the amortization of original issue discount resulting from the issuance of Indebtedness at less than par, amortization of intangible assets and amortization of favorable or unfavorable lease assets or liabilities and other non-cash charges (including interest expense) related to any Securitization Financing of such Person and its Restricted Subsidiaries for such period, on a Consolidated basis and otherwise determined in accordance with GAAP.
“
Consolidated EBITDA
” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(a) increased (without duplication) by the following:
(i) provision for taxes based on income or profits or capital, including, without limitation, state franchise, excise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period, including any penalties and interest relating to any tax examinations, deducted (and not added back) in computing Consolidated Net Income;
plus
(ii) (v) Consolidated interest expense of such Person for such period, (w) interest accretion and interest expense in respect of the DPO, (x) net losses or any obligations under any Swap Contracts or other derivative instruments entered into for the purpose of hedging interest rate, currency or commodities risk, (y) bank fees and (z) costs of surety bonds in connection with financing activities, in each case, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income;
plus
(iii) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income;
plus
(iv) any expenses or charges (other than depreciation or amortization expense) related to any equity offering, Investment, acquisition, disposition or recapitalization permitted hereunder or the incurrence of Indebtedness permitted to be incurred hereunder (including a refinancing thereof) (in each case, whether or not successful), including (A) such fees, expenses or charges related to the incurrence of the Loans and any other credit facilities or the offering of debt securities and (B) any amendment or other modification of this Agreement, any other credit facilities or other Indebtedness or the offering of debt securities (in each case, whether or not successful), in each case, deducted (and not added back) in computing Consolidated Net Income;
plus
(v) the amount of any restructuring charge or reserve, integration cost or other business optimization expense or cost that is deducted (and not added back) in such period in computing Consolidated Net Income, including charges, reserves and expense related to the Exit, and costs related to the closure and/or consolidation of facilities and to exiting lines of business;
plus
(vi) any other non-cash charges, write-downs, expenses, losses or items reducing Consolidated Net Income for such period;
plus
(vii) (1) pro forma adjustments in respect of cost savings, operating expense reductions and cost synergies relating to any Specified Transaction or the implementation of an operational initiative or operational change, in each case, projected by the Borrower in good faith to result from actions taken or expected to be taken (in the good faith determination of the Borrower) within twelve (12) months after the date any such transaction is consummated and (2) the amount of “run-rate” cost savings, synergies and operating efficiencies projected by the Borrower in good faith to be realized in connection with any Specified
Transaction or the implementation of an operational initiative or operational change, in each case, within twelve (12) months after the date any such transaction is consummated (which cost savings, synergies or operating efficiencies shall be subject only to certification by a Responsible Officer of the Borrower and shall be calculated on a Pro Forma Basis as though such cost savings, synergies or operating efficiencies had been realized on the first day of such period), net of the amount of actual benefits realized prior to or during such period from such actions;
provided
that, in the case of each of clause (1) and (2), (x) a Responsible Officer of the Borrower shall have certified to the Administrative Agent that such cost savings or synergies are reasonably identifiable, reasonably attributable to the actions specified and reasonably anticipated to result from such actions and (y) the aggregate amount added back pursuant to this
clause (vii)
for any four fiscal quarter period shall not exceed 15.0% of Consolidated EBITDA (calculated on a Pro Forma Basis after giving effect to this clause (vii)) for such period;
plus
(viii) any costs or expense incurred by the Borrower or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Borrower or Net Cash Proceeds of an issuance of Capital Stock (other than Disqualified Capital Stock) of the Borrower;
plus
(ix) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to
paragraph (b)
below for any previous period and not added back;
plus
(x) to the extent not already included in Consolidated Net Income, proceeds of business interruption insurance (to the extent actually received and net of expenses incurred to obtain such proceeds, unless otherwise deducted in determining Consolidated Net Income);
plus
(xi) any net loss included in Consolidated Net Income attributable to non-controlling interests pursuant to the application of Accounting Standards Codification Topic 810-10-45;
plus
(xii) realized foreign exchange losses resulting from the impact of foreign currency changes on the valuation of assets or liabilities on the balance sheet of the Borrower and its Restricted Subsidiaries;
plus
(xiii) net realized losses from Swap Contracts or embedded derivatives that require similar accounting treatment and the application of Accounting Standard Codification Topic 815 and related pronouncements;
plus
(xiv) the amount of loss on sale of Securitization Assets in connection with a Qualified Securitization Financing;
(b) decreased (without duplication) by the following:
(i) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period and any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Consolidated EBITDA in such prior period;
plus
(ii) realized foreign exchange income or gains resulting from the impact of foreign currency changes on the valuation of assets or liabilities on the balance sheet of the Borrower and its Restricted Subsidiaries;
plus
(iii) any net realized income or gains from any obligations under any Swap Contracts or embedded derivatives that require similar accounting treatment and the application of Accounting Standard Codification Topic 815 and related pronouncements;
plus
(iv) any amount included in Consolidated Net Income of such Person for such period attributable to non-controlling interests pursuant to the application of Accounting Standards Codification Topic 810-10-45;
plus
(v) the amount of any minority interest income attributable to minority equity interests of third parties in any non-wholly owned Subsidiary;
plus
(vi) cash payments made during such period in respect of non-cash items added back to Consolidated EBITDA pursuant to clause (a)(vi) above in a prior period; and
(c) increased or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards Codification Topic 460 or any comparable regulation.
There shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person, property, business or asset acquired by the Borrower or any Restricted Subsidiary during such period, including the UNIPOL Acquisition (but not the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired), to the extent not subsequently sold, transferred or otherwise disposed of by the Borrower or such Restricted Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently so disposed of, an “
Acquired Entity or Business
”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each a “
Converted Restricted Subsidiary
”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof
occurring during such period but prior to such acquisition). For purposes of determining the Interest Coverage Ratio, the Total Leverage Ratio and the First Lien Leverage Ratio, there shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred or otherwise disposed of, closed or classified as discontinued operations by the Borrower or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “
Sold Entity or Business
”) and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each a “
Converted Unrestricted Subsidiary
”), based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring during such period but prior to such sale, transfer or disposition). Notwithstanding the foregoing, but subject to any adjustment set forth above with respect to any transactions occurring after the Closing Date, Acquired EBITDA for the UNIPOL Acquisition shall be $11,250,000 for each of the fiscal quarters ended March 31, 2013, June 30, 2013, September 30, 2013 and December 31, 2013.
The Borrower may elect whether to include any adjustments in the calculation of Consolidated Net Income or Consolidated EBITDA that increases the amount of Consolidated Net Income or Consolidated EBITDA to the extent the Borrower determined such adjustment to be immaterial to the Lenders. Any adjustments in the calculation of Consolidated Net Income shall be without duplication of any adjustment to Consolidated EBITDA, and any adjustments to Consolidated EBITDA shall be without duplication of any adjustments to Consolidated Net Income.
“
Consolidated Joint Venture
” of Borrower means a corporation, partnership, limited liability company or other business entity selected by Borrower in its discretion (x) of which 50% or less of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, directly, or indirectly through one or more intermediaries, or both, by Borrower, and (y) that is consolidated with Borrower and its Subsidiaries in accordance with GAAP.
“
Consolidated Net Income
” means, with respect to any Person for any period, the net income (loss) of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP and including the net income (loss) of Consolidated Joint Ventures in an amount not to exceed $20,000,000;
provided
,
however
, that there will not be included in such Consolidated Net Income, without duplication:
(1) any net income (loss) of any Person if such Person is not a Restricted Subsidiary (other than up to $20,000,000 of net income (loss) of Consolidated Joint Ventures), except that the Borrower’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed (or, so long as such Person is not (x) a joint venture with outstanding third party indebtedness for borrowed money or (y) an Unrestricted Subsidiary, that (as reasonably determined by a Responsible Officer of the Borrower) could have been distributed by such Person during such period to the Borrower or a Restricted Subsidiary) as a dividend or other distribution or return on investment, subject,
in the case of a dividend or other distribution or return on investment to a Restricted Subsidiary, to the limitations contained in
clause (2)
below;
(2) solely for the purpose of determining the Available Amount, any net income (loss) of any Restricted Subsidiary (other than any Guarantor) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Borrower or a Guarantor by operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its shareholders (other than (a) restrictions that have been waived or otherwise released and (b) restrictions pursuant to the Loan Documents or the documents governing any Indebtedness permitted under
Section 7.03(a)
), except that the Borrower’s equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed or that could have been distributed by such Restricted Subsidiary during such period to the Borrower or another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained above in this clause);
(3) any net gain (or loss) from disposed, abandoned or discontinued operations and any net gain (or loss) on disposal of disposed, discontinued or abandoned operations of the Borrower or any Restricted Subsidiary;
(4) any net gain (or loss) realized upon the sale or other disposition of any asset (including pursuant to any sale/leaseback transaction) which is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by a Responsible Officer or the board of directors of the Borrower);
(5) any extraordinary, exceptional, unusual or nonrecurring gain, loss, charge or expense (including any Exit Expenses), or any charges, expenses or reserves in respect of any restructuring, relocation, redundancy or severance expense, new product introductions or one-time compensation charges;
(6) the cumulative effect of a change in accounting principles;
(7) any (i) non-cash compensation charge or expense arising from any grant of stock, stock options or other equity based awards and (ii) income (loss) attributable to deferred compensation plans or trusts;
(8) all deferred financing costs written off and premiums paid or other expenses incurred directly in connection with any early extinguishment of Indebtedness and any net gain (loss) from any write-off or forgiveness of Indebtedness;
(9) any unrealized gains or losses in respect of any obligations under any Swap Contracts or any ineffectiveness recognized in earnings related to hedge transactions or
the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of any obligations under any Swap Contracts;
(10) any unrealized foreign currency translation gains or losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person and any unrealized foreign exchange gains or losses relating to translation of assets and liabilities denominated in foreign currencies;
(11) any acquisition accounting effects including, but not limited to, adjustments to inventory, property and equipment, software and other intangible assets and deferred revenue required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Borrower and the Restricted Subsidiaries), as a result of any consummated acquisition, or the amortization or write-off of any amounts thereof (including any write-off of in process research and development);
(12) any impairment charge, write-down or write-off relating to goodwill, intangible assets, long-lived assets, investments in debt and equity securities;
(13) any after-tax effect of income (loss) from the early extinguishment or cancellation of Indebtedness or any obligations under any Swap Contracts or other derivative instruments;
(14) any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowance related to such item;
(15) any non-cash items in respect of (x) pension and other post retirement obligations, (y) environmental obligations and (z) litigation or other disputes in respect of events and exposures will be excluded from Consolidated Net Income;
(16) any cash payments in respect of (x) pension and other post retirement obligations, (y) environmental obligations and (z) litigation or other disputes will be deducted from Consolidated Net Income (but only to the extent not already reducing Consolidated Net Income in accordance with GAAP) and in each case of clauses (x) through (z), excluding any payments in respect of charges taken on or prior to the Closing Date; and
(17) cash payments of the Warrant and the DPO Obligations shall be excluded for all purposes.
In addition, to the extent not already excluded from the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall exclude (i) any expenses and charges that are reimbursed in such period by indemnification or other reimbursement provisions in connection with any investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder and (ii) to the
extent covered by insurance and actually reimbursed in such period, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (A) not denied by the applicable carrier in writing within 180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within such 365 days), expenses with respect to liability or casualty events or business interruption.
“
Consolidated Total Debt
” means, as of any date of determination, the aggregate principal amount of Indebtedness of the Borrower and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with any Permitted Acquisition), consisting of Indebtedness for borrowed money, Capital Lease Obligations and debt obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
provided
that Consolidated Total Debt shall not include (x) Letters of Credit (or other letters of credit and bankers’ acceptances), except to the extent of Unreimbursed Amounts (or unreimbursed amounts) thereunder, (y) obligations under Swap Contracts not entered into for speculative purposes except to the extent terminated and (z) Indebtedness in respect of any Qualified Securitization Financing.
“
Consolidated Working Capital
” means, at any date, the excess of (a) the sum of all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries at such date over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries on such date, but excluding, without duplication, (a) all Indebtedness consisting of Revolving Loans, Swingline Loans and L/C Obligations and other revolving loans, letter of credit and bankers acceptance obligations to the extent otherwise included therein, (b) the current portion of interest, (c) the current portion of current and deferred income taxes, (d) the current portion of any Capital Lease Obligations, (e) deferred revenue arising from cash receipts that are earmarked for specific projects, (f) the current portion of deferred acquisition costs, (g) pension assets and the current portion of pension liabilities, and (h) current accrued costs associated with any restructuring or business optimization (including accrued severance and accrued facility closure costs).
“
Contaminant
” means any material or substance with respect to which any Environmental Law or Environmental Permit imposes a duty, liability, obligation or standard of conduct or otherwise controls, limits or regulates, including without limitation any pollutant contaminant (as those terms are defined in 42 U.S.C. §9601(33)), toxic pollutant (as that term is defined in 33 U.S.C. §1362(13)), hazardous substance (as that term is defined in 42 U.S.C. §9601(14)), hazardous chemical (as that term is defined by 29 CFR §1910.1200(c)), hazardous waste (as that term is defined in 42 U.S.C. §6903(5)), or any state or local equivalent of such laws and regulations, including, without limitation, radioactive material, special waste, polychlorinated biphenyls, asbestos, petroleum, including crude oil or any petroleum-derived substance, (or any fraction thereof), solid waste (as that term is defined in 42 U.S.C. § 6903(27)), or breakdown or decomposition product thereof, or
any constituent of any such substance or waste, including but not limited to polychlorinated biphenyls and asbestos.
“
Contract Consideration
” has the meaning specified in the definition of Excess Cash Flow.
“
Contractual Obligation
” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“
Control
” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “
Controlled
” has a meaning correlative thereto.
“
Converted Unrestricted Subsidiary
” has the meaning specified in the definition of Consolidated EBITDA.
“
Covenant Transaction
” has the meaning specified in
Section 1.08(d)
.
“
Credit Agreement Refinancing Indebtedness
” means (a) any new term loan facilities used to refinance all or a portion of the loans under any Term Loan Facility (each, a “
Refinancing Term Loan Facility
”) entered into with the consent of the Borrower and the institutions providing such Refinancing Term Loan Facility, (b) any new revolving facilities used to refinance all or a portion of the loans and revolving commitments under any Revolving Facility (each, a “
Refinancing Revolving Facility
” and, together with the Refinancing Term Loan Facilities, the “
Refinancing Facilities
”) entered into with the consent of the Borrower and the institutions providing such Refinancing Revolving Facility or (c) one or more additional series of senior unsecured notes or senior secured notes that will be secured by the Collateral on a
pari passu
basis with the Facilities or secured notes that will be secured on a junior priority basis to the Facilities (including any Registered Equivalent Notes) (any such notes or loans, “
Refinancing Notes
”);
provided
that (i) any Refinancing Facilities or Refinancing Notes that are secured shall be subject to a customary intercreditor agreement with terms to be mutually agreed by the Administrative Agent, the Borrower and the lenders with respect to such Refinancing Facilities or Refinancing Notes, (ii)(A) all of the net cash proceeds of such Refinancing Term Loan Facility or Refinancing Notes are immediately applied to permanently repay in whole or in part the Term Loan Facility being refinanced, (B) all of the net cash proceeds of such Refinancing Revolving Facility are immediately applied to repay in whole or in part the Revolving Facility being refinanced and the Revolving Commitments being refinanced shall be permanently reduced by the amount of the commitments under the Refinancing Revolving Facility, and (C) such Refinancing Term Loan Facility, Refinancing Notes and Refinancing Revolving Facility are in an original aggregate principal amount not greater than the aggregate principal amount of the Term Loan Facility or Revolving Facility (as applicable) being refinanced except by an amount equal to (x) accrued interest and premium plus (y) upfront fees and OID plus (z) other fees and expenses or other amounts paid, in each case with respect to such Refinancing Term Loan Facility, Refinancing Notes or Refinancing Revolving Facility, as applicable, (iii) such Refinancing Term Loan Facility or Refinancing Notes have a maturity equal to or later than, and a Weighted Average Life to Maturity equal to or greater than, the loans under the Term Loan Facility being refinanced and, with respect to any Refinancing Notes, shall not have
mandatory prepayment provisions (other than those related to customary asset sale, change of control or similar event offers and AHYDO payments) that would result in prepayment of such Refinancing Notes prior to the Term Loans being refinanced (it being understood that the Borrower shall be permitted to prepay or offer to purchase any first lien secured Refinancing Notes pursuant to the proviso in
Section 2.05(b)(ii)(A))
, (iv) such Refinancing Revolving Facility shall not mature (or require scheduled commitment reductions or amortization) prior to the Maturity Date of the Revolving Commitments being refinanced, (v) there shall be no borrowers or guarantors in respect of any Refinancing Term Loan Facility, Refinancing Notes or Refinancing Revolving Facility that are not the Borrower, the German Borrower or a Guarantor, (vi) if secured, such Refinancing Term Loan Facility, Refinancing Notes or Refinancing Revolving Facility shall not be secured by any assets that do not constitute Collateral for the Facilities, (vii) with respect to any Refinancing Revolving Facility in respect of the U.S. Revolving Facility (each, a “
U.S. Refinancing Revolving Facility
”), all payment, borrowing, participation and commitment reduction shall be on a pro rata basis with (or more favorable to) the U.S. Revolving Facility (
provided
that (x) subject to the provisions of
Sections 2.03
and
2.04
to the extent dealing with Swingline Loans and Letters of Credit under any Revolving Facility which mature or expire after a Maturity Date when there exist Commitments under a Refinancing Revolving Facility with a longer Maturity Date, all such Swingline Loans and U.S. Letters of Credit shall be participated in on a pro rata basis by all Lenders with U.S. Revolving Commitments and any U.S. Refinancing Revolving Facility in accordance with their Pro Rata Share of the U.S. Revolving Facility and such U.S. Refinancing Revolving Facility (on an aggregate basis across the U.S. Revolving Facility and each U.S. Refinancing Revolving Facility) and (y) all borrowings under U.S. Revolving Commitments and any U.S. Refinancing Revolving Facility and repayments thereunder shall be made on a pro rata basis (except for (A) payments of interest and fees at different rates on Commitments under a U.S. Refinancing Revolving Facility (and related outstandings) and (B) repayments required upon the Maturity Date of the non-extending U.S. Revolving Commitments)); (viii) with respect to any Refinancing Revolving Facility in respect of the Multicurrency Revolving Facility (each, a “
Multicurrency
Refinancing Revolving Facility
”), all payment, borrowing, participation and commitment reduction shall be on a pro rata basis with (or more favorable to) the Multicurrency Revolving Facility (
provided
that (x) subject to the provisions of
Sections 2.03
and
2.04
to the extent dealing with Letters of Credit under any Revolving Facility which mature or expire after a Maturity Date when there exist Commitments under a Refinancing Revolving Facility with a longer Maturity Date, all such Multicurrency Letters of Credit shall be participated in on a pro rata basis by all Lenders with Multicurrency Revolving Commitments and any Multicurrency Refinancing Revolving Facility in accordance with their Pro Rata Share of the Multicurrency Revolving Facility and such Multicurrency Refinancing Revolving Facility (on an aggregate basis across the Multicurrency Revolving Facility and each Multicurrency Refinancing Revolving Facility) and (y) all borrowings under Multicurrency Revolving Commitments and any Multicurrency Refinancing Revolving Facility and repayments thereunder shall be made on a pro rata basis (except for (A) payments of interest and fees at different rates on Commitments under a Multicurrency Refinancing Revolving Facility (and related outstandings) and (B) repayments required upon the Maturity Date of the non-extending Multicurrency Revolving Commitments)); and (ix) such Refinancing Term Loan Facility, Refinancing Notes or Refinancing Revolving Facility shall either (A) have covenants no more restrictive (taken as a whole) than those under the Facilities as reasonably determined by the Administrative Agent (except for covenants applicable only to the periods after the final Maturity
Date of the Facilities at the time of the incurrence of such Refinancing Term Loan Facility, Refinancing Notes or Refinancing Revolving Facility; it being understood that to the extent that any financial maintenance covenant is added for the benefit of the Facilities, no consent shall be required from the Administrative Agent or any Lender and such Refinancing Term Loan Facility, Refinancing Notes or Refinancing Revolving Facility shall not be deemed to be more restrictive solely because of such financial maintenance covenant) or (B) be on then current market terms for such type of Indebtedness (as reasonably determined in good faith by the Borrower).
“
Credit Date
” means the date of a Credit Extension.
“
Credit Extension
” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“
Credit Party
” means (a) the Lenders and Affiliates thereof, (b) the Agents and their respective Affiliates and branches, (c) the Arrangers and (d) the permitted successors and permitted assigns of each of the foregoing.
“
Current Assets
” means, at any time, the Consolidated current assets (other than cash and Cash Equivalents) of the Borrower that would, in accordance with GAAP, be classified on a Consolidated balance sheet of Borrower as current assets at such date of determination, other than amounts related to current or deferred Tax assets based on income or profits (for the avoidance of doubt, Current Assets should exclude any (i) assets held for sale, (ii) loans (permitted) to third parties, (iii) Pension Plan assets, (iv) deferred bank fees and (v) derivative financial instruments).
“
Current Liabilities
” means, at any time, the Consolidated current liabilities of the Borrower all liabilities that would, in accordance with GAAP, be classified on a Consolidated balance sheet of Borrower as current liabilities at such date of determination, other than (a) the current portion of any long-term Indebtedness, (b) the current portion of interest, (c) accruals for current or deferred Taxes based on income or profits, (d) accruals of any costs or expenses related to restructuring reserves, (e) deferred revenue, (f) any Revolving Loans with maturities in excess of one year and (g) the current portion of pension liabilities.
“
Debt Issuance
” means the issuance by any Person and its Subsidiaries of any Indebtedness for borrowed money.
“
Debtor Relief Laws
” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally, including, with respect to the German Borrower, the German Insolvency Code (
Insolvenzordnung
).
“
Declining Lender
” has the meaning specified in
Section 2.05(b)(vii)
.
“
Default
” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the lapse of grace period, or both, would be an Event of Default.
“
Default Rate
” means, with respect to overdue principal, an interest rate equal to (a) the Applicable Rate applicable to the respective borrowing
plus
(b) 2.0% per annum and, with respect to any other overdue amount, the interest rate applicable to Base Rate Loans
plus
2.0% per annum (other than to Defaulting Lenders).
“
Defaulting Lender
” means, subject to
Section 2.18(b)
, any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any L/C Issuer or the Swingline Lender in writing that it does not intend to comply with any of such Lender’s funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lenders’ obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (
provided
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, other than via an Undisclosed Administration, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other Federal or state regulatory authority acting in such a capacity;
provided
that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in such Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to
Section 2.18(b)
) upon delivery of written notice of such determination to the Borrower, each L/C Issuer, the Swingline Lender and each Lender.
“
Delayed Draw
Commitment
” means, as to each Lender, its obligation to make Delayed Draw Term Loans to the Borrower in an aggregate amount not to exceed the amount set forth opposite such Lender’s name on
Schedule 2.01
under the caption “Delayed Draw Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the Delayed Draw Commitments as of the Closing Date is $250,000,000.
“
Delayed Draw Commitment Fee
” has the meaning specified in
Section 2.09(a)(iii).
“
Delayed Draw Commitment Period
” means the time period commencing on the Closing Date through and including the Delayed Draw Commitment Termination Date.
“
Delayed Draw Commitment Termination Date
” means the earliest to occur of (a) the first anniversary of the Closing Date, (b) the date of termination of the Delayed Draw Commitments by the Borrower pursuant to
Section 2.06(a)
and (c) the date of termination of the Delayed Draw Commitments pursuant to
Section 8.01
.
“
Delayed Draw Credit Date
” means the date of funding of Delayed Draw Term Loans.
“
Delayed Draw Term Lender
” means a lender that has a Delayed Draw Commitment.
“
Delayed Draw Percentage
” means, with respect to any Lender at any time, the percentage of the total Delayed Draw Commitments and/or Delayed Draw Term Loans of all the Lenders represented by such Lender’s Delayed Draw Commitment and/or Delayed Draw Term Loan. The initial Delayed Draw Percentage of each Lender is set forth opposite the name of such Lender on
Schedule 2.01
under the caption “Delayed Draw Commitment”.
“
Delayed Draw
Term Borrowing
” means a borrowing consisting of simultaneous Delayed Draw Term Loans of the same Type (if applicable) and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term Lenders pursuant to
Section 2.01(a)(ii)
.
“
Delayed Draw Term Loan
” means a term loan denominated in Dollars and made by a Lender to the Borrower pursuant to
Section 2.01(a)(ii)
.
“
Delayed Draw
Term Note
” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of
Exhibit B-4
hereto, evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Delayed Draw Term Loans made by such Lender.
“
Designated Credit Line Provider
” means any Person that is the lender, administrative agent or other representative with respect to a Designated Credit Line so long as such Person was identified to the Administrative Agent by the Borrower in writing on or prior to the Closing Date or, in the case of any Designated Credit Lines entered into after the Closing Date, on or prior to the date such Designated Credit Line is entered into;
provided
,
that such provider delivers written notice that has been consented to in writing by the Borrower, in form reasonably satisfactory to the Administrative Agent, (i) describing the Designated Credit Line and setting forth the amount of the Designated Credit Line to be secured by the Collateral and (ii) agreeing to be bound by
Section 6.02
of the Security Agreement and
Article 9
hereof, as provided in
Section 9.11
.
“
Designated Credit Lines
” means lines of credit, letter of credit facilities and working capital credit facilities of Foreign Subsidiaries provided by a Designated Credit Line Provider and
designated by the Borrower in writing to the Administrative Agent;
provided
that, at the time of any such designation, the aggregate principal amount of such Designated Credit Line together with all other then outstanding Designated Credit Lines, shall not exceed $150,000,000.
“
Designated Non-Cash Consideration
” means the fair market value of non-cash consideration received by the Borrower or a Subsidiary in connection with a Disposition pursuant to
Section 7.05(k)
that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth the basis of such valuation.
“
Discount Prepayment Accepting Lender
” has the meaning assigned to such term in
Section 2.05(a)(iv)(B)(2)
.
“
Discount Range
” has the meaning assigned to such term in
Section 2.05(a)(iv)(C)(1)
.
“
Discount Range Prepayment Amount
” has the meaning assigned to such term in
Section 2.05(a)(iv)(C)(1)
.
“
Discount Range Prepayment Notice
” means a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to
Section 2.05(a)(iv)(C)
substantially in the form of
Exhibit H
.
“
Discount Range Prepayment Offer
” means the irrevocable written offer by a Lender, substantially in the form of
Exhibit I
, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.
“
Discount Range Prepayment Response Date
” has the meaning assigned to such term in
Section 2.05(a)(iv)(C)(1)
.
“
Discount Range Proration
” has the meaning assigned to such term in
Section 2.05(a)(iv)(C)(3)
.
“
Discounted Loan Prepayment
” has the meaning assigned to such term in
Section 2.05(a)(iv)(A)
.
“
Discounted Prepayment Determination Date
” has the meaning assigned to such term in
Section 2.05(a)(iv)(D)(3)
.
“
Discounted Prepayment Effective Date
” means in the case of any Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offer or Borrower Solicitation of Discounted Prepayment Offer, five (5) Business Days following the respective Specified Discount Prepayment Response Date, Discount Range Prepayment Response Date or Solicited Discounted Prepayment Response Date, as applicable, in accordance with
Section 2.05(a)(iv)(B)
,
Section 2.05(a)(iv)(C)
or
Section 2.05(a)(iv)(D)
, respectively, unless a different period is agreed to between the Borrower and the Auction Agent acting in their reasonable discretion.
“
Disposed EBITDA
” means, with respect to any Sold Entity or Business or any Converted Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary, as applicable, all as determined
on a consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary, as applicable.
“
Disposition
” or “
Dispose
” means the sale, transfer, license, lease or other disposition of any property by any Person (including any sale and leaseback transaction), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“
Disqualified Capital Stock
” means any Capital Stock that, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock or solely at the direction of the issuer), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale or casualty or condemnation event so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale or casualty or condemnation event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and the termination of all outstanding Letters of Credit (unless the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized), (b) is redeemable at the option of the holder thereof (other than if the issuer has the option to settle for Qualified Capital Stock and cash in lieu of fractional shares), in whole or in part, (c) provides for the scheduled payments of dividends in cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is ninety-one (91) days after the Maturity Date of the Term Loan Facility at the time such capital stock is issued;
provided
that if such Capital Stock is issued pursuant to a plan for the benefit of employees of Holdings (or any direct or indirect parent thereof), the Borrower or the Restricted Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Borrower or if its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.
“
Disqualified Institution
” means, unless otherwise consented to by the Borrower in writing, (a) those financial institutions, lenders and other Persons identified by the Borrower to the Arrangers by name in writing on or prior to the close of business on January 5, 2014, (b) competitors of the Borrower or their respective affiliates, in the case of this clause (b) identified by the Borrower to the Administrative Agent by name in writing on or prior to the close of business on January 5, 2014 or from time to time after the Closing Date or (c) any affiliates of the foregoing that are readily identifiable according to their names, but excluding (in the case of clauses (b) and (c)) bona fide debt funds.
“
Documentation Agents
” means Bank of America, N.A. and HSBC Securities (USA) Inc., each in its capacity as a co-documentation agent under this Agreement.
“
Dollar
” and “
$
” mean lawful money of the United States.
“
Dollar Equivalent
” means, with respect to an amount denominated in Dollars, such amount, and with respect to an amount denominated in any Alternative Currency, the equivalent in Dollars of
such amount determined at the Exchange Rate on the applicable Valuation Date. In making the determination of the Dollar Equivalent for purposes of determining the aggregate available Multicurrency Revolving Commitments on any Credit Date, the Administrative Agent shall use the Exchange Rate in effect at the date on which any Borrower requests the Credit Extension for such Credit Date pursuant to the provisions of this Agreement.
“
Domestic Subsidiary
” means any Subsidiary of the Borrower that is organized under the laws of the United States of America, any State thereof, or the District of Columbia.
“
DPO
” means (i) the Deferred Payment Agreement (Class 7A PD) between the Borrower and the WRG Asbestos PI Trust, (ii) the Asbestos PI Deferred Payment Agreement between the Borrower and the WRG Asbestos PI Trust and (iii) the Deferred Payment Agreement (Class 7B ZAI) between the Borrower and the WRG Asbestos PD Trust, each dated as of the Closing Date.
“
DPO Obligations
” means the obligations of the Borrower and Holdings under the DPO.
“Earlier Maturity Indebtedness”
means (i) Additional Term A Loans, (ii) Additional Notes that would not meet the requirements of clauses (a) or (c) of the definition thereof at the time incurred and (iii) Permitted Additional Junior Debt that would not meet the requirements of the proviso in the definition thereof at the time incurred.
“
Eligible Assignee
” means, as of any date of determination, (a) a Lender as of such date; (b) an Affiliate of a Lender described in clause (a); (c) an Approved Fund with respect to a Lender described in clause (a); and (d) any other Person (other than a natural person or any Affiliate of the Borrower) approved by (i) the Administrative Agent, (ii) in the case of any assignment of a Revolving Commitment, the L/C Issuers and the Swingline Lender and (iii) unless an Event of Default has occurred and is continuing under
Section 8.01(a)
,
(e)
and
(f)
, the Borrower (each such approval not to be unreasonably withheld or delayed).
“
Eligible Equity Proceeds
” means the Net Cash Proceeds received by Holdings from any sale or issuance of any Capital Stock (other than Disqualified Capital Stock) of Holdings (or any direct or indirect parent) to the extent such Net Cash Proceeds are directly or indirectly contributed to, and actually received by, the Borrower (or, if only a portion thereof is so contributed and received, to the extent of such portion).
“
Environmental Claim
” means any notice of violation, claim (including common law claims), accusation, allegation, cause of action, suit, administrative, regulatory or judicial action or proceeding, investigation, written demand, lien, abatement order, or other order or directive (conditional or otherwise), by any Governmental Authority or any Person for any liability, loss, damage (foreseeable and unforeseeable), personal injury (including sickness, disease or death), tangible or intangible property damage, contribution, cost recovery, indemnity, indirect or consequential damages, punitive damages, fees, out-of-pocket costs, expenses, disbursements, attorneys’ or consultant fees, damage to the environment or natural resources, or for nuisance, pollution, contamination or other adverse effects on the environment, human health, or natural resources, or for fines, penalties, restrictions or injunctive relief, resulting from, arising from, based upon or related to (i) the occurrence or existence of a Release or threat of a Release (whether sudden
or non-sudden or accidental or non-accidental) of, the exposure to or presence of any Contaminant in, into or onto the environment, (ii) the use, handling, generation, transportation, storage, treatment or disposal of any Contaminant, or (iii) the violation, or alleged violation, of any Environmental Law or Environmental Permit.
“
Environmental Laws
” means any and all applicable foreign, federal, state or local laws, statutes, ordinances, codes, rules or regulations or orders, decrees, judgments or directives issued by a Governmental Authority, Environmental Permits or Remedial Action standards, levels or objectives imposing liability, duties, obligations or standards of conduct for or relating to pollution, the protection of health, safety or the environment or the use, treatment, storage, transportation, handling, disposal or release of any hazardous material, substance or waste, including, but not limited to, the following United States statutes, as now written and hereafter amended: the Water Pollution Control Act, as codified in 33 U.S.C. §1251
et seq
., the Clean Air Act, as codified in 42 U.S.C. §7401
et seq
., the Toxic Substances Control Act, as codified in 15 U.S.C. §2601
et seq
., the Solid Waste Disposal Act, as codified in 42 U.S.C. §6901
et seq
., the Comprehensive Environmental Response, Compensation and Liability Act, as codified in 42 U.S.C. §9601
et seq
., the Emergency Planning and Community Right-to-Know Act of 1986, as codified in 42 U.S.C. §11001
et seq
., and the Safe Drinking Water Act, as codified in 42 U.S.C. §300f
et seq
., and any related regulations, as well as all state and local equivalents.
“
Environmental Liability
” means any liability, loss, duty or obligation, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries arising from, resulting from or based upon (a) violation, or alleged violation, of any Environmental Law or Environmental Permit, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Contaminant, (c) exposure to any Contaminant, (d) the presence, release or threatened release of any Contaminant into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“
Environmental Lien
” means a Lien in favor of any Governmental Authority for (i) any liability under Environmental Laws or Environmental Permits, or (ii) damages relating to, or costs incurred by such Governmental Authority in response to, a Release or threatened Release of a Contaminant into the environment.
“
Environmental Permits
” means any and all permits, licenses, certificates, authorizations or approvals of any Governmental Authority required by Environmental Laws or necessary or reasonably required for the current and anticipated future operation of the business of any Loan Party or any of their Restricted Subsidiaries.
“
Equity Issuance
” means any issuance for cash by any Person and its Subsidiaries to any other Person of (a) its Capital Stock, (b) any of its Capital Stock pursuant to the exercise of options or warrants, (c) any of its Capital Stock pursuant to the conversion of any debt securities to equity or (d) any options or warrants relating to its Capital Stock. A Disposition shall not be deemed to be an Equity Issuance.
“
ERISA
” means the Employee Retirement Income Security Act of 1974 as amended from time to time and the regulations promulgated and rulings issued thereunder.
“
ERISA Affiliate
” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“
ERISA Event
” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is, or is expected to be, insolvent, in reorganization or in critical or endangered status; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan; (f) the imposition of any material liability under Title IV of ERISA, other than for PBGC premiums not yet due or premiums due but not yet delinquent under Section 4007 of ERISA, upon any Borrower or any ERISA Affiliate; (g) the failure to satisfy the minimum funding standard under Section 412 or 430 of the Code or Section 302 of ERISA, whether or not waived with respect to any Pension Plan; or (h) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan.
“
Euro
” or “
€
” means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states, being in part legislative measures to implement the European and Monetary Union as contemplated in the Treaty on European Union.
“
Euro
Term Borrowing
” means a borrowing consisting of simultaneous Euro Term Loans of the same Type (if applicable) and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term Lenders pursuant to
Section 2.01(a)(i)(y)
.
“
Euro
Term Commitment
” means, as to each Lender, its obligation to make a Euro Term Loan to the Borrower in an aggregate amount not to exceed the amount set forth opposite such Lender’s name on
Schedule 2.01
under the caption “Euro Term Commitment” as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the Euro Term Commitments as of the Closing Date is €150,000,000.
“
Euro Term Lender
” means a Lender who has a Euro Term Commitment.
“
Euro Term Loan
” means a term loan denominated in Euros and made by a Lender to the Borrower pursuant to
Section 2.01(a)(i)(y)
.
“
Euro Term Loan Exposure
” means, as to any Lender as of any date of determination, the outstanding principal amount of the Euro Term Loans of such Lender; provided, that at any time prior to the making of the Euro Term Loans, the Euro Term Loan Exposure of any Lender shall be equal to such Lender’s Euro Term Commitment.
“
Eurocurrency Rate Borrowing
” means a Borrowing comprised of Eurocurrency Rate Loans.
“
Eurocurrency Rate Loan
” means any Loan bearing interest at a rate determined by reference to the Adjusted Eurocurrency Rate in accordance with the provisions of
Article 2
.
“
Event of Default
” has the meaning specified in
Section 8.01
.
“Excess Cash Flow”
means, for any period, an amount equal to the excess of:
(a) the sum, without duplication, of:
(i) Consolidated Net Income for such period;
(ii) an amount equal to the amount of all non-cash charges (including depreciation and amortization) to the extent deducted in arriving at such Consolidated Net Income;
(iii) decreases in Consolidated Working Capital for such period (other than (v) appreciation of the Dollar relative to other foreign currencies, (w) any such decreases arising from acquisitions or dispositions by the Borrower and its Restricted Subsidiaries completed during such period or the application of purchase accounting, (x) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent, (y) as a result of a liability or obligation that becomes probable or estimable or (z) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities under Swap Contracts);
(iv) an amount equal to the aggregate net non-cash loss on Dispositions by the Borrower and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; and
(v) cash receipts in respect of Swap Contracts during such period to the extent not otherwise included in Consolidated Net Income;
over
(b) the sum, without duplication, of:
(i) an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash charges to the extent included in arriving at such Consolidated Net Income;
(ii) without duplication of amounts deducted pursuant to
clause (x)
below in prior fiscal years, the amount of Capital Expenditures or Permitted Acquisitions made in cash during such period, except to the extent that such Capital Expenditures or Permitted Acquisitions were financed with the proceeds of an incurrence or issuance of Indebtedness (other than revolving loans) of the Borrower or its Restricted Subsidiaries;
(iii) the aggregate amount of all principal payments of Indebtedness of the Borrower and its Restricted Subsidiaries (including the principal component of Capital Lease Obligations, but excluding (X) Indebtedness created hereunder or under any other Loan Document (other than pursuant to Section 2.07(a)) and (Y) all prepayments in respect of any other revolving credit facility, except, in the case of
clause (Y)
, to the extent there is an equivalent permanent reduction in commitments thereunder) made during such period, except to the extent financed with the proceeds of an incurrence or issuance of other Indebtedness (other than revolving loans) of the Borrower or its Restricted Subsidiaries;
(iv) an amount equal to the aggregate net non-cash gain on Dispositions by the Borrower and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income;
(v) increases in Consolidated Working Capital for such period (other than (v) appreciation of the Dollar relative to other foreign currencies, (w) any such increases arising from acquisitions or dispositions by the Borrower and its Restricted Subsidiaries completed during such period or the application of purchase accounting, (x) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent, (y) as a result of a liability or obligation that becomes probable or estimable or (z) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities under Swap Contracts);
(vi) cash payments by the Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities (other than Indebtedness) of the Borrower and its Restricted Subsidiaries;
(vii) without duplication of amounts deducted pursuant to
clause (xi)
below in prior periods, the amount of Investments and acquisitions made during such period pursuant to
Section 7.02
(other than
Section 7.02(a)
,
(c)
and
(m)(y)
) except to the extent that such Investments and acquisitions were financed with the proceeds of an incurrence or issuance of Indebtedness (other than revolving loans) of the Borrower or its Restricted Subsidiaries;
(viii) the amount of Restricted Payments paid during such period pursuant to
Section 7.06
(other than
Section 7.06(a)
(solely in respect of amounts paid to the Borrower or a Restricted Subsidiary),
(b)
and
(f)(B)
) except to the
extent that such Restricted Payments were financed with the proceeds of an incurrence or issuance of Indebtedness (other than revolving loans) of the Borrower or its Restricted Subsidiaries;
(ix) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and its Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness except to the extent that such amounts were financed with the proceeds of an incurrence or issuance of Indebtedness (other than revolving loans) of the Borrower or its Restricted Subsidiaries;
(x) the aggregate amount of expenditures actually made by the Borrower and its Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period (or otherwise deducted in Consolidated Net Income during such period) and were not financed with the proceeds of an incurrence or issuance of Indebtedness (other than revolving loans) of the Borrower or its Restricted Subsidiaries;
(xi) without duplication of amounts deducted from Excess Cash Flow in prior periods, (A) the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts and (B) expenditures required to be paid in cash by Borrower or any of its Restricted Subsidiaries pursuant to Applicable Law during the period of four consecutive fiscal quarters of the Borrower following the end of such period (the “
Contract Consideration
”) entered into prior to or during such period relating to Permitted Acquisitions, Capital Expenditures or acquisitions to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period;
provided
that to the extent the aggregate amount utilized to finance such Permitted Acquisitions, Capital Expenditures or acquisitions during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall, shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters;
(xii) the amount of cash taxes (including penalties and interest) paid or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period;
(xiii) cash expenditures in respect of Swap Contracts during such fiscal year to the extent not deducted in arriving at such Consolidated Net Income;
(xiv) cash payments in respect of DPO Obligations in such period;
(xv) to the extent added to Consolidated Net Income, cash losses from discontinued operations;
(xvi) without duplication of any other deduction, cash expenditures in respect of pension and other post retirement obligations and environmental obligations in such period; and
(xvii) without duplication of any other deduction, any cash expenditure in respect of the Warrant (other than any such cash expenditure funded with Indebtedness (other than revolving loans)).
“
Exchange Rate
” means the rate at which any currency (the “
Original Currency
”) may be exchanged into Dollars, Euros or another currency (the “
Exchanged Currency
”), as set forth on such date on the relevant
Reuters screen at or about 11:00 a.m. (New York time) on such date. In the event that such rate does not appear on the
Reuters screen, the “Exchange Rate” with respect to such Original Currency into such Exchanged Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower or, in the absence of such agreement, such “Exchange Rate” shall instead be the Administrative Agent’s quoted spot rate of exchange in the interbank market where its foreign currency exchange operations in respect of such Original Currency are then being conducted, at or about 11:00 a.m. (local time), on such date for the purchase of the Exchanged Currency, with such Original Currency for delivery two Business Days later.
“
Excluded Foreign Subsidiary
” means (i) any direct or indirect Foreign Subsidiary, (ii) any direct or indirect Subsidiary of a Foreign Subsidiary or any Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary Holding Company and (iii) any Foreign Subsidiary Holding Company.
“
Excluded Information
” means information (including material non-public information) regarding the Loans of the applicable Class or the Loan Parties hereunder or the German Borrower that is not known to a Lender participating in a Discounted Voluntary Prepayment or in an assignment to the Borrower, that may be material to a decision by such Lender to participate in such Discounted Voluntary Prepayment or such assignment to the Borrower, as applicable.
“
Excluded Subsidiary
” means any (i) Excluded Foreign Subsidiary, (ii) Unrestricted Subsidiary, (iii) Immaterial Subsidiary, (iv) Captive Insurance Subsidiary, (v) Non-Profit Subsidiary, (vi) Joint Venture and (vii) subsidiary which is a special purpose entity.
“
Excluded Taxes
” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (x) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (y) that are Other Connection Taxes, (ii) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (a) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under
Section 3.06
) or (b) such Lender changes its lending office, except in each case to the extent that, pursuant to
Section 3.01
, amounts with respect to such Taxes were payable either to such Lender's assignor immediately
before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iii) Taxes attributable to such Recipient’s failure to comply with
Section 3.01(d)
, and (iv) any U.S. federal withholding Taxes imposed under FATCA.
“
Existing Indebtedness
” means Indebtedness existing on the Closing Date.
“
Exit
” has the meaning specified in the Preliminary Statements.
“
Exit Expenses
” means all fees, expenses and charges incurred in connection with the Exit.
“
Expiring Credit Commitment
” has the meaning specified in
Section 2.04(f)
.
“
Extended Loans
” means the Extended Term Loans and/or the Extended Revolving Loans, as the context may require.
“
Extended Revolving Borrowing
” means a borrowing consisting of simultaneous Extended Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the Extended Revolving Lenders.
“
Extended Revolving Commitments
” has the meaning specified in
Section 2.16(a)
.
“
Extended Revolving Lender
” has the meaning specified in
Section 2.16(a)
.
“
Extended Revolving Loans
” has the meaning specified in
Section 2.16(a)
.
“
Extended Term Borrowing
” means a borrowing consisting of simultaneous Extended Term Loans of the same Type (if applicable) and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Extended Term Lenders pursuant to
Section 2.16(a)
.
“
Extended Term Lender
” has the meaning specified in
Section 2.16(a)
.
“
Extended Term Loans
” has the meaning specified in
Section 2.16(a)
.
“
Extending Lender
” has the meaning specified in
Section 2.16(a)
.
“
Extension
” has the meaning specified in
Section 2.16(a)
.
“
Extension Amendments
” has the meaning specified in
Section 2.16(c)
.
“
Extension Offer
” has the meaning specified in
Section 2.16(a)
.
“
Facility
” means each Term Loan Facility, each Revolving Facility, or each Additional Term Facility or Additional Revolving Facility, as the context may require.
“
FATCA
”
means (a) Sections 1471 through 1474 of the Code as of the date of this Agreement (and any successor or future version thereof that is substantially comparable and not materially more onerous to comply with), any current or future Treasury regulations promulgated or Revenue Ruling, Revenue Procedure, Notice or other administrative guidance issued thereunder, (b) any treaty, law,
regulation or other official guidance enacted in any other jurisdiction, in each case, that relates to an intergovernmental agreement between the U.S. and any other jurisdiction and facilitates the implementation of the preceding clause (a), or (c) any agreement entered into (including pursuant to Section 1471(b)(1) of the Code) regarding the implementation of the preceding clauses (a) or (b) with the United States Internal Revenue Service, the U.S. Government or any governmental or taxation authority under any other jurisdiction.
“
Federal Funds Effective Rate
” means for any day, the rate
per annum
equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to Administrative Agent on such day on such transactions as determined by Administrative Agent.
“
Fee Letter
” means the Facilities Fee Letter executed by Holdings, the Borrower, the Arrangers and the other parties thereto, dated as of January 7, 2014.
“
First Lien Leverage Ratio
” means, with respect to any Test Period, the ratio of (a) Consolidated Total Debt (other than any portion of Consolidated Total Debt that is unsecured or is secured solely by a Lien that is junior to the Liens securing the Obligations) as of the last day of such Test Period (net of Cash on Hand) to (b) Consolidated EBITDA of the Borrower for such Test Period.
“
Flood Certificate
” means a “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency and any successor Governmental Authority performing a similar function.
“
Flood Program
” means the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004, in each case as amended from time to time, and any successor statutes.
“
Flood Zone
” means areas having special flood hazards as described in the National Flood Insurance Act of 1968, as amended from time to time, and any successor statute.
“
FLSA
” means the federal Fair Labor Standards Act, as the same may from time to time be amended or supplemented, including any rules or regulations issued in connection therewith.
“
Foreign Plan Event
” means (a) a foreign governmental authority has instituted proceedings to terminate a Foreign Pension Plan, (b) a foreign governmental authority has appointed a trustee to administer any Foreign Pension Plan in place of the existing administrator, in each case by reason of a distress termination within the meaning of Section 4041(c) of ERISA, treating such Foreign Pension Plan as if it were subject to ERISA; or (c) any Foreign Pension Plan that is required by
applicable law to be funded in a trust or other funding vehicle has failed to comply with such funding requirements.
“
Foreign Pension Plan
” means any plan, fund (including, without limitation, any super-annuation fund) or other similar program established or maintained outside of the United States of America by the Borrower or one or more of its Subsidiaries or its Affiliates primarily for the benefit of employees of the Borrower or such Subsidiaries or its Affiliates residing outside the United States of America, which plan, fund, or similar program provides or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which is not subject to ERISA or the Code.
“
Foreign Subsidiary
” means any Subsidiary that is not a Domestic Subsidiary.
“
Foreign Subsidiary Holding Company
” means a Domestic Subsidiary all of the assets of which (except for an immaterial amount) consist of the equity (or the equity and debt) of one or more direct or indirect Foreign Subsidiaries that are CFCs.
“
Fronting Exposure
” means, at any time there is a Defaulting Lender, (a) with respect to any L/C Issuer, such Defaulting Lender’s outstanding L/C Obligations with respect to Letters of Credit issued by such L/C Issuer other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s U.S. Revolving Percentage of outstanding Swingline Loans made by the Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other U.S. Revolving Lenders or Cash Collateralized in accordance with the terms hereof.
“
Fund
” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.
“
Funded Debt
” means all Indebtedness of the Borrower and its Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans.
“
GAAP
” means generally accepted accounting principles in the United States, as in effect from time to time;
provided
that (A) if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended in accordance herewith, (B) at any time after the Closing Date, the Borrower may elect, upon notice to the Administrative Agent, to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided herein), including as to the ability of the Borrower or the Required Lenders to make an election pursuant to
clause (A)
of this proviso, (C) any election made pursuant to
clause (B)
of this proviso, once made, shall be irrevocable, (D) any calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to the Borrower’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP and (E) the Borrower may only make an election pursuant to
clause (B)
of this proviso if it also elects to report any subsequent financial reports required to be made by the Borrower, including pursuant to
Sections 6.01(a)
and
(b)
, in IFRS;
provided further
, that the treatment of, and all computations with respect to, leases contained in this Agreement may, in the sole discretion of the Borrower, be treated, and performed, in accordance with GAAP as in effect on the Closing Date.
“
General Incremental Availability
” has the meaning specified in
Section 2.14(a)(i)
.
“
German Borrower
” has the meaning specified in the preamble hereto.
“
Goldman Sachs
” means Goldman Sachs Bank USA.
“
Governmental Authority
” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“
Granting Lender
” has the meaning specified in
Section 10.07(g)
.
“
Guarantee
” means, as to any Person, without duplication, any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “
Primary Obligor
”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other obligation or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), and
provided further
that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity or product warranty obligations, including, but not limited to, those in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The
amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “
Guarantee
” as a verb has a corresponding meaning.
“
Guarantee Agreement
” means the Guarantee Agreement made by the Borrower and the Guarantors in favor of the Secured Parties, substantially in the form of
Exhibit E
, together with each other guarantee agreement and guarantee agreement supplement of any Subsidiary in respect of the Obligations of the Borrower delivered pursuant to
Section 6.12
.
“
Guarantors
” means, collectively, (a) Holdings and the Subsidiaries listed as such on
Schedule I
that, as of the Closing Date, have Guaranteed the Obligations of the Borrower (in its capacity as the Borrower under the Loan Documents) pursuant to the Guarantee Agreement, (b) the Borrower (with respect to Obligations other than the direct Obligations of the Borrower) and (c) each other Restricted Subsidiary that is a Subsidiary of the Borrower that has become a Guarantor pursuant to
Section 6.12
, provided that in no event shall the German Borrower and any Excluded Subsidiary be a Guarantor under this Agreement. For avoidance of doubt, the Borrower in its sole discretion may cause any Restricted Subsidiary that is not otherwise required to become a Guarantor to Guarantee the Obligations by causing such Restricted Subsidiary to execute the Guarantee Agreement and Collateral Documents required by
Section 6.12
.
“
Hedging Obligations
” means, with respect to any Person, the obligations of such Person under any Swap Contract.
“
Historical Financial Statements
” means (i) the audited consolidated balance sheet of Holdings and its subsidiaries as at December 31, 2010, December 31, 2011, and December 31, 2012, and the related, as applicable, audited consolidated statements of earnings and cash flows of Holdings and its subsidiaries and (ii) the unaudited consolidated balance sheet of Holdings and its subsidiaries as at March 31, 2013, June 30, 2013 and September 30, 2013, and the related, as applicable, consolidated statements of earnings and cash flows of Holdings and its subsidiaries in each case, prepared in accordance with GAAP (except as otherwise disclosed).
“
Holdings
” has the meaning specified in the preamble hereto.
“
Identified Participating Lenders
” has the meaning specified in
Section 2.05(a)(iv)(C)(3)
.
“
Identified Qualifying Lender
” has the meaning specified in
Section 2.05(a)(iv)(D)(3)
.
“
Immaterial Subsidiary
” means a Subsidiary of the Borrower that, individually or in the aggregate with all other Immaterial Subsidiaries so designated by the Borrower, has assets which represent less than 5% of the Total Assets of Holdings as of the last day of the most recently completed fiscal quarter with respect to which, pursuant to
Section 6.01(b)
, financial statements have been, or are required to have been, delivered by the Borrower on or before the date as of which any such determination is made, as reflected in such financial statements;
provided
, prior to the first such
delivery of financial statements, such determination shall be made based on the pro forma balance sheet dated September 30, 2013 provided to the Lenders prior to the Closing Date.
“
Incremental Equivalent Term Indebtedness
” has the meaning specified in
Section 2.14(a)(v)(D)
.
“
Incur
” means issue, create, assume, enter into any Guarantee of, incur, extend or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and the terms “
Incurred
” and “
Incurrence
” have meanings correlative to the foregoing and any Indebtedness pursuant to any revolving credit or similar facility shall only be “
Incurred
” at the time any funds are borrowed thereunder.
“
Indebtedness
” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:
(i) in respect of borrowed money;
(ii) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);
(iii) in respect of banker’s acceptances;
(iv) all Attributable Indebtedness;
(v) representing the balance deferred and unpaid of the purchase price of any property or services due more than twelve months after such property is acquired or such services are completed, other than trade payables incurred in the ordinary course of business; or
(vi) net obligations of such Person under any Swap Contract,
if and to the extent any of the preceding items (other than letters of credit and Swap Contracts) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) (provided that the amount of any such Indebtedness shall not exceed the lesser of the amount of such Indebtedness and fair market value of the assets subject to such Lien) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. Indebtedness shall be calculated without giving effect to the effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivatives created by the terms of such Indebtedness. In no event shall DPO Obligations or the Warrant be deemed “Indebtedness” for any purpose under this Agreement. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.
“
Indemnified Liabilities
” has the meaning set forth in
Section 10.05
.
“
Indemnified Taxes
” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“
Indemnitees
” has the meaning set forth in
Section 10.05
.
“
Information
” has the meaning specified in
Section 10.08
.
“
Informational Website
” has the meaning specified in
Section 6.02
.
“
Initial
Term Commitments
” means a U.S. Term Commitment and/or a Euro Term Commitment, and “Initial Term Commitments” means such commitments of all Lenders.
“
Initial Term Loans
” means a U.S. Term Loan and/or a Euro Term Loan, and “Initial Term Loans” means such loans of all Lenders.
“
Initial
Term Note
” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of
Exhibit B-1
hereto, evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Initial Term Loans made by such Lender.
“
Intellectual Property Security Agreement
” means, collectively, the Copyright Security Agreement, the Trademark Security Agreement and the Patent Security Agreement (each as defined in the Security Agreement), referred to in and substantially in the forms attached to the Security Agreement executed and delivered pursuant to
Section 6.12
or the applicable Security Agreement.
“
Interest Coverage Ratio
” means, with respect to any Test Period, the ratio of (a) Consolidated EBITDA of the Borrower for such Test Period to (b) Consolidated Cash Interest Expense of the Borrower for such Test Period.
“
Interest Payment Date
” means (i) with respect to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan (provided, in the case of each Interest Period of longer than three months “Interest Payment Date” shall also include each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period) and the Maturity Date of the Facility under which such Loan was made and (ii) with respect to any Base Rate Loan (including a Swingline Loan), the last Business Day of each March, June, September and December of each year and the Maturity Date of the Facility under which such Loan was made.
“
Interest Period
” means, with respect to any Eurocurrency Rate Loan, the period commencing on the date of such Borrowing and ending on (i) the numerically corresponding day in the calendar month that is one (1), three (3) or six (6) months thereafter or (ii) if available to all of the relevant Lenders, the numerically corresponding day in the calendar month that is shorter than one month or twelve (12) months thereafter, as selected by Borrower in the applicable Committed Loan Notice;
provided
,
however
, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day, (b) any Interest Period of one month or more that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month during which such Interest Period ends) shall, subject to clause (c) of this definition, end on the last Business Day of the calendar month of such Interest Period, and (c) no Interest Period in respect of any Borrowing of any given tranche shall extend beyond the respective Maturity Date therefor. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“
Interest Rate Determination Date
” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.
“
Investment
” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Capital Stock or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor incurs debt of the type referred to in
clause (i)
of the definition of “Indebtedness” set forth in this
Section 1.01
in respect of such Person or (c) the purchase or other acquisition (in one transaction or a series of related transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any amount paid back, repaid, returned, distributed or otherwise received in respect of such Investment.
“
IP Rights
” has the meaning set forth in
Section 5.17
.
“
IRS
” means the United States Internal Revenue Service.
“
Joinder Agreement
” means an agreement substantially in the form of
Exhibit Q
, with such changes as are necessary to specify, in compliance with
Section 2.14
, the terms of any Additional Term Commitments or Additional Revolving Commitments and extensions of credit thereunder.
“
Joint Venture
” means (a) any Person which would constitute an “equity method investee” of the Borrower or any of its Restricted Subsidiaries and (b) any Person in whom the Borrower or any of its Restricted Subsidiaries beneficially owns any Capital Stock that is not a Subsidiary.
“
Judgment Currency
” has the meaning specified in
Section 1.08(h)
.
“
Junior Financing
” has the meaning specified in
Section 7.13
.
“
Junior Financing Documentation
” means any documentation governing any Junior Financing.
“
Jurisdictional Requirements
” means that (i) the Borrower remains organized under the laws of the United States, any state thereof or the District of Columbia and (ii) the German Borrower remains organized under the laws of the Federal Republic of Germany.
“
L/C Advance
” means a U.S. L/C Advance and/or a Multicurrency L/C Advance, as applicable.
“
L/C Application
” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer and acceptable to the Administrative Agent, the applicable L/C Issuer and the Borrower.
“
L/C Borrowing
” means a U.S. L/C Borrowing and/or a Multicurrency L/C Borrowing, as applicable.
“
L/C Commitment
” means, as to any L/C Issuer, its U.S. L/C Commitment and/or its Multicurrency L/C Commitment, as applicable. The aggregate L/C Commitments of all the L/C Issuers shall be less than or equal to the L/C Sublimit at all times.
“
L/C Credit Extension
” means a U.S. L/C Credit Extension and/or a Multicurrency L/C Credit Extension, as applicable.
“
L/C Documents
” means, as to any Letter of Credit, each L/C Application and any other document, agreement and instrument entered into by the applicable L/C Issuer and the Borrower (or any Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.
“
L/C Expiration Date
” means the day that is five Business Days prior to the scheduled Maturity Date then in effect with respect to the applicable Revolving Facility (or, if such day is not a Business Day, the immediately preceding Business Day).
“
L/C Fees
” means the U.S. L/C Fees and/or the Multicurrency L/C Fees, as applicable.
“
L/C Issuer
” means Bank of America, N.A. in its capacity as issuer of U.S. Letters of Credit and Multicurrency Letters of Credit hereunder and each other Revolving Lender reasonably acceptable to each of the Administrative Agent and the Borrower that has entered into a letter of credit issuer agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, in each case, in its capacity as an issuer of U.S. Letters of Credit and/or Multicurrency Letters of Credit hereunder, together with their respective permitted successors and assigns in such capacity. Each L/C Issuer may, with the prior written consent of the Borrower, in its reasonable discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such L/C Issuer, in which case the L/C Issuer shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. In the event that there is more than one L/C Issuer at any time, references herein and in the other Loan Documents to the L/C Issuer shall be deemed to refer to the L/C Issuer in respect of the applicable Letter of Credit or to all L/C Issuers, as the context requires.
“
L/C Obligations
” means the U.S. L/C Obligations and the Multicurrency L/C Obligations.
“
L/C Sublimit
” means an amount equal to the lesser of (a) $150,000,000 and (b) the Aggregate Revolving Commitments. The L/C Sublimit is part of, and not in addition to, the Revolving Facilities.
“
Laws”
means, collectively, all applicable international, foreign, federal, state, commonwealth and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, common laws and administrative or judicial precedents or authorities, including the interpretation thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“
Lender
” means, at any time, any lender that has a Commitment or holds a Loan at such time and, as the context requires, includes each L/C Issuer and the Swingline Lender.
“
Lending Office
” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“
Letter of Credit
” means a U.S. Letter of Credit and/or a Multicurrency Letter of Credit, as applicable.
“
Lien
” means any mortgage, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing). For the avoidance of doubt, “Lien” shall not be deemed to include any license of any IP Rights.
“
Loan
” means an extension of credit by a Lender to the Borrower or the German Borrower under
Article 2
.
“
Loan Documents
” means, collectively, (a) this Agreement, (b) the Notes, (c) the Guarantee Agreement, (d) the Collateral Documents, (e) each L/C Application and (f) the Fee Letter.
“
Loan Parties
” means, collectively, the Borrower and each Guarantor;
provided
that, for the avoidance of doubt, “Loan Parties” shall exclude the German Borrower.
“
London Banking Day
” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurocurrency market.
“
Lux Holdco
” means Grace Luxembourg S.à r.l.
“
Lux Holdco Pledge Agreement
” means the Share Pledge Agreement by the Borrower in favor of the Collateral Agent, dated as of the Closing Date and substantially in the form of
Exhibit F-2
.
“
Margin Stock
” has the meaning assigned to such term in Regulation U.
“
Material Adverse Effect
” means a materially adverse effect on (a) the business, assets, results of operations, properties or financial condition of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the ability of the Borrower, the other Loan Parties and the German Borrower, taken as a whole, to perform their payment obligations under the applicable Loan Documents or (c) the rights and remedies of the Administrative Agent and the Lenders under the Loan Documents.
“
Material First Tier Foreign Subsidiary
” means any Foreign Subsidiary (i) whose Capital Stock is directly owned by any Loan Party and (ii) that constitutes a Material Subsidiary.
“
Material Indebtedness
” means Indebtedness (other than the Obligations under the Loan Documents) of the Loan Parties or the German Borrower, individually or in the aggregate, having an aggregate principal amount exceeding $50,000,000.
“
Material Real Property
” means (a) as of the Closing Date, the fee owned real property set forth on
Schedule 5.11(b)
and (b) fee owned real property owned by any Loan Party and acquired after the Closing Date with a fair market value in excess of $20,000,000;
provided
that, “Material Real Property” shall be limited to fee owned real property located in the United States.
“
Material Subsidiary
” means any Subsidiary of the Borrower other than an Immaterial Subsidiary.
“
Maturity Date
” means (a) with respect to each Revolving Facility, the date that is five years following the Closing Date, (b) with respect to each Term Loan Facility, the date that is seven years following the Closing Date, (c) with respect to any Additional Term Loans, the maturity date for such Series of Additional Term Loans specified in the applicable Joinder Agreement and (d) with respect to any Replacement Term Loans, the maturity date for such Series of Replacement Term Loans determined in accordance with
Section 10.01
;
provided
, however, that if such date is not a Business Day, the Maturity Date shall be the immediately preceding Business Day;
provided, further
, that any Maturity Date may be extended as provided by
Section 2.16
.
“
Maximum Rate
” has the meaning specified in
Section 10.10
.
“
Minimum Collateral Amount
” means, at any time, (a) as to Cash Collateral consisting of cash or deposit account balances, an amount equal to 100% of the Fronting Exposure of all L/C Issuers with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount determined by the Administrative Agent and the L/C Issuers in their sole discretion.
“
Minimum Extension Condition
” has the meaning specified in
Section 2.16(b)
.
“
Moody’s
” means Moody’s Investors Service, Inc. and any successor thereto.
“
Mortgage
” means any deed of trust, trust deed, mortgages or other comparable instrument covering the Material Real Property required to be mortgaged pursuant to this Agreement in form and substance reasonably acceptable to the Administrative Agent and the Borrower executed and delivered pursuant to
Section 6.12
.
“
Multicurrency
L/C Advance
” means, as to any Revolving Lender, such Lender’s funding of its participation in any Multicurrency L/C Borrowing in accordance with its Multicurrency Revolving Percentage.
“
Multicurrency
L/C Borrowing
” means an extension of credit resulting from a drawing under any Multicurrency Letter of Credit that has not been reimbursed by the Borrower on the date when made or refinanced as a Multicurrency Revolving Borrowing.
“
Multicurrency
L/C Commitment
” means, as to any L/C Issuer, its commitment to issue Multicurrency Letters of Credit, and to amend, renew or extend Multicurrency Letters of Credit previously issued by it, pursuant to
Section 2.03
, in an aggregate face amount at any time outstanding not to exceed (a) in the case of any L/C Issuer party hereto as of the Closing Date, the amount set forth opposite such L/C Issuer’s name on
Schedule 2.01
under the heading “Multicurrency L/C Commitments” and (b) in the case of any Revolving Lender that becomes a L/C Issuer hereunder thereafter, that amount which shall be set forth in the written agreement by which such Lender shall become an L/C Issuer, in each case as the maximum outstanding face amount of Multicurrency Letters of Credit to be issued by such L/C Issuer, as such commitment may be changed from time to time pursuant to the terms hereof or with the agreement in writing of such Lender, the Borrower and the Administrative Agent.
“
Multicurrency
L/C Credit Extension
” means, with respect to any Multicurrency Letter of Credit, the issuance thereof or the extension of the expiry date thereof, or the renewal or increase of the principal amount thereof.
“
Multicurrency L/C Fee
” has the meaning assigned to such term in
Section 2.09(b)(ii)
.
“
Multicurrency L/C Issuer
” means an L/C Issuer that has agreed to issue Multicurrency Letters of Credit.
“
Multicurrency
L/C Obligations
” means, as at any date of determination, the aggregate undrawn face amount of all outstanding Multicurrency Letters of Credit plus the aggregate of all Unreimbursed Amounts with respect to Multicurrency Letters of Credit, including, without duplication, all Multicurrency L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.10
. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“
Multicurrency Letter of Credit
” means any letter of credit issued by an L/C Issuer hereunder for the account of the Borrower or any of its Subsidiaries, including each letter of credit listed on
Schedule 1.01(b)
that is issued and outstanding as of the Closing Date that is designated as a Multicurrency Letter of Credit. Each such letter of credit listed on
Schedule 1.01(b)
shall be deemed to constitute a Multicurrency Letter of Credit and a Letter of Credit issued hereunder on the Closing Date for all purposes under this Agreement and the other Loan Documents.
“
Multicurrency Refinancing Revolving Facility
” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness.”
“
Multicurrency
Revolving Borrowing
” means a borrowing consisting of simultaneous Multicurrency Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the Revolving Lenders.
“
Multicurrency Revolving Commitment
” means, as to any Lender, its commitment to (a) make Multicurrency Revolving Loans, and (b) purchase participations in Multicurrency L/C Obligations, in an aggregate principal and/or face amount at any time outstanding not to exceed the amount set forth opposite such Lender’s name on
Schedule 2.01
under the heading “Multicurrency Revolving Commitments” or in the Assignment and Assumption or other agreement pursuant to which such Lender became a party hereto, as such commitment may be changed from time to time pursuant to the terms hereof. The amount of the Aggregate Multicurrency Revolving Commitments on the Closing Date is $150,000,000.
“
Multicurrency
Revolving Commitment Fee
” has the meaning specified in
Section 2.09(a)(ii)
.
“
Multicurrency
Revolving Facility
” means the Multicurrency Revolving Commitments and the Credit Extensions thereunder.
“
Multicurrency
Revolving Lender
” means a Lender that has a Multicurrency Revolving Commitment or, if the Multicurrency Revolving Commitments have expired or been terminated, that holds a Multicurrency Revolving Loan or a participation in a Multicurrency Letter of Credit.
“
Multicurrency
Revolving Loan
” has the meaning set forth in
Section 2.01(b)(ii)
.
“
Multicurrency Revolving Percentage
” means, as to any Revolving Lender as of any date of determination, the percentage which such Lender’s Multicurrency Revolving Commitment then constitutes of the Aggregate Multicurrency Revolving Commitments or, at any time after the Multicurrency Revolving Commitments shall have expired or terminated, the percentage which the sum of the aggregate Outstanding Amount of the Multicurrency Revolving Loans of such Lender,
plus
such Lender’s participations in the Outstanding Amount of all Multicurrency L/C Obligations at such time then constitutes of the Aggregate Multicurrency Revolving Commitments, but subject to adjustment as provided in
Section 2.18(a)(iv)
.
“
Multiemployer Plan
” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which contributions are or have, within the preceding six years, been made, or are or were, within the preceding six years, required to be made, by the Borrower or any of its ERISA Affiliates or any Subsidiary of the Borrower or ERISA Affiliates of such Subsidiary.
“
Nationally Recognized Statistical Rating Organization
” means a nationally recognized statistical rating organization within the meaning of Rule 436 under the Securities Act.
“
Net Cash Proceeds
” means:
(a)
with respect to the Disposition of any asset by the Borrower or any of its Restricted Subsidiaries or any Casualty Event, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of the Borrower or any of its Restricted Subsidiaries) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the asset subject to such Disposition or Casualty Event and that is required to be repaid (and is timely repaid) in connection with such Disposition or Casualty Event (other than Indebtedness under the Loan Documents), (B) the out-of-pocket fees and expenses (including, without limitation, attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by the Borrower or such Restricted Subsidiary in connection with such Disposition or Casualty Event, (C) Taxes (or Restricted Payments to the extent permitted hereunder made in respect of taxes) paid or reasonably estimated to be payable in connection therewith by the Borrower or such Restricted Subsidiary and attributable to such Disposition or Casualty Event (including, in respect of any proceeds received in connection with a Disposition or Casualty Event of any asset of any Restricted Subsidiary organized under the laws of a jurisdiction different from the jurisdiction of organization of the Borrower, deductions in respect of withholding Taxes that are payable in cash if such funds are repatriated to the jurisdiction of the Borrower), (D) any reserve for adjustment in respect of (1) the sale price of such asset or assets established in accordance with GAAP and (2) any liabilities associated with such asset or assets and retained by the Borrower or any of its Restricted Subsidiaries after such sale or other Disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, (E) in the case of any Disposition or Casualty Event by a non-wholly owned Restricted Subsidiary, the
pro rata
portion of the Net Cash Proceeds thereof (calculated without regard to this clause (E)) attributable to minority interests and not available for distribution to or for the account of Borrower or a wholly owned Restricted Subsidiary as a result thereof and (F) any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition (
provided
that to the extent that any amounts are released from such escrow to Borrower or a Restricted Subsidiary, such amounts net of any related expenses shall constitute Net Cash Proceeds). It being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents (i) received upon the Disposition of any non-cash consideration received by the Borrower or any of its Restricted Subsidiaries in respect of any such Disposition or Casualty Event and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in
clause (D)
above or, if such liabilities have not been satisfied in cash and such reserve not reversed within three hundred and sixty-five (365) days after such Disposition or Casualty Event, the amount of such reserve;
provided
that (x) no proceeds realized in a single transaction or series of related
transactions shall constitute Net Cash Proceeds unless such proceeds shall exceed $20,000,000 and (y) no proceeds shall constitute Net Cash Proceeds under this
clause (a)
in any fiscal year until the aggregate amount of all such proceeds in such fiscal year shall exceed $40,000,000 (and thereafter only proceeds in excess of such amount shall constitute Net Cash Proceeds under this
clause (a)
); and
(b)
with respect to the incurrence or issuance of any Indebtedness by the Borrower or any of its Restricted Subsidiaries, the excess, if any, of (i) the sum of the cash received in connection with such incurrence or issuance over (ii) (x) the investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses (including attorneys’ fees) and other customary expenses, incurred by the Borrower or such Restricted Subsidiary in connection with such incurrence or issuance (including, in the case of Indebtedness of any Foreign Subsidiary, deduction in respect of withholding Taxes that are payable in cash if such funds are repatriated) and (y) all taxes paid or reasonably estimated to be payable as a result thereof.
“
Non-Consenting Lender
” has the meaning specified in
Section 3.06(d)
.
“
Non-Defaulting Lender
” means, as to any Facility, a Lender thereunder that is not a Defaulting Lender.
“
Non-Expiring Credit Commitment
” has the meaning specified in
Section 2.04(f)
.
“
Non-Profit Subsidiary
” means any Subsidiary of the Borrower that is qualified under Section 501(c) of the Code as a nonprofit corporation.
“
Non-Repatriated Amounts
” has the meaning specified in
Section 2.05(b)(v)
.
“
Non-US Lender
” has the meaning specified in
Section 3.01(d)
.
“
Nonrenewal Notice Date
” has the meaning specified in
Section 2.03(b)(iii)
.
“
Not Otherwise Applied
” means, with reference to any amount of Net Cash Proceeds of any transaction or event or of Excess Cash Flow, that such amount (a) was not required to be applied to mandatorily prepay the Loans pursuant to
Section 2.05(b)
(calculated, in the case of Excess Cash Flow, without giving effect to any credits for Non-Repatriated Amounts allowed by the provisions of
Section 2.05(b)(v)
) and (b) was not previously applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was (or may have been) contingent on receipt of such amount.
“
Note
” means an Initial Term Note, Delayed Draw Term Note, Revolving Note or Swingline Note, as the context may require.
“
Obligations
” means (i) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party or the German Borrower arising under any Loan Document with respect to any Loan or Letter of Credit, (ii) all advances to, and debts, liabilities, obligations, covenants and duties arising under any Designated Credit Line and (iii) all Secured Bank Product Obligations, in each
case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or the German Borrower of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties and the German Borrower under the Loan Documents include the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party or the German Borrower under any Loan Document and (b) the obligation of any Loan Party or the German Borrower to reimburse any amount in respect of any of the foregoing that any Lender may elect to pay or advance on behalf of such Loan Party in accordance with the terms of the Loan Documents.
“
OFAC
” means the Office of Foreign Assets Control of the U.S. Treasury Department.
“
Offered Amount
” has the meaning specified in
Section 2.05(a)(iv)(D)(1)
.
“
Offered Discount
” has the meaning specified in
Section 2.05(a)(iv)(D)(1)
.
“
Organizational Documents
” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-US jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“
OSHA
” means the Occupational Health and Safety Act, as the same may from time to time be amended or supplemented, including any rules or regulations issued in connection therewith.
“
Other Commitments
” means one or more Classes of Loan commitments hereunder that result from a Refinancing Amendment.
“
Other Connection Taxes
” means, with respect to any Lender or the Administrative Agent, Taxes imposed as a result of a present or former connection between such Lender or the Administrative Agent and the jurisdiction imposing such Tax (other than connections arising solely from such Lender or the Administrative Agent having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“
Other Loans
” means one or more Classes of Loans that result from a Refinancing Amendment.
“
Other Taxes
” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance,
enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to
Section 3.06
)
.
“
Outstanding Amount
” means with respect to the Loans on any date, the principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date.
“
Parent Expenses
” means:
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(1)
|
costs (including all professional fees and expenses) Incurred by Holdings in connection with reporting obligations under or otherwise Incurred in connection with compliance with applicable laws, rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, the indenture or any other agreement or instrument relating to Indebtedness of the Borrower or any Restricted Subsidiary, including in respect of any reports filed with respect to the Securities Act, Securities Exchange Act of 1934 (as amended) or the respective rules and regulations promulgated thereunder;
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(2)
|
customary indemnification obligations of Holdings (or any direct or indirect parent) owing to directors, officers, employees or other Persons under its charter or by-laws or pursuant to written agreements with any such Person to the extent relating to the Borrower and its Subsidiaries;
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(3)
|
obligations of Holdings in respect of director and officer insurance (including premiums therefor) to the extent relating to the Borrower and its Subsidiaries;
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(4)
|
general corporate overhead expenses, including professional fees and expenses and other operational expenses of Holdings related to the ownership or operation of the business of the Borrower or any of its Restricted Subsidiaries; and
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(5)
|
expenses Incurred by Holdings in connection with any public offering or other sale of Capital Stock or Indebtedness:
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(a)
|
where the net proceeds of such offering or sale are intended to be received by or contributed to the Borrower or a Restricted Subsidiary,
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(b)
|
in a pro-rated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed, or
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(c)
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otherwise on an interim basis prior to completion of such offering so long as Holdings shall cause the amount of such expenses to be repaid to the Borrower or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed.
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“
Participant
” has the meaning specified in
Section 10.07(d)
.
“
Participant Register
” has the meaning specified in
Section 10.07(d)
.
“
Participating Lender
” has the meaning specified in
Section 2.05(a)(iv)(C)(2)
.
“
PATRIOT Act
” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into Law October 26, 2001)).
“
PBGC
” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“
Perfection Certificate
” means a perfection certificate in the form of the perfection certificate provided to the Administrative Agent on the Closing Date (or such other form as the Administrative Agent may approve).
“
Pension Plan
” means any plan described in Section 4021(a) of ERISA and not excluded pursuant to Section 4021(b) thereof, which is or has, within the preceding six years, been established or maintained, or to which contributions are or have, within the preceding six years, been made, by the Borrower or any of its ERISA Affiliates or any Subsidiary of the Borrower or any ERISA Affiliates of such Subsidiary, but not including any Multiemployer Plan.
“
Permitted Acquisition
” has the meaning specified in
Section 7.02(i)
.
“
Permitted Additional Junior Debt
” shall mean senior unsecured, senior subordinated or subordinated debt (including, as applicable, Registered Equivalent Notes), in each case issued or incurred by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
provided
that such Indebtedness other than Earlier Maturing Indebtedness, if, on the date such debt is incurred, the aggregate principal amount thereof, taken together with all other Earlier Maturity Indebtedness then outstanding, does not exceed $300,000,000, does not mature or have scheduled amortization or payments of principal and is not subject to mandatory redemption or prepayment (except customary asset sale, change of control, casualty or condemnation provisions and AHYDO payments), in each case, prior to 91 days after the latest Maturity Date at the time such debt is issued or incurred.
“
Permitted Encumbrances
” means any encumbrances permitted under any Mortgage.
“
Permitted Liens
” means any Lien permitted under
Section 7.01
.
“
Permitted Refinancing
” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person;
provided
that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, replaced, restructured, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred in connection with such modification, replacement, restructuring, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) such modification,
replacement, restructuring, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of, the Indebtedness being modified, replaced, restructured, refinanced, refunded, renewed or extended, (c) if the Indebtedness being modified, replaced, restructured, refinanced, refunded, renewed or extended is subordinated in right of payment or lien to the Obligations, such modification, replacement, restructuring, refinancing, refunding, renewal or extension is subordinated in right of payment or lien, as applicable, to the Obligations on subordination terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, replaced, restructured, refinanced, refunded, renewed or extended, taken as a whole (as reasonably determined in good faith by the Borrower), (d) if secured, such modification, replacement, restructuring, refinancing, refunding, renewal or extension is secured on the same basis as the Indebtedness being modified, replaced, restructured, refinanced, refunded, renewed or extended or by a Lien otherwise permitted by
Section 7.01
, and (e) such modification, replacement, restructuring, refinancing, refunding, renewal or extension is incurred by the Person or Persons who are the obligors on the Indebtedness being modified, replaced, restructured, refinanced, refunded, renewed or extended, and such new or additional obligors as are permitted under
Section 7.03
.
“
Permitted Repricing Amendment
” has the meaning specified in
Section 10.01
.
“
Permitted Tax Restructuring
” means one or more transactions pursuant to which the Capital Stock of one or more Foreign Subsidiaries owned, immediately before the Closing Date, by the Borrower or by any other Loan Party is transferred to Lux Holdco or a direct or indirect Foreign Subsidiary of Lux Holdco in exchange for equity or debt of the transferee or as a capital contribution to the transferee;
provided
that none of the Subsidiaries that were not Excluded Subsidiaries prior to such transactions shall become Excluded Subsidiaries as a result thereof.
“
Person
” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“
Plan
” means the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, Docket No. 26368 (including all exhibits thereto).
“
Platform
” has the meaning specified in
Section 6.02(d)
.
“
Pledged Debt
” has the meaning specified in the applicable Security Agreement.
“
Pledged Equity
” has the meaning specified in the applicable Security Agreement.
“
Pounds Sterling
” means the lawful currency of the United Kingdom.
“
Preferred Capital Stock
” means any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
“
Prepayment Notice
” means a notice by the Borrower to prepay Loans, which shall be substantially in the form of
Exhibit P
(or such other form as the Administrative Agent may approve).
302
“
Prepayment Percentage
” means the applicable percentage based on the Total Leverage Ratio set forth below for each item set forth below:
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Level
|
Excess Cash Flow
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Level I
≥1.50:1.00
|
50%
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Level II
<1.50:1.00 but ≥1.00:1.00
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25%
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Level III
<1.00:1.00
|
0%
|
Any increase or decrease in the Prepayment Percentage resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date financial statements have been delivered pursuant to
Section 6.01(a)
and a Compliance Certificate is delivered pursuant to
Section 6.02(b)
;
provided
that, at the option of the Required Lenders, Level I shall apply (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to but excluding the date on which such Compliance Certificate is so delivered (and thereafter the level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default under
Section 8.01(a)
,
(e)
or
(f)
shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the level otherwise determined in accordance with this definition shall apply).
“
Prime Rate
” means the rate of interest quoted in the print edition of
The Wall Street Journal
, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of the nation’s thirty (30) largest banks), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
“
Principal Office
” means, for each of the Administrative Agent, the Swingline Lender and each L/C Issuer, such Person’s address and, as appropriate, account as set forth on
Schedule 10.02
, or such other address or account as such Person may from time to time notify in writing to the Borrower, the Administrative Agent, the Swingline Lender and the L/C Issuers.
“
Pro Forma Balance Sheet
” has the meaning specified in
Section 5.05(c)
.
“
Pro Forma Basis
” and “
Pro Forma Effect
” means, with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with
Section 1.09
.
“
Pro Rata Share
” means (i) with respect to all payments, computations and other matters relating to the U.S. Term Loans of any Lender, as the context requires, the percentage obtained by dividing (x) the U.S. Term Loan Exposure of that Lender by (y) the aggregate U.S. Term Loan Exposure of all Lenders, (ii) with respect to all payments, computations and other matters relating to the Euro Term Loans of any Lender, as the context requires, the percentage obtained by dividing (x) the Euro Term Loan Exposure of that Lender by (y) the aggregate Euro Term Loan Exposure of all Lenders, (iii) with respect to all payments, computations and other matters relating to the Delayed Draw Commitment or Delayed Draw Term Loans of any Lender, the Delayed Draw Percentage of that Lender, (iv) with respect to all payments, computations and other matters relating to the U.S. Revolving Commitment or U.S. Revolving Loans of any Lender or any U.S. Letters of Credit issued or participations purchased therein by any Lender or any participations in any Swingline Loans purchased by any Lender, as the context requires, the U.S. Revolving Percentage of that Lender, (v) with respect to all payments, computations and other matters relating to the Multicurrency Revolving Commitment or Multicurrency Revolving Loans of any Lender or any Multicurrency Letters of Credit issued or participations purchased therein by any Lender, as the context requires, the Multicurrency Revolving Percentage of that Lender, and (vi) with respect to all payments, computations and other matters relating to any other Facility, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments and/or Loans of such Lender under the applicable Facility or Facilities at such time and the denominator of which is the amount of the aggregate Commitments and/or Loans then outstanding under the applicable Facility or Facilities at such time.
“
Public Lender
” has the meaning specified in
Section 6.02
.
“
Qualified Capital Stock
” means any Capital Stock that is not Disqualified Capital Stock.
“
Qualified Securitization Financing
” means any Securitization Financing of a Securitization Subsidiary that meets the following conditions: (a) the board of directors of the Borrower shall have determined in good faith that such Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Borrower, its Restricted Subsidiaries party to the Securitization Financing and the Securitization Subsidiary, (b) all sales and/or contributions of Securitization Assets and related assets to the Securitization Subsidiary are made at fair market value (as determined in good faith by the Borrower), (c) the Securitization Financing shall be non-recourse (except for Standard Securitization Undertakings) to the Borrower and its Restricted Subsidiaries and the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Borrower), and (d) the aggregate principal amount of Securitization Financings in respect of Securitization Assets of the Borrower and its Restricted Subsidiaries does not exceed $100,000,000 at any one time outstanding.
“
Qualifying Lender
” has the meaning specified in
Section 2.05(a)(iv)(D)(3)
.
“
Ratio Incremental Availability
” has the meaning specified in
Section 2.14(a)(i)
.
“
Recipient
” means (a) the Administrative Agent, (b) any Lender, (c) any Revolving Lender, and (d) the L/C Issuer, as applicable.
“
Refinanced Term Loans
” has the meaning specified in
Section 10.01
.
“
Refinancing
” means the refinancing of certain of Holdings’ and its Subsidiaries’ existing Indebtedness, substantially on the terms set forth in the Plan.
“
Refinancing Amendment
” means an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower executed by (a) the Borrower, (b) the Administrative Agent and (c) each lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with
Section 2.15
.
“
Refinancing Notes
” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness.”
“
Refinancing Revolving Facility
” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness.”
“
Refinancing Term Facility
” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness.”
“
Refunded Swingline Loans
” has the meaning specified in
Section 2.04(c)(i)
.
“
Register
” has the meaning set forth in
Section 10.07(c)
.
“
Registered Equivalent Notes
” means, with respect to any notes originally issued in an offering pursuant to Rule 144A under the Securities Act or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“
Related Party
” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“
Related Taxes
” means any Tax, including without limitation, any income or withholding tax (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), arising as a result of a repatriation or distribution of funds by a Restricted Subsidiary in connection with a Specified Asset Sale, Specified Debt Issuance or Excess Cash Flow payment, as required pursuant to
Section 2.05(b)(v)
hereof. For the avoidance of doubt, a tax may be a Related Tax without regard to whether it is imposed on the payor or the recipient of such funds.
“
Release
” means any release, spill, emission, leaking, pumping, pouring, emptying, dumping, injection, deposit, disposal, discharge, dispersal, escape, leaching or migration into the indoor or outdoor environment, including the movement of Contaminants through or in the air, soil, surface water or groundwater.
“
Remedial Action
” means actions required to (i) clean up, remove, treat or in any other way address Contaminants in the indoor or outdoor environment; (ii) prevent, minimize or otherwise address
the Release or threat of a Release of Contaminants so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; or (iii) perform pre-response or post-response studies and investigations and post-response monitoring and care or any other studies, reports or investigations relating to Contaminants.
“
Replacement Term Borrowings
” means a borrowing consisting of simultaneous Replacement Term Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the applicable Lenders.
“
Replacement Term Loan
” has the meaning set forth in
Section 10.01
.
“
Reportable Event
” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.
“
Repricing Transaction
” has the meaning specified in
Section 2.09(d)
.
“
Request for Credit Extension
” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, an L/C Application, and (c) with respect to a Swingline Loan, a Committed Loan Notice.
“
Required Lenders
” means, as of any date of determination, Lenders having more than 50% of the sum of (a) the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swingline Loans deemed “held” by such Lender for purposes of this definition), (b) aggregate unused Term Commitments and (c) aggregate unused Revolving Commitments; provided that the unused Term Commitment of, unused Revolving Commitment of, and the portion of the Total Outstandings held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“
Required Revolving Lenders
” means, as of any date of determination, Revolving Lenders having more than 50% of the sum of (a) the Total Revolving Outstandings (with the aggregate amount of each Revolving Lender’s participations (including funded participations) in L/C Obligations and Swingline Loans being deemed “held” by such Lender for purposes of this definition) and (b) the aggregate unused Revolving Commitments. The portion of the Total Revolving Outstandings and the unused Revolving Commitment, as applicable, held or deemed held by a Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders at any time.
“
Responsible Officer
” means the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer or other similar officer of a Loan Party or, in the case of the Borrower, the German Borrower or any Foreign Subsidiary, any duly appointed authorized signatory or any director or managing member of such Person and, as to any document delivered on the Closing Date, any secretary or assistant secretary. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party or the German Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party or the German Borrower, as applicable, and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party or the German Borrower, as applicable.
“
Restricted Payment
” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Capital Stock of the Borrower or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Capital Stock, or on account of any return of capital to the stockholders, partners or members (or the equivalent Persons thereof) of the Borrower or any Restricted Subsidiary.
“
Restricted Subsidiary
” means any Subsidiary of the Borrower other than an Unrestricted Subsidiary. For the avoidance of doubt, the German Borrower shall at all times constitute a Restricted Subsidiary.
“
Retained Declined Proceeds
” has the meaning specified in
Section 2.05(b)(vii)
.
“
Revolving Availability Period
” means the period from and including the Closing Date to but excluding the Maturity Date of the applicable Revolving Facility or any earlier date on which the applicable Revolving Commitments shall terminate as provided herein.
“
Revolving Borrowing
” means a U.S. Revolving Borrowing and/or a Multicurrency Revolving Borrowing, as applicable.
“
Revolving Commitment
” means a U.S. Revolving Commitment and/or a Multicurrency Revolving Commitment, as applicable.
“
Revolving Facility
” means the U.S. Revolving Facility and/or the Multicurrency Revolving Facility.
“
Revolving Lender
” means a U.S. Revolving Lender and/or a Multicurrency Revolving Lender, as applicable.
“
Revolving Loan
” means a U.S. Revolving Loan and/or a Multicurrency Revolving Loan, as applicable.
“
Revolving Note
” means a promissory note evidencing Revolving Loans made or held by a Revolving Lender, substantially in the form of
Exhibit B-2
.
“
Revolving Percentage
” means the U.S. Revolving Percentage or the Multicurrency Revolving Percentage, as applicable.
“
S&P
” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.
“
SEC
” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“
Secured Bank Product Obligations
” means Indebtedness and other obligations or liabilities of the Borrower or any Restricted Subsidiary owing to a Secured Bank Product Provider in connection with a Bank Product.
“
Secured Bank Product Provider
” means any Person that is providing a Bank Product so long as (i) such Person is a Credit Party on or immediately following the Closing Date and such Bank Product is in effect on the Closing Date, (ii) such Person was a Credit Party when entering into such Bank Product or (iii) such Person was identified in writing on or prior to the Closing Date to the Administrative Agent.
“
Secured Indebtedness
” means any Indebtedness secured by a Lien.
“
Secured Obligations
” has the meaning specified in the Security Agreement.
“
Secured Parties
” means, collectively, the Administrative Agent, the Lenders, the Arrangers, the Secured Bank Product Providers, the Designated Credit Line Providers and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to
Article 9
;
provided
, that in no event shall “Secured Parties” include any Disqualified Institution.
“
Securities Act
” means the Securities Act of 1933, as amended.
“
Securitization Assets
” means any accounts receivable and any assets related thereto, including all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable, books and records related to such assets and other assets that are customarily transferred or in respect of which security interests are customarily granted in connection with securitization transactions involving accounts receivable.
“
Securitization Fees
” means distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Securitization Subsidiary in connection with any Qualified Securitization Financing.
“
Securitization Financing
” means any transaction or series of transactions that may be entered into by the Borrower or any of its Subsidiaries pursuant to which the Borrower or any of its Subsidiaries may sell, convey or otherwise transfer, or grant a security interest in, any Securitization Assets of the Borrower or any of its Subsidiaries, to (a) a Securitization Subsidiary or other Subsidiary of the Borrower that in turn then transfers to a Securitization Subsidiary (in the case of a transfer by the Borrower or any of its Subsidiaries) or (b) any Person other than the Borrower or any of its Subsidiaries (in the case of a transfer by a Securitization Subsidiary).
“
Securitization Purchase Obligation
” means any Standard Securitization Undertaking that obligates the Borrower or a Restricted Subsidiary in a Qualified Securitization Financing to purchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a Securitization Asset or portion thereof becoming subject to any
asserted defense, dispute, off set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to such party.
“
Securitization Subsidiary
” means any wholly owned Subsidiary of the Borrower (or another Person formed for the purposes of engaging in a Qualified Securitization Financing in which the Borrower or any Subsidiary of the Borrower makes an Investment and to which the Borrower or any Subsidiary of the Borrower transfers Securitization Assets) that engages in no activities other than in connection with the financing of Securitization Assets of the Borrower or its Subsidiaries, and any business or activities incidental or related to such business, and which is designated by the board of directors of the Borrower or such other Person (as provided below) as a Securitization Subsidiary and (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Borrower or any other Subsidiary of the Borrower, other than another Securitization Subsidiary (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates the Borrower or any other Subsidiary of the Borrower, other than another Securitization Subsidiary, in any way other than pursuant to Standard Securitization Undertakings or (iii) subjects any property or asset of the Borrower or any other Subsidiary of the Borrower, other than another Securitization Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings, (b) with which none of the Borrower or any other Subsidiary of the Borrower, other than another Securitization Subsidiary, has any material contract, agreement, arrangement or understanding other than on terms which the Borrower reasonably believes to be no less favorable to the Borrower or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Borrower and (c) to which none of the Borrower or any other Subsidiary of the Borrower, other than another Securitization Subsidiary, has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results. Any such designation by the board of directors of the Borrower or such other Person shall be evidenced to the Administrative Agent by delivery to the Administrative Agent of a certified copy of the resolution of the board of directors of the Borrower or such other Person giving effect to such designation and a certificate executed by a Responsible Officer certifying that such designation complied with the foregoing conditions.
“
Security Agreement
” means the Security Agreement by and among the Borrower, the Guarantors, the Additional Grantors as defined and named therein and the Collateral Agent, dated as of the Closing Date and substantially in the form of
Exhibit F-1
, together with each related security agreement supplement executed and delivered pursuant to
Section 6.12
. For the avoidance of doubt, the German Borrower shall not be party to the Security Agreement.
“
Security Agreement Supplement
” has the meaning specified in the applicable Security Agreement, if applicable.
“
Series
” means each series of Additional Term Commitments and Additional Term Loans made thereunder as designated in and made pursuant to any Joinder Agreement and each series of Extended Term Loans and each series of Extended Revolving Commitments designated and made pursuant to an Extension.
“
Solicited Discount Proration
” has the meaning specified in
Section 2.05(a)(iv)(D)(3)
.
“
Solicited Discounted Prepayment Amount
” has the meaning specified in
Section 2.05(a)(iv)(D)(1)
.
“
Solicited Discounted Prepayment Notice
” means a written notice of a Borrower Solicitation of Discount Prepayment Offers made pursuant to
Section 2.05(a)(iv)(D)
substantially in the form of
Exhibit L
.
“
Solicited Discounted Prepayment Response Date
” has the meaning specified in
Section 2.05(a)(iv)(D)(1)
.
“
Solvent
” and “
Solvency
” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the assets (on a going concern basis) of such Person exceeds its debts and liabilities, subordinated, contingent or otherwise; (b) the present saleable value of the property (on a going concern basis) of such Person is greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured in the ordinary course of business; (c) such Person is able to pay its debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured in the ordinary course of business; and (d) such Person is not engaged in, and is not about to engage in, business contemplated as of such date for which it has unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability, as determined by such Person in good faith.
“
Sold Entity or Business
” has the meaning specified in the definition of Consolidated EBITDA.
“
SPC
” has the meaning specified in
Section 10.07(g)
.
“
Specified Asset Sale
” has the meaning specified in
Section 2.05(b)(v)
.
“
Specified Debt Issuance
” has the meaning specified in
Section 2.05(b)(v)
.
“
Specified Discount Prepayment Amount
” has the meaning specified in
Section 2.05(a)(iv)(B)(1)
.
“
Specified Discount Prepayment Notice
” means a written notice of a Borrower Offer of Specified Discount Prepayment made pursuant to
Section 2.05(a)(iv)(B)
substantially in the form of
Exhibit J
.
“
Specified Discount Prepayment Response
” means the irrevocable written response by each Lender, substantially in the form of
Exhibit K
, to a Specified Discount Prepayment Notice.
“
Specified Discount Prepayment Response Date
” has the meaning specified in
Section 2.05(a)(iv)(B)(1)
.
“
Specified Discount Proration
” has the meaning specified in
Section 2.05(a)(iv)(B)(3)
.
“
Specified Transaction
” means any Investment, Disposition, incurrence or repayment of Indebtedness, Restricted Payment, Subsidiary designation, Incremental Term Loan or Incremental Revolving Credit Commitments that by the terms of this Agreement requires such test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect”;
provided
that any increase in the Revolving Credit Commitments (including, for this purpose, any Additional Revolving Credit Commitment or Extended Revolving Credit Commitment) above the amount of Revolving Credit Commitments in effect on the Closing Date, for purposes of this “Specified Transaction” definition, shall be deemed to be fully drawn;
provided
,
further
, that any such Specified Transaction (other than a Restricted Payment) having an aggregate value of less than $10,000,000 may, at the Borrower’s option, not be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”
“
Standard Securitization Undertakings
” means representations, warranties, covenants and indemnities entered into by the Borrower or any Subsidiary of the Borrower which the Borrower has determined in good faith to be customary for a transferor or servicer of assets transferred in connection with a securitization transaction involving accounts receivable.
“
Submitted Amount
” has the meaning specified in
Section 2.05(a)(iv)(C)(1)
.
“
Submitted Discount
” has the meaning specified in
Section 2.05(a)(iv)(C)(1)
.
“
Subsidiary
” of a Person means a corporation, partnership, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“
Subsidiary Guarantor
” means any Restricted Subsidiary that has become a Guarantor.
“
Swap Contract
” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward contracts, future contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, repurchase agreements, reverse repurchase agreements, sell buy back and buy sell back agreements, and securities lending and borrowing agreements or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with any related schedules, a “
Master Agreement
”), including any such obligations or liabilities under any Master Agreement.
351
“
Swap Termination Value
” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in
clause (a)
, the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“
Swingline Borrowing
” means a borrowing of a Swingline Loan.
“
Swingline Commitment
” means the commitment of the Swingline Lender to make Swingline Loans pursuant to
Section 2.04
, in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such Lender’s name on
Schedule 2.01
under the heading “Swingline Commitments” as the maximum outstanding principal amount of Swingline Loans to be made by the Swingline Lender, as such commitment may be changed from time to time pursuant to the terms hereof or with the agreement in writing of the Swingline Lender, the Borrower and the Administrative Agent. The Swingline Commitment of the Swingline Lender shall be less than or equal to the Swingline Sublimit at all times.
“
Swingline Lender
” means Goldman Sachs Bank USA, in its capacity as a lender of Swingline Loans hereunder or any successor swingline lender hereunder.
“
Swingline Loan
” means a loan made by the Swingline Lender to the Borrower pursuant to
Section 2.04(a)
.
“
Swingline Note
” means a promissory note of the Borrower payable to the Swingline Lender or its registered assigns, in substantially the form of
Exhibit B-3
hereto, evidencing the aggregate indebtedness of the Borrower to the Swingline Lender resulting from the Swingline Loans made by the Swingline Lender from time to time.
“
Swingline Sublimit
” means an amount equal to the lesser of (a) $50,000,000 and (b) the Aggregate U.S. Revolving Commitments. The Swingline Sublimit is part of, and not in addition to, the U.S. Revolving Facility.
“
Syndication Agent
” means Deutsche Bank Securities Inc., as syndication agent under this Agreement.
“
Tax Distribution Amount
” means, without duplication:
(1) any Taxes (other than (x) Taxes measured by income and (y) non-employment related withholding Taxes), required to be paid (provided such Taxes are in fact paid) by Holdings (and each direct or indirect parent thereof) solely by virtue of its:
(a) being organized or having Capital Stock outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other than, directly or indirectly, the Borrower or any of the Borrower’s Subsidiaries);
(b) being a holding company parent, directly or indirectly, of the Borrower or any of the Borrower’s Subsidiaries; or
(c) receiving dividends, distributions or other payments from the Borrower or any of its Subsidiaries to the extent permitted to be made to Holdings pursuant to
Section 7.06
; and
(2) for any taxable period of the Borrower ending after the date of this Agreement, either
(a) if, for such period, the Borrower is a corporation for U.S. federal income tax purposes and for so long as the Borrower is a member of a group filing a consolidated, unitary or combined tax return with Holdings, any Taxes measured by income for which Holdings (or any direct or indirect parent of Holdings) is liable, up to an amount not to exceed the amount of any such Taxes that the Borrower and its Subsidiaries that are members of such group would have been required to pay on a separate group basis if the Borrower and such Subsidiaries had paid tax on a consolidated, combined, group, affiliated or unitary basis on behalf of an affiliated group consisting only of the Borrower and its Subsidiaries; or
(b) if, for such period (or portion thereof corresponding to a period used for computing estimated tax of a calendar year corporation), the Borrower is a partnership or disregarded entity for U.S. federal income tax purposes, tax distributions (in the case of an estimated tax period, prior to the related due date) to the owner or owners of equity of the Borrower in an aggregate amount equal to the greater of (1) the product of (i) the Borrower’s “taxable income” (in the case of a disregarded entity, computed as if such entity were a partnership) for such period (or portion thereof), reduced by the cumulative net taxable loss of the Borrower for all prior periods ending after the date of this Agreement (determined as if all such prior periods were one taxable period) to the extent such loss is of a character that would permit such loss to be deducted against the current period’s income that have not previously been applied to offset the Tax Distribution Amount pursuant to this clause (b), and (ii) the highest combined marginal federal, state and/or local income tax rate applicable to a corporation doing business in New York City for such period or (2) the alternative minimum tax owed by a corporation doing business in New York City as a result of the income of the Borrower (taking into account in each case (x) the deductibility of state and local income taxes for U.S. federal income tax purposes and (y) the character (e.g., long-term or short-term capital gain or ordinary or exempt) of the applicable income), as properly adjusted to reflect the final determination of any previously estimated taxable income or loss.
“
Taxes
” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“
Term Borrowing
” means a U.S. Term Borrowing, a Euro Term Borrowing and/or a Delayed Draw Term Borrowing, as applicable.
“
Term Commitment
” means a Initial Term Commitment and a Delayed Draw Commitment, and “Term Commitments” means all such commitments of the Lenders.
“
Term
Lender
” means, at any time, any lender that has a Term Commitment or holds a Term Loan.
“
Term Loan Facility
” means (a) prior to the funding of the Term Loans on the Closing Date, the U.S. Term Commitments, the Euro Term Commitments and the Delayed Draw Term Commitments and (b) thereafter, the U.S. Term Loans, the Euro Term Loans and the Delayed Draw Term Loans (together with any outstanding Delayed Draw Commitments), as the context may require.
“
Term Loan
” means a U.S. Term Loan, a Euro Term Loan and/or a Delayed Draw Term Loan, as applicable.
“
Test Period
” means, at any date of determination, the most recently completed four consecutive fiscal quarters of the Borrower ending on or prior to such date.
“
Total Assets
” means the total assets of Holdings, the Borrower and its Restricted Subsidiaries on a Consolidated basis after giving effect to the Transactions, as shown on the most recent balance sheet of Holdings, the Borrower and its Restricted Subsidiaries delivered pursuant to
Section 6.01
or, with respect to any determination prior to the first such delivery, the Pro Forma Balance Sheet.
“
Total Leverage Ratio
” means, with respect to any Test Period, the ratio of (a) Consolidated Total Debt as of the last day of such Test Period (net of Cash on Hand) to (b) Consolidated EBITDA of the Borrower for such Test Period.
“
Total Multicurrency Revolving Outstandings
” means, as at any date of determination, the Dollar Equivalent of the sum of the aggregate Outstanding Amount of Multicurrency Revolving Loans and Multicurrency L/C Obligations.
“
Total Outstandings
” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
“
Total Revolving Outstandings
” means the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and L/C Obligations.
“
Total U.S. Revolving Outstandings
” means, as at any date of determination, the sum of the aggregate Outstanding Amount of U.S. Revolving Loans, Swingline Loans and U.S. L/C Obligations.
“
Transaction Costs
” has the meaning set forth in the Preliminary Statements.
“
Transactions
” means, collectively, (a) the Exit, (b) the Refinancing, (c) the incurrence of the Loans under the Loan Documents and (d) the payment of the fees and expenses incurred in connection with any of the foregoing.
“
Type
” means, with respect to a Loan denominated in Dollars, its character as a Base Rate Loan or Eurocurrency Rate Loan.
“
UCC
” means the Uniform Commercial Code.
“
Undisclosed Administration
” means, in relation to a Lender or its parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender is subject to home jurisdiction if the applicable law requires that such appointment is not to be publicly disclosed.
“
Uniform Commercial Code
” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to the creation or perfection of a security interest in any item or items of Collateral.
“
UNIPOL Acquisition
” means the acquisition by Borrower effective December 2, 2013, of the Polypropylene Licensing and Catalysts business of The Dow Chemical Company and certain of its subsidiaries, including the UNIPOL™ Polypropylene Process Technology.
“
United States
”, “
U.S.
” and “
US
” mean the United States of America.
“
Unreimbursed Amount
” has the meaning set forth in
Section 2.03(c)(i)
.
“
Unrestricted Subsidiary
” means any Subsidiary of the Borrower designated by the board of directors of the Borrower as an Unrestricted Subsidiary pursuant to
Section 6.12
subsequent to the date hereof and each Securitization Subsidiary.
“
U.S.
L/C Advance
” means, as to any Revolving Lender, such Lender’s funding of its participation in any U.S. L/C Borrowing in accordance with its U.S. Revolving Percentage.
“
U.S.
L/C Borrowing
” means an extension of credit resulting from a drawing under any U.S. Letter of Credit that has not been reimbursed by the Borrower on the date when made or refinanced as a U.S. Revolving Borrowing.
“
U.S.
L/C Commitment
” means, as to any L/C Issuer, its commitment to issue U.S. Letters of Credit, and to amend, renew or extend U.S. Letters of Credit previously issued by it, pursuant to
Section 2.03
, in an aggregate face amount at any time outstanding not to exceed (a) in the case of any L/C Issuer party hereto as of the Closing Date, the amount set forth opposite such L/C Issuer’s name on
Schedule 2.01
under the heading “U.S. L/C Commitments” and (b) in the case of any Revolving Lender that becomes a L/C Issuer hereunder thereafter, that amount which shall be set forth in the written agreement by which such Lender shall become an L/C Issuer, in each case as the maximum outstanding face amount of U.S. Letters of Credit to be issued by such L/C Issuer, as such commitment may be changed from time to time pursuant to the terms hereof or with the agreement in writing of such Lender, the Borrower and the Administrative Agent.
“
U.S.
L/C Credit Extension
” means, with respect to any U.S. Letter of Credit, the issuance thereof or the extension of the expiry date thereof, or the renewal or increase of the principal amount thereof.
“
U.S. L/C Fee
” has the meaning assigned to such term in
Section 2.09(b)(i)
.
“
U.S. L/C Issuer
” means an L/C Issuer that has agreed to issue U.S. Letters of Credit.
“
U.S.
L/C Obligations
” means, as at any date of determination, the aggregate undrawn face amount of all outstanding U.S. Letters of Credit plus the aggregate of all Unreimbursed Amounts with respect to U.S. Letters of Credit, including, without duplication, all U.S. L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.10
. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“
U.S. Letter of Credit
” means any letter of credit issued by an L/C Issuer hereunder for the account of the Borrower or any of its Subsidiaries, including each letter of credit listed on
Schedule 1.01(a)
that is issued and outstanding as of the Closing Date and designated as a U.S. Letter of Credit. Each such letter of credit listed on
Schedule 1.01(a)
shall be deemed to constitute a U.S. Letter of Credit and a Letter of Credit issued hereunder on the Closing Date for all purposes under this Agreement and the other Loan Documents.
“
U.S. Refinancing Revolving Facility
” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness.”
“
U.S.
Revolving Borrowing
” means a borrowing consisting of simultaneous U.S. Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the Revolving Lenders.
“
U.S.
Revolving Commitment
” means, as to any Lender, its commitment to (a) make U.S. Revolving Loans, (b) purchase participations in U.S. L/C Obligations and (c) purchase participations in Swingline Loans, in an aggregate principal and/or face amount at any time outstanding not to exceed the amount set forth opposite such Lender’s name on
Schedule 2.01
under the heading “U.S. Revolving Commitments” or in the Assignment and Assumption or other agreement pursuant to which such Lender became a party hereto, as such commitment may be changed from time to time pursuant to the terms hereof. The amount of the Aggregate U.S. Revolving Commitments on the Closing Date is $250,000,000.
“
U.S.
Revolving Commitment Fee
” has the meaning specified in
Section 2.09(a)(i)
.
“
U.S.
Revolving Facility
” means the U.S. Revolving Commitments and the Credit Extensions thereunder.
“
U.S.
Revolving Lender
” means a Lender that has a U.S. Revolving Commitment or, if the U.S. Revolving Commitments have expired or been terminated, that holds a U.S. Revolving Loan or a participation in a U.S. Letter of Credit or Swingline Loan.
“
U.S.
Revolving Loan
” has the meaning set forth in
Section 2.01(b)(i)
.
“
U.S. Revolving Percentage
” means, as to any Revolving Lender as of any date of determination, the percentage which such Lender’s U.S. Revolving Commitment then constitutes of the Aggregate U.S. Revolving Commitments or, at any time after the U.S. Revolving Commitments shall have expired or terminated, the percentage which the sum of the aggregate Outstanding Amount of the U.S. Revolving Loans of such Lender,
plus
such Lender’s participations in the Outstanding Amount of all U.S. L/C Obligations at such time,
plus
such Lender’s participations in the Outstanding Amount of all Swingline Loans at such time then constitutes of the Aggregate U.S. Revolving Commitments, but subject to adjustment as provided in
Section 2.18(a)(iv)
.
“
U.S.
Term Borrowing
” means a borrowing consisting of simultaneous U.S. Term Loans of the same Type (if applicable) and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term Lenders pursuant to
Section 2.01(a)(i)(x)
.
“
U.S.
Term Commitment
” means, as to each Lender, its obligation to make a U.S. Term Loan to the Borrower in an aggregate amount not to exceed the amount set forth opposite such Lender’s name on
Schedule 2.01
under the caption “U.S. Term Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the U.S. Term Commitments on the Closing Date is $700,000,000.
“
U.S. Term Lender
” means a Lender that has a U.S. Term Commitment.
“
U.S. Term Loan
” means a term loan denominated in Dollars and made by a Lender to the Borrower pursuant to
Section 2.01(a)(i)(x)
.
“
U.S. Term Loan Exposure
” means, as to any Lender as of any date of determination, the outstanding principal amount of the U.S. Term Loans of such Lender; provided, that at any time prior to the making of the U.S. Term Loans, the U.S. Term Loan Exposure of any Lender shall be equal to such Lender’s U.S. Term Commitment.
“
Valuation Date
” means (i) the date two Business Days prior to the making, continuing or converting of any Revolving Loan or the date of issuance or continuation of any Letter of Credit and (ii) any other date designated by the Administrative Agent or L/C Issuer (subject to the limitations set forth in
Section 1.08(b)
).
“
Warrant
” means the warrants governed by (i) that certain Warrant Agreement dated as of the Closing Date among Holdings, the WRG Asbestos PI Trust and Wilmington Trust and (ii) the Letter Agreement regarding the Implementation of the Warrant Agreement dated October 25, 2012 among Holdings, Official Committee of Asbestos Personal Injury Claimants, David T. Austern, Asbestos PI Future Claimants’ Representative and Official Committee of Equity Security Holders.
“
Weighted Average Life to Maturity
” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (ii) the then outstanding principal amount of such Indebtedness.
“
Weighted Average Yield
” means with respect to any loan or note, on any date of determination, the weighted average yield to maturity, in each case, based on the interest rate applicable to such loan or note on such date and giving effect to any applicable interest rate floor as well as original issue discount and all upfront or similar fees (which shall be deemed to constitute like amounts of original issue discount) payable by Borrower to all of the lenders or note holders generally with respect to such loan or note in the initial primary syndication thereof (with original issue discount being equated to interest based on assumed four-year life to maturity), but excluding customary arrangement, structuring, underwriting, amendment, commitment fees or other fees not paid generally to all lenders of such Loans or payable to the Arrangers (or their affiliates) or other arranger or agent (or their respective affiliates) in connection with such loans or note (and not payable to lenders or note holders generally).
SECTION 1.02
Other Interpretive Provisions
. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)
The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b)
(%4) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(i)
Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.
(ii)
The term “including” is by way of example and not limitation.
(c)
In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(d)
Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(e)
All references to “knowledge” or “awareness” of any Loan Party or a Restricted Subsidiary thereof means the actual knowledge of a Responsible Officer of Holdings, the Borrower or the German Borrower.
(f)
The words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(g)
All references to any Person shall be constructed to include such Person’s successors and assigns (subject to any restriction on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all of the functions thereof.
SECTION 1.03
Accounting Terms
.
(a)
All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, applied in a manner consistent with that used in preparing the financial statements delivered with the Form 10-K of Holdings for the fiscal year 2013, except as otherwise specifically prescribed herein.
(b)
Notwithstanding anything to the contrary herein (unless expressly stated otherwise), for purposes of determining compliance with any test contained in this Agreement with respect to any period during which any Specified Transaction occurs, or for which any Specified Transaction is given Pro Forma Effect, Consolidated EBITDA, the Interest Coverage Ratio, the Total Leverage Ratio, the First Lien Leverage Ratio and Total Assets shall be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis.
(c)
Where reference is made to “the Borrower and its Restricted Subsidiaries on a consolidated basis” or similar language, such consolidation shall not include any Subsidiaries of the Borrower other than Restricted Subsidiaries.
(d)
In the event that the Borrower elects to prepare its financial statements in accordance with IFRS and such election results in a change in the method of calculation of financial covenants, standards or terms (collectively, the “
Accounting Changes
”) in this Agreement, the Borrower and the Administrative Agent agree to enter into good faith negotiations in order to amend such provisions of this Agreement (including the levels applicable herein to any computation of the Total Leverage Ratio and the First Lien Senior Secured Leverage Ratio and Total Assets) so as to reflect equitably the Accounting Changes with the desired result that the criteria for evaluating the Borrower’s financial condition shall be substantially the same after such change as if such change had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed in accordance with GAAP (as determined in good faith by a Responsible Officer of the Borrower) (it being agreed that the reconciliation between GAAP and IFRS used in such determination shall be made available to Lenders) as if such change had not occurred.
SECTION 1.04
Rounding
. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio or test is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
SECTION 1.05
References to Agreements and Laws
. Unless otherwise expressly provided herein, (a) references to Organizational Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements, refinancing, replacements, renewals, restructurings and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements, refinancing, replacements, renewals, restructurings and other modifications are not prohibited by any Loan Document and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
SECTION 1.06
Times of Day
. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
SECTION 1.07
Timing of Payment or Performance
. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day and such extension of time shall be reflected in computing interest or fees, as the case may be.
SECTION 1.08
Exchange Rates; Currency Equivalents Generally
. (%3) The Administrative Agent or Bank of America, N.A. in its capacity as an L/C Issuer, as applicable, shall determine the Exchange Rates as of each Valuation Date to be used for calculating Alternative Currency Equivalent and Dollar Equivalent amounts of Credit Extensions and amounts outstanding hereunder denominated in Alternative Currencies. Such Exchange Rates shall become effective as of such Valuation Date and shall be the Exchange Rates employed in converting any amounts between the applicable currencies until the next Valuation Date to occur. Except for purposes of financial statements delivered by the Borrower hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be the Dollar Equivalent of such currency as so determined by the Administrative Agent (or, where applicable, Bank of America, N.A., in its capacity as L/C Issuer) at the Exchange Rate as of any Valuation Date.
(a)
Notwithstanding the foregoing, in the case of Loans denominated in an Alternative Currency and Multicurrency Letters of Credit, the Administrative Agent and Bank of America, N.A. (in its capacity as L/C Issuer) may at periodic intervals (no more frequently than monthly (for both the Administrative Agent and Bank of America, N.A., not individually), or more frequently during the continuance of an Event of Default) recalculate the aggregate exposure under such Loans and Multicurrency Letters of Credit to account for fluctuations in the Exchange Rate affecting the Alternative Currency in which any such Loans and/or Multicurrency Letters of Credit are denominated. If, as a result of such recalculation, (i) the Total Multicurrency Revolving Outstandings exceed an amount equal to 105% of the Multicurrency Revolving Commitments then in effect, the Borrower will prepay Multicurrency Revolving Loans and, if necessary, Cash Collateralize the outstanding amount of Multicurrency Letters of Credit in the amount necessary to eliminate such excess or (ii) the aggregate L/C Obligations exceeds an amount equal to 105% of
the L/C Sublimit, the Borrower will repay Multicurrency Revolving Loans and, if necessary, Cash Collateralize the outstanding amount of Multicurrency Letters of Credit in the amount necessary to eliminate such excess.
(b)
Whenever in this Agreement in connection with a borrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 or a unit being rounded upward), as determined by the Administrative Agent or Bank of America, N.A. (in its capacity as L/C Issuer), as the case may be.
(c)
Notwithstanding the foregoing, for purposes of determining compliance with
Article 7
(excluding
Section 7.14
) with respect to any amount of cash on deposit, Indebtedness, Investment, Restricted Payment, Lien, Disposition or Attributable Indebtedness (each, a “
Covenant Transaction
”) in a currency other than Dollars, (i) no Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness or Investment is incurred and (ii) such amount will be converted into Dollars based on the relevant Exchange Rate in effect on the date such Covenant Transaction occurs and such basket will be measured at the time such Covenant Transaction occurs.
(d)
For purposes of determining compliance under
Section 7.14
, the amount of any Indebtedness denominated in a currency other than Dollars will be converted to Dollars based on the average Exchange Rate for such currency for the most recent twelve-month period immediately prior to the date of determination determined in a manner consistent with that used in calculating Consolidated EBITDA for the applicable period.
(e)
For the avoidance of doubt, in the case of a Loan denominated in an Alternative Currency, except as expressly provided herein, all interest and fees shall accrue and be payable thereon based on the actual amount outstanding in such Alternative Currency (without any translation into the Dollar Equivalent thereof).
(f)
If at any time on or following the Closing Date all of the Participating Member States that had adopted the Euro as their lawful currency on or prior to the Closing Date cease to have the Euro as their lawful national currency unit, then the Borrower, the Administrative Agent, and the Lenders will negotiate in good faith to amend the Loan Documents to (a) follow any generally accepted conventions and market practice with respect to redenomination of obligations originally denominated in Euro and (b) otherwise appropriately reflect the change in currency.
(g)
If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be the Exchange Rate. The obligation of each Loan Party in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “
Judgment Currency
”) other than that in which such sum is denominated in accordance with the applicable provisions of this
Agreement (the “
Agreement Currency
”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from such Loan Party in the Agreement Currency, such Loan Party each agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to such Loan Party (or to any other Person who may be entitled thereto under applicable law).
SECTION 1.09
Pro Forma Calculations
.
(a)
Notwithstanding anything to the contrary herein, financial ratios and tests, including the First Lien Leverage Ratio, the Total Leverage Ratio, the Total Assets and the Interest Coverage Ratio shall be calculated in the manner prescribed by this
Section 1.09
; provided that notwithstanding anything to the contrary in
Sections 1.09(b)
,
(c)
or
(d)
, (i) when calculating the First Lien Leverage Ratio for purposes of the definition of “Prepayment Percentage” and (ii) determining actual compliance (and not pro forma compliance or compliance on a Pro Forma Basis) with
Section 7.14
, the events described in this
Section 1.09
that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower).
(b)
For purposes of calculating any financial ratio or test, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to
Section 1.09(d)
) that have been made (i) during the applicable Test Period and (ii) if applicable as described in
Section 1.09(a)
, subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this
Section 1.09
, then such financial ratio or test shall be calculated to give pro forma effect thereto in accordance with this
Section 1.09
.
(c)
Whenever pro forma effect is to be given to Consolidated EBITDA with respect to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and include, for the avoidance of doubt, the amount of "run-rate" cost savings, operating expense reductions and synergies projected by the Borrower
in good faith to be realizable as a result of specified actions taken, committed to be taken or expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions, operating initiatives, operating changes and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, operating initiatives, operating changes and synergies were realized during the entirety of such period) and "run-rate" means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target's compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, in each case, subject to the limitations set forth in and consistent with the definition of Consolidated EBITDA.
(d)
In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period or (ii) subject to
Section 1.09(a)
subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e)
If any Indebtedness bears a floating rate of interest and is being given pro forma effect for the purposes of determining the Interest Coverage Ratio, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed with a Pro Forma Basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower may designate.
SECTION 1.10
Letter of Credit Amounts
. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time;
provided
,
however
, that with respect to any Letter of Credit that, by its terms or the terms of any L/C Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
SECTION 1.01
Certifications
. All certifications to be made hereunder by an officer or representative of a Loan Party or the German Borrower shall be made by such person in his or her capacity solely as an officer or a representative of such Loan Party or the German Borrower, as applicable, on such Loan Party’s or the German Borrower’s behalf and not in such Person’s individual capacity.
SECTION 1.02
Compliance with Article VII
. In the event that any Lien, Investment, Indebtedness (whether at the time of incurrence or upon application of all or a portion of the proceeds thereof), Disposition, Restricted Payment, Affiliate transaction, Contractual Obligation or prepayment of Indebtedness meets the criteria of one or more than one of the categories of transactions then permitted pursuant to any clause of such Sections in Article VII, such transaction (or portion thereof) at any time shall be permitted under one or more of such clauses as determined by the Borrower in its sole discretion at such time.
Article 2.
THE COMMITMENTS AND CREDIT EXTENSIONS
SECTION 2.01
The Loans
.
(h)
The Term Borrowings
.
(i)
Subject to the terms and express conditions set forth herein, each Lender severally agrees to make on the Closing Date, (x) a U.S. Term Loan to the Borrower in an amount equal to such Lender’s U.S. Term Commitment and (y) a Euro Term Loan to the Borrower in an amount equal to such Lender’s Euro Term Commitment. The Borrower may make only one borrowing under each of the U.S. Term Commitments and Euro Term Commitments which shall be on the Closing Date. Each Lender’s U.S. Term Commitments and Euro Term Commitments shall terminate immediately and without further action on the Closing Date after giving effect to the funding of such Lender’s U.S. Term Commitments and Euro Term Commitments on such date.
(ii)
Subject to the terms and express conditions set forth herein, during the Delayed Draw Commitment Period, each Lender severally agrees to make Delayed Draw Term Loans to the Borrower on the applicable Delayed Draw Credit Date in an amount equal to such Lender’s Delayed Draw Percentage of the requested Delayed Draw Term Loans;
provided
that (x) in no event shall any Lender be required to make Delayed Draw Term Loans in excess of its Delayed Draw Commitment, (y) no more than two Delayed Draw Credit Dates may occur during the Delayed Draw Commitment Period and (z) the aggregate principal amount of each Delayed Draw Term Borrowing shall be no less than $100 million. A portion of each Lender’s Delayed Draw Commitment shall terminate immediately and without further action after giving effect to and in an amount equal to the funding of such portion of such Lender’s Delayed Draw Commitment on the applicable Delayed Draw Credit Date. Any unutilized Delayed Draw Commitments shall terminate in full on the Delayed Draw Commitment Termination Date.
(iii)
Amounts borrowed under this
Section 2.01(a)
and repaid or prepaid may not be reborrowed. U.S. Term Loans and Delayed Draw Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein. Euro Term Loans shall be Eurocurrency Rate Loans, as further provided herein. Subject to
Sections 2.05(b)
and
2.07(a)
, all amounts owed hereunder with respect to the U.S. Term Loans, the Euro Term Loans and the Delayed Draw Term Loans shall be paid in full no later than the Maturity Date for the Term Loan Facilities.
(i)
The Revolving Borrowings
.
(i)
Subject to the terms and express conditions set forth herein, (i) each Revolving Lender severally agrees to make loans to the Borrower denominated in Dollars in an aggregate amount not to exceed at any time outstanding the amount of such Revolving Lender’s U.S. Revolving Commitment (each such loan by any Revolving Lender, a “
U.S. Revolving Loan
” and collectively, the “
U.S. Revolving Loans
”) from time to time, on any Business Day during the Revolving Availability Period;
provided
that, after giving effect to the making of any U.S. Revolving Loans, in no event shall the Total U.S. Revolving Outstandings exceed the U.S. Revolving Commitments then in effect. Within the limits of each Revolving Lender’s U.S. Revolving Commitment, and subject to the other terms and express conditions hereof, the Borrower may borrow under this
Section 2.01(b)
, prepay under
Section 2.05
, and reborrow under this
Section 2.01(b)
, in each case without premium or penalty. U.S. Revolving Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein;
provided
that all U.S. Revolving Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of U.S. Revolving Loans of the same Type. Each Lender’s U.S. Revolving Commitments shall expire on the Maturity Date for the U.S. Revolving Facility, and all U.S. Revolving Loans and all other amounts owed hereunder with respect to the U.S. Revolving Loans and the U.S. Revolving Commitments shall be paid in full no later than such date.
(ii)
Subject to the terms and express conditions set forth herein, (i) each Revolving Lender severally agrees to make loans to the Borrower or the German Borrower denominated in Dollars or in an Approved Currency in an aggregate amount not to exceed at any time outstanding the amount of such Revolving Lender’s Multicurrency Revolving Commitment (each such loan by any Revolving Lender, a “
Multicurrency Revolving Loan
” and collectively, the “
Multicurrency Revolving Loans
”) from time to time, on any Business Day during the Revolving Availability Period;
provided
that, after giving effect to the making of any Multicurrency Revolving Loans, in no event shall the Total Multicurrency Revolving Outstandings exceed the Multicurrency Revolving Commitments then in effect. Within the limits of each Revolving Lender’s Multicurrency Revolving Commitment, and subject to the other terms and express conditions hereof, the Borrower may borrow under this
Section 2.01(b)
, prepay under
Section 2.05
, and reborrow under this
Section 2.01(b)
, in each case without premium or penalty. Multicurrency Revolving Loans shall be Eurocurrency Rate Loans unless denominated in Dollars, in which case such Multicurrency Revolving Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein. Each Lender’s Multicurrency Revolving Commitments shall expire on the Maturity
Date for the Multicurrency Revolving Facility, and all Multicurrency Revolving Loans and all other amounts owed hereunder with respect to the Multicurrency Revolving Loans and the Multicurrency Revolving Commitments shall be paid in full no later than such date.
SECTION 2.02
Borrowings, Conversions and Continuations of Loans
. (%3) Each Term Borrowing, each Revolving Borrowing, each conversion of Term Loans or Revolving Loans from one Type to the other and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable (except as provided in
Section 3.02
,
Section 3.03
and
Section 3.04
herein) written notice to the Administrative Agent. Each such notice must be received by the Administrative Agent (x) with respect to any Borrowing on the Closing Date, not later than 11:00 a.m. on the date that is (i) three (3) Business Days before the Closing Date for any Dollar-denominated Borrowing of Eurocurrency Rate Loans, (ii) four (4) Business Days before the Closing Date for any Borrowing of Eurocurrency Rate Loans denominated in an Alternative Currency or (iii) one (1) Business Day before the Closing Date for any Borrowing of Base Rate Loans, (y) with respect to any Borrowing following the Closing Date, not later than 11:00 a.m. on the date that is (i) three (3) Business Days prior to the requested date of any Dollar-denominated Borrowing of Eurocurrency Rate Loans, (ii) four (4) Business Days prior to the requested date of any Borrowing of Eurocurrency Rate Loans denominated in an Alternative Currency or (iii) one (1) Business Day prior to the requested date of any Borrowing of Base Rate Loans, and (z) with respect to any continuation or conversion of Loans after the Closing Date, not later than 11:00 a.m. on the date that is three (3) Business Days prior to the requested date of any continuation of Eurocurrency Rate Loans or any conversion of Loans from one Type to the other;
provided
,
however
, that if the Borrower wishes to request Eurocurrency Rate Loans having an Interest Period other than one, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Appropriate Lenders of such request and determine whether the requested Interest Period is available to all of them. Not later than 11:00 a.m., three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower whether or not the requested Interest Period is available to all the Lenders. Each notice by the Borrower pursuant to this
Section 2.02(a)
shall consist of delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in
Section 2.03(c)(i)
or
Section 2.04(c)(i)
, each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice shall specify (i) whether the Borrower is requesting a Borrowing (and the Class of Borrowing being requested), a conversion of Term Loans or Revolving Loans from one Type to the other or a continuation of Eurocurrency Rate Loans, (ii) in the case of any Multicurrency Revolving Borrowing, the Approved Currency for the requested Borrowing and whether the Borrower or the German Borrower is requesting such Borrowing, (iii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iv) the principal amount of Loans to be borrowed, converted or continued, (v) in the case of Loans in Dollars,
the Type of Loans to be borrowed or to which existing Term Loans or Revolving Loans are to be converted, (vi) if applicable, the duration of the Interest Period with respect thereto and (vii) the account of the Borrower (or the German Borrower, as applicable) to be credited with the proceeds of such Borrowing. If the Borrower fails to specify a Type of Loan in a Committed Loan Notice with respect to a Borrowing in Dollars or fails to give a timely notice requesting a conversion or continuation with respect to a Borrowing in Dollars, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower fails to give a timely notice requesting a conversion or continuation with respect to a Borrowing in an Alternative Currency, then it will be deemed to have requested a conversion or continuation for an Interest Period of one (1) month. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period (or fails to give a timely notice requesting a continuation of Eurocurrency Rate Loans), it will be deemed to have specified an Interest Period of one (1) month.
(e)
Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Appropriate Lender of the amount of its Pro Rata Share of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation described in
Section 2.02(a)
. In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Principal Office not later than 11:00 a.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction or waiver of the applicable conditions set forth in
Section 4.02
(or, if such Borrowing is the initial Credit Extension,
Sections 4.01
and
4.02
), the Administrative Agent shall make all funds so received available to the Borrower (or the German Borrower, as applicable) in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided to the Administrative Agent by the Borrower.
(f)
Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan unless the Borrower pays the amount due, if any, under
Section 3.04
in connection therewith. During the continuance of an Event of Default, the Required Lenders may require that no Loans may be converted to or continued as Eurocurrency Rate Loans.
(g)
The Administrative Agent shall promptly notify the Borrower and the Appropriate Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. The determination of the Adjusted Eurocurrency Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Appropriate Lenders of any change in the Prime Rate used in determining the Base Rate promptly following the determination of such change.
(h)
After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than twenty (20) Interest Periods in effect plus up to three (3) additional Interest Periods in respect of each Additional Facility.
(i)
The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
(j)
For the avoidance of doubt, no conversion or continuation of any Loan pursuant to this Section shall affect the currency in which such Loan is denominated prior to any such conversion or continuation and each such Loan shall remain outstanding denominated in the currency originally issued.
SECTION 2.03
Letters of Credit
.
(a)
The Letter of Credit Commitments
.
(%4) Subject to the terms and conditions set forth herein, (A) each U.S. L/C Issuer agrees, in reliance upon the agreements of the U.S. Revolving Lenders set forth in this
Section 2.03
, (1) from time to time on any Business Day from the Closing Date until the L/C Expiration Date, to issue U.S. Letters of Credit for the account of the Borrower or any Subsidiary of the Borrower (provided that the Borrower hereby irrevocably agrees to be bound jointly and severally to reimburse the applicable L/C Issuer for amounts drawn on any U.S. Letter of Credit issued for the account of any Subsidiary) and to amend, renew or extend U.S. Letters of Credit previously issued by it, in accordance with paragraph (b) of this Section, and (2) to honor drawings under the U.S. Letters of Credit; and (B) the U.S. Revolving Lenders severally agree to participate in such U.S. Letters of Credit and any drawings thereunder;
provided
that no U.S. L/C Issuer shall be obligated to make any U.S. L/C Credit Extension, and no U.S. Revolving Lender shall be obligated to participate in any U.S. Letter of Credit, if, as of the date of such U.S. L/C Credit Extension, (w) the Total U.S. Revolving Outstandings would exceed the U.S. Revolving Commitments then in effect, (x) the sum of the aggregate Outstanding Amount of the U.S. Revolving Loans of any U.S. Revolving Lender, plus such Lender’s U.S. Revolving Percentage of the Outstanding Amount of all U.S. L/C Obligations, plus such Lender’s U.S. Revolving Percentage of the Outstanding Amount of all Swingline Loans would exceed such Lender’s U.S. Revolving Commitment, (y) the Outstanding Amount of all L/C Obligations would exceed the L/C Sublimit or (z) the Outstanding Amount of the U.S. L/C Obligations with respect to U.S. Letters of Credit issued by such U.S. L/C Issuer would exceed its U.S. L/C Commitment. U.S. Letters of Credit shall constitute utilization of the U.S. Revolving Commitments. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain U.S. Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain U.S. Letters of Credit to replace U.S. Letters of Credit that have expired or that have been drawn upon and reimbursed.
(%4)
Subject to the terms and conditions set forth herein, (A) each Multicurrency L/C Issuer agrees, in reliance upon the agreements of the Multicurrency Revolving Lenders set forth in this
Section 2.03
, (1) from time to time on any Business Day from the Closing Date until the L/C Expiration Date, to issue Multicurrency Letters of Credit for the account of the Borrower or any Subsidiary of the Borrower (provided that the Borrower hereby irrevocably agrees to be bound jointly and severally to reimburse the applicable L/C Issuer for amounts drawn on any Multicurrency Letter of Credit issued for the account of any Subsidiary) and to amend, renew or extend Multicurrency Letters of Credit previously issued by it, in accordance with paragraph (b) of this Section, and (2) to honor drawings under the Multicurrency Letters of Credit; and (B) the Multicurrency Revolving Lenders severally agree to participate in such Multicurrency Letters of Credit and any drawings thereunder;
provided
that no Multicurrency L/C Issuer shall be obligated to make any Multicurrency L/C Credit Extension, and no Multicurrency Revolving Lender shall be obligated to participate in any Multicurrency Letter of Credit, if, as of the date of such Multicurrency L/C Credit Extension, (w) the Total Multicurrency Revolving Outstandings would exceed the Multicurrency Revolving Commitments then in effect, (x) the sum of the aggregate Outstanding Amount of the Multicurrency Revolving Loans of any Multicurrency Revolving Lender, plus such Lender’s Multicurrency Revolving Percentage of the Outstanding Amount of all Multicurrency L/C Obligations would exceed such Lender’s Multicurrency Revolving Commitment, (y) the Outstanding Amount of all L/C Obligations would exceed the L/C Sublimit or (z) the Outstanding Amount of the Multicurrency L/C Obligations with respect to Multicurrency Letters of Credit issued by such Multicurrency L/C Issuer would exceed its Multicurrency L/C Commitment. Multicurrency Letters of Credit shall constitute utilization of the Multicurrency Revolving Commitments. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Multicurrency Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Multicurrency Letters of Credit to replace Multicurrency Letters of Credit that have expired or that have been drawn upon and reimbursed.
(i)
No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A)
any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit or direct that such L/C Issuer refrain from the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any material restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;
(B)
the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C)
except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $10,000;
(D)
(x) in the case of U.S. Letters of Credit, if such U.S. Letter of Credit is to be denominated in a currency other than Dollars, and (y) in the case of Multicurrency Letters of Credit, if such Multicurrency Letter of Credit is to be denominated in a currency other than an Approved Currency;
(E)
any Revolving Lender of the applicable Class is at such time a Defaulting Lender, nor shall any L/C Issuer be under any obligation to extend, renew or amend existing Letters of Credit, unless such L/C Issuer has entered into arrangements, including reallocation of such Lender’s Pro Rata Share of the applicable outstanding L/C Obligations pursuant to
Section 2.18(a)(iv)
or the delivery of Cash Collateral, with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to
Section 2.18(a)(iv)
) with respect to such Lender arising from either the Letter of Credit then proposed to be issued or such Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure; or
(F)
such Letter of Credit is not a standby letter of credit or, subject to the ability of such L/C Issuer to issue such a Letter of Credit, a commercial letter of credit.
(ii)
No L/C Issuer shall be under any obligation to amend or extend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment thereto.
(iii)
Each Letter of Credit shall expire at or prior to the close of business on the earlier of (A)(1) if a standby Letter of Credit, the date twelve months after the date of issuance of such Letter of Credit (or, in the case of any Auto-Renewal Letter of Credit, twelve months or, in the case of Letters of Credit issued by Bank of America, N.A., eighteen
months (or such longer period as may be agreed to by the applicable L/C Issuer) after the then current expiration date of such Letter of Credit) or (2) if a trade or commercial Letter of Credit, the date nine months after the date of issuance of such Letter of Credit and (B) the L/C Expiration Date.
(iv)
The aggregate L/C Commitments of all the L/C Issuers shall be less than or equal to the L/C Sublimit at all times.
(b)
Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit
. (%4) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of an L/C Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such L/C Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 1:00 p.m. at least three (3) Business Days (or such shorter
period as such L/C Issuer and the Administrative Agent may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such L/C Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day) and whether the requested Letter of Credit is a U.S. Letter of Credit or a Multicurrency Letter of Credit; (B) the amount thereof and, in the case of Multicurrency Letters of Credit, the Approved Currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the applicable L/C Issuer may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, such L/C Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer: (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); and (3) the nature of the proposed amendment. Additionally, the Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any L/C Documents, as such L/C Issuer or the Administrative Agent may reasonably require.
(i)
Promptly after receipt of any L/C Application, the applicable L/C Issuer will confirm with the Administrative Agent that the Administrative Agent has received a copy of such L/C Application from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by such L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions set forth herein, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be. Immediately upon the issuance of each U.S. Letter of Credit, each U.S. Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a participation in such U.S. Letter of Credit in an amount equal to such Lender’s U.S. Revolving Percentage of the amount of such U.S. Letter of Credit. Immediately upon the issuance of each Multicurrency Letter of Credit, each Multicurrency Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a participation in such Multicurrency Letter of Credit in an amount equal to such Lender’s Multicurrency Revolving Percentage of the amount of such Multicurrency Letter of Credit.
(ii)
If the Borrower so requests in any applicable L/C Application, the applicable L/C Issuer shall agree to issue a standby Letter of Credit that has automatic renewal provisions (each, an “
Auto-Renewal Letter of Credit
”);
provided
that any such Auto-Renewal Letter of Credit shall permit such L/C Issuer to prevent any such renewal at least once in each twelve-month period (or such longer period as may be reasonably agreed to by the applicable L/C Issuer) (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “
Nonrenewal Notice Date
”) in each such twelve-month period to be mutually agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Revolving Lenders of the applicable Class shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the renewal of such Letter of Credit at any time to an expiry date not later than the L/C Expiration Date; provided, however, that such L/C Issuer shall not (x) permit any such renewal if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.03(a)
or otherwise) or (B) it has received notice on or before the day that is seven Business Days before the Nonrenewal Notice Date from the Administrative Agent that the Required Revolving Lenders have elected not to permit such renewal or (y) be obligated to permit such renewal if it has received notice on or before the day that is seven Business Days before the Nonrenewal Notice Date from the Administrative Agent, any Revolving Lender or the Borrower that one or more of the applicable conditions set forth in
Section 4.02
is not then satisfied or waived, and in each such case directing such L/C Issuer not to permit such renewal.
(iii)
Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c)
Drawings and Reimbursements; Funding of Participations
. (%4) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof, and such L/C Issuer shall, within a reasonable time following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter of Credit. If such L/C Issuer notifies the Borrower in writing of any payment by such L/C Issuer under a Letter of Credit prior to 3:00 p.m. on the date of such payment, the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing on the next succeeding Business Day; provided that if such notice is not provided to the Borrower prior to 3:00 p.m. on such payment date, then the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing on the second succeeding Business Day, and such extension of time shall be reflected in computing fees in respect of such Letter of Credit. If the Borrower fails to so reimburse such L/C Issuer by such time, the Administrative Agent shall promptly notify (i) in the case of any U.S. Letter of Credit, each U.S. Revolving Lender and (ii) in the case of any Multicurrency Letter of Credit, each Multicurrency Revolving Lender of such payment date, the amount of the unreimbursed drawing (the “
Unreimbursed Amount
”) and the amount of such Lender’s Revolving Percentage thereof. In such event, the Borrower shall be deemed to have requested a Revolving Borrowing of Base Rate Loans (in the case of any Unreimbursed Amount in respect of a U.S. Letter of Credit or a Multicurrency Letter of Credit denominated in Dollars) or Eurocurrency Rate Loans with a period of one month (in the case of any Unreimbursed Amount in respect of a Multicurrency Letter of Credit denominated in an Alternative Currency) to be disbursed on such payment date in an amount equal to such Unreimbursed Amount, without
regard to the minimum and multiples specified in
Section 2.02
for the principal amount of Base Rate Loans or Eurocurrency Rate Loans, as applicable. Any notice given by an L/C Issuer or the Administrative Agent pursuant to this clause (i) must be in writing.
(i)
Each Revolving Lender of the applicable Class (including each Revolving Lender acting as an L/C Issuer) shall upon any notice pursuant to paragraph (c)(i) of this Section make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the applicable L/C Issuer at the Administrative Agent’s Principal Office in an amount equal to its Revolving Percentage of the relevant Unreimbursed Amount not later than 3:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of paragraph (c)(iii) of this Section, each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan (or, in the case of any Unreimbursed Amount in respect of a Multicurrency Letter of Credit denominated in an Alternative Currency, a Eurocurrency Rate Loan with an interest period of one month) to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer in accordance with the instructions provided to the Administrative Agent by such L/C Issuer (which instructions may include standing payment instructions, which may be updated from time to time by such L/C Issuer, provided that, unless the Administrative Agent shall otherwise agree, any such update shall not take effect until the Business Day immediately following the date on which such update is provided to the Administrative Agent).
(ii)
With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Borrowing because the conditions set forth in
Section 4.02
are not satisfied or waived or for any other reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on written demand (together with interest) and shall bear interest at the Default Rate then applicable to Base Rate Loans under the U.S. Revolving Facility; or Eurocurrency Rate Loans with an interest period of one month under the Multicurrency Revolving Facility, as applicable. In such event, each Revolving Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to paragraph (c)(i) of this Section shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section.
(iii)
Until each U.S. Revolving Lender funds its U.S. Revolving Loan or U.S. L/C Advance to reimburse the applicable L/C Issuer for any amount drawn under any U.S. Letter of Credit, interest in respect of such Lender’s U.S. Revolving Percentage of such amount shall be solely for the account of such L/C Issuer. Until each Multicurrency Revolving Lender funds its Multicurrency Revolving Loan or Multicurrency L/C Advance to reimburse the applicable L/C Issuer for any amount drawn under any Multicurrency Letter of Credit, interest in respect of such Lender’s Multicurrency Revolving Percentage of such amount shall be solely for the account of such L/C Issuer.
(iv)
(i) Each U.S. Revolving Lender’s obligation to make U.S. Revolving Loans or U.S. L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under U.S. Letters of Credit and (ii) each Multicurrency Revolving Lender’s obligation to make Multicurrency Revolving Loans or Multicurrency L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under Multicurrency Letters of Credit, as contemplated by this paragraph (c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default; or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Lender’s obligation to make Revolving Loans pursuant to this paragraph (c) is subject to the satisfaction or waiver of the conditions set forth in
Section 4.02
. No such funding of a participation in any Letter of Credit shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by such L/C Issuer under such Letter of Credit, together with interest as provided herein.
(v)
If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this paragraph (c) by the time specified in paragraph (c)(ii), then, without limiting the other provisions of this Agreement, such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect and a rate determined by such L/C Issuer in accordance with banking industry rules on interbank compensation, plus any reasonable administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the applicable L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(d)
Repayment of Participations
. (%4) If, at any time after an L/C Issuer has made payment in respect of any drawing under any U.S. Letter of Credit issued by it and has received from any U.S. Revolving Lender its U.S. L/C Advance in respect of such payment in accordance with
Section 2.03(c)
, if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its U.S. Revolving Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s U.S. L/C Advance was outstanding) in like funds as received by the Administrative Agent. If, at any time after an L/C Issuer has made payment in respect of any drawing under any Multicurrency Letter of Credit issued by it and has received from any
Multicurrency Revolving Lender its Multicurrency L/C Advance in respect of such payment in accordance with
Section 2.03(c)
, if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Multicurrency Revolving Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s Multicurrency L/C Advance was outstanding) in like funds as received by the Administrative Agent.
(i)
If any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to
Section 2.03(c)(i)
is required to be returned under any of the circumstances described in
Section 10.06
(including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Revolving Lender of the applicable Class shall pay to the Administrative Agent for the account of such L/C Issuer its Revolving Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect. The obligations of the Revolving Lenders under this clause (ii) shall survive the payment in full of the Obligations and the termination of this Agreement.
(e)
Obligations Absolute
. The obligation of the Borrower to reimburse the applicable L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i)
any lack of validity or enforceability of such Letter of Credit or any term or provision thereof, any Loan Document, or any other agreement or instrument relating thereto;
(ii)
the existence of any claim, counterclaim, setoff, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the applicable L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii)
any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv)
any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not comply strictly with the terms of such Letter of Credit; or any payment made by the applicable L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including arising in connection with any proceeding under any Debtor Relief Law;
(v)
any exchange, release or nonperfection of any collateral, or any release or amendment or waiver of or consent to departure from any guarantee, for all or any of the Obligations of the Borrower in respect of such Letter of Credit; or
(vi)
any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower (other than the defense of payment or performance);
provided
that the foregoing in clauses (i) through (vi) shall not excuse any L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that are caused by such L/C Issuer’s (or its Related Parties’) gross negligence, bad faith, material breach or willful misconduct, in each case, as determined in a final and non-appealable judgment by a court of competent jurisdiction when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.
(f)
Role of L/C Issuer
. Each Revolving Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any document or the authority of the Person executing or delivering any document. None of the applicable L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of such L/C Issuer shall be liable to any Revolving Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Required Lenders; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct as finally determined by a court of competent jurisdiction; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or L/C Application. The Borrower hereby assumes all risks of the acts of omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the applicable L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of such L/C Issuer shall be liable or responsible for any of the matters described in
Section 2.03(e)
; provided that, notwithstanding anything in such clauses to the contrary, the Borrower may have a claim against such L/C Issuer, and such L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct (as opposed to indirect, special, punitive, consequential or exemplary) damages suffered by the Borrower which a court of competent jurisdiction determines in a final nonappealable judgment were caused by such L/C Issuer’s (or its Related Parties’) gross negligence, bad faith, material breach or willful misconduct or such L/C Issuer’s (or its Related Parties’) willful or grossly negligent failure to pay under any Letter of Credit after the presentation to it by the beneficiary of
a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the applicable L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g)
Applicability of ISP98 and UCP
. Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each Letter of Credit.
(h)
Conflict with L/C Application
. In the event of any conflict between the terms of this Agreement and the terms of any L/C Application, the terms hereof shall control.
(i)
Reporting
. Not later than the third Business Day following the last day of each month (or at such other intervals as the Administrative Agent and the applicable L/C Issuer shall agree), each L/C Issuer shall provide to the Administrative Agent a schedule of the Letters of Credit issued by it, in form and substance reasonably satisfactory to the Administrative Agent, showing the date of issuance of each Letter of Credit, the account party, the original face amount (if any), the expiration date, and the reference number of any Letter of Credit outstanding at any time during such month, and showing the aggregate amount (if any) payable by the Borrower to such L/C Issuer during such month.
(a)
Provisions Related to Extended Revolving Commitments
. If the L/C Expiration Date in respect of any Expiring Credit Commitment occurs prior to the expiry date of any Letter of Credit, then (i) if one or more other Non-Expiring Credit Commitments in respect of which the L/C Expiration Date shall not have so occurred are then in effect, such Letters of Credit shall, to the extent such Letters of Credit could have been issued under such other tranches, automatically be deemed to have been issued (including for purposes of the obligations of the Revolving Lenders to purchase participations therein and to make Revolving Loans and payments in respect thereof pursuant to
Sections 2.03(c)
and
(d)
) under (and ratably participated in by Lenders pursuant to) the Non-Expiring Credit Commitments up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Non-Expiring Credit Commitments at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to immediately preceding
clause (i)
, the Borrower shall Cash Collateralize any such Letter of Credit. At all times following the Maturity Date of any Expiring Credit Commitment, the sublimit for Letters of Credit shall in no event exceed the aggregate principal amount of Non-Expiring Credit Commitments then outstanding.
SECTION 2.04
Swingline Loans
. (%3)
The Swingline
. Subject to the terms and conditions set forth herein, the Swingline Lender, in reliance on the agreements of the U.S. Revolving Lenders set forth in this Section, agrees to make Swingline Loans to the Borrower from time to time on any Business Day during the Revolving Availability Period, in an aggregate principal amount not to exceed at any time outstanding such Swingline Lender’s Swingline
Commitment;
provided
that, after giving effect to any Swingline Loan, (i) in no event shall the Total U.S. Revolving Outstandings exceed the U.S. Revolving Commitments then in effect and (ii) the sum of the aggregate Outstanding Amount of the U.S. Revolving Loans of any Lender, plus such Lender’s Revolving Percentage of the Outstanding Amount of all U.S. L/C Obligations, plus such Lender’s Revolving Percentage of the Outstanding Amount of all Swingline Loans shall not exceed such Lender’s U.S. Revolving Commitment and (iii) the Outstanding Amount of all Swingline Loans shall not exceed the Swingline Sublimit;
provided
,
further
, that no Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans without premium or penalty. The Swingline Lender’s Swingline Commitment shall expire on the Maturity Date for the U.S. Revolving Facility. All Swingline Loans and all other amounts owed hereunder with respect to the Swingline Loans shall be paid in full on the Maturity Date for the U.S. Revolving Facility.
(a)
Borrowing Procedures for Swingline Loans
. Each Swingline Borrowing shall be made upon the Borrower’s irrevocable notice to the Swingline Lender and the Administrative Agent. Each such notice shall be in the form of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower, and must be received by the Swingline Lender and the Administrative Agent not later than noon on the date of the requested Swingline Borrowing, and such notice shall specify (i) the amount to be borrowed, which shall be in a minimum of $500,000 or a larger multiple of $100,000 and (ii) the date of such Swingline Borrowing (which shall be a Business Day). Promptly after receipt by a Swingline Lender of such notice, such Swingline Lender will confirm with the Administrative Agent that the Administrative Agent has also received such notice and, if not, the Swingline Lender will notify the Administrative Agent of the contents thereof. Subject to the terms and conditions set forth herein, the Swingline Lender shall make each Swingline Loan available to the Borrower, by wire transfer thereof in accordance with instructions provided to (and reasonably acceptable to) such Swingline Lender, not later than 3:00 p.m. on the requested date of such Swingline Loan (which instructions may include standing payment instructions, which may be updated from time to time by the Borrower, provided that, unless the Swingline Lender shall otherwise agree, any such update shall not take effect until the Business Day immediately following the date on which such update is provided to the Swingline Lender). Notwithstanding anything herein to the contrary, no Swingline Lender shall be obligated to make any Swingline Loans (A) if it has elected not to do so after the occurrence and during the continuation of a Default or Event of Default, (B) it does not in good faith believe that all conditions under
Section 4.02
to the making of such Swingline Loan have been satisfied or waived by the Required Revolving Lenders or (C) at a time when any U.S. Revolving Lender is a Defaulting Lender as set forth in
Section 2.18(c)
and the amount of such Defaulting Lender’s participation in Swingline Loans has not been reallocated to Non-Defaulting Lenders or Cash Collateralized in full.
(b)
Refinancing of Swingline Loans
.
(vi)
With respect to any Swingline Loans which have not been voluntarily prepaid by the Borrower pursuant to
Section 2.05(a)(ii)
or repaid pursuant to clause (a) above, the Swingline Lender may at any time in its sole and absolute discretion, deliver to the
Administrative Agent (which the Administrative Agent shall deliver to the Lenders) with a copy to the Borrower, no later than 11:00 a.m. at least one Business Day in advance of the proposed Credit Extension, a notice (which shall be deemed to be a Committed Loan Notice given by the Borrower) requesting that each U.S. Revolving Lender make U.S. Revolving Loans that are Base Rate Loans to the Borrower on the date of such Credit Extension in an amount equal to the amount of such Swingline Loans (the “
Refunded Swingline Loans
”) outstanding on the date such notice is given which the Swingline Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (1) the proceeds of such U.S. Revolving Loans made by the Lenders other than the Swingline Lender shall be immediately delivered by the Administrative Agent to the Swingline Lender (and not to the Borrower) and applied to repay a corresponding portion of the applicable Refunded Swingline Loans and (2) on the day such U.S. Revolving Loans are made, the Swingline Lender’s U.S. Revolving Percentage of the Refunded Swingline Loans shall be deemed to be paid with the proceeds of a U.S. Revolving Loan made by the Swingline Lender to the Borrower, and such portion of the Swingline Loans deemed to be so paid shall no longer be outstanding as Swingline Loans but shall instead constitute part of the Swingline Lender’s outstanding U.S. Revolving Loans. If any portion of any such amount paid (or deemed to be paid) to the Swingline Lender should be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all U.S. Revolving Lenders in the manner contemplated by
Section 2.13
.
(vii)
If for any reason any Swingline Loan cannot be refinanced by such a U.S. Revolving Borrowing in accordance with paragraph (c)(i) of this Section in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans on or before the third Business Day after demand for payment thereof by the Swingline Lender, each of the U.S. Revolving Lenders shall be deemed to have purchased, and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its U.S. Revolving Percentage of the applicable unpaid amount together with accrued interest thereon. Upon one Business Day’s notice from the Swingline Lender, each U.S. Revolving Lender shall deliver to the Swingline Lender an amount equal to its respective participation in the applicable unpaid amount in same day funds at the Principal Office of the Swingline Lender. In order to evidence such participation, each such U.S. Revolving Lender agrees to enter into a participation agreement at the request of the Swingline Lender in form and substance reasonably satisfactory to the Swingline Lender.
(viii)
If any U.S. Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such U.S. Revolving Lender pursuant to the foregoing provisions of this paragraph (c) by the time specified in paragraph (c)(ii), the Swingline Lender shall be entitled to recover from such U.S. Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect and a rate determined by the Swingline Lender in accordance with banking industry rules on
interbank compensation, plus any reasonable administrative, processing or similar fees customarily charged by such Swingline Lender in connection with the foregoing. If such U.S. Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s U.S. Revolving Loan included in the relevant U.S. Revolving Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of a Swingline Lender submitted to any U.S. Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(ix)
Each U.S. Revolving Lender’s obligation to make U.S. Revolving Loans or to purchase and fund participations in Swingline Loans pursuant to this paragraph (c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default or (C) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Loan Party; (D) any breach of this Agreement or any other Loan Document by any party thereto; or (E) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that such obligations of each Lender are subject to the condition that Swingline Lender had not received prior notice from Borrower or the Required Revolving Lenders that any of the conditions under
Section 4.02
to the making of the applicable Refunded Swingline Loans or other unpaid Swingline Loans, were not satisfied at the time such Refunded Swingline Loans or unpaid Swingline Loans were made. No such funding of participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.
(c)
Repayment of Participations
.
(ii)
At any time after any U.S. Revolving Lender has purchased and funded a participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, such Swingline Lender will promptly remit such U.S. Revolving Lender’s applicable U.S. Revolving Percentage of such payment to the Administrative Agent (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such U.S. Revolving Lender’s participation was funded) in like funds as received by the Swingline Lender, and any such amounts received by the Administrative Agent will be remitted by the Administrative Agent to the U.S. Revolving Lenders that shall have funded their participations pursuant to paragraph (c)(ii) of this Section to the extent of their interests therein.
(iii)
If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by such Swingline Lender under any of the circumstances described in
Section 10.06
(including pursuant to any settlement entered into by the Swingline Lender in its discretion), each U.S. Revolving Lender shall pay to such Swingline Lender its applicable U.S. Revolving Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the U.S. Revolving Lenders under this clause (ii) shall survive the payment in full of the Obligations and the termination of this Agreement.
(d)
Payments Directly to Swingline Lenders
. Except as otherwise expressly provided herein, the Borrower shall make all payments of principal and interest in respect of the Swingline Loans directly to the Swingline Lender at its Principal Office.
(e)
Provisions Related to Extended Revolving Commitments
. If the Maturity Date shall have occurred in respect of any tranche of Revolving Commitments, Additional Revolving Commitments or Extended Revolving Commitments (such expiring tranche, the “
Expiring Credit Commitment
”) at a time when another tranche or tranches of Revolving Commitments, Additional Revolving Commitments or Extended Revolving Commitments available in Dollars is or are in effect with a longer Maturity Date (each, a “
Non-Expiring Credit Commitment
” and collectively, the “
Non-Expiring Credit Commitments
”), then with respect to each outstanding Swingline Loan, if consented to by the Swingline Lender, on the earliest occurring Maturity Date such Swingline Loan shall be deemed reallocated to the tranche or tranches of the Non-Expiring Credit Commitments on a pro rata basis;
provided
that (x) to the extent that the amount of such reallocation would cause the aggregate credit exposure to exceed the aggregate amount of such Non-Expiring Credit Commitments, immediately prior to such reallocation the amount of Swingline Loans to be reallocated equal to such excess shall be repaid or Cash Collateralized and (y) notwithstanding the foregoing, if a Default or Event of Default has occurred and is continuing, the Borrower shall still be obligated to pay Swingline Loans allocated to the Revolving Lenders holding the Expiring Credit Commitments at the Maturity Date of the Expiring Credit Commitment or if the Loans have been accelerated prior to the Maturity Date of the Expiring Credit Commitment. On the Maturity Date of any Expiring Credit Commitment, the sublimit for Swingline Loans shall be agreed solely with the Swingline Lender.
SECTION 2.05
Prepayments
. (%3)
Optional
. (%4) Each of the Borrower and the German Borrower (as applicable) may, upon delivery of a Prepayment Notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans, in each case, in whole or in part without premium or penalty (but subject to
Section 2.09(d)
);
provided
that (A) such notice must be received by the Administrative Agent not later than 11:00 a.m. (1) three (3) Business Days prior to any date of prepayment of Eurocurrency Rate Loans or (2) one Business Day prior to any date of prepayment of Base Rate Loans (other than Swingline Loans); (B) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof or, if less, the entire principal amount thereof then outstanding and (C) any prepayment of Base Rate Loans (other than Swingline Loans) shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof or, if less, the entire principal amount thereof then outstanding. Each such Prepayment Notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower (or the German Borrower, if applicable), unless rescinded as set
forth in clause (iii) hereof, the Borrower (or the German Borrower, if applicable) shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to
Section 3.04
. Each prepayment of any Loans pursuant to this
Section 2.05(a)
shall be applied to such Loans and in such order of maturity of principal installments as the Borrower (or the German Borrower, if applicable) may direct in its sole discretion; provided that, in the event the Borrower (or the German Borrower, if applicable) fails to specify the Loans to which any such prepayment shall be applied, such prepayment shall be applied,
first
, to repay outstanding Swingline Loans on a pro rata basis until paid in full,
second
, to repay outstanding Revolving Loans (including, for the avoidance of doubt, the U.S. Revolving Loans and the Multicurrency Revolving Loans) on a pro rata basis across Classes and pro rata among Lenders within each Class until paid in full, and
third
, to prepay the Term Loans (including, for the avoidance of doubt, the U.S. Term Loans, the Euro Term Loans and the Delayed Draw Term Loans) on a pro rata basis across Classes and pro rata among Lenders within each Class in accordance with the respective outstanding principal amounts thereof (which prepayments shall be applied to the scheduled installments of principal in direct order of maturity). Each prepayment made by the Borrower or the German Borrower shall be paid to the Administrative Agent for the account of (and to be promptly disbursed to) the Lenders in accordance with their respective Pro Rata Shares.
(x)
The Borrower may, upon delivery of a Prepayment Notice to the Swingline Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swingline Loans in whole or in part without premium or penalty; provided that (1) such notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (2) any such prepayment shall be in a minimum principal amount of $100,000 in excess thereof or or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, unless rescinded, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(xi)
Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of prepayment under
Section 2.05(a)(i)
if such prepayment would have resulted from a refinancing of all or a portion of the Term Loan Facility or Revolving Facility or the occurrence of any other event, which refinancing or event shall not be consummated or shall otherwise be delayed.
(xii)
Notwithstanding anything in this Agreement (including but not limited to
Sections 2.07
and
2.13
(which provisions shall not be applicable to this
Section 2.05(a)(iv)
)) or in any other Loan Document to the contrary, so long as a Responsible Officer of the Borrower has delivered a certificate confirming that (A) no Event of Default has occurred and is continuing or would result therefrom and (B) no proceeds of Revolving Loans are used therefor, the Loan Parties and their Subsidiaries may prepay the outstanding Term Loans (which shall, for the avoidance of doubt, be automatically and permanently canceled immediately upon acquisition by the Borrower), or the Loan Parties or any of their
Subsidiaries may purchase such outstanding Term Loans and immediately cancel them, on the following basis:
(A)
Any Loan Party or any of its Subsidiaries shall have the right to make a voluntary prepayment of Loans at a discount to par pursuant to a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers (any such prepayment, the “
Discounted Loan Prepayment
”), in each case made in accordance with this
Section 2.05(a)(iv)
.
(B)
(%6) Any Loan Party or any of its Subsidiaries may from time to time offer to make a Discounted Loan Prepayment by providing the Auction Agent five (5) Business Days’ notice substantially in the form of a Specified Discount Prepayment Notice;
provided
that (I) any such offer shall be made available, at the sole discretion of the Loan Party or such Subsidiary, to (x) each Lender and/or (y) each Lender with respect to any Class of Loans on an individual Class basis, (II) any such offer shall specify the aggregate principal amount offered to be prepaid (the “
Specified Discount Prepayment Amount
”) with respect to each applicable Class, the Class or Classes of Loans subject to such offer and the specific percentage discount to par (the “
Specified Discount
”) of such Loans to be prepaid (it being understood that different Specified Discounts and/or Specified Discount Prepayment Amounts may be offered with respect to different Classes of Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section), (III) the Specified Discount Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) subject to
subsection (K)
below, each such offer shall remain outstanding through the Specified Discount Prepayment Response Date. The Auction Agent will promptly provide each Lender with a copy of such Specified Discount Prepayment Notice and a form of the Specified Discount Prepayment Response to be completed and returned by each such Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m. on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended upon notice by the applicable Loan Party or the Subsidiary to the Auction Agent) (the “
Specified Discount Prepayment Response Date
”).
(1)
Each Lender receiving such offer shall notify the Auction Agent (or its delegate) by the Specified Discount Prepayment Response Date whether or not it agrees to accept a prepayment of any of its applicable then outstanding Loans at the Specified Discount and, if so (such accepting Lender, a “
Discount Prepayment Accepting Lender
”), the amount and the Classes of such Lender’s Loans to be prepaid at such offered discount. Each acceptance of a Discounted Loan Prepayment by a Discount Prepayment Accepting Lender shall be irrevocable. Any Lender whose Specified Discount Prepayment Response is not received by the Auction Agent by the Specified Discount Prepayment Response Date shall be deemed to have
declined to accept the applicable Borrower Offer of Specified Discount Prepayment.
(2)
If there is at least one Discount Prepayment Accepting Lender, the relevant Loan Party or Subsidiary will make a prepayment of outstanding Loans pursuant to this paragraph (B) to each Discount Prepayment Accepting Lender on the Discounted Prepayment Effective Date in accordance with the respective outstanding amount and Classes of Loans specified in such Lender’s Specified Discount Prepayment Response given pursuant to
subsection (2)
above;
provided
that, if the aggregate principal amount of Loans accepted for prepayment by all Discount Prepayment Accepting Lenders exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro rata among the Discount Prepayment Accepting Lenders in accordance with the respective principal amounts accepted to be prepaid by each such Discount Prepayment Accepting Lender and the Auction Agent (with the consent of such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its reasonable discretion) will calculate such proration (the “
Specified Discount Proration
”). The Auction Agent shall promptly, and in any case within three (3) Business Days following the Specified Discount Prepayment Response Date, notify (I) the relevant Loan Party or Subsidiary of the respective Lenders’ responses to such offer, the Discounted Prepayment Effective Date and the aggregate principal amount of the Discounted Loan Prepayment and the Classes to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, and the aggregate principal amount and the Classes of Loans to be prepaid at the Specified Discount on such date and (III) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and confirmation of the principal amount, Class and Type of Loans of such Lender to be prepaid at the Specified Discount on such date. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Loan Party and such Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Loan Party or Subsidiary shall be due and payable by such Loan Party on the Discounted Prepayment Effective Date in accordance with
subsection (F)
below (subject to
subsection (K)
below).
(C)
(%6) Any Loan Party or any of its Subsidiaries may from time to time solicit Discount Range Prepayment Offers by providing the Auction Agent with 5 Business Days’ notice in the form of a Discount Range Prepayment Notice;
provided
that (I) any such solicitation shall be extended, at the sole discretion of such Loan Party or such Subsidiary, to (x) each Lender and/or (y) each Lender with respect to any Class of Loans on an individual Class basis, (II) any such notice shall specify the maximum aggregate principal amount of the relevant Loans (the “
Discount Range Prepayment Amount
”), the Class or Classes of Loans subject to such offer and the maximum and minimum percentage discounts to par (the
“
Discount Range
”) of the principal amount of such Loans with respect to each relevant Class of Loans willing to be prepaid by such Loan Party or such Subsidiary (it being understood that different Discount Ranges and/or Discount Range Prepayment Amounts may be offered with respect to different Classes of Loans and, in such event, each such offer will be treated as separate offer pursuant to the terms of this Section), (III) the Discount Range Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) subject to
subsection (K)
below, each such solicitation by any Loan Party or any of its Subsidiaries shall remain outstanding through the Discount Range Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m. on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended by notice from the Loan Party or Subsidiary to the Auction Agent) (the “
Discount Range Prepayment Response Date
”). Each Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify one or more (but no more than three for any Lender) discounts to par within the Discount Range (the “
Submitted Discount
”) at which such Lender is willing to allow prepayment of any or all of its then outstanding Loans of the applicable Class or Classes and the maximum aggregate principal amount and Classes of such Lender’s Loans (the “
Submitted Amount
”) such Lender is willing to have prepaid at the Submitted Discount. Any Lender whose Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Loan Prepayment of any of its Loans at any discount to their par value within the Discount Range.
(1)
The Auction Agent shall review all Discount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response Date and shall determine (with the consent of such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the Applicable Discount and Loans to be prepaid at such Applicable Discount in accordance with this
subsection (C)
. The relevant Loan Party or Subsidiary agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by Auction Agent within the Discount Range by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being referred to as the “
Applicable Discount
”) which yields a Discounted Loan Prepayment in an aggregate principal amount equal to the lower of (I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts. Each Lender that has submitted a Discount Range
Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Loans equal to its Submitted Amount (subject to any required proration pursuant to the following
subsection (3)
) at the Applicable Discount (each such Lender, a “
Participating Lender
”).
(2)
Subject to
subsection (K)
below, if there is at least one Participating Lender, the relevant Loan Party or Subsidiary will prepay the respective outstanding Loans of each Participating Lender on the Discounted Prepayment Effective Date in the aggregate principal amount and of the Classes specified in such Lender’s Discount Range Prepayment Offer at the Applicable Discount;
provided
that if the Submitted Amount by all Participating Lenders offered at a discount to par greater than the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the principal amount of the relevant Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal to the Applicable Discount (the “
Identified Participating Lenders
”) shall be made pro rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Auction Agent (with the consent of such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “
Discount Range Proration
”). The Auction Agent shall promptly, and in any case within five (5) Business Days following the Discount Range Prepayment Response Date, notify (I) the relevant Loan Party or Subsidiary of the respective Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount of the Discounted Loan Prepayment and the Classes to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount and Classes of Loans to be prepaid at the Applicable Discount on such date, (III) each Participating Lender of the aggregate principal amount and Classes of such Lender to be prepaid at the Applicable Discount on such date, and (IV) if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the relevant Loan Party or Subsidiary and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Loan Party or Subsidiary shall be due and payable by such Loan Party on the Discounted Prepayment Effective Date in accordance with
subsection (F)
below (subject to
subsection (K)
below).
(D)
(%6) Any Loan Party or any of its Subsidiaries may from time to time solicit offers for discounted prepayments by providing the Auction Agent with 5 Business Days’ notice in substantially the form of a Solicited Discounted Prepayment Notice;
provided
that (I) any such solicitation shall be extended, at the
sole discretion of such Loan Party or such Subsidiary, to (x) each Lender and/or (y) each Lender with respect to any Class of Loans on an individual Class basis, (II) any such notice shall specify the maximum aggregate amount of the Loans (the “
Solicited Discounted Prepayment Amount
”) and the Class or Classes of Loans the Loan Party or Subsidiary is willing to prepay at a discount (it being understood that different Solicited Discounted Prepayment Amounts may be offered with respect to different Classes of Loans and, in such event, each such offer will be treated as separate offer pursuant to the terms of this Section), (III) the Solicited Discounted Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) subject to
subsection (K)
below, each such solicitation by any Loan Party or any of its Subsidiaries shall remain outstanding through the Solicited Discounted Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Solicited Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer in the form of
Exhibit N
to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended upon notice from the Loan Party or Subsidiary to the Auction Agent) (the “
Solicited Discounted Prepayment Response Date
”). Each Lender’s Solicited Discounted Prepayment Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance Date, and (z) specify either one or more (but no more than three) discounts to par (the “
Offered Discount
”) at which such Lender is willing to allow prepayment of its then outstanding Loan and the maximum aggregate principal amount and Classes of such Loans (the “
Offered Amount
”) such Lender is willing to have prepaid at the Offered Discount. Any Lender whose Solicited Discounted Prepayment Offer is not received by the Auction Agent by the Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment of any of its Loans at any discount.
(1)
The Auction Agent shall promptly provide the relevant Loan Party or Subsidiary with a copy of all Solicited Discounted Prepayment Offers received on or before the Solicited Discounted Prepayment Response Date. Such Loan Party or such Subsidiary shall review all such Solicited Discounted Prepayment Offers and select the largest of the Offered Discounts specified by the relevant responding Lenders in the Solicited Discounted Prepayment Offers that is acceptable to the Loan Party or Subsidiary in its sole discretion (the “
Acceptable Discount
”), if any. If the Loan Party or Subsidiary elects, in its sole discretion, to accept any Offered Discount as the Acceptable Discount, in no event later than by the third Business Day after the date of receipt by such Loan Party or such Subsidiary from the Auction Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this
subsection (2)
(the “
Acceptance Date
”), the Loan Party or Subsidiary may submit an Acceptance and Prepayment Notice to the Auction Agent setting forth the Acceptable Discount. If the Auction Agent shall fail to receive an Acceptance and Prepayment Notice in
the form of
Exhibit M
from the Loan Party or Subsidiary by the Acceptance Date, such Loan Party or such Subsidiary shall be deemed to have rejected all Solicited Discounted Prepayment Offers.
(2)
Based upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, within three (3) Business Days after receipt of an Acceptance and Prepayment Notice (the “
Discounted Prepayment Determination Date
”), the Auction Agent will determine (with the consent of such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the aggregate principal amount and the Classes of Loans (the “
Acceptable Prepayment Amount
”) to be prepaid by the relevant Loan Party or Subsidiary at the Acceptable Discount in accordance with this
Section 2.05(a)(iv)(D)
. If the Loan Party or Subsidiary elects to accept any Acceptable Discount, then the Loan Party or Subsidiary agrees to accept all Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount. Each Lender that has submitted a Solicited Discounted Prepayment Offer with an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment of Loans equal to its Offered Amount (subject to any required pro-rata reduction pursuant to the following sentence) at the Acceptable Discount (each such Lender, a “
Qualifying Lender
”). The Loan Party or Subsidiary may prepay outstanding Loans pursuant to this
subsection (D)
to each Qualifying Lender in the aggregate principal amount and of the Classes specified in such Lender’s Solicited Discounted Prepayment Offer at the Acceptable Discount;
provided
that if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited Discounted Prepayment Amount, prepayment of the principal amount of the Loans for those Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount (the “
Identified Qualifying Lenders
”) shall be made pro rata among the Identified Qualifying Lenders in accordance with the Offered Amount of each such Identified Qualifying Lender and the Auction Agent (in consultation with such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “
Solicited Discount Proration
”). On or prior to the Discounted Prepayment Determination Date, the Auction Agent shall promptly notify (I) the relevant Loan Party or Subsidiary of the Discounted Prepayment Effective Date and Acceptable Prepayment Amount comprising the Discounted Loan Prepayment and the Classes to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment
Amount of all Loans and the Classes to be prepaid at the Applicable Discount on such date, (III) each Qualifying Lender of the aggregate principal amount and the Classes of such Lender to be prepaid at the Acceptable Discount on such date, and (IV) if applicable, each Identified Qualifying Lender of the Solicited Discount Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to such Loan Party or such Subsidiary and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to such Loan Party or such Subsidiary shall be due and payable by such Loan Party or such Subsidiary on the Discounted Prepayment Effective Date in accordance with
subsection (F)
below (subject to
subsection (K)
below).
(E)
In connection with any Discounted Loan Prepayment, the Loan Parties and the Lenders acknowledge and agree that the Auction Agent may require as a condition to any Discounted Loan Prepayment, the payment of customary and documented fees and out-of-pocket expenses from a Loan Party or Subsidiary in connection therewith.
(F)
If any Loan is prepaid in accordance with paragraphs (B) through (D) above, a Loan Party or Subsidiary shall prepay such Loans on the Discounted Prepayment Effective Date without premium or penalty. The relevant Loan Party or Subsidiary shall make such prepayment to the Administrative Agent, for the account of the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, at the Administrative Agent’s Principal Office in immediately available funds not later than 1:00 p.m. on the Discounted Prepayment Effective Date and all such prepayments shall be applied to the remaining principal installments of the relevant Class of Loans on a pro rata basis across such installments. The Loans so prepaid shall be accompanied by all accrued and unpaid interest on the par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Loans pursuant to this
Section 2.05(a)(iv)
shall be paid to the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, and shall be applied to the relevant Loans of such Lenders in accordance with their respective Pro Rata Share. The aggregate principal amount of the Classes and installments of the relevant Loans outstanding shall be deemed reduced by the full par value of the aggregate principal amount of the Class of Loans prepaid on the Discounted Prepayment Effective Date in any Discounted Loan Prepayment. In connection with each prepayment pursuant to this
Section 2.05(a)(iv)
, each relevant Loan Party and Lender shall render customary “big boy” letters to each other and the Auction Agent regarding Excluded Information.
(G)
To the extent not expressly provided for herein, each Discounted Loan Prepayment (which for the avoidance of doubt, shall not include any open market purchases of Loans or Commitments otherwise permitted by the terms hereof) shall be consummated pursuant to procedures consistent with the provisions in this
Section 2.05(a)(iv)
or as otherwise established by the Auction Agent acting in its reasonable discretion and as reasonably agreed by the Borrower.
(H)
Notwithstanding anything in any Loan Document to the contrary, for purposes of this
Section 2.05(a)(iv)
, to the extent the Administrative Agent is the Auction Agent, each notice or other communication required to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication;
provided
that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.
(I)
Each of the Loan Parties and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this
Section 2.05(a)(iv)
by itself or through any Affiliate of the Auction Agent and expressly consents to any such delegation of duties by the Auction Agent to such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any Discounted Loan Prepayment provided for in this
Section 2.05(a)(iv)
as well as activities of the Auction Agent.
(J)
In connection with any Term Loans prepaid and cancelled pursuant to this
Section 2.05(a)(iv)
, the Administrative Agent is authorized to make appropriate entries in the Register to reflect any such cancellation.
(K)
Each Loan Party and any of its Subsidiaries shall have the right, by written notice to the Auction Agent, to revoke or modify its offer to make a Discounted Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion at any time on or prior to the applicable Specified Discount Prepayment Response Date.
(L)
Any failure by such Loan Party or such Subsidiary to make any prepayment to a Lender, pursuant to this
Section 2.05(a)(iv)
shall not constitute a Default or Event of Default under
Section 8.01
or otherwise.
(M)
To the extent the Auction Agent is required to deliver notices or communicate such other information to the Lenders pursuant to this
Section 2.05(a)(iv)
, the Auction Agent will work with the Administrative Agent (and the Administrative Agent will cooperate with the Auction Agent) in order to procure the delivery of such notices and/or the communication of such information to the applicable Lenders.
(N)
Nothing in this
Section 2.05(a)(iv)
shall require the Loan Parties or any of their Subsidiaries to undertake any Discounted Loan Prepayment.
(b)
Mandatory
.
(iv)
Excess Cash Flow
. Within five (5) Business Days after financial statements are required to have been delivered pursuant to
Section 6.01(a)
and the related Compliance Certificate is required to have been delivered pursuant to
Section 6.02(b)
, the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans, in accordance with
Section 2.05(b)(vi)
, in an amount equal to (A) 50% of Excess Cash Flow, if any, for the fiscal year ended December 31, 2015 and, thereafter, the Prepayment Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements
minus
(B) the sum of (1) the amount of any voluntary prepayments of Term Loans made pursuant to
Section 2.05(a)
during such fiscal year (other than prepayments of Term Loans financed by incurring other long-term Indebtedness (other than revolving loans)), in the case of prepayments pursuant to
Section 2.05(a)(iv)
, with credit given for the actual amount of cash payment, and (2) solely to the extent the amount of the Revolving Commitments are permanently reduced pursuant to
Section 2.06
in connection therewith (and solely to the extent of the amount of such reduction), the amount of any voluntary prepayments of Revolving Loans made pursuant to
Section 2.05(a)
during such fiscal year.
(v)
Disposition or Casualty
.
(A)
If (x) the Borrower or any Restricted Subsidiary Disposes of any property or assets pursuant to
Section 7.05(f)
(to the extent clause (ii) of the proviso thereto is applicable to such Disposition) or
Section 7.05 (k)
,
(l)
or
(r)
or (y) any Casualty Event occurs, which results in the receipt by the Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrower shall cause to be prepaid on or prior to the date which is five (5) Business Days after the date of the receipt of such Net Cash Proceeds an aggregate principal amount of Term Loans, in accordance with
Section 2.05(b)(vi)
, in an amount equal to 100% of all Net Cash Proceeds received;
provided
, however, that a ratable portion of the Net Cash Proceeds may be applied to prepay or offer to purchase any first lien secured notes that are Refinancing Notes or Additional Notes if required under the terms of the documentation governing such Refinancing Notes or Additional Notes (determined on the basis of the aggregate outstanding principal amount of the Term Loans, Refinancing Notes and Additional Notes outstanding at such time);
provided, further
, that to the extent the holders of Refinancing Notes or Additional Notes decline to have such Indebtedness prepaid or purchased, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(B)
With respect to any Net Cash Proceeds received with respect to any Disposition (other than any Disposition specifically excluded from the application of
Section 2.05(b)(ii)(A)
) or any Casualty Event, at the option of the Borrower, the Borrower or its Restricted Subsidiaries may reinvest or cause to be reinvested all or any portion of such Net Cash Proceeds received by it in assets useful for their business within 365 days following receipt of such Net Cash Proceeds (or, if committed to
be reinvested within such 365-day period, so reinvested within 180 days thereafter);
provided
that if any Net Cash Proceeds are not so reinvested within the applicable time periods set forth above in this
Section 2.05(b)(ii)(B)
, an amount equal to any such Net Cash Proceeds shall be promptly applied to the prepayment of the Loans as set forth in this
Section 2.05
.
(vi)
Debt Proceeds
. If the Borrower or any Restricted Subsidiary incurs or issues (A) any Indebtedness not permitted to be incurred or issued pursuant to
Section 7.03
or (B) any Refinancing Notes or Refinancing Term Facility, the Borrower shall cause to be prepaid an aggregate amount of Term Loans, in accordance with
Section 2.05(b)(vi)
, in an amount equal to 100% of all Net Cash Proceeds received therefrom on the date of receipt of such Net Cash Proceeds.
(vii)
Revolving Loans
. If for any reason (x) the aggregate Outstanding Amount of the U.S. Revolving Loans, U.S. L/C Obligations and Swingline Loans at any time exceeds the Aggregate U.S. Revolving Commitments then in effect or (y) the aggregate Outstanding Amount of the Multicurrency Revolving Loans and Multicurrency L/C Obligations at any time exceeds the Aggregate Multicurrency Revolving Commitments then in effect, the Borrower (or the German Borrower, if applicable) shall promptly prepay the applicable Revolving Loans or Swingline Loans and/or Cash Collateralize the applicable L/C Obligations in an aggregate amount equal to such excess;
provided
that the Borrower or the German Borrower, as applicable, shall not be required to Cash Collateralize (x) the U.S. L/C Obligations pursuant to this
Section 2.05(b)(iv)
unless after the prepayment in full of the U.S. Revolving Loans and Swingline Loans such aggregate Outstanding Amount exceeds such Aggregate U.S. Revolving Commitments then in effect or (y) the Multicurrency L/C Obligations pursuant to this
Section 2.05(b)(iv)
unless after the prepayment in full of the Multicurrency Revolving Loans such aggregate Outstanding Amount exceeds such Aggregate Multicurrency Revolving Commitments then in effect.
(viii)
Notwithstanding any other provisions of this
Section 2.05(b)
, to the extent that any of Excess Cash Flow or all or any portion of the Net Cash Proceeds of any asset sale or other Disposition or any Casualty Event or Debt Issuance by a Restricted Subsidiary giving rise to mandatory prepayment pursuant to
Section 2.05(b)(ii)(A)
or
Section 2.05(b)(ii)(B)
(each such Disposition and Casualty Event, a “
Specified Asset Sale
”) or
Section 2.05(b)(iii)
(each such Debt Issuance, a “
Specified Debt Issuance
”) (A) are prohibited or delayed by applicable local Law or prohibited by material constituent document restrictions (including as a result of minority ownership) from being repatriated to the jurisdiction of organization of the Borrower or (B) with respect to which the Borrower has determined in good faith that repatriation of any of or all the Excess Cash Flow or Net Cash Proceeds of any Specified Asset Sale or Specified Debt Issuance to the jurisdiction of organization of the Borrower could reasonably be expected to have an adverse tax consequence to the Borrower and its Restricted Subsidiaries (including pursuant to Section 956 of the Code), then, solely to the extent such result is not directly attributable to actions taken by the Borrower or any of its Subsidiaries with the intent of avoiding or reducing any prepayment otherwise required under this
Section 2.05(b)
, (1) an amount equal to the portion of such
Excess Cash Flow or Net Cash Proceeds which would be so affected will not be required to be applied to repay Loans at the times provided in this
Section 2.05(b)
but may be retained by the applicable Restricted Subsidiary so long as the applicable local Law or material constituent document restriction will not permit such repatriation to the Borrower or such adverse tax consequence would occur, (2) the Borrower agrees to use and to cause the applicable Restricted Subsidiary to use all reasonable efforts to overcome or eliminate any such restrictions and/or to minimize any such adverse tax consequences to make the relevant prepayment (net of an amount equal to the additional Related Taxes that would be payable or reserved against as a result of a repatriation and any additional costs that would be incurred as a result of repatriation, whether or not a repatriation actually occurs) within one year following the date on which the respective prepayment would otherwise have been required and (3) if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Cash Proceeds and Excess Cash Flow is permissible under the applicable local law or applicable constituent documents or if such adverse tax consequence no longer exists (even if such cash is actually not repatriated), an amount equal to the amount of Net Cash Proceeds or Excess Cash Flow otherwise subject to such restrictions, that could be repatriated will be promptly (and in any event not later than five (5) Business Days after such repatriation is or such repatriation could be accomplished) applied (net of an amount equal to the additional Related Taxes that would be payable or reserved against as a result of a repatriation and any additional costs that would be incurred as a result of repatriation, whether or not a repatriation actually occurs) to the repayment of the Loans pursuant to this
Section 2.05(b)
. The non-application of any prepayment amounts as a consequence of the foregoing provisions (the aggregate sum of any such amounts related to Excess Cash Flow, “
Non-Repatriated Amounts
”) will not, for the avoidance of doubt, constitute a Default or an Event of Default, and such Non-Repatriated Amounts and such amount of Net Cash Proceeds shall be available for working capital purposes of the Borrower and its Restricted Subsidiaries as long as not required to be prepaid in accordance with the following provisions.
(ix)
Any prepayment of any Term Loans pursuant to this
Section 2.05(b)
shall be applied to repay Term Loans of each then outstanding Class on a pro rata basis unless otherwise agreed by any Term Lenders receiving less than their Pro Rata Share and the Borrower. Any prepayment of any Class of Term Loans pursuant to this
Section 2.05(b)
shall be applied in direct order of maturities and each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Share (prior to giving effect to any rejection by any Lender of any such prepayment pursuant to
clause (vii)
below), subject to this
clause (vi)
and
clause (vii)
of this
Section 2.05(b)
.
(x)
The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to
clauses (i)
,
(ii)
and
(iii)
of this
Section 2.05(b)
at least three (3) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of any such prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Any Term
Lender (a “
Declining Lender
”, and any Lender which is not a Declining Lender, an “
Accepting Lender
”) may elect, by delivering not less than two (2) Business Days prior to the proposed prepayment date, a written notice that any mandatory prepayment of a Term Loan otherwise required to be made with respect to the Term Loans held by such Lender pursuant to
clauses (i)
and
(ii)
(but not clause (iii)) of this
Section 2.05(b)
not be made, in which event the portion of such prepayment which would otherwise have been applied to the Term Loans of the Declining Lenders shall instead be retained by the Borrower (“
Retained Declined Proceeds
”).
(xi)
Funding Losses, Etc
. All prepayments under this
Section 2.05
shall be made together with, in the case of any such prepayment of a Eurocurrency Rate Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Eurocurrency Rate Loan, as the case may be, pursuant to
Section 3.04
. Notwithstanding any of the other provisions of
Section 2.05(b)
, so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency Rate Loans is required to be made under this
Section 2.05(b)
, other than on the last day of the Interest Period therefor, the Borrower (or the German Borrower, if applicable) may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral Account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrower, any other Loan Party or the German Borrower) to apply such amount to the prepayment of such Loans in accordance with this
Section 2.05(b)
. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower, any other Loan Party or the German Borrower) to apply such amount to the prepayment of the outstanding Loans in accordance with this
Section 2.05(b)
. Such deposit shall be deemed to be a prepayment of such Loans by the Borrower for all purposes under this Agreement.
SECTION 2.06
Termination or Reduction of Commitments
. (%3)
Optional
. The Borrower may, upon notice to the Administrative Agent, terminate the unused portion of the U.S. Revolving Commitments, the Multicurrency Revolving Commitments or the Delayed Draw Commitments, or from time to time reduce the unused U.S. Revolving Commitments, Multicurrency Revolving Commitments, Delayed Draw Commitments, the L/C Sublimit or the Swingline Sublimit; provided that (a) each such notice shall be in writing and must be received by the Administrative Agent at least three Business Days prior to the effective date of such termination or reduction, and shall be irrevocable (provided that a notice of termination of the Revolving Commitments or the Delayed Draw Commitments may state that such notice is conditioned upon the effectiveness of other credit facilities or other events, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied), (b) any such partial reduction shall be in an aggregate amount of $5,000,000 or a larger multiple of $1,000,000 and (c) the Borrower shall not terminate or reduce (i) (x) the U.S. Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total U.S. Revolving Outstandings would exceed the Aggregate U.S. Revolving Commitments or (y) the Multicurrency Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the
Total Multicurrency Revolving Outstandings would exceed the Aggregate Multicurrency Revolving Commitments, (ii) the L/C Sublimit if, after giving effect thereto, the Outstanding Amount of all L/C Obligations would exceed the L/C Sublimit or (iii) the Swingline Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of all Swingline Loans would exceed the Swingline Sublimit; provided, further, that, upon any such partial reduction of the L/C Sublimit or the Swingline Sublimit, unless the Borrower, the Administrative Agent and the applicable L/C Issuer or the Swingline Lender, as the case may be, otherwise agree, the commitment of each L/C Issuer or the Swingline Lender to issue Letters of Credit or extend Swingline Loans, as applicable, will be reduced proportionately by the amount of such reduction. For avoidance of doubt, upon termination of the Revolving Commitments in full, the L/C Sublimit and the Swingline Sublimit shall automatically terminate. Unless previously terminated, (x) the Revolving Commitments shall automatically terminate on the date specified in clause (a) of the definition of “Maturity Date” and (y) the Delayed Draw Commitments shall automatically terminate on the Delayed Draw Commitment Termination Date. Furthermore, subject to clause (a) and clause (c) of the first sentence of this
Section 2.06(a)
, the Borrower may terminate in whole the Revolving Commitment or Delayed Draw Commitment of any Defaulting Lender.
(a)
Mandatory
.
(xii)
The Initial Term Commitment of each Lender shall be automatically and permanently reduced to $0 at 5:00 p.m. on the Closing Date upon the funding of the U.S. Term Loans and the Euro Term Loans. The Delayed Draw Commitment of each Lender shall be automatically and permanently reduced to $0 on the Delayed Draw Commitment Termination Date.
(xiii)
The U.S. Revolving Commitment of each U.S. Revolving Lender and the Multicurrency Revolving Commitment of each Multicurrency Revolving Lender shall be automatically and permanently reduced to $0 on the Maturity Date for the Revolving Facilities.
(b)
Application of Commitment Reductions; Payment of Fees
. The Administrative Agent will promptly notify the Appropriate Lenders of any termination or reduction of unused portions of the L/C Sublimit, the Swingline Sublimit or the unused Commitments of any Class under this
Section 2.06
. Upon any reduction of unused Commitments of any Class, the Commitment of each Lender of such Class shall be reduced by such Lender’s Pro Rata Share of the amount by which such Commitments are reduced;
provided,
however, that any termination in whole of the Revolving Commitment and/or Delayed Draw Commitment of a Defaulting Lender pursuant to the last sentence of
Section 2.06(a)
shall not result in a reduction of any other Lender’s Revolving Commitments or Delayed Draw Commitments. Subject to
Section 2.18(a)(iii)
, all commitment fees accrued until the effective date of any termination of the Commitments of any Class shall be paid to the Administrative Agent (for distribution to the Appropriate Lenders) on the effective date of such termination.
SECTION 2.07
Repayment of Loans
. (%3)
Term Loans
.
(vii)
The Borrower shall repay to the Administrative Agent for the ratable account of the U.S. Term Lenders and the Delayed Draw Term Lenders the aggregate outstanding principal amount of the U.S. Term Loans and Delayed Draw Term Loans (x) in quarterly installments in an amount equal to 0.25% of the sum of the original principal amount of the U.S. Term Loans made on the Closing Date and the original principal amount of the Delayed Draw Term Loans made on each Delayed Draw Credit Date that has occurred prior to any such repayment (such aggregate amount being recalculated on each Delayed Draw Credit Date to account for the additional Delayed Draw Term Loans made on such date), payable on the last Business Day of each March, June, September and December, commencing on June 30, 2014, and (y) the balance on the Maturity Date of the Term Loan Facilities, which amount, in each case, shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in
Section 2.05
;
provided
,
however
, that the final principal installment in any event shall be in an amount equal to the aggregate principal amount of the U.S. Term Loans and Delayed Draw Term Loans outstanding on such date.
(viii)
The Borrower shall repay to the Administrative Agent for the ratable account of the Euro Term Lenders the aggregate outstanding principal amount of the Euro Term Loans (x) in quarterly installments an amount equal to 0.25% of the sum of the original principal amount of the Euro Term Loans made on the Closing Date, payable on the last Business Day of each March, June, September and December, commencing on June 30, 2014 and (y) the balance on the Maturity Date of the Term Loan Facilities, which amount, in each case, shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in
Section 2.05
;
provided
,
however
, that the final principal installment in any event shall be in an amount equal to the aggregate principal amount of the Euro Term Loans outstanding on such date.
(b)
Revolving Loans
.
(iv)
The Borrower shall repay to the Administrative Agent for the ratable account of the U.S. Revolving Lenders on the Maturity Date for the Revolving Facilities the aggregate principal amount of all of the U.S. Revolving Loans outstanding on such date.
(v)
The Borrower and the German Borrower, as applicable, shall repay to the Administrative Agent for the ratable account of the Multicurrency Revolving Lenders on the Maturity Date for the Revolving Facilities the aggregate principal amount of all of the Multicurrency Revolving Loans outstanding on such date.
(c)
Swingline Loans
. The Borrower shall repay the aggregate principal amount of all of its Swingline Loans outstanding on the Maturity Date for the Revolving Facilities.
(d)
Additional Term Loans, Extended Term Loans and Extended Revolving Loans
. The Borrower (or the German Borrower, if applicable) shall repay the aggregate amount of any Additional Term Loans, Extended Term Loans and Extended Revolving Loans to the Administrative Agent in accordance with a repayment schedule to be agreed by the Borrower (or the German
Borrower, if applicable) and the relevant Additional Term Lenders, Extended Term Lenders or Extended Revolving Lenders, as applicable, and set forth in the applicable Joinder Agreement, Extension Amendment or other applicable amendment documentation.
SECTION 2.08
Interest
. (%3) (i) Each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Applicable Rate with respect to Eurocurrency Rate Loans; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Applicable Rate with respect to Base Rate Loans; and (iii) each Swingline Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for U.S. Revolving Loans.
(a)
While any payment Event of Default exists, each of the Borrower and the German Borrower shall pay interest on the principal amount of all of its overdue outstanding Obligations incurred hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon written demand.
(b)
Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily basis and shall be payable in arrears on each Interest Payment Date with respect to interest accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be payable in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in arrears at maturity of the Loans, including final maturity of the Loans;
provided
,
however
, with respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be payable on the applicable Interest Payment Date. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
SECTION 2.09
Fees
.
(a)
Commitment Fees
.
(iii)
The Borrower shall pay to the Administrative Agent for the account of each U.S. Revolving Lender in accordance with its Pro Rata Share, a commitment fee (each, a “
U.S.
Revolving Commitment Fee
” and, collectively, the “
U.S.
Revolving Commitment Fees
”) equal to the Applicable Rate times the average daily amount by which the Aggregate U.S. Revolving Commitments exceed the sum of (i) the Outstanding Amount of U.S. Revolving Loans (for this purpose, disregarding Swingline Loans as a utilization of the U.S. Revolving Facility) and (ii) the Outstanding Amount of U.S. L/C Obligations;
provided
that any U.S. Revolving Commitment Fee accrued with respect to the U.S. Revolving Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such U.S. Revolving Commitment Fee shall otherwise have been due and payable by the Borrower prior to such
time; and
provided further
that no U.S. Revolving Commitment Fee shall accrue on the U.S. Revolving Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. The U.S. Revolving Commitment Fees shall accrue at all times from the date hereof until the Maturity Date for the Revolving Facilities, including at any time during which one or more of the conditions in
Article 4
is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date for the Revolving Facilities. The U.S. Revolving Commitment Fees shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(iv)
The Borrower shall pay to the Administrative Agent for the account of each Multicurrency Revolving Lender in accordance with its Pro Rata Share, a commitment fee (each, a “
Multicurrency
Revolving Commitment Fee
” and, collectively, the “
Multicurrency
Revolving Commitment Fees
”) equal to the Applicable Rate times the average daily amount by which the Aggregate Multicurrency Revolving Commitments exceed the sum of (i) the Outstanding Amount of Multicurrency Revolving Loans and (ii) the Outstanding Amount of Multicurrency L/C Obligations;
provided
that any Multicurrency Revolving Commitment Fee accrued with respect to the Multicurrency Revolving Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such Multicurrency Revolving Commitment Fee shall otherwise have been due and payable by the Borrower prior to such time; and
provided further
that no Multicurrency Revolving Commitment Fee shall accrue on the Multicurrency Revolving Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. The Multicurrency Revolving Commitment Fees shall accrue at all times from the date hereof until the Maturity Date for the Revolving Facilities, including at any time during which one or more of the conditions in
Article 4
is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date for the Revolving Facilities. The Multicurrency Revolving Commitment Fees shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(v)
The Borrower shall pay to the Administrative Agent for the account of each Delayed Draw Term Lender in accordance with its Pro Rata Share, a commitment fee (each, a “
Delayed Draw Commitment Fee
” and, collectively, the “
Delayed Draw Commitment Fees
”) equal to the Applicable Rate times the average daily Delayed Draw Commitments (other than the Delayed Draw Commitment of any Defaulting Lender so long as such Lender shall be a Defaulting Lender);
provided
that any Delayed Draw Commitment Fee accrued with respect to the Delayed Draw Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not
be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such Delayed Draw Commitment Fee shall otherwise have been due and payable by the Borrower prior to such time. The Delayed Draw Commitment Fees shall accrue at all times from the date hereof until the Delayed Draw Commitment Termination Date, including at any time during which one or more of the conditions in
Article 4
is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Delayed Draw Commitment Termination Date. The Delayed Draw Commitment Fees shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(vi)
All fees referred to in this
Section 2.09(a)
shall be paid to Administrative Agent at its Principal Office and upon receipt, Administrative Agent shall promptly distribute to each applicable Lender its Pro Rata Share thereof.
(b)
L/C Fees
.
(i)
The Borrower agrees to pay to the Administrative Agent for the account of each U.S. Revolving Lender a Letter of Credit fee with respect to its participations in the outstanding U.S. Letters of Credit (a “
U.S.
L/C Fee
” and, collectively, the “
U.S. L/C Fees
”) which shall accrue at a rate per annum equal to the Applicable Rate on the average aggregate daily maximum amount then available to be drawn under all U.S. Letters of Credit (whether or not such maximum amount is then in effect under any U.S. Letter of Credit if such maximum amount increases periodically pursuant to the terms of such U.S. Letter of Credit), during the period from and including the Closing Date to but excluding the later of the Maturity Date of the Revolving Facilities and the date on which such Lender ceases to have any U.S. L/C Obligations; provided that any U.S. L/C Fees otherwise payable for the account of a Defaulting Lender with respect to any U.S. Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the applicable L/C Issuer shall be payable, to the maximum extent permitted by applicable Law, to the other U.S. Revolving Lenders in accordance with the upward adjustments in their respective U.S. Revolving Percentages allocable to such U.S. Letter of Credit pursuant to
Section 2.18(a)(iv)
, with the balance of such fee, if any, payable to the applicable L/C Issuer for its own account to the extent its remaining Fronting Exposure is not Cash Collateralized or otherwise participated to U.S. Revolving Lenders.
(ii)
The Borrower agrees to pay to the Administrative Agent for the account of each Multicurrency Revolving Lender a Letter of Credit fee with respect to its participations in the outstanding Multicurrency Letters of Credit (a “
Multicurrency
L/C Fee
” and, collectively, the “
Multicurrency L/C Fees
”) which shall accrue at a rate per annum equal to the Applicable Rate on the average aggregate daily maximum amount then available to be drawn under all Multicurrency Letters of Credit (whether or not such maximum amount is then in effect under any Multicurrency Letter of Credit if such maximum amount increases
periodically pursuant to the terms of such Multicurrency Letter of Credit), during the period from and including the Closing Date to but excluding the later of the Maturity Date of the Revolving Facilities and the date on which such Lender ceases to have any Multicurrency L/C Obligations; provided that any Multicurrency L/C Fees otherwise payable for the account of a Defaulting Lender with respect to any Multicurrency Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the applicable L/C Issuer shall be payable, to the maximum extent permitted by applicable Law, to the other Multicurrency Revolving Lenders in accordance with the upward adjustments in their respective Multicurrency Revolving Percentages allocable to such Multicurrency Letter of Credit pursuant to
Section 2.18(a)(iv)
, with the balance of such fee, if any, payable to the applicable L/C Issuer for its own account to the extent its remaining Fronting Exposure is not Cash Collateralized or otherwise participated to Multicurrency Revolving Lenders.
(iii)
Accrued L/C Fees shall be payable in arrears on the last Business Day of each March, June, September and December, commencing on the first such date to occur after the Closing Date, and on the Maturity Date of the Revolving Facilities; provided that any such fees accruing after such Maturity Date shall be payable on written demand. Notwithstanding anything herein to the contrary, upon the request of the Required Revolving Lenders, while any Event of Default under
Section 8.01(a)
,
(e)
, or
(f)
exists, all L/C Fees shall accrue at the applicable Default Rate.
(iv)
All fees referred to in this
Section 2.09(b)
shall be paid to Administrative Agent at its Principal Office and upon receipt, Administrative Agent shall promptly distribute to each applicable Lender its Pro Rata Share thereof.
(c)
L/C Fronting Fees
. The Borrower agrees to pay to each L/C Issuer for its own account a fronting fee with respect to the Letters of Credit issued by such L/C Issuer at a rate per annum equal 0.125% on the average aggregate daily maximum amount then available to be drawn under all such Letters of Credit (whether or not such maximum amount is then in effect under any Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit), during the period from and including the Closing Date to but excluding the later of the Maturity Date of the Revolving Facilities and the date on which such L/C Issuer ceases to have any L/C Obligations. Fronting fees accrued through and including the last day of each March, June, September and December shall be payable on the fifth Business Day following such last day, commencing on the first such date to occur after the Closing Date, and on the Maturity Date of the Revolving Facilities; provided that any such fees accruing after such Maturity Date shall be payable on written demand. In addition, the Borrower agrees to pay to each L/C Issuer for its own account the customary and reasonable issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect, which fees, costs and charges shall be payable to such L/C Issuer promptly after its written demand therefor (including documentation reasonably supporting such request) and are nonrefundable.
(d)
Term Loan Prepayment Fee
. In the event that all or any portion of the Term Loans is (i) repaid, prepaid, refinanced or replaced or (ii) repriced or effectively refinanced through any
waiver, consent or amendment (in the case of clause (i) and clause (ii), in connection with (x) any waiver, consent or amendment to the Term Loans the primary result of which is the lowering of the Weighted Average Yield of the Term Loans or (y) the incurrence of any term loan debt financing the primary result of which is the lowering of the Weighted Average Yield of the Term Loans (or portion thereof) so repaid, prepaid, refinanced, replaced or repriced (a
“Repricing Transaction”
)) occurring on or prior to the date that is six months following the Closing Date, such repayment, prepayment, refinancing, replacement or repricing (in any such case, in connection with a Repricing Transaction) will be made at 101.0% of the principal amount so repaid, prepaid, refinanced, replaced or repriced. If all or any portion of the Term Loans held by any Lender is repaid, prepaid, refinanced or replaced pursuant to
Section 3.06
as a result of such Lender not agreeing or otherwise consenting to any waiver, consent or amendment referred to in clause (ii) above (or otherwise to a Repricing Transaction) on or prior to the the date that is six months following the Closing Date, such repayment, prepayment, refinancing or replacement will be made at 101.0% of the principal amount so repaid, prepaid, refinanced or replaced.
(e)
Other Fees
. The Borrower shall pay or cause to be paid to the Agents such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrower and the applicable Agent).
SECTION 2.10
Computation of Interest and Fees
. All computations of interest for Base Rate Loans based on the Prime Rate shall be made on the basis of a year of three hundred and sixty-five (365) or three hundred and sixty-six (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 three hundred and sixty (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 three hundred and sixty-five (365) day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid;
provided
that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.14(a)
, bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.11
Evidence of Indebtedness
.
(a)
Lenders’ Evidence of Debt
. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of the Borrower and the German Borrower to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be prima facie evidence, absent manifest error of the amount of the Borrowings made by the Lenders to the Borrower and the German Borrower and the interest and payments thereon;
provided
, that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or the Borrower’s or the German Borrower’s Obligations in respect of any applicable Loans; and
provided
further
, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.
(b)
Register
. Administrative Agent (or its agent or sub-agent appointed by it) shall maintain the Register at its Principal Office. The Register shall be available for inspection by the Borrower or any Lender (with respect to (i) any entry relating to such Lender’s Loans and (ii) the identity of the other Lender’s (but not any information with respect to such other Lenders’ Loans)) at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall record, or shall cause to be recorded, in the Register the Revolving Commitments and the Loans in accordance with the provisions of
Section 10.07(c)
, and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be prima facie evidence thereof, absent manifest error; provided, failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or the Borrower’s Obligations in respect of any Loan.
(c)
Notes
. If so requested by any Lender by written notice to Borrower (with a copy to Administrative Agent) at least two Business Days prior to the Closing Date, or at any time thereafter, the Borrower (and the German Borrower, in the case of any Note evidencing a Multicurrency Revolving Commitment but solely with respect to the Obligations of the German Borrower) shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to
Section 10.07
) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after the Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s U.S. Term Loan, Euro Term Loan, Delayed Draw Commitment and/or Delayed Draw Term Loan, U.S. Revolving Commitment, Multicurrency Revolving Commitment or Swingline Loan, as the case may be.
SECTION 2.12
Payments Generally
.
(a)
All payments by the Borrower or the German Borrower of principal, interest, fees and other Obligations shall be made (i) with respect to the U.S. Term Loans, Delayed Draw Term Loans, U.S. Revolving Commitments, U.S. Letters of Credit and Swingline Loans, in Dollars, (ii) with respect to the Euro Term Loans, in Euros, and (iii) with respect to the Multicurrency Revolving Commitments and Multicurrency Letters of Credit, in the applicable Approved Currency in which such Obligations are denominated, in each case, in same day funds, without defense (other than payment in full), recoupment, setoff, condition or deduction for any counterclaim, and delivered to the Administrative Agent not later than 2:00 p.m. on the date due at the Principal Office of the Administrative Agent for the account of Lenders; for purposes of computing interest and fees, funds received by the Administrative Agent after that time on such due date shall be deemed to have been paid by the Borrower or the German Borrower on the next succeeding Business Day, in the Administrative Agent’s sole discretion.
(b)
Notwithstanding the foregoing provisions hereof, if any Committed Loan Notice with respect to a conversion or continuation is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any Eurocurrency Rate Loans, the Administrative Agent shall give effect thereto in apportioning payments received thereafter.
(c)
Subject to the provisos set forth in the definition of “Interest Period” as they may apply to Revolving Loans, whenever any payment to be made hereunder with respect to any Loan shall be stated to be due on a day that is not a Business Day, such payment shall be made on the
next succeeding Business Day and, with respect to Revolving Loans only, such extension of time shall be included in the computation of the payment of interest hereunder or of the Revolving Commitment fees hereunder.
(d)
The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swingline Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation.
(e)
Subject to
Section 3.01(h)
, nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f)
If an Event of Default shall have occurred and not otherwise been waived, and the maturity of the Obligations shall have been accelerated pursuant to
Section 8.02
or pursuant to any sale of, any collection from, or other realization upon all or any part of the Collateral, all payments or proceeds received by Agents in respect of any of the Obligations, shall be applied in accordance with the application arrangements described in
Section 8.03
.
SECTION 2.13
Pro Rata Shares; Sharing of Payments; Availability of Funds
.
(a)
Pro Rata Shares
. All Loans shall be made, and all participations purchased, by Lenders required to make such Loans or purchase such participations, simultaneously and proportionately to their respective Pro Rata Shares thereof, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby.
(b)
Availability of Funds
. Unless the Administrative Agent shall have been notified by any Lender prior to the applicable Credit Date that such Lender does not intend to make available to the Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such Credit Date and the Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the Borrower (or the German Borrower, if applicable) a corresponding amount on such Credit Date. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Credit Date until the date such amount is paid to the Administrative Agent, at the customary rate set by the Administrative Agent for the correction of errors among banks for three Business Days and thereafter, if such Loan is in Dollars, at the Base Rate, and if such Loan is in Euros or any other Alternative Currency, at the rate certified by the Administrative Agent to be its cost of funds (from any source which it may reasonably select). If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the
Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to the Administrative Agent at the Base Rate if such Loan is in Dollars, and at the rate certified by the Administrative Agent to be its cost of funds (from any source which it may reasonably select) if such Loan is in Euros or any other Alternative Currency. Nothing in this
Section 2.13(b)
shall be deemed to relieve any Lender from its obligation to fulfill its Term Commitments and Revolving Commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder.
(c)
Affiliates
. Each Multicurrency Revolving Lender may, at its option, make any Multicurrency Revolving Loan available to the German Borrower by causing any foreign or domestic branch or Affiliate of such Lender to make such Loan;
provided
that any exercise of such option shall not affect the obligation of the German Borrower to repay such Loan in accordance with the terms of this Agreement.
(d)
If, other than as provided elsewhere herein (including, without limitation, any prepayments made in connection with
Section 2.05(a)(iv)
,
Section 2.15
,
Section 2.16
or
Section 10.07
), any Lender shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set‑off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of Credit, fees and other amounts then due and owing to such Lender hereunder or under the other Loan Documents (collectively, the “
Aggregate Amounts Due
” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify the Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them;
provided
, that if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of the Borrower or the German Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest.
SECTION 2.14
Increase in Commitments
. (%3) After the Closing Date, upon notice to the Administrative Agent, the Borrower may request increases to the U.S. Revolving Commitments (each such increase, the “
Additional U.S. Revolving Commitments
”), increases to the Multicurrency Revolving Commitments (each such increase, the “
Additional Multicurrency Revolving Commitments
” and, together with the Additional U.S. Revolving Commitments, the “
Additional Revolving Commitments
”), increases to any existing Term
Loan Facility or one or more new tranches of term loans, including Additional Term A Loans, denominated in either Dollars or Euros (each such increase and/or new tranche, the “
Additional Term Commitments
”);
provided
that:
(i)
after giving effect to any such addition, the aggregate amount of Additional Revolving Commitments, Additional Term Commitments and Additional Notes that have been added pursuant to this
Section 2.14
shall not exceed (A) $500,000,000, plus (B) the amount of Delayed Draw Commitments that have been cancelled without the funding of Delayed Draw Term Loans thereunder plus (C) the amount of all voluntary prepayments and voluntary commitment reductions of the Facilities prior to the date of any such incurrence (the amounts available pursuant to clauses (A) through (C), the “
General Incremental Availability
”), plus (D) unlimited additional amounts (the “
Ratio Incremental Availability
”) to the extent that, in the case of this clause (D) only, as of the last day of the most recently ended Test Period for which financial statements are internally available after giving Pro Forma Effect to such Incurrence of Loans pursuant to such Additional Term Commitments, Additional Revolving Commitments and/or Additional Notes, as applicable, and any Investment consummated with the proceeds therefrom, (x) if the Additional Revolving Loans, Additional Term Loans and/or Additional Notes are secured on a pari passu basis with the Facilities, the First Lien Leverage Ratio does not exceed 1.50:1.00 or (y) if such Additional Revolving Commitments, Additional Term Commitments and/or Additional Notes are unsecured or secured on a junior lien basis to the Facilities, the Total Leverage Ratio does not exceed 3.50:1.00 (but assuming for the purpose of each such calculation that (x) the relevant Additional Revolving Commitments shall be treated as fully drawn, (y) the cash proceeds of Additional Revolving Loans, Additional Term Loans and/or Additional Notes, as applicable, are not treated as Cash On Hand for such purpose and (z) the proceeds of any Additional Loans or Additional Notes that are to be used to repay Indebtedness have been so used to prepay such Indebtedness) and, in each case, after giving effect to any determination that the Borrower may make to designate any such Additional Revolving Commitments, Additional Term Commitments and/or Additional Notes as being Incurred pursuant to the General Incremental Availability or Ratio Incremental Availability in its sole discretion;
(ii)
no existing Lender will be required to participate in any such Additional Facility or Additional Notes without its consent;
(iii)
any such Additional Facility shall, except as otherwise provided in clause (vi)(C) below, be secured on a
pari passu
basis by the same Collateral securing the Facilities;
(iv)
(x) all Additional U.S. Revolving Commitments shall be on the same terms and conditions and subject to the same documentation as the U.S. Revolving Facility (other than with respect to any upfront fees) and (y) all Additional Multicurrency Revolving Commitments shall be on the same terms and conditions and subject to the same documentation as the Multicurrency Revolving Facility (other than with respect to any upfront fees); and
(v)
the final maturity date of any Additional Term Loans (other than Additional Term A Loans) shall be no earlier than the Maturity Date for the existing Term Loans, the Weighted Average Life to Maturity of any Additional Term Loans (other than Additional Term A Loans) shall be no shorter than the Weighted Average Life to Maturity for the existing Term Loans, and the terms of any Additional Term Loans shall be determined by the Borrower and the lenders of such Additional Term Loans;
(vi)
the pricing, interest rate margins, discounts, premiums, rate floors, fees and amortization schedule applicable to any Additional Term Loans shall be determined by the Borrower and the lenders providing such Additional Term Loans;
provided
that:
(A)
(x) with respect to any Dollar-denominated Additional Term Loans (excluding any Incremental Equivalent Term Indebtedness and any Additional Term A Loans), if the initial “yield” of such Additional Term Loans exceeds the initial “yield” with respect to the existing U.S. Term Loans and Delayed Draw Term Loans by more than 50 basis points, the applicable margins for the U.S. Term Loans and Delayed Draw Term Loans shall be increased to the extent necessary so that the initial “yield” on the existing U.S. Term Loans and Delayed Draw Term Loans is 50 basis points less than the initial “yield” on such Additional Term Loans and (y) with respect to any Euro-denominated Additional Term Loans (excluding any Incremental Equivalent Term Indebtedness and any Additional Term A Loans), if the initial “yield” of such Additional Term Loans exceeds the initial “yield” with respect to the existing Euro Term Loans by more than 50 basis points, the applicable margins for the Euro Term Loans shall be increased to the extent necessary so that the initial “yield” on the existing Euro Term Loans is 50 basis points less than the initial “yield” on such Additional Term Loans;
provided further
that, in determining the interest rate margins applicable to the Additional Term Loan and the existing Term Loans, (x) arrangement, commitment, structuring or other fees payable to the Arrangers (or their respective Affiliates) in connection with the existing Term Loans or to one or more arrangers (or their Affiliates) of any Additional Term Loan that are not shared generally with all Lenders providing such Additional Term Loan shall be excluded, (y) original issue discount and upfront fees paid to the Lenders thereunder shall be included (with original issue discount being equated to interest based on assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity), and (z) if the Additional Term Loans include an interest rate floor greater than the applicable interest rate floor with respect to the applicable existing Term Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin with respect to the applicable existing Term Loans shall be required, but only to the extent an increase in the interest rate floor in the applicable existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such existing Term Loans shall be increased to the extent of such differential between interest rate floors;
(B)
the amortization requirements of such Additional Term Loans may differ from the existing Initial Term Loans and Delayed Draw Term Loans, so long as the Weighted Average Life to Maturity of the Additional Term Loans shall be no shorter than the Weighted Average Life to Maturity of the existing Initial Term Loans and Delayed Draw Term Loans;
provided
that Additional Term Loans may be incurred as Additional Term A Loans (and may have a shorter Weighted Average Life to Maturity than the existing Initial Term Loans and the Delayed Draw Term Loans) so long as (x) the aggregate principal amount of Additional Term A Loans that are outstanding at the time of such incurrence, when taken together with the aggregate principal amount of all other Earlier Maturity Indebtedness then outstanding, does not exceed $300,000,000 and (y) the Weighted Average Life to Maturity of any Additional Term A Loans is not less than three years;
(C)
any Additional Term Loans, to the extent secured, shall not be secured by any Lien on any asset of the Borrower or any Guarantor that does not also secure the then outstanding Term Loans, or be guaranteed by any Person other than the Guarantors under the then outstanding Term Loans; and
(D)
the Additional Term Loans may rank junior in right of security to the existing Term Loan Facility or may be unsecured, in which case such Additional Term Commitments and corresponding Term Loans will be established as a separate facility than the existing Term Loan Facility hereunder (such Indebtedness, “
Incremental Equivalent Term Indebtedness
”), and shall be established in each case under a separate credit agreement or credit agreements, and the lender representative validly acting on behalf of the holders of such Indebtedness shall have become party to a customary intercreditor agreement with terms reasonably acceptable to the Administrative Agent and the Borrower, and the provisions of
Section 2.14(a)(vi)(A)
shall not apply;
(E)
any Additional Term Loans otherwise permitted to be incurred under this
Section 2.14
may be incurred as Additional Notes and the provisions of
Section 2.14(a)(vi)(A)
shall not apply; and
(F)
to the extent the terms and documentation with respect to any Additional Term Loans (other than Additional Term A Loans) are not consistent with the existing Term Loan Facilities (except to the extent permitted under clauses (A) and (B) of this
Section 2.14(a)(vi)
) in a manner that is more favorable to the lenders of such Additional Term Loans, the terms and documentation shall be reasonably satisfactory to the Administrative Agent (except for covenants or other provisions applicable only to the periods after the latest Maturity Date of any existing Facility or any existing Additional Facility at the time such Additional Term Loans are incurred); it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Additional Term Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any existing Term Facility).
(b)
If any Additional Term Commitments or Additional Revolving Commitments are added in accordance with this
Section 2.14
, the Administrative Agent and the Borrower shall determine the effective date (each, an “
Additional Commitments Effective
Date
”) and the final amount of such addition. The Administrative Agent shall promptly notify the Borrower and the Lenders providing such Additional Term Commitments or Additional Revolving Commitments (each of which shall be an Eligible Assignee and, to the extent that consent of the Administrative Agent, any L/C Issuer or the Swingline Lender would be required for an assignment of Loans pursuant to
Section 10.07
to any such Lender, consented to by the Administrative Agent, each L/C Issuer or the Swingline Lender, as applicable) of the final amount of such addition and the Additional Commitments Effective Date. The Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in
Article 5
and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date (
provided
that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), and (ii) no Event of Default exists or would exist after giving effect to such addition, subject in the case of clauses (i) and (ii) where agreed to by the Lenders providing such Additional Term Loans or Additional Revolving Commitments to customary “Sunguard” limitations to the extent the proceeds of any Additional Loans are being used to finance a Permitted Acquisition or any other permitted Investment.
(c)
The effectiveness of any Additional Loans or Additional Revolving Commitments (and any amendment entered into in connection therewith) shall be subject to the satisfaction (or waiver) on the Additional Commitments Effective Date of each of the conditions as the parties thereto shall agree, including (a) to the extent requested by the Lenders providing such Additional Loans or Additional Revolving Commitments, receipt by the Administrative Agent of (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties or the German Borrower, if applicable, in each case, to the extent so requested by such Lenders and, to the extent applicable, consistent with those delivered on the Closing Date or thereafter in accordance with the terms of this Agreement (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent) or with respect to opinions provided with respect to Foreign Subsidiaries (if any), customary for such jurisdiction and (b) supplemental, additional or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guarantee Agreement as may be reasonably requested by the Administrative Agent (including Mortgage amendments) in order to ensure that any Additional Loans or Additional Revolving Commitments (as applicable) are provided with the benefit of the applicable Loan Documents. Any Additional Loans or Additional Revolving Commitments made pursuant to this
Section 2.14
shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, each Additional Lender and the Administrative Agent and shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in
Section 2.11
. Any Additional Term Loans or Additional Revolving Commitments made on an Additional Commitments Effective
Date shall be designated a separate Series (or a part of an existing Series, as applicable) for all purposes of this Agreement.
(d)
On any Additional Commitments Effective Date on which Additional Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Commitments of the same Class shall assign to each of the Additional Revolving Lenders, and each of the Additional Revolving Lenders shall purchase from each of such Lenders, at the principal amount thereof (together with accrued interest), such interests in the applicable Revolving Loans outstanding on such Additional Commitments Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with Revolving Commitments of the same Class and Additional Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Additional Revolving Commitments to the Revolving Commitments of the applicable Class, (b) each Additional U.S. Revolving Commitment shall be deemed for all purposes a U.S. Revolving Commitment and each Additional U.S. Revolving Loan shall be deemed, for all purposes, a U.S. Revolving Loan, (c) each Additional Multicurrency Revolving Commitment shall be deemed for all purposes a Multicurrency Revolving Commitment and each Additional Multicurrency Revolving Loan shall be deemed, for all purposes, a Multicurrency Revolving Loan, and (d) each Additional Revolving Lender shall become a U.S. Revolving Lender or a Multicurrency Revolving Lender, as applicable, with respect to its Additional Revolving Commitment and all matters relating thereto.
(e)
This
Section 2.14
shall supersede any provisions in
Section 2.05
,
Section 2.13
and
Section 10.01
to the contrary. The Administrative Agent and the Lenders hereby (i) agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the Incurrence of Indebtedness expressly provided for in this
Section 2.14
and (ii) waive the requirements of any other provision of this Agreement or any other Loan Document that may otherwise prohibit the Incurrence of any Indebtedness expressly provided for by this
Section 2.14
. Notwithstanding any other provision of any Loan Document (except as expressly enumerated in this Section 2.14), each Joinder Agreement may, without the consent of any other Lender, amend the terms of the Loan Documents, if necessary or reasonably advisable, to provide for terms applicable to each Additional Revolving Commitment and Additional Term Commitment.
SECTION 2.15
Refinancing Amendments
. At any time after the Closing Date, the Borrower may obtain, from any Lender or any or any Affiliates thereof or any other lender that is an Eligible Assignee (other than in the case of Refinancing Notes), Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Loans, Commitments, Additional Loans, Additional Term Commitments or Additional Revolving Commitments then outstanding under this Agreement in the form of Refinancing Term Facilities, Refinancing Revolving Facilities or Refinancing Notes, in each case, other than Refinancing Notes, pursuant to a Refinancing Amendment. Any Refinancing Term Facility or Refinancing Revolving Facility shall be denominated in the same currency as the portion of the Loans, Commitments, Additional Loans, Additional Term Commitments or Additional Revolving Commitments so refinanced or Dollars or Euros. Any Refinancing Term Facility or Refinancing Revolving Facility may
participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) with the Term Loan Facilities or Revolving Facilities, as applicable, in any voluntary or mandatory prepayments (and with respect to the Revolving Facilities, extensions of credit and termination of Commitments) hereunder, as specified in the applicable Refinancing Amendment. The effectiveness of any Refinancing Amendment shall be subject to the satisfaction or waiver on the date thereof of each of the conditions set forth in
Section 4.02
and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of customary legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements generally consistent with those delivered under
Section 4.01
(which in the case of legal opinions, take into account changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). Each Credit Agreement Refinancing Indebtedness incurred under this
Section 2.15
shall (i) be in an aggregate principal amount that is not less than $25,000,000 and (ii) with respect to any Refinancing Term Facilities or Refinancing Notes in the case of any Term Loans being refinanced, will have a maturity date that is not prior to the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than, the Term Loans being refinanced;
provided
that the requirements of this clause (ii) shall not apply to Credit Agreement Refinancing Indebtedness that constitutes Earlier Maturity Indebtedness to the extent that, after giving effect to such Credit Agreement Refinancing Indebtedness, the aggregate principal amount of all such Earlier Maturity Indebtedness (including any Additional Term A Loans) then outstanding does not exceed $300,000,000. In addition, subject to
Section 2.03(j)
and
Section 2.04(f)
, to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exist Extended Revolving Commitments with a longer maturity date, (x) all Swingline Loans and U.S. Letters of Credit shall be participated on a pro rata basis by all Lenders with Dollar-denominated Revolving Commitments in accordance with their percentage of the U.S. Revolving Commitments, Dollar-denominated Additional Revolving Commitments and Dollar-denominated Extended Revolving Commitments (and, except as provided in
Section 2.03(j)
or
Section 2.04(f)
, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and U.S. Letters of Credit theretofore incurred or issued) and (y) all Multicurrency Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Commitments denominated in an Alternative Currency in accordance with their percentage of the Multicurrency Revolving Commitments, Additional Revolving Commitments denominated in an Alternative Currency and Extended Revolving Commitments denominated in an Alternative Currency (and, except as provided in
Section 2.03(j)
or
Section 2.04(f)
, without giving effect to changes thereto on an earlier maturity date with respect to Multicurrency Letters of Credit theretofore incurred or issued). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this
Section 2.15
and reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Other Loans and/or Other Commitments). If, in connection with any proposed Refinancing Amendment, the Administrative Agent and the Borrower reasonably determine that such Credit Agreement Refinancing Indebtedness shall be effected by an amendment of all or a portion of
the existing Term Loans (in lieu of an equivalent repayment thereof), then upon the payment in cash to each such Lender of the amounts that otherwise would have been payable to such Lender in connection with such Credit Agreement Refinancing Indebtedness (including any applicable premium with respect thereto), such Lender shall be deemed to have agreed to a concurrent assignment of an equivalent portion of such Lender’s applicable Term Loans to the Administrative Agent or such other Lender as the Borrower and the Administrative Agent may agree (without further action by such Lender) pursuant to
Section 10.07
(with the assignment fee and any other costs and expenses to be paid by the Borrower in such instance and without any representation or warranty by such Lender). This
Section 2.15
shall supersede any provisions in
Section 2.05
,
Section 2.13
or
Section 10.01
to the contrary. The Lenders hereby waive the requirements of any other provision of this Agreement or any other Loan Document that may otherwise prohibit the Incurrence of any Indebtedness expressly provided for in this
Section 2.15
.
SECTION 2.16
Extensions of Loans and Commitments.
(%3) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “
Extension Offer
”) made from time to time by the Borrower to (i) all Lenders of Term Loans or Revolving Loans of the same Class with a like Maturity Date on a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans or Revolving Loans of such Class with a like Maturity Date) or (ii) all Revolving Lenders with a Revolving Commitment of the same Class with a like termination date on a pro rata basis (based on the aggregate Revolving Commitments of such Class with a like termination date) and, in each case, on the same terms to each such Lender, the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the Maturity Date of each such Lender’s Loans or Revolving Commitments and otherwise modify the terms of such Loans or such Revolving Commitments pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of such Loans or such Revolving Commitments (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Term Loans) (each, an “
Extension
”), and each group of Loans or Revolving Commitments as so extended, as well as the original Loans (not so extended) or Revolving Commitments (not so extended), being a Series; any Extended Term Loans, Extended Revolving Loans or Extended Revolving Commitments (each as defined below) shall constitute a separate Series of Loans or Revolving Commitments from the Series of Loans or Revolving Commitments from which they were converted, so long as the following terms are satisfied or waived: (i) no Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders and no Event of Default shall exist immediately after the effectiveness of any Extended Loans or Extended Revolving Commitments, as applicable, (ii) except as to interest rates, yield, AHYDO payments, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding
clauses (iii)
,
(iv)
,
(v)
and
(vi)
, be determined by the Borrower and set forth in the relevant Extension Offer), the Loans or Revolving Commitments, as applicable, of any Lender that agrees to an Extension with respect to such Loans or Revolving Commitments, as applicable (each, an “
Extended Term Lender
” or an “
Extended Revolving Lender
” and, together, the “
Extending Lenders
”) extended pursuant to any Extension (any such Term Loan whose Maturity Date is so extended, an “
Extended Term Loan
”, any such Revolving Loan
whose Maturity Date is so extended, an “
Extended Revolving Loan
”, and any such Revolving Commitment whose termination date is so extended, an “
Extended Revolving Commitment
”) shall have substantially same terms or terms that are more favorable to the Borrower and its Restricted Subsidiaries (taken as a whole and as reasonably determined in good faith by the Borrower) than those applicable to the Class of Loans or the Class of Revolving Commitments, as applicable, subject to such Extension Offer (except for covenants or other provisions contained therein applicable only to periods after the then latest Maturity Date for the Facilities), (iii) the amortization schedule applicable to any Extended Term Loans pursuant to
Section 2.07
for the periods prior to the original Maturity Date for the applicable Term Facility may not be increased, (iv) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby, (v) any Extended Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the applicable Extension Offer (except for (A) payments of interest and fees at different rates on Extended Revolving Commitments (and related outstandings) and (B) repayments required upon the Maturity Date of the non-extending Revolving Commitments), (vi) if the aggregate principal amount of Loans (calculated on the face amount thereof) or Revolving Commitments, as applicable, in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Loans or Revolving Commitments, as applicable, offered to be extended by the Borrower pursuant to such Extension Offer, then the Loans or the Revolving Commitments, as applicable, of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer, (vii) all documentation in respect of such Extension shall be consistent with the foregoing and (viii) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower. In addition, subject to
Section 2.03(j)
and
Section 2.04(f)
, to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exist Extended Revolving Commitments with a longer maturity date, (x) all Swingline Loans and U.S. Letters of Credit shall be participated on a pro rata basis by all Lenders with Dollar-denominated Revolving Commitments in accordance with their percentage of the U.S. Revolving Commitments, Dollar-denominated Additional Revolving Commitments and Dollar-denominated Extended Revolving Commitments (and, except as provided in
Section 2.03(j)
or
Section 2.04(f)
, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and U.S. Letters of Credit theretofore incurred or issued) and (y) all Multicurrency Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Commitments denominated in an Alternative Currency in accordance with their percentage of the Multicurrency Revolving Commitments, Additional Revolving Commitments denominated in an Alternative Currency and Extended Revolving Commitments denominated in an Alternative Currency (and, except as provided in
Section 2.03(j)
or
Section 2.04(f)
, without giving effect to changes thereto on an earlier maturity date with respect to Multicurrency Letters of Credit theretofore incurred or issued).
(a)
With respect to all Extensions consummated by the Borrower pursuant to this
Section 2.16
, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for
purposes of
Section 2.05
and (ii) each Extension Offer is required to be in a minimum amount of $25,000,000, provided that the Borrower may at its election specify as a condition (a “
Minimum Extension Condition
”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower’s sole discretion and may be waived by the Borrower) of Loans or Revolving Commitments of any or all applicable tranches be tendered. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this
Section 2.16
(including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Loans or Extended Revolving Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation,
Sections 2.05
,
2.13
and
10.01
) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this
Section 2.16
.
(b)
No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to its Revolving Commitments (or a portion thereof) or one or more of its Loans (or a portion thereof). All Extended Loans, Extended Revolving Commitments and all Obligations in respect of the foregoing shall be Obligations under this Agreement and the other Loan Documents and, unless (x) the Loans or Revolving Commitments being extended by this
Section 2.16
are unsecured or (y) otherwise agreed by the Borrower and the Lender providing such Extension, such Extended Loans or Extended Revolving Commitments shall be secured by the Collateral on a
pari passu
basis with all other applicable secured Obligations under this Agreement and the other Loan Documents, where applicable, subject to a customary intercreditor agreement with terms to be mutually agreed by the Administrative Agent, the Borrower and the lenders with respect to such Extended Loans or Extended Revolving Commitments;
provided
,
however
, no Extension may provide for any Class of Extended Loans or Extended Revolving Commitments to be secured by any Collateral or other assets of any Loan Party that does not also secure the existing Loans and Commitments. The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into amendments (collectively,
“Extension Amendments”
) to this Agreement and the other Loan Documents with the Borrower as may be necessary or reasonably advisable in order to establish new Series in respect of the Loans or the Revolving Commitments so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Series, in each case on terms consistent with this
Section 2.16
. All such Extension Amendments entered into with Borrower by Administrative Agent hereunder shall be binding on the Lenders.
(c)
In connection with any Extension, the Borrower will provide notification to Administrative Agent (for distribution to the Lenders of the applicable Class) of the requested new maturity date for the extended Loans of each such Class and the due date for Lender responses. In connection with any Extension, each Lender of the applicable Class wishing to participate in such Extension shall, prior to such due date, provide Administrative Agent with a written notice thereof. Any Lender that does not respond to an Extension Offer by the applicable due date shall be deemed to have rejected such Extension. Any Extension shall be effected pursuant to such procedure, if any, as may be mutually agreed by Administrative Agent and Borrower to accomplish the purposes of this Section 2.16.
(d)
No conversion of Loans pursuant to any Extension shall constitute a voluntary or mandatory prepayment for purposes of this Agreement. This
Section 2.16
shall supersede any provisions in
Section 2.05
,
Section 2.13
or
Section 10.01
to the contrary.
SECTION 2.17
Cash Collateral.
(a)
Obligation to Cash Collateralize
. Upon the request of the Administrative Agent or the applicable L/C Issuer (i) if the applicable L/C Issuer has honored any full or partial drawing under any Letter of Credit and such drawing has resulted in an L/C Borrowing or (ii) if, as of the L/C Expiration Date, any L/C Obligation for any reason remains outstanding, or as otherwise required pursuant to
Section 8.01
, the Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations in an amount not less than the Minimum Collateral Amount. At any time that there shall exist a Defaulting Lender, immediately within one Business Day of written request of the Administrative Agent or any applicable L/C Issuer or Swingline Lender (in each case, with a copy to the Administrative Agent), the Borrower shall Cash Collateralize all Fronting Exposure of such L/C Issuer or Swingline Lender, as applicable, with respect to such Defaulting Lender (determined after giving effect to
Section 2.18(a)(iv)
and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(b)
Grant of Security Interest
. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in Cash Collateral Accounts which shall bear interest for the benefit of the Borrower. The Borrower and, to the extent provided by any Lender, such Lender, hereby grants to (and subject to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the applicable L/C Issuers and the applicable Lenders (including the Swingline Lender), and agrees to maintain, a first priority security interest in all such Cash Collateral, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and all proceeds of the foregoing, as security for the obligations to which such Cash Collateral may be applied pursuant to paragraph (c) of this Section. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim (other than non-consensual Permitted Liens which do not have priority over the claim of the Administrative Agent) of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount or, if applicable, the applicable Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting Lender will, promptly following written demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.
(c)
Application
. Notwithstanding anything herein to the contrary, Cash Collateral provided under this Section,
Section 2.18
or
Section 8.01
or otherwise in respect of Letters of Credit or Swingline Loans shall be applied to the satisfaction of the specific L/C Obligations, Swingline Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligations) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(d)
Termination of Requirement
. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of the Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with
Section 10.07
)), or (ii) the determination by the Administrative Agent that there exists excess Cash Collateral; provided that (A) Cash Collateral furnished by or on behalf of the Borrower shall not be released during the continuance of a Default under
Section 8.01(a)
or an Event of Default (and following application as provided in this Section may be otherwise applied in accordance with
Section 8.03
) and (B) the Person providing Cash Collateral and the applicable L/C Issuer(s) or Swingline Lender may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations hereunder.
SECTION 2.18
Defaulting Lenders.
(a)
Defaulting Lender Adjustments
. Notwithstanding anything in this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i)
Waivers and Amendments
. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in
Section 10.01
unless otherwise agreed by the Borrower and the Administrative Agent.
(ii)
Defaulting Lender Waterfall
. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to
Article 7
or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to
Section 10.09
shall be applied at such time or times as may be determined by the Administrative Agent as follows:
first
, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
second
, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the applicable L/C Issuer(s) or Swingline Lender(s) hereunder;
third
, to Cash Collateralize the L/C Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with
Section 2.17
;
fourth
, as the Borrower may request (so long as no Default or Event of Default shall have occurred and be continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as reasonably determined by the Administrative Agent;
fifth
, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuers’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with
Section 2.17
;
sixth
, to the payment of any amounts owing to the Lenders, the applicable L/C Issuers or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the applicable L/C Issuers or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under
this Agreement;
seventh
, so long as no Default or Event of Default shall have occurred and be continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and,
eighth
, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans or L/C Borrowings were made at a time when the conditions set forth in
Section 4.02
(or, if such Loans or were made in the initial Credit Extension,
Sections 4.01
and
4.02
) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and the L/C Borrowings owed to, all the Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, such Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this clause (ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)
Commitment and L/C Fees
. (x) No Defaulting Lender shall be entitled to receive any commitment fees payable under
Section 2.09(a)
for any period during which such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender) and (y) each Defaulting Lender shall be limited in its right to receive L/C Fees as provided in
Section 2.09(b)
.
(iv)
Reallocation of Participations to Reduce Fronting Exposure
. All or any part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the sum of the aggregate Outstanding Amount of the Revolving Loans of any Non-Defaulting Lender, plus such Lender’s Revolving Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Lender’s Revolving Percentage of the Outstanding Amount of all Swingline Loans at such time to exceed such Non-Defaulting Lender’s Revolving Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from such Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(b)
Defaulting Lender Cure
. If the Borrower, the Administrative Agent, the Swingline Lender and each L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), such Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative
Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable Facility (without giving effect to
Section 2.18(a)(iv))
, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; provided, further, that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
(c)
New Swingline Loans and Letters of Credit
. So long as any Revolving Lender is a Defaulting Lender, (i) no Swingline Lender shall be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and (ii) no L/C Issuer shall be required to issue, extend or amend any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
SECTION 2.19
Appointment of Borrower as Representative of German Borrower
The German Borrower hereby appoints the Borrower as its agent, attorney-in-fact and representative for the purpose of (i) making any borrowing requests or other requests required under this Agreement, (ii) the giving and receipt of notices by and to the German Borrower under this Agreement, (iii) the delivery of all documents, reports, financial statements and written materials required to be delivered by the German Borrower under this Agreement, and (iv) all other purposes incidental to any of the foregoing. The German Borrower agrees that any action taken by the Borrower as the agent, attorney-in-fact and representative of the German Borrower shall be binding upon the German Borrower to the same extent as if directly taken by the German Borrower.
Article 3.
TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY
SECTION 3.01
Taxes
. (%3)
Payments to Be Free and Clear
. Subject to
Section 3.01(b)
, all sums payable by any Loan Party hereunder and under the other Loan Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of, any Tax (other than Excluded Taxes) imposed, levied, collected, withheld or assessed by any Governmental Authority or any political subdivision or taxing authority thereof or therein.
(a)
Withholding of Taxes
. If any Loan Party or the Administrative Agent is required by law to make any deduction or withholding on account of any Tax from any sum paid or payable by or on behalf of any Loan Party to the Administrative Agent, or any Lender under any of the Loan Documents: (i) the Borrower shall notify the Administrative Agent or the Administrative Agent shall notify the Borrower, as applicable, of any such requirement or any change in any such requirement as soon as reasonably possible after the Borrower or the Administrative Agent becomes aware of it; (ii) the Borrower or Administrative Agent (or other relevant Loan Party) shall pay any such Tax before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on any Loan Party) for its own account or (if that liability is imposed on the
Administrative Agent or such Lender, as the case may be) on behalf of and in the name of the Administrative Agent or such Lender; (iii) the sum payable by such Loan Party in respect of which the relevant deduction or withholding is required shall be increased to the extent necessary to ensure that, after the making of that deduction or withholding, the Administrative Agent or such Lender, as the case may be, receives on the relevant due date a net sum equal to what it would have received had no such deduction or withholding been required or made; and (iv) within thirty days after paying any sum from which any deduction or withholding has been made, the Borrower shall deliver to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent of such deduction or withholding and of the remittance thereof to the relevant tax or other authority;
provided
, no such additional amount shall be required to be paid under clause (iii) above with respect to any Excluded Taxes.
(b)
Payment of Other Taxes
. In addition, the Borrower shall indemnify the Administrative Agent and Lenders for and pay any Other Taxes.
(c)
Evidence of Exemption From U.S. Withholding Tax
. Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. federal income tax purposes (a “
Non-US Lender
”) shall deliver to the Administrative Agent and Borrower, on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date of the Assignment and Assumption pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of the Borrower or Administrative Agent (each in the reasonable exercise of its discretion), (i) two executed original copies of Internal Revenue Service Form W-8BEN (claiming the benefits of any applicable income tax treaty), W-8EXP, W-8ECI and/or W-8IMY (or any successor forms), properly completed and duly executed by such Lender, and such other documentation required under the Code or reasonably requested by the Borrower or Administrative Agent to establish that such Lender is not subject to (or is subject to a reduced rate of) deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Loan Documents, or (ii) a certificate substantially in the form of
Exhibit R
to the effect that such Lender is not (x) a “bank” or other Person described in Section 881(c)(3) of the Code, (y) not a 10 percent shareholder within the meaning of Section 871(h)(3)(B) of the Code, or (z) a controlled foreign corporation related to the Borrower with the meaning of Section 864(d) of the Code, together with two executed original copies of Internal Revenue Service Form W-8BEN (and/or W-8IMY, if applicable) (or any successor form), properly completed and duly executed by such Lender, and such other documentation required under the Code or reasonably requested by the Borrower or Administrative Agent to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of interest payable under any of the Loan Documents. If any Lender provides an Internal Revenue Service Form W-8IMY, such Lender must also attach the additional documentation that must be transmitted with Internal Revenue Service Form W-8IMY, including the appropriate forms described in this
Section 3.01(d)
. Each Non-US Lender, to the extent it does not act or ceases to act for its own account with respect to any portion of any sums paid or payable to such Non-US Lender under any of the Loan Documents (for example, in the case of a typical participation by such Non-US Lender), shall deliver to the Borrower and the Administrative Agent on the date when such Non-US Lender ceases to act for its own account with
respect to any portion of any such sums paid or payable, and at such other times as may be necessary in the determination of the Borrower or the Administrative Agent (in either case, in the reasonable exercise of its discretion), two duly signed, properly completed copies of IRS Form W-8IMY (or any successor thereto), together with any form, certificate, and/or statement required to be attached thereto under the Code or the regulations thererunder, to establish that such Non-US Lender is not acting for its own account with respect to a portion of any such sums payable to such Non-US Lender and to establish what the applicable U.S. withholding tax is with respect to payments made with respect to such portion. Each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) and whose name does not indicate that it is an “exempt recipient” (as such term is defined in Section 1.6049-4(c) of the United States Treasury Regulations) shall deliver to the Borrower and Administrative Agent on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date of the Assignment and Assumption pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of the Borrower and Administrative Agent (each in the reasonable exercise of its discretion) two executed original copies of Internal Revenue Service Form W-9 (or successor forms). Notwithstanding anything to the contrary contained herein, a Non-US Lender shall not be required to deliver any form or statement pursuant to this
Section 3.01(d)
that such Non-US Lender is not legally able to deliver. Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to this
Section 3.01(d)
hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly deliver to Administrative Agent for transmission to the Borrower two new original copies of Internal Revenue Service Form W-8BEN, W-8EXP, W-8ECI, W-8IMY or W-9, or a Certificate re Non-Bank Status and two original copies of Internal Revenue Service Form W-8BEN or W-8IMY (or any successor form), as the case may be, properly completed and duly executed by such Lender, and such other documentation required under the Code or reasonably requested by the Borrower or Administrative Agent to confirm or establish that such Lender is not subject to (or is subject to a reduced rate of) deduction or withholding of United States federal income tax with respect to payments to such Lender under the Loan Documents, or notify the Administrative Agent and Borrower of its inability to deliver any such forms, certificates or other evidence. The Administrative Agent shall provide documentation to the Borrower pursuant to this
Section 3.01(d)
as if it were a Lender.
(d)
Evidence of Exemption from Non-U.S. Withholding Tax
. A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is subject to tax, or any tax treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver, within a reasonable period of time, to the Borrower (with a copy to the Administrative Agent), as reasonably requested by the Borrower, such properly completed and executed documentation prescribed by applicable law (including, if relevant, a certificate of residence) as will permit such payments to be made without withholding or at a reduced rate, provided that such Lender is able to complete, execute and deliver such documentation legally and without undue prejudice.
(e)
Borrower Indemnification for Failure to Pay Required Taxes, etc
. The Loan Parties shall indemnify the Administrative Agent and the Lenders for any Taxes (other than Excluded Taxes) payable or paid by the Administrative Agent or the Lenders or required to be withheld or deducted from a payment the Administrative Agent or the Lenders and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority,
provided
that if the Borrower reasonably believes that such Taxes were not correctly or legally asserted, the Administrative Agent or such Lender shall use reasonable efforts to cooperate with the Borrower to obtain a refund of such Taxes, so long as such efforts would not, in the sole determination of the Administrative Agent or such Lender (as the case may be), result in any additional costs, expenses or risks or be otherwise disadvantageous to it. Payment under this indemnification must be made within fifteen days from the date any of the Administrative Agent or any Lender or any of their respective Affiliates makes written demand therefore accompanied by appropriate evidence of the Tax and its payment.
(f)
Treatment of Certain Refunds
. If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which the Loan Party has paid additional amounts pursuant to this
Section 3.01
, it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Credit Party under this
Section 3.01
with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as applicable, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund),
provided
that the Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the Administrative Agent or any Lender be required to pay any amount to any Loan Party pursuant to this paragraph (g) the payment of which would place the Administrative Agent or such Lender, as applicable, in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or any other Person.
(g)
FATCA
. If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or Administrative Agent as may be necessary for the Borrower and Administrative Agent to comply with their obligations under FATCA and to determine whether such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and
withhold from such payment. Solely for purposes of this
Section 3.01(h)
, “FATCA” shall include any amendments made to FATCA after the Closing Date that are not already included in the definition of “FATCA”.
(h)
Evidence of Payments
. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this
Section 3.01
, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(i)
Survival
. Each party’s obligations under this
Section 3.01
shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of any Commitment and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(j)
Definitions
. For the purposes of this
Section 3.01
, the references to “Borrower” and “Loan Party” shall include the German Borrower and the references to “Lender” shall include any L/C Issuers.
SECTION 3.02
Making or Maintaining Eurocurrency Rate Loans
.
(b)
Inability to Determine Applicable Interest Rate
. In the event that the Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with the Borrower), on any Interest Rate Determination Date with respect to any Eurocurrency Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of “Adjusted Eurocurrency Rate”, Administrative Agent shall on such date give notice (by telefacsimile or by telephone confirmed in writing) to Borrower and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurocurrency Rate Loans until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, and (ii) any Committed Loan Notice given by Borrower with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by Borrower.
(c)
Illegality or Impracticability of Eurocurrency Rate Loans
In the event that on any date (i) any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with the Borrower and the Administrative Agent) that the making, maintaining, converting to or continuation of its Eurocurrency Rate Loans has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) the Administrative Agent is advised by the Required Lenders (which determination shall be final and conclusive and binding upon all parties hereto) that the making, maintaining, converting to or continuation of its Eurocurrency Rate Loans has become impracticable, as a result of contingencies occurring after
the date hereof which materially and adversely affect the London interbank market or the position of the Lenders in that market, then, and in any such event, such Lenders (or in the case of the preceding clause (i), such Lender) shall be an
“Affected Lender”
and such Affected Lender shall on that day give notice (in writing by telefacsimile or by telephone confirmed in writing) to the Borrower and the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each other Lender). If the Administrative Agent receives a notice from (x) any Lender pursuant to clause (i) of the preceding sentence or (y) Lenders constituting the Required Lenders pursuant to clause (ii) of the preceding sentence, then (1) the obligation of the Lenders (or, in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) to make Loans as, or to convert Loans to, Eurocurrency Rate Loans shall be suspended until such notice shall be withdrawn by each Affected Lender, (2) to the extent such determination by the Affected Lender relates to a Eurocurrency Rate Loan then being requested by the Borrower pursuant to a Committed Loan Notice, the Lenders (or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Lenders’ (or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender’s) obligations to maintain their respective outstanding Eurocurrency Rate Loans (the
“Affected Loans”
) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into Base Rate Loans (in the case of Affected Loans that are denominated in an Alternative Currency, with an Applicable Rate equal to the Base Rate plus a margin that is 1.00% less than the margin that would otherwise be applicable to Eurocurrency Rate Loans of such Class) on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a Eurocurrency Rate Loan then being requested by the Borrower pursuant to a Committed Loan Notice, the Borrower shall have the option, subject to the provisions of
Section 3.04
, to rescind such Committed Loan Notice as to all Lenders by promptly giving notice (in writing by telefacsimile or by telephone confirmed in writing) to the Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission the Administrative Agent shall promptly transmit to each other Lender). Except as provided in the immediately preceding sentence, nothing in this
Section 3.02(b)
shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, Eurocurrency Rate Loans in accordance with the terms hereof.
(d)
Booking of Eurocurrency Rate Loans
. Subject to
Sections 3.01
and
3.05
, any Lender may make, carry or transfer Eurocurrency Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.
(e)
Assumptions Concerning Funding of Eurocurrency Rate Loans
. Calculation of all amounts payable to a Lender under this
Section 3.02
and under
Sections 3.03
and
3.04
shall be made as though such Lender had actually funded each of its relevant Eurocurrency Rate Loans through the purchase of a Eurocurrency deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of “Adjusted Eurocurrency Rate” in an amount equal to the amount of such Eurocurrency Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such Eurocurrency deposit from an offshore office of such Lender to a
domestic office of such Lender in the United States;
provided
,
however
, each Lender may fund each of its Eurocurrency Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this
Section 3.02
and under
Sections 3.03
and
3.04
.
SECTION 3.03
Increased Cost; Capital Adequacy
.
(f)
Compensation for Increased Costs and Taxes
. Subject to the provisions of
Section 3.01
(which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that (A) any law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (regardless of whether the underlying law, treaty or governmental rule, regulation or order was issued or enacted prior to the date hereof), including the introduction of any new law, treaty or governmental rule, regulation or order but excluding solely proposals thereof, or any determination of a court or Governmental Authority, in each case that becomes effective after the date hereof (provided that the introduction of any new law, treaty or governmental rule, regulation or order, or any determination of a court or Governmental Authority with respect to the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, in each case that becomes effective after the Closing Date shall be considered a change in law whether promulgated before or after the Closing Date), or (B) any guideline, request or directive by any central bank or other governmental or quasi‑governmental authority (whether or not having the force of law) or any implementation rules or interpretations of previously issued guidelines, requests or directives, in each case that is issued or made after the date hereof: (i) subjects such Lender (or its applicable lending office) to any additional Tax (other than any Excluded Taxes or Indemnified Taxes, which are exclusively covered by
Section 3.01
hereof) with respect to this Agreement or any of the other Loan Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder or thereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, liquidity, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to Eurocurrency Rate Loans that are reflected in the definition of “Adjusted Eurocurrency Rate”) or any company controlling such Lender; or (iii) imposes any other condition (other than with respect to Taxes) on or affecting such Lender (or its applicable lending office) or any company controlling such Lender or such Lender’s obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Eurocurrency Rate Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then, in any such case, so long as such Lender generally requires similar obligors under other credit facilities of this type made available by such Lender to similarly so compensate such Lender, the
Borrower shall promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or in a lump sum or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to Borrower (with a copy to the Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this
Section 3.03
, which statement shall be conclusive and binding upon all parties hereto absent manifest error;
provided
, that, with respect to a Lender other than a Lender listed on the signature pages hereof on the Closing Date, no such additional amount shall be required to be paid unless such law, treaty, governmental rule, regulation, order, change therein, interpretation, administration or application thereof, or determination becomes effective, or such guideline, request or directive is issued or made, after the effective date of the Assignment and Assumption pursuant to which such Lender became a Lender (provided that the introduction of any new law, treaty or governmental rule, regulation or order, or any determination of a court or Governmental Authority with respect to the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, in each case that becomes effective after the date of such Assignment and Assumption shall be considered a change in law whether promulgated before or after such date).
(g)
Capital Adequacy Adjustment
. In the event that any Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that (A) the adoption, effectiveness, phase‑in or applicability after the Closing Date of any law, rule or regulation (or any provision thereof) regarding capital adequacy or liquidity, but including the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith (whether or not promulgated before or after the Closing Date) and all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III (whether or not promulgated before or after the Closing Date), or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or (B) compliance by any Lender (or its applicable lending office) or any company controlling such Lender with any guideline, request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, in each case after the date hereof, has or would have the effect of reducing the rate of return on the capital of such Lender or any company controlling such Lender as a consequence of, or with reference to, such Lender’s Loans or other obligations hereunder with respect to the Loans to a level below that which such Lender or such controlling company could have achieved but for such adoption, effectiveness, phase‑in, applicability, change or compliance (taking into consideration the policies of such Lender or such controlling company with regard to capital adequacy or liquidity), then from time to time, within five Business Days after receipt by the Borrower from such Lender of the statement referred to in the next sentence, Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such controlling company on an after‑tax basis for such reduction. Such Lender shall deliver to the Borrower (with a copy to the Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to Lender under this
Section 3.03(b)
, which statement shall be conclusive and binding upon all parties hereto absent manifest error.
SECTION 3.04
Funding Losses
. The Borrower shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including any interest paid or payable by such Lender to Lenders of funds borrowed by it to make or carry its Eurocurrency Rate Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re‑employment of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any Eurocurrency Rate Loan does not occur on a date specified therefor in a Committed Loan Notice or a telephonic request for borrowing, or a conversion to or continuation of any Eurocurrency Rate Loan does not occur on a date specified therefor in a Committed Loan Notice or a telephonic request for conversion or continuation; (ii) if any prepayment or other principal payment of, or any conversion of, any of its Eurocurrency Rate Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan; or (iii) if any prepayment of any of its Eurocurrency Rate Loans is not made on any date specified in a notice of prepayment given by Borrower.
SECTION 3.05
Matters Applicable to Requests for Compensation
. (%3)
Obligation to Mitigate
. Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Loans becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under
Section 3.01
,
3.02
,
3.03
or
3.04
, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain its Credit Extensions, including any Affected Loans, through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender pursuant to
Section 3.01
,
3.02
,
3.03
or
3.04
would be materially reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Loans through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Loans or the interests of such Lender;
provided
, such Lender will not be obligated to utilize such other office pursuant to this
Section 3.05
unless the Borrower agrees to pay all incremental expenses incurred by such Lender as a result of utilizing such other office as described above.
(c)
Any Agent or any Lender claiming compensation under this
Article 3
shall deliver a certificate to the Borrower setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder, which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods.
(d)
Limitation on Additional Amounts, etc
. Notwithstanding anything to the contrary contained in
Section 3.01(f)
,
3.03
or
3.04
of this Agreement, unless the Administrative Agent or a Lender gives notice to the Borrower that it is obligated to pay an amount under any such Section within 180 days after the later of (x) the date the Lender incurs the respective increased costs, taxes, loss, expense or liability, reduction in amounts received or receivable or reduction in return on capital or (y) the date such Lender has actual knowledge of its incurrence of the respective increased costs, taxes, loss, expense or liability reductions in amounts received or receivable or reduction in return on capital, then such Lender shall only be entitled to be compensated for such amount by Borrower pursuant to
Section 3.01(f)
,
3.03
or
3.04
, as the case may be, to the extent the costs, taxes, loss, expense or liability, reduction in amounts received or receivable or reduction in return on capital are incurred or suffered on or after the date which occurs 180 days prior to such Lender giving notice to Borrower that it is obligated to pay the respective amounts pursuant to
Section 3.01(f)
,
3.03
or
3.04
, as the case may be. This
Section 3.05(c)
shall have no applicability to any Section of this Agreement other than
Section 3.01(f)
,
3.03
or
3.04
.
SECTION 3.06
Replacement of Lenders Under Certain Circumstances
. (%3) If at any time (w) the Borrower becomes obligated to pay additional amounts or indemnity payments described in
Section 3.01
,
Section 3.02
,
Section 3.03
or
Section 3.04
as a result of any condition described in such Sections, (x) any Lender becomes a Defaulting Lender, (y) any Lender refuses to make any Extension pursuant to
Section 2.16
or (z) any Lender becomes a Non-Consenting Lender, then the Borrower may, on ten (10) Business Days’ prior written notice to the Administrative Agent and such Lender, (1) terminate the unused Revolving Commitment of such Lender and repay the Loans of such Lender on a non-pro rata basis or (2) with respect to any such Lenders, replace such Lender (in its capacity as a Lender under the applicable Facility, subject to such Extension or if the underlying matter in respect of which such Lender has become a Non-Consenting Lender relates to a certain Class of Loans or Commitments) by causing such Lender to (and such Lender shall be obligated to) assign pursuant to
Section 10.07(b)
(with the assignment fee paid) all of its rights and Obligations under this Agreement (in respect of the applicable Class of Loans or Commitments subject to such Extension or if the underlying matter in respect of which such Lender has become a Non-Consenting Lender relates to a certain Class of Loans or Commitments) to one or more Eligible Assignees;
provided
that (A) in the case of any Eligible Assignees in respect of Non-Consenting Lenders, the replacement Lender shall agree to the consent, waiver or amendment to which the Non-Consenting Lender did not agree and (B) neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender or other such Person.
(e)
Any Lender being replaced pursuant to
Section 3.06(a)
above shall (i) execute and deliver an Assignment and Assumption with respect to such Lender’s Commitment and outstanding Loans of the applicable Class and (ii) deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent. Pursuant to such Assignment and Assumption, (i) the assignee Lender shall acquire all or a portion, as the case may be, of the assigning Lender’s Commitment and outstanding Loans of the applicable Class, (ii) all obligations of the Borrower owing to the assigning Lender relating to the Loans and participations so assigned shall be paid in full by the assignee Lender to such assigning Lender concurrently with such Assignment and Assumption and (iii) upon such payment and, if so requested by the assignee Lender, delivery to the assignee Lender of the
appropriate Note or Notes executed by the Borrower, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute a Lender hereunder with respect to such assigned Loans, Commitments and participations, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender. In the event that a Lender does not comply with the requirements of this clause (b) within one Business Day after receipt of such notice, each Lender hereby authorizes and directs Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with
Section 10.07
on behalf of any Lender being replaced pursuant to
Section 3.06(a)
above, and any such documentation so executed by Administrative Agent shall be effective for purposes of documenting an assignment pursuant to
Section 10.07
.
(f)
Notwithstanding anything to the contrary contained above, (i) any Lender that acts as a L/C Issuer may not be replaced hereunder at any time that it has any Letter of Credit outstanding hereunder unless arrangements reasonably satisfactory to such L/C Issuer (including the furnishing of a back-up standby letter of credit in form and substance, and issued by an issuer reasonably satisfactory to such L/C Issuer or the depositing of Cash Collateral into a Cash Collateral Account in amounts and pursuant to arrangements reasonably satisfactory to such L/C Issuer) have been made with respect to such outstanding Letter of Credit and (ii) the Lender that acts as the Administrative Agent may not be replaced in such capacity hereunder except in accordance with the terms of
Section 9.07
.
(g)
In the event that (i) the Borrower or the Administrative Agent has requested the Lenders to consent to a departure or waiver of any provisions of the Loan Documents or to agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all directly and adversely affected Lenders in accordance with the terms of
Section 10.01
or all the Lenders with respect to a certain Class of Loans or Commitments and (iii) either the directly and adversely affected Lenders holding more than 50.1% of such directly and adversely affected Total Outstandings, aggregate unused Delayed Draw Term Commitments and aggregate unused Revolving Commitments or the Required Lenders, as applicable, have agreed to such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a “
Non-Consenting Lender
.”
SECTION 3.07
Survival
. All of the Borrower’s obligations under this
Article 3
shall survive termination of the Commitments and repayment of all other Obligations hereunder.
Article 4.
CONDITIONS PRECEDENT
SECTION 4.01
Conditions Precedent to Closing Date
.
The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver by each Lender of the following conditions precedent:
(f)
The Administrative Agent shall have received copies of the Historical Financial Statements and the Pro Forma Balance Sheet.
(g)
The Administrative Agent and the Arrangers shall have received all documentation and other information about the Borrower, each other Loan Party and the German Borrower at least 3 Business Days prior to the Closing Date as has been reasonably requested in writing at least 10 Business Days prior to the Closing Date by the Administrative Agent or the Arrangers that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(a)
The Administrative Agent shall have received with respect to the Borrower, each other Loan Party and the German Borrower: (i) Organizational Documents certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of the Borrower, each other Loan Party or a managing director (
Geschäftsführer
) of the German Borrower, as applicable, to be true and complete as of the Closing Date; (ii) resolutions or other action duly adopted by the board of directors (or other governing body) of the Borrower, each other Loan Party and the partners of the German Borrower authorizing and approving the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party; (iii) incumbency certificates and/or other certificates (as customary in the relevant jurisdiction and containing specimen signatures) of Responsible Officers authorized to act in connection with this Agreement and the other Loan Documents to which the Borrower, each other Loan Party and the German Borrower is a party; and (iv) such certificates of good standing or the equivalent from the Borrower’s, each other Loan Party’s and the German Borrower’s jurisdiction of organization or formation, as applicable, relating to the existence of the Borrower, each other Loan Party and the German Borrower (where available in such jurisdiction), provided that with respect to the German Borrower a commercial register extract (
Handelsregisterauszug
) shall be delivered).
(b)
Since December 31, 2012, there shall not have occurred a circumstance or condition that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect.
(c)
The Administrative Agent (or its counsel) shall have received this Agreement, executed and delivered by each Agent, Holdings, the Borrower, the German Borrower and each Lender listed in
Schedule 2.01
, which schedule shall be on file with the Administrative Agent.
(d)
(i) The Administrative Agent shall have received from the Borrower and each Guarantor either (A) a counterpart of the Security Agreement or (B) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy transmission of each such Security Agreement) that the Borrower and each Guarantor has signed a counterpart of the Security Agreement, (ii) the Administrative Agent shall have received from the Borrower either (A) a counterpart of the Lux Holdco Pledge Agreement or (B) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy transmission of such Lux Holdco Pledge Agreement) that the Borrower has signed a counterpart of the Lux Holdco Pledge Agreement, (iii) the Administrative Agent shall have received from the Borrower and each Guarantor either (A) a counterpart of the Guarantee Agreement or (B) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy transmission of each such Guarantee Agreement) that the Borrower and each Guarantor has signed a counterpart of the Guarantee
Agreement, and (iv) the Agents shall have received, on or before the Closing Date, all documents and instruments required to create and perfect the Collateral Agent’s security interests in the Collateral for the benefit of the Secured Parties to the extent required by the Loan Documents, including (w) Uniform Commercial Code financing statements required by Law or reasonably requested by the Collateral Agent (to the extent required by the Security Agreement) to be filed, registered, published or recorded to create or perfect (if and to the extent required by the Security Agreement) the Liens (subject only to Liens permitted pursuant by
Section 7.01
) intended to be created under the Loan Documents, (x) fully executed Intellectual Property Security Agreements in proper form for filing or recording in all appropriate places in all applicable jurisdictions, memorializing and recording the encumbrance of the intellectual property assets listed in
Schedule II
to the Security Agreement, (y) a completed Perfection Certificate dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, and (z) all Collateral consisting of intercompany notes, stock certificates (or equivalent) of the Borrower and its Restricted Subsidiaries (including Lux Holdco) and other Instruments to the extent certificated or evidenced by notes and required to be delivered under the Loan Documents, and, to the extent applicable, all such documents and instruments shall have been so filed, registered, published or recorded or other arrangements reasonably satisfactory to such Agent for such filing, registration, publication or recordation shall have been made.
(e)
In connection with the Plan and the transactions contemplated thereby: (a) any documents executed in connection with the implementation of the Plan, to the extent they contain provisions differing from in any material respect or not described in the Plan, that are material to the rights or interests of any or all of the Arrangers, Agents or Lenders shall be in form and substance satisfactory to the Arrangers in their good faith judgment; (b) there shall have been no supplement, modification, waiver or amendment to the Plan (as in effect on January 7, 2014) that, in the good faith judgment of the Arrangers, is adverse in any material respect to the rights or interests of the Arrangers, Agents or Lenders or the creditworthiness of Holdings or the Borrower unless, in each case, the Arrangers shall have consented thereto; (c) unless the Arrangers shall have consented thereto in writing, the Authorization Order shall not have been vacated, stayed, reversed or modified or amended in any respect that adversely affects the rights or interests of any or all of the Arrangers, Agents or Lenders as determined by the Arrangers in good faith; and (d) all conditions precedent to the effectiveness of the Plan other than the closing and funding of the Facilities, shall have occurred or been waived.
(f)
There will not exist (pro forma for the Transactions and the financing thereof) any default under any Material Indebtedness of Holdings, Borrower or its Subsidiaries.
(g)
The Refinancing shall have been consummated, or simultaneously with the initial Credit Extension, shall be consummated (and the commitments and loans under Indebtedness the subject of such Refinancing shall have been terminated), and all liens securing such Indebtedness the subject of such Refinancing shall have been released. Following such Refinancing, Holdings, Borrower and its Subsidiaries will have no Indebtedness for borrowered money other than (i) Indebtedness under the Loan Documents, (ii) Indebtedness set forth in or contemplated by the Plan, as the same may be amended, supplemented, modified or waived in accordance with clause (g) above, (iii) letters of credit and surety bonds, (iv) intercompany Indebtedness, (v) all existing lines
of credit and credit facilities of foreign subsidiaries set forth on
Schedule 4.01(i)
, and (vi) other Indebtedness permitted under
Section 7.03
.
(h)
The Administrative Agent shall have received (a) a customary written opinion (addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated the Closing Date) of Kirkland & Ellis LLP, counsel for the Loan Parties and (b) customary written opinions of local counsel reasonably acceptable to the Administrative Agent. The Loan Parties and the German Borrower hereby request such counsel to deliver such opinions.
(i)
The Administrative Agent shall have received a solvency certificate from the chief financial officer of Holdings (after giving effect to the Transactions) substantially in the form attached hereto as
Exhibit O
.
(j)
All fees and expenses required to be paid or reimbursed on the Closing Date to the Administrative Agent, the Arrangers and the Lenders (including reasonable out-of-pocket expenses and reasonable fees, disbursements and other charges of counsel to the Administrative Agent and of any local counsel to the Administrative Agent and the Arrangers), to the extent invoiced at least three Business Days prior to the Closing Date, shall have been paid in full (which amounts may be offset against the proceeds of the initial Credit Extension, if any).
(k)
The Administrative Agent shall have received a notice with respect to the initial Borrowing, as required by
Article 2
.
(l)
Collateral Agent shall have received a certificate from the applicable Loan Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to
Section 6.07(a)
is in full force and effect.
(m)
There shall not exist any action, suit, investigation, litigation, proceeding or hearing, pending or threatened in any court or before any arbitrator or Governmental Authority that affects the Transactions (other than the Bankruptcy Cases) that would be material to the Lenders.
Without limiting the generality of the provisions of
Article 9
, for purposes of determining compliance with the conditions specified in this
Section 4.01
, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
SECTION 4.02
Conditions Precedent to All Credit Extensions
. The obligation of each Lender to honor any Request for Credit Extension (other than in connection with (i) a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurocurrency Rate Loans or (ii) an Additional Facility incurred to finance, or in connection with, a Permitted Acquisition or other permitted Investment in which case the relevant conditions precedent shall be specified in the applicable Additional Facility Agreement) is subject to satisfaction or waiver (in accordance with
Section 10.01
) of the following conditions precedent:
(a)
The representations and warranties of the Borrower, each other Loan Party and the German Borrower contained in
Article 5
or any other Loan Document (other than
Sections 5.05(d)
,
5.06
,
5.15
and
5.16
, in the case of any Borrowing of Delayed Draw Term Loans) shall be true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, Material Adverse Effect or similar language shall be true and correct in all respects) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, Material Adverse Effect or similar language shall be true and correct in all respects) as of such earlier date.
(b)
No Default or Event of Default shall have occurred and be continuing or would result from such Credit Extension or from the application of the proceeds therefrom.
(c)
The Administrative Agent and, if applicable, the applicable L/C Issuer or the Swingline Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension delivered by the Borrower (or the German Borrower, if applicable) hereunder and each Credit Extension shall be deemed to constitute a representation and warranty by the Borrower and the German Borrower on and as of the date of the applicable Credit Extension as to the matters specified in clauses (a) and (b) above in this Section.
Article 5.
REPRESENTATIONS AND WARRANTIES
Each of Holdings, the Borrower and the German Borrower represents and warrants to the Agents and the Lenders on the Closing Date and on each other Credit Date (in the case of any Credit Date other than the Closing Date, solely to the extent required on such Credit Date pursuant to Article 4) that:
SECTION 5.01
Corporate Status.
Each Loan Party, the German Borrower and each of their Restricted Subsidiaries (i) is a duly organized and validly existing corporation, partnership or limited liability company or other entity in good standing under the laws of the jurisdiction of its organization (or the equivalent thereof in the case of Foreign Subsidiaries, provided that with respect to the German Borrower the concept of good standing does not exist under the laws of the Federal Republic of Germany), (ii) has the requisite power and authority to own its property and assets and to transact the business in which it is engaged and (iii) is duly qualified and is authorized to do business and is in good standing (where relevant) in each other jurisdiction where the ownership, leasing or operation of property or the conduct of its business requires such qualification, authorization or good standing, except (1) in the case of each of the foregoing clauses (i) (other than with respect to the Borrower and the German Borrower), (ii) and (iii), to the extent failure to comply therewith would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect and (2) as a result of any transaction expressly permitted under Sections 7.04 or 7.05 hereof.
SECTION 5.01
Corporate Power and Authority.
Each Loan Party and the German Borrower has the applicable power and authority to execute, deliver and perform the terms and provisions of each of the Loan Documents to which it is a party and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance by it of each of such Loan Documents. As of the Closing Date each Loan Party and the German Borrower has duly executed and delivered each of the Loan Documents to which it is a party, and each of such Loan Documents upon execution constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights, good faith and fair dealing and by equitable principles (regardless of whether enforcement is sought in equity or at law).
SECTION 5.01
No Violation.
Neither the execution, delivery or performance by each Loan Party or the German Borrower of the Loan Documents to which it is a party (including, without limitation, the granting of Liens pursuant to the Collateral Documents) nor the consummation of the transactions contemplated therein (i) will violate any provision of any requirement of Law applicable to any Loan Party or the German Borrower, (ii) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant to the Collateral Documents) upon any of the property or assets of any Loan Party or the German Borrower pursuant to the terms of any material Contractual Obligation of any Loan Party, the German Borrower or any of their Restricted Subsidiaries, (iii) will violate any provision of any Organizational Document of any Loan Party or the German Borrower or (iv) require any approval of stockholders or any approval or consent of any Person (other than a Governmental Authority) except as have been obtained on or prior to the Closing Date; except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clause (i), (ii) or (iv) to the extent that such conflict, breach, contravention or payment would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 5.02
Governmental Authorization; Other Approvals.
No order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except as have been obtained or made on or prior to the Closing Date), or exemption by, any Governmental Authority, is required to authorize, or is required in connection with, (i) the execution, delivery and performance of any Loan Document or (ii) the legality, validity, binding effect or enforceability of any such Loan Document, except for (a) filings necessary to perfect the Liens (if and to the extent required to be perfected under the Collateral Documents) on the Collateral granted by the Loan Parties in favor of the Secured Parties or to release existing Liens in connection with the Transaction and (b) those approvals, consents, exemptions, authorizations or other actions,
notices or filings, the failure of which to obtain or make would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 5.03
Financial Statements; No Material Adverse Effect; Solvency, etc.
(a)
Financial Statements
. The Historical Financial Statements fairly present in all material respects the financial condition and results of operation and cash flows of Holdings and its consolidated subsidiaries as of such dates and for such periods in accordance with GAAP consistently applied throughout the periods covered thereby (except as otherwise disclosed), subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments.
(b)
Solvency
. On and as of the Closing Date, after giving effect to this Agreement and the Transaction, the Borrower and its Restricted Subsidiaries, on a consolidated basis, are Solvent.
(c)
Pro Forma Financial Statements
. The unaudited pro forma consolidated balance sheet of Holdings and its consolidated subsidiaries as at September 30, 2013 (including the notes thereto) (the “
Pro Forma Balance Sheet
”), a copy of which has heretofore been furnished to the Administrative Agent, has been prepared giving effect as if such events had occurred on such date to the Transactions. The Pro Forma Balance Sheet has been prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated financial position of Holdings and its consolidated subsidiaries as at September 30, 2013, assuming that the events specified in the preceding sentence had actually occurred at such date.
(d)
No Material Adverse Effect
. In the case of the Closing Date, since December 31, 2012 and, in all other cases, since the date of the most recent audited financial statements delivered pursuant to
Section 6.01(a)
, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
SECTION 5.01
Litigation and Environmental Matters.
There are no actions, suits, hearings or proceedings, at law or in equity, pending or, to the knowledge of any Responsible Officer of the Borrower, threatened in writing against the Loan Parties or any of the Restricted Subsidiaries that, either individually or in the aggregate, are reasonably likely to have a Material Adverse Effect.
SECTION 5.02
Disclosure.
No report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party or the German Borrower to any Credit Party in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished) when taken as a whole, as of the time it was furnished, contains any misstatement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading;
provided
that, with respect
to projected financial information, each of the Borrower and the German Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation; it being understood that such projections may vary from actual results and that such variances may be material.
SECTION 5.03
Use of Proceeds, Margin Regulation
.
(a)
The proceeds of the Term Loans and the Revolving Loans shall be used in a manner consistent with the uses set forth in the Preliminary Statements to this Agreement.
(b)
Neither the German Borrower nor any Loan Party is engaged nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Borrowings or drawings under any Letter of Credit will be used for any purpose that violates Regulation T, Regulation U or Regulation X of the FRB.
SECTION 5.04
Taxes
. The Loan Parties and each of their Restricted Subsidiaries have timely filed or caused to be filed all tax returns and reports which are required to be filed, except where failure to file any such returns would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and have paid or caused to be paid all taxes required to be paid by the Loan Parties or any Restricted Subsidiary or any assessments made against them or any of their respective material properties, assets, income, businesses and franchises and all other material taxes, fees or other charges imposed on them or any of their respective properties, assets, income, businesses and franchises by any Governmental Authority (other than those the amount or validity of which is contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Loan Parties or any such Restricted Subsidiary, as the case may be), except where failure to take any such action would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; and no tax liens have been filed and no claims are being asserted with respect to any such taxes, fees or other charges (other than such liens or claims, the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided) which would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.05
ERISA Compliance
. Except as would not reasonably be expected to have a Material Adverse Effect, (i) each Benefit Plan is in compliance with the applicable provisions of ERISA and the Code; (ii) each Benefit Plan that is intended to qualify under Section 401(a) of the Code has either received a favorable determination letter from the IRS or may rely on a favorable opinion letter issued by the IRS, (iii) there are no pending or, to the knowledge of any Responsible Officer of the Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Benefit Plan, (iv) there has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Benefit Plan and (v) no ERISA Event or Foreign Plan Event has occurred or is reasonably expected to occur(vi) each Foreign Pension Plan is in compliance and in good standing (to the extent such concept
exists in the relevant jurisdiction) in all respects with all laws, regulations and rules applicable thereto, including all funding requirements, and the respective requirements of the governing documents for such Foreign Pension Plan.
SECTION 5.06
Ownership of Property
.
(a)
Title. The Loan Parties and each of their Restricted Subsidiaries has good and marketable title or, with respect to real property, valid fee simple title (or in each case, the relevant foreign equivalent, if any) to, or a subsisting leasehold interest in (except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights and as limited by general principles of equity that restrict the availability of equitable remedies), or a valid contractual agreement or other valid right to use, all such Person’s real property used or intended to be used in the business of the Loan Parties and their Restricted Subsidiaries, and good title (or relevant foreign equivalent) to, a valid leasehold interest in, or valid contractual rights or other valid right to (or an agreement for the acquisition of same) use all such Person’s other property (but excluding IP Rights), and, in each case, none of such property is subject to any Lien except for Permitted Liens and except where the failure to have such title or other property interest described above would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(b)
Real Estate. As of the Closing Date,
Schedule 5.11(b)
contains a true, accurate and complete list of all Material Real Property that is owned by the Loan Parties.
SECTION 5.07
Subsidiaries
.
(a)
Organization.
Schedule 5.12
sets forth as of the Closing Date a true, complete and correct list of each Subsidiary of any Loan Party and (i) its jurisdiction of organization and (ii) its ownership (by holder and percentage interest).
(b)
Capitalization. As of the Closing Date, all of the issued and outstanding Capital Stock of each Restricted Subsidiary of the Borrower has been duly authorized and validly issued, and, to the extent applicable in the case of Foreign Subsidiaries, is fully paid and non-assessable and is owned as set forth on
Schedule 5.12
, free and clear of all Liens except for Permitted Liens.
SECTION 5.08
Compliance with Law
.
Neither the Loan Parties nor any of their Restricted Subsidiaries is in default under or in violation of any requirement of Law or material Contractual Obligations, in each case, except for such defaults or violations that (a) are being contested in good faith by appropriate proceedings or (b) either in any one case or in the aggregate, would not have a Material Adverse Effect.
SECTION 5.09
Investment Company Act
. Neither the Loan Parties nor any of their Restricted Subsidiaries is required to be registered as an “investment company” under the Investment Company Act of 1940, as amended.
SECTION 5.10
Environmental Matters.
(i) The operations of and the real property owned or operated by the Loan Parties and any of their Restricted Subsidiaries are in compliance with all applicable Environmental Laws except where the failure to be in compliance, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; (ii) the Loan Parties and any of their Restricted Subsidiaries has obtained and will continue to maintain all Environmental Permits, and all such Environmental Permits are in good standing and the Loan Parties and their Restricted Subsidiaries are in compliance with all terms and conditions of such Environmental Permits, except where failure to so obtain, maintain or comply, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; (iii) neither the Loan Parties nor any of their Restricted Subsidiaries nor any of their present or past properties or operations (whether owned or leased) is subject to: (A) any Environmental Claim or other written claim, notice, request for information, judgment, order, decree or agreement from or with any Governmental Authority or private party related to any actual or alleged violation of or non-compliance with Environmental Laws or Environmental Permits to the extent any of the foregoing would reasonably be expected to have a Material Adverse Effect, (B) any pending or, to the knowledge of any Responsible Officer of the Borrower, threatened judicial or administrative proceeding, action, suit or investigation related to any Environmental Laws or Environmental Permits which would reasonably be expected to have a Material Adverse Effect, (C) any Remedial Action which if not taken would reasonably be expected to have a Material Adverse Effect or (D) any liabilities, obligations or costs arising from the Release or threat of a Release of a Contaminant into the environment where such Release or threat of a Release would reasonably be expected to have a Material Adverse Effect; (iv) neither the Loan Parties nor any of their Restricted Subsidiaries have received any written notice or claim to the effect that any Loan Party or any Restricted Subsidiary is or may be liable to any Person as a result of the Release or threat of a Release of a Contaminant into the environment, which notice or claim would reasonably be expected to result in a Material Adverse Effect, and (v) no Environmental Lien has attached to any property (whether owned or leased) of the Loan Parties or any of their Restricted Subsidiaries which would, if determined adversely, reasonably be expected to have a Material Adverse Effect, nor are there any facts or circumstances currently known to the Loan Parties or any of the Restricted Subsidiaries that may reasonably be expected to give rise to such an Environmental Lien.
SECTION 5.11
Labor Matters
. As of the Closing Date, there are no strikes, lockouts or slowdowns against any Loan Party pending or, to the actual knowledge of any Responsible Officer of any Loan Party, threatened, except to the extent that strikes, lockouts or slowdowns would not reasonably be expected to result in a Material Adverse Effect. The hours worked by and payments made to employees of the Loan Parties have not been in violation of the FLSA or any Laws dealing with such matters to the extent that any such violation, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. As of the Closing Date, except to the extent that such liability would not reasonably be expected to have a Material Adverse Effect,
all payments due from any Loan Party, or for which any claim may be made against any Loan Party, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued in accordance with GAAP as a liability on the books of such Loan Party. Except as set forth on
Schedule 5.16
, as of the Closing Date, no Loan
Party is a party to or bound by any material collective bargaining agreement. As of the Closing Date, there are no representation proceedings pending or, to the actual knowledge of any Responsible Officer of any Loan Party, threatened to be filed with the National Labor Relations Board or other applicable Governmental Authority, and no labor organization or group of employees of any Loan Party has made a pending demand for recognition to the extent that such proceeding or demand would reasonably be expected to have a Material Adverse Effect. As of the Closing Date, the consummation of the Transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any Loan Party is bound to the extent that such would be reasonably expected to result in a Material Adverse Effect.
SECTION 5.12
Intellectual Property.
Each Loan Party and Restricted Subsidiary owns or holds licenses or other rights to or under all of the patents, patent applications, trademarks, service marks, trademark and service mark registrations and applications therefor, trade names, copyrights, copyright registrations and applications therefor (collectively, “
IP Rights
”) that are necessary for the operation of its business as currently conducted except where the failure to own or hold such IP Rights would not reasonably be expected to result in a Material Adverse Effect. No Loan Party nor any Restricted Subsidiary has knowledge of any existing or threatened claim by any Person contesting the validity, enforceability, use or ownership of the IP Rights owned by a Loan Party or Restricted Subsidiary which would reasonably be expected to have a Material Adverse Effect, nor has any other Person brought any written claim against any Loan Party or any Restricted Subsidiary that any IP Rights owned by any Loan Party or its Restricted Subsidiaries has infringed or otherwise violated any IP Rights of any such other Person which would reasonably be expected to have a Material Adverse Effect.
SECTION 5.13
Collateral Documents.
The Collateral Documents, upon execution and delivery thereof, are effective to create in favor of the Collateral Agent for the benefit of the Secured Parties legal, valid and enforceable Liens on, and security interests in, the Collateral and, (i) when all appropriate filings or recordings are made in the appropriate offices as may be required under applicable Laws (which filings or recordings shall be made only to the extent required by any Collateral Document) and (ii) upon the taking of possession or control by the Collateral Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent only to the extent required by any Collateral Document), such Collateral Document will constitute, to the extent effected by such filings, recordings and taking of possession, fully perfected first priority Liens under U.S. law on, and security interests in, all right, title and interest of the Loan Parties in such Collateral to the extent required under the Collateral Document subject to no other Liens other than Permitted Liens.
SECTION 5.14
Patriot Act
.
(a)
None of the Borrower, the German Borrower or any other Loan Party is in material violation of any material Anti-Terrorism Laws.
(b)
The use of proceeds of the Loans will not violate in any material respect the Trading with the Enemy Act, as amended or any of the foreign asset control regulations of the United States Treasury Department (31 C.F.R. Subtitle B, Chapter V).
(c)
The representations and warranties contained in this
Section 5.19
made by the German Borrower, solely with respect to itself, are subject to and limited by any Applicable Law applicable to the German Borrower.
SECTION 5.15
FCPA; Anti-Corruption Laws.
No part of the proceeds of the Loans will be used, directly, or, to the knowledge of any Responsible Officer of the Borrower or the German Borrower, 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, or any other Anti-Corruption Laws.
The representations and warranties contained in this
Section 5.20
made by the German Borrower, solely with respect to itself, are subject to and limited by any Applicable Law applicable to the German Borrower.
SECTION 5.16
Sanctioned Persons
.
(a)
None of the Loan Parties nor any Restricted Subsidiary is currently the target of any U.S. sanctions administered by the OFAC or the U.S. Department of State.
(b)
Neither the Borrower nor the German Borrower will, to its knowledge, directly or indirectly, use the proceeds of the Loans in any manner that will result in a violation by any Lender of any U.S. sanctions administered by the OFAC or the U.S. Department of State.
(c)
The representations and warranties contained in this
Section 5.21
made by the German Borrower, solely with respect to itself, are subject to and limited by any Applicable Law applicable to the German Borrower.
SECTION 5.17
Certain Matters Regarding the German Borrower
. Solely as of each Credit Date on which a Credit Extension is made to the German Borrower, the German Borrower satisfies at least two of the following three requirements: (1) the German Borrower’s net sales over the immediately preceding twelve-month period prior to the accounting date (
Abschlußstichtag
) exceed €9,680,000, (2) as of the date of the most recent financial statements delivered pursuant to
Section 6.01(a)
or
(b)
, the balance sheet reflects at least €4,800,000 in total assets of the German Borrower (after deduction of any deficit on the asset side of the balance
sheet) and/or (3) the average number of employees of the German Borrower for the last day of the last two fiscal years ended immediately prior to the Credit Date is at least fifty (50).
Article 6.
AFFIRMATIVE COVENANTS
Until (i) the Commitments have expired or been terminated, (ii) the principal of and interest on each Loan and all fees and other Obligations (other than contingent obligations with respect to then unasserted claims, Secured Bank Product Obligations and Designated Credit Lines) shall have been paid in full and (iii) all outstanding Letters of Credit have been Cash Collateralized, each of Holdings (solely in the case of
Section 6.01
,
Section 6.04
,
Section 6.05
,
Section 6.06
,
Section 6.08
,
Section 6.09
,
Section 6.12
and
Section 6.14
) and the Borrower, with respect to itself and each of its Restricted Subsidiaries, hereby covenants and agrees with the Credit Parties that:
SECTION 6.01
Financial Statements
. The Borrower will furnish to the Administrative Agent (which the Administrative Agent shall provide to the Lenders):
(a)
within ninety (90) days after the end of each fiscal year of Holdings, the Consolidated balance sheet and related statements of operations, and Consolidated statements of income, stockholders’ equity and cash flows as of the end of and for such year for Holdings and its Subsidiaries, setting forth in each case, in comparative form, the Consolidated figures for the previous fiscal year and including a customary narrative management’s discussion and analysis of the financial condition and results of operations for such period, all audited and reported on by independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without a qualification or exception as to the scope of such audit (other than as a result of an upcoming maturity of any Facility occurring within one year from the time such opinion is delivered)) to the effect that such Consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings and its Subsidiaries on a Consolidated basis in accordance with GAAP;
(b)
within forty-five (45) days after the end of each of the first three fiscal quarters of any fiscal year of Holdings, the unaudited Consolidated balance sheet and related statements of operations, and Consolidated statements of income, stockholders’ equity and cash flows for Holdings and its Subsidiaries, as of the end of and for such fiscal quarter and the elapsed portion of the fiscal year, setting forth in each case, in comparative form the Consolidated figures for the previous fiscal year and including a customary narrative management’s discussion and analysis of the financial condition and results of operations for such period, all certified by one of Holdings’ Responsible Officers as presenting in all material respects the financial condition and results of operations of the Borrower, the other Loan Parties, the German Borrower and their Subsidiaries on a Consolidated basis in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes;
(c)
within ninety (90) days after the commencement of each fiscal year of Holdings, a detailed, Consolidated budget by quarter for the applicable fiscal year for Holdings and its Subsidiaries;
(d)
promptly after the same become publicly available, copies of (i) all material periodic and other reports, proxy statements and other materials filed by any Loan Party or the German Borrower with the SEC or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, as the case may be, and (ii) SEC Forms 10-K and 10-Q for the Borrower (for so long as the Borrower is subject to the reporting requirements under the Securities Exchange Act of 1934, as amended);
provided
that no such delivery shall be required hereunder with respect to each of the foregoing to the extent that such are publicly available via EDGAR or another publicly available reporting system and the Borrower has advised the Administrative Agent of the filing thereof;
(e)
promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party or the German Borrower as any Agent or any Lender may reasonably request provided that nothing in this clause (e) shall require the Borrower or its Restricted Subsidiaries to provide information (i) which constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law, (iii) which is subject to attorney-client or similar privilege or constitutes attorney work-product or (iv) restricted by binding obligations; and
(f)
simultaneously with the delivery of each set of Consolidated financial statements referred to in
Section 6.01(a)
and
(b)
above, the related consolidating financial statements (which may be in footnote form) reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such Consolidated financial statements.
SECTION 6.02
Certificates; Other Information
.
(e)
Notwithstanding the foregoing, the obligations in
clauses (a)
and
(b)
of
Section 6.01
may be satisfied with respect to financial information of Holdings and the Restricted Subsidiaries by furnishing (A) the Consolidated financial statements of Holdings or the Borrower (or any direct or indirect parent thereof) or (B) the Borrower’s or Holdings’ (or any direct or indirect parent thereof) SEC Form l0-K or 10-Q, as applicable, filed with the SEC;
provided
that (i) to the extent such information relates to any direct or indirect parent of Holdings, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to Holdings and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under
Section 6.01(a)
, such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing, or such other independent registered public accounting firm reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned), which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (other than as a result of an upcoming maturity of any Facility occurring within one year from the time such opinion is delivered).
(f)
(i) No later than five (5) days after the delivery of the financial statements referred to in
Section 6.01(a)
and
(b)
commencing with the fiscal quarter ended June 30, 2014, Borrower shall deliver a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower (which shall set forth reasonably detailed calculations of Excess Cash Flow (with respect to the financial statements delivered pursuant to
Section 6.01(a))
and the Total Leverage Ratio (with respect to all such financial statement deliverables)).
(i)
No later than five (5) days after delivery of the financial statements referred to in
Section 6.01(a)
, Borrower shall deliver a certificate with updated schedules to Section 2B of the Perfection Certificate or certifying that there have been no changes to such information since the Perfection Certificate or any update thereof was last delivered to the Administrative Agent.
(a)
Any of the delivery requirements relating to written financial information set forth in
Section 6.01
may be satisfied by either (x) the Borrower posting such information in electronic format readable by the Administrative Agent and the Lenders to a secure address on the world wide web (the “
Informational Website
”) which is accessible by the Administrative Agent and the Lenders or (y) the Borrower delivering such financial information in electronic format to the Administrative Agent and the Administrative Agent’s posting such information to an Informational Website. The accommodation provided by the foregoing sentence shall not impair the right of the Administrative Agent, or any Lender through the Administrative Agent, to request and receive from the Borrower physical delivery of specific financial information provided for in this
Section 6.01
. The Borrower shall give the Administrative Agent and each Lender (or, if applicable, the Administrative Agent shall give each Lender) written or electronic notice each time any information is delivered by posting to the Informational Website. The Loan Parties shall be responsible for and shall bear all risk associated with establishing and maintaining the security and confidentiality of the Informational Website and the information posted thereto.
(b)
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Loan Parties and the German Borrower hereunder (collectively, “
Borrower Materials
”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “
Platform
”) and (b) certain of the Lenders (each, a “
Public Lender
”) may have personnel who do not wish to receive material non-public information with respect to Holdings (or any parent thereof), the Borrower or any of their respective Subsidiaries, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States federal and state securities laws (
provided
,
however
, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in
Section 10.08
); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”
SECTION 6.03
Notices
. The Borrower will furnish to the Administrative Agent prompt written notice (which the Administrative Agent shall provide to the Lenders) of the occurrence of any of the following after any Responsible Officer of any Loan Party or the German Borrower obtains knowledge thereof:
(a)
a Default or Event of Default, specifying the nature and extent thereof and the action (if any) which is proposed to be taken with respect thereto;
(b)
the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against any Loan Party or any Subsidiary of Holdings that has a reasonable likelihood of adverse determination and such determination would reasonably be expected to result in a Material Adverse Effect;
(c)
an ERISA Event that, alone or together with any other ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse Effect; or
(d)
a Foreign Plan Event that, alone or together with any other Foreign Plan Event that has occurred, would reasonably be expected to result in a Material Adverse Effect, or
(e)
any other development that reasonably could be expected to result in a Material Adverse Effect.
Each notice delivered under this
Section 6.03
shall be accompanied by a statement of a Responsible Officer or other executive officer of the Borrower setting forth the details of the event or development requiring such notice and, if applicable, any action taken or proposed to be taken with respect thereto.
SECTION 6.04
Payment of Obligations
. Each Loan Party will, and will cause each of its Restricted Subsidiaries to, pay its Tax liabilities before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, such Loan Party or such Restricted Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and such contest effectively suspends collection of the contested obligation and enforcement of any Lien securing such obligation, or (b) the failure to make payment would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect.
SECTION 6.05
Preservation of Existence, Etc.
Each Loan Party will do all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges, franchises, and IP Rights material to the conduct of its business and comply with its Organizational Documents, in each case except to the extent that the failure to do
so would not reasonably be expected to have a Material Adverse Effect;
provided
,
however
, that the foregoing shall not prohibit any merger, consolidation, liquidation, dissolution or Disposition permitted under
Section 7.04
or
Section 7.05
, as applicable. Each Loan Party and the German Borrower shall obtain and maintain all licenses, permits, certifications and approvals of all applicable Governmental Authorities as are required for the conduct of its business as currently conducted and herein contemplated, including without limitation professional licenses, except to the extent that the failure to do so would not reasonably be expected to have a Material Adverse Effect.
SECTION 6.06
Maintenance of Properties
. Each Loan Party will keep and maintain all tangible property material to the conduct of its business in good working order and condition (ordinary wear and tear, casualty loss and condemnation excepted), except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect and except for Dispositions permitted under
Section 7.05
.
SECTION 6.07
Maintenance of Insurance
. (%3) Each Loan Party shall maintain insurance with financially sound and reputable insurers (or, to the extent consistent with business practices in effect on the Closing Date or reasonable and customary for similarly situated Persons engaged in the same or similar businesses as the Borrower and its Restricted Subsidiaries, a program of self-insurance) on such of its property and in at least such amounts and against at least such risks as is consistent with business practices in effect on the Closing Date or as otherwise determined by the Responsible Officers of the Loan Parties acting reasonably in their business judgment.
(a)
Not later than thirty (30) days after the Closing Date (or the date any such insurance is obtained, in the case of insurance obtained after the Closing Date), the Borrower shall ensure (or, in the case of clause (iii), use commercially reasonable efforts to ensure) that (i) property, casualty, fire and extended coverage policies maintained with respect to any Collateral shall be endorsed or otherwise amended to name the Collateral Agent as additional insured or loss payee on behalf of the Secured Parties, as applicable, (ii) commercial general liability policies shall be endorsed to name the Collateral Agent as an additional insured and (iii) each such property, casualty, fire, extended coverage or liability policy referred to in this
Section 6.07(b)
requires that the applicable insurer endeavor to provide the Collateral Agent not less than thirty (30) days’ prior written notice of any cancellation of coverage, non-payment of premium, non-renewal, reduction of coverage or reduction of coverage limits (and give the Collateral Agent the right to cure defaults in the payment of premiums in accordance with the terms under the Loan Documents). The Borrower shall use commercially reasonable efforts to deliver to the Collateral Agent, prior to the cancellation, modification or non-renewal of any such policy of insurance, other than in the ordinary course of business, a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Administrative Agent, including an insurance binder) together with evidence reasonably satisfactory to the Administrative Agent, of payment of the premium therefor in accordance with its terms.
(b)
If any portion of any Material Real Property subject to a Mortgage is at any time located in a Flood Zone and is located in a community that participates in the Flood Program, then Borrower shall or shall cause each Loan Party to (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to
comply in all material respects with the Flood Program and (ii) deliver to the Administrative Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent.
SECTION 6.08
Compliance with Laws
. Each Loan Party and the German Borrower will comply (i) in all material respects with all Anti-Terrorism Laws and regulations promulgated by OFAC and (ii) with all other Applicable Laws (including, but not limited to, ERISA, Environmental Laws (including, but not limited to, not releasing or disposing of any Contaminants except in compliance with all Environmental Laws), FLSA, OSHA, all Environmental Permits, and the orders or directives of any Governmental Authority, in the case of all Applicable Laws other than Anti-Terrorism Laws and regulations promulgated by OFAC, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
SECTION 6.09
Books and Records
. Each Loan Party and the German Borrower will keep proper books of record and accounts in accordance with GAAP and in which full, true and correct entries in all material respects are made of all material dealings and transactions in relation to its business and activities.
SECTION 6.10
Inspection Rights
. Each Loan Party and the German Borrower will permit any representatives designated by the Administrative Agent, upon reasonable prior notice and during normal business hours, one (1) time per calendar year (or more frequently if an Event of Default has occurred and is continuing) and at the Loan Parties’ (or the German Borrower’s, as applicable) reasonable expense, to visit and inspect its properties, to discuss its affairs, finances and condition with its officers and independent accountants (so long as such Loan Party or the German Borrower, as applicable, is afforded an opportunity to be present) and to examine and make extracts from its books and records. Notwithstanding anything to the contrary in this
Section 6.10
, none of the Borrower or any of the Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (a) constitutes non-financial trade secrets or non-financial proprietary information, (b) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or any binding obligation or (c) is subject to attorney-client or similar privilege or constitutes attorney work product.
SECTION 6.11
Use of Proceeds
. The proceeds of Term Loans made hereunder on the Closing Date will be used by the Borrower (a) to finance the Transactions and the Transaction Costs, (b) to effect the Refinancing and (c) for working capital, capital expenditures and general corporate purposes (including, without limitation, to make Investments, Restricted Payments, acquisitions and any other transactions, in each case not prohibited by this Agreement). The proceeds of the Revolving Loans made hereunder will be used by the Borrower (or the German Borrower, as applicable) on the Closing Date, (i) to finance the Transactions and the Transaction Costs, (ii) to fund upfront fees and any original issue discount required to be funded on the Closing Date and (iii) for working capital purposes. Letters of Credit issued on the Closing Date shall be used to backstop or replace letters of credit outstanding on the Closing Date under facilities no longer available to Holdings or its subsidiaries and for other purposes to be agreed in writing by the
Administrative Agent. Letters of Credit and the proceeds of the Revolving Loans and Delayed Draw Term Loans will be used by the Borrower (or the German Borrower, as applicable) after the Closing Date for working capital, capital expenditures and general corporate purposes (including, without limitation, to make Investments, Restricted Payments, acquisitions and any other transactions, in each case, not prohibited by this Agreement, including payment of the Warrant). No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the regulations of the Board, including Regulations T, U and X.
SECTION 6.12
Unrestricted Subsidiaries; Covenant to Guarantee Obligations and Give Security
. (a) The Borrower may at any time designate any Restricted Subsidiary (other than the German Borrower) as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary;
provided
that (x) immediately before and after such designation, no Event of Default shall have occurred and be continuing, and (y) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of any Junior Financing or Indebtedness incurred under
Section 7.03(a)
. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by Borrower or the relevant Restricted Subsidiary (as applicable) therein at the date of designation in an amount equal to the net book value of such Person’s (as applicable) Investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.
(a)
Upon (A) the formation or acquisition of any new direct or indirect Restricted Subsidiary by any Loan Party or the designation in accordance with
Section 6.12(a)
of any existing direct or indirect Unrestricted Subsidiary as a Restricted Subsidiary, (B) any Subsidiary commencing to constitute a Domestic Subsidiary, or (C) any Restricted Subsidiary constituting a Domestic Subsidiary Guaranteeing or becoming a borrower or issuer under any Additional Notes or any other Permitted Additional Junior Debt incurred pursuant to
Section 7.03(x)
, the Borrower shall, in each case at the Borrower’s expense:
(i)
within sixty (60) days after such formation, acquisition, designation or Guarantee (or such longer period as the Administrative Agent may agree in its reasonable discretion): (A) cause each such Restricted Subsidiary that is a wholly owned Domestic Subsidiary (other than any Excluded Subsidiary), to duly execute and deliver to the Administrative Agent a Guarantee Agreement or joinder thereto, in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, Guaranteeing the Obligations of the Borrower; (B) cause each such Restricted Subsidiary that becomes a Guarantor pursuant to the foregoing
clause (A)
to furnish to the Administrative Agent a description of any Material Real Property owned by such Restricted Subsidiary in detail reasonably satisfactory to the Administrative Agent and the Borrower; (C) cause each such Restricted Subsidiary that becomes a Guarantor pursuant to the foregoing
clause (A)
, to duly execute and deliver to the Administrative Agent Mortgages with respect to Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements and other Security Agreements, as specified by, and in form and substance reasonably satisfactory to
the Administrative Agent and the Borrower (consistent with the Mortgages to be delivered under
Section 6.12(c)
and Security Agreements, Intellectual Property Security Agreement and other Collateral Documents in effect on the Closing Date), granting a Lien in substantially all personal property of such Restricted Subsidiary that constitutes Collateral and all Material Real Property, in each case securing the Obligations of such Restricted Subsidiary under its Guarantee Agreement; (D) cause each such Restricted Subsidiary that becomes a Guarantor pursuant to the foregoing
clause (A)
to deliver any and all certificates representing Capital Stock of a Restricted Subsidiary (other than any Immaterial Subsidiary) owned by such Restricted Subsidiary, in each applicable case accompanied by undated stock powers or other appropriate instruments of transfer executed in blank and instruments, if any, evidencing the intercompany debt held by such Restricted Subsidiary having a principal amount in excess of $10,000,000, if any, indorsed in blank to the Administrative Agent or accompanied by other appropriate instruments of transfer in accordance with the terms of the Security Agreement; provided, that, in the case of the Capital Stock of any Subsidiary to be pledged under the Collateral Documents, (1) if any Subsidiary is an Excluded Foreign Subsidiary, shares of Capital Stock of such Subsidiary to be pledged shall be limited to 65% of the outstanding shares of voting Capital Stock and 100% of the outstanding non-voting Capital Stock of such Subsidiary and (2) (I) if such Subsidiary is not a wholly owned Subsidiary to the extent the Organizational Documents or other applicable agreements of such Subsidiary prohibit or require the consent of any Person other than the Borrower and its Affiliates which has not been obtained as a condition to the creation of a Lien on the Capital Stock
of such Subsidiary, (II) if such Subsidiary is an Excluded Subsidiary that is not a direct Excluded Subsidiary of a Loan Party or (III) if Applicable Law prohibits the creation of a Lien on the Capital Stock of such Subsidiary, then in each case, no shares of Capital Stock of such Subsidiary are required to be pledged to secure the Obligations; and (E) subject to the limitations set forth in this
Section 6.12
,
Section 6.14
and the other Loan Documents, take and cause such Restricted Subsidiary to take whatever action (including the recording of Mortgages with respect to Material Real Property, the filing of Uniform Commercial Code financing statements (or comparable documents or instruments under other applicable Law) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on the properties purported to be subject to the Mortgages and the other Collateral Documents delivered pursuant to this
Section 6.12
, enforceable against all third parties in accordance with their terms (except as such enforceability may be (w) limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Laws relating to or affecting creditors’ rights and remedies generally from time to time in effect, (x) subject to capital maintenance rules and general principles of equity, regardless of whether considered in a proceeding in equity or at law (including similar principles, rights and defenses under the law of any other applicable jurisdiction), (y) subject to the need for filings and registrations
necessary to create or perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties and (z) subject to the effect of foreign Laws, rules and regulations as they relate to pledges, if any, of Capital Stock in Foreign Subsidiaries and intercompany Indebtedness owed by Foreign Subsidiaries);
(ii)
within sixty (60) days after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent a signed copy of a customary legal opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this
Section 6.12(b)
as the Administrative Agent may reasonably request; and
(iii)
as promptly as practicable after the request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to Material Real Property owned by such Restricted Subsidiary that is the subject of such request the deliverables set forth in
Section 6.12(c)
;
provided
that environmental assessment reports shall only be delivered to the extent already available to the Borrower or applicable Loan Party;
provided
,
that
, notwithstanding the forgoing in this
Section 6.12
, for the avoidance of doubt none of the following Persons shall be required to deliver a Guarantee (or grant security in connection therewith) of the Obligations hereunder: (a) Excluded Subsidiaries; (b) any Subsidiary that is prohibited by Applicable Law, rule or regulation or, to the extent that such obligation would prevent the granting of such Guarantee, by any Contractual Obligation existing on the Closing Date or existing at the time of acquisition thereof from Guaranteeing the Facilities (to the extent such Contractual Obligation was not created in contemplation of such acquisition) or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee (unless such consent, approval, license or authorization has been received); (c) any Restricted Subsidiary acquired pursuant to a Permitted Acquisition or Investment permitted by
Section 7.02
that is an obligor under any secured Indebtedness permitted to be assumed pursuant to
Section 7.03(d)
(and not incurred in contemplation of such Permitted Acquisition) and any Restricted Subsidiary thereof that guarantees such Indebtedness, in each case to the extent such secured Indebtedness prohibits such subsidiary from becoming a Guarantor and in each case to the extent permitted by Applicable Law; (d) subsidiaries for which the provision of such guarantee would result in adverse tax consequence to the Borrower or one of its Subsidiaries (as reasonably determined by the Borrower in consultation with the Administrative Agent) and (e) subsidiaries where the burden or cost of providing a Guarantee outweighs the benefit to the Lenders, as determined in the reasonable discretion of the Administrative Agent and the Borrower. The Administrative Agent in its reasonable discretion may grant extensions of time for the creation or perfection of security interests in, and Mortgages on, or obtaining of title insurance or taking other actions with respect to, particular assets (including extensions beyond the Closing Date) or any other compliance with the requirements of this
Section 6.12
and
Section 6.14
where it and the Borrower reasonably determine that the creation or perfection of security interests and Mortgages on, or obtaining of title insurance or taking other actions, or any other compliance with the
requirements of this definition cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be required by this Agreement or the Security Agreements.
(c)
Prior to, on or within the time periods set forth on
Schedule 6.12
(which periods may be extended by the Administrative Agent acting in its reasonable discretion), each Loan Party shall have delivered to the Collateral Agent: (a) a fully executed Mortgage in respect of each Material Real Property, which Mortgage shall be recorded promptly to create valid and enforceable (except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law and (ii) the need for filings and registrations necessary to create or perfect the first priority Liens on the Material Real Property granted by the Loan Parties in favor of the Secured Parties), subject to Liens permitted by
Section 7.01
, on each such Material Real Property subject to a Mortgage in favor of the Collateral Agent (or such other trustee as may be required or desired under local law) for its benefit and for the benefit of the Secured Parties, and such financing statements and any other instruments necessary to grant such a mortgage lien under the laws of any applicable jurisdiction, (b) title insurance policies in form, scope and amount reasonably satisfactory in all respects to the Administrative Agent, which have been supplemented by such endorsements as shall be reasonably requested by the Administrative Agent and which contain no exceptions to title other than exceptions acceptable to the Administrative Agent, (c) customary written opinions (addressed to Administrative Agent, Collateral Agent and the Lenders) of applicable local counsel with respect to the due authorization, execution and delivery and the enforceability and perfection of the Mortgages and any related fixture filings; (d) an ALTA/ACSM survey reasonably satisfactory to the Administrative Agent and certified to the Collateral Agent, or an existing survey and affidavit sufficient for the title insurance policies to be issued in the required form; (e) a completed Flood Certificate with respect to each Material Real Property subject to a Mortgage, which Flood Certificate shall (i) be addressed to the Administrative Agent, (ii) be completed by a company which has guaranteed the accuracy of the information contained therein, and (iii) otherwise comply with the Flood Program; (f) evidence describing whether the community in which the Material Real Property subject to a Mortgage is located participates in the Flood Program; (g) if the Flood Certificate states that the Material Real Property subject to a Mortgage is located in a Flood Zone, the applicable Loan Party’s written acknowledgement of receipt of written notification from the Administrative Agent (i) as to the existence of such Material Real Property subject to a Mortgage, and (ii) as to whether the community in which such Material Real Property subject to a Mortgage is located is participating in the Flood Program; (h) if the Material Real Property subject to a Mortgage is located in a Flood Zone and is located in a community that participates in the Flood Program, a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by
Section 6.07
(including, without limitation, flood insurance policies) and the applicable provisions of the Collateral Documents; (i) with respect to each Material Real Property subject to a Mortgage, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the title company to issue the title policies and endorsements contemplated above; and (j) evidence reasonably acceptable to the Administrative Agent of payment by Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges,
costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above.
(d)
Within the time periods set forth on
Schedule 6.12
(which periods may be extended by the Administrative Agent acting in its reasonable discretion), each Loan Party shall have executed and delivered to the Collateral Agent all documentation required by Collateral Agent to evidence a perfected pledge of 65% of the outstanding shares of voting Capital Stock and 100% of the outstanding non-voting Capital Stock of each Material First Tier Foreign Subsidiary (other than Lux Holdco) under the relevant laws of its jurisdiction of organization.
SECTION 6.13
Maintenance of Ratings
. The Borrower shall use commercially reasonable efforts to maintain a public corporate rating from S&P and a public corporate family rating from Moody’s, in each case in respect of the Borrower, and a public rating of the Facilities by each of S&P and Moody’s.
SECTION 6.14
Further Assurances
. (a) Each Loan Party and the German Borrower will execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents), that may be required under any Applicable Law, or which any Agent or the Required Lenders may reasonably request, to effectuate the Transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens created or intended to be created by the Collateral Documents or the validity or priority of any such Lien, all at the expense of the Loan Parties (and in each case, to the extent required under this Agreement and the applicable Collateral Documents).
(b) If any Material Real Property is acquired by any Loan Party after the Closing Date, the Borrower will notify the Collateral Agent promptly and within sixty (60) days (or such longer period as agreed to by the Administrative Agent) of such acquisition the Borrower will cause such Material Real Property to be subjected to a Lien securing the Obligations and will take and deliver, and cause the other Loan Parties to take and deliver, such actions and deliverables as shall be necessary to grant and perfect such Liens, including the actions and deliverables described in
Section 6.14(a)
and
Section 6.12(c)
, all at the expense of the Loan Parties;
provided
that environmental assessment reports shall only be delivered to the extent already available to the Borrower or applicable Loan Party.
(c) Notwithstanding anything to the contrary in
Section 6.12
, this
Section 6.14
or any other Loan Document (except as expressly agreed by such Loan Party), no Loan Party or Restricted Subsidiary shall be required, nor shall the Administrative Agent be authorized, (i) to perfect any pledges, security interests and mortgages (x) by means other than by (A) filings pursuant to the Uniform Commercial Code in the office of the secretary of state (or similar central filing office) of the relevant State(s) and filings in the applicable real estate records with respect to mortgaged properties or any fixtures relating to mortgaged properties, (B) filings in United States government offices with respect to IP Rights as expressly required by the Loan Documents, (C) delivery to the Administrative Agent to be held in its possession of all Collateral consisting of intercompany notes, stock certificates (or equivalent) of the Borrower and its Restricted Subsidiaries and other Instruments to the extent certificated or evidenced by notes, (D) mortgages in respect of Material
Real Property as expressly required in the Loan Documents or (E) necessary perfection steps with respect to the pledge of the Capital Stock of Lux Holdco and any other Material First Tier Foreign Subsidiary under the relevant laws of its jurisdiction of organization; (ii) to enter into any deposit account control agreement or securities account control agreement with respect to any deposit account or securities account (other than uncertificated securities control agreements with respect to uncertificated equity interests constituting securities under Article 8 of the UCC, if any); (iii) except as specified in clause (i)(E) above or as expressly agreed by the Borrower, to take any action in any non-U.S. jurisdiction or required by the Laws of any non-U.S. jurisdiction in order to create any security interests in assets located or titled outside of the U.S. or to perfect such security interests (it being understood that there shall be no security agreements or pledge agreements governed under the Laws of any non-U.S. jurisdiction) or (iv) enter into any landlord lien waivers, estoppels or collateral access letters and (y) any other assets that, in the reasonable judgment of the Administrative Agent and the Borrower, the cost of creating, perfecting or maintaining such pledges or security interests in such assets or obtaining title insurance, surveys, abstracts or appraisals in respect of such asseets shall be excessive in view of the value of such assets or the practical benefit to the Lenders afforded thereby.
(d) Notwithstanding anything to the contrary in
Section 6.12
, this
Section 6.14
or any other Loan Document, the German Borrower shall not be liable for any Obligations of the Borrower or any of the Guarantors, nor shall it grant any security interest in any of its assets to secure any Obligations.
SECTION 6.15
Post-Closing Covenants
.
Each of the Loan Parties shall satisfy the requirements set forth on
Schedule 6.12
on or before the date specified for such requirement or such later date to be determined by Administrative Agent in its reasonable discretion.
Article 7.
NEGATIVE COVENANTS
So long as (i) any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than contingent indemnification obligations not then due and payable, Secured Bank Product Obligations and Designated Credit Lines) hereunder which is accrued and payable shall remain unpaid or unsatisfied or (ii) any Letter of Credit that has not been Cash Collateralized shall remain outstanding, Holdings (solely in the case of
Sections 7.10
and
7.12
) and the Borrower shall not, nor shall the Borrower permit any of the Restricted Subsidiaries to, directly or indirectly:
SECTION 7.01
Liens
. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(c)
Liens pursuant to any Loan Document including Liens securing Replacement Term Loans, Additional Term Loans, Additional Revolving Loans and Additional Revolving Commitments;
(d)
Liens existing on the Closing Date and listed on
Schedule 7.01(b)
and any modifications, replacements, refinancings, renewals, restructurings or extensions thereof;
provided
that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under
Section 7.03(c)
, and (B) proceeds and products thereof, and (ii) the incurrence, modification, replacement, renewal, extension or refinancing of the obligations secured or benefited by such Liens (if such obligations constitute Indebtedness) is permitted by
Section 7.03
;
(e)
Liens for taxes, assessments or governmental charges which are not overdue for a period of more than sixty (60) days or, if more than sixty (60) days overdue (i) which are being contested in good faith and by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction or (ii) with respect to which the failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(f)
statutory and common law Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens arising in the ordinary course of business which secure amounts not overdue for a period of more than sixty (60) days or, if more than sixty (60) days overdue (i) such Lien is being contested in good faith and by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction or (ii) with respect to which the failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(g)
(i) Liens arising in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, (ii) Liens arising in the ordinary course of business securing insurance premiums or reimbursement or indemnity obligations under insurance policies, in each case payable to insurance carriers that provide insurance to the Borrower or any of its Restricted Subsidiaries or (iii) obligations in respect of letters of credit or bank guarantees that have been posted by the Loan Parties or any of the Restricted Subsidiaries to support the payments of the items set forth in
clauses (i)
and
(ii)
of this
Section 7.01(e)
;
(h)
Liens arising to secure (i) the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds, performance bonds, performance and completion guarantees and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business and (ii) obligations in respect of letters of credit or bank guarantees that have been posted to support payment of the items set forth in
clause (i)
of this
Section 7.01(f)
;
(i)
easements, rights-of-way, land use regulations, covenants, conditions, restrictions (including zoning restrictions), encroachments, protrusions and other similar encumbrances and minor title defects or matters that would be disclosed in an accurate survey affecting real property which, in the aggregate, do not in any case materially and adversely interfere with the ordinary conduct of the business of the Borrower and its Restricted Subsidiaries (taken as a whole);
(j)
Liens securing judgments not constituting an Event of Default under
Section 8.01(h)
;
(k)
Liens securing Indebtedness permitted under
Section 7.03(c)
;
provided
that (i) such Liens attach concurrently with or within two hundred and seventy (270) days after the acquisition, repair, replacement, construction or improvement (as applicable) of the property subject to such Liens and (ii) such Liens do not at any time encumber any property except for accessions to such property other than the property financed by such Indebtedness and the proceeds and the products thereof and security deposits;
provided
that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;
(l)
(i) leases, licenses, subleases or sublicenses granted to other Persons in the ordinary course of business which do not (A) interfere in any material respect with the business of the Borrower and other Loan Parties (taken as a whole) or (B) secure any Indebtedness for borrowed money or (ii) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by the Borrower or any of the Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(m)
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(n)
Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii) in favor of a banking institution arising as a matter of law or by operation of customary standard terms and conditions of the account keeping bank encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry, and (iii) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
(o)
Liens (i) (A) on advances of cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to
Section 7.02(f)
,
Section 7.02(i)
or
Section 7.02(m)
to be applied against the purchase price for such Investment and (B) consisting of an agreement to Dispose of any property in a Disposition permitted under
Section 7.05
and other customary Liens granted in connection with Dispositions permitted by
Section 7.05
, in each case under this
clause (i)
, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien and (ii) on earnest money deposits of cash or Cash Equivalents made by the Borrower or any of the Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;
(p)
Liens (i) in favor of Borrower or a Restricted Subsidiary on assets of a Restricted Subsidiary or (ii) in favor of the Borrower or any Subsidiary Guarantor, provided that such Lien does not cause or result in any assets or property of the Loan Parties becoming assets or property not constituting Collateral;
(q)
Liens on property of any Restricted Subsidiary that is not a Loan Party securing Indebtedness permitted under
Section 7.03
of such Restricted Subsidiary or other permitted obligations of such Restricted Subsidiary;
(r)
Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary, in each case after the date hereof (other than Liens on the Capital Stock of any Person that becomes a Restricted Subsidiary) and any modifications, replacements, refinancings, restructurings, renewals or extensions thereof;
provided
that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and after-acquired property subjected to a Lien pursuant to terms existing at the time of such acquisition, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), and (iii) the Indebtedness secured thereby (or, as applicable, any modifications, replacements, refinancings, restructurings, renewals or extension thereof) is permitted under
Section 7.03
;
(s)
Liens arising from precautionary Uniform Commercial Code financing statement filings (or similar filings under other applicable Law) regarding leases entered into by the Borrower or any of the Restricted Subsidiaries in the ordinary course of business;
(t)
Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Borrower or any of the Restricted Subsidiaries in the ordinary course of business and not prohibited by this Agreement;
(u)
Permitted Encumbrances;
(v)
other Liens securing Indebtedness or other obligations permitted under this Agreement and outstanding in an aggregate principal amount not to exceed $100,000,000 at any time outstanding;
(w)
Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business;
(x)
any interest or title of a licensor, sublicensor, lessor or sublessor under any license or operating or true lease agreement;
(y)
Liens on securities which are the subject of repurchase agreements incurred in the ordinary course of business;
(z)
ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Subsidiaries are located;
(aa)
Liens arising by operation of law under Article 2 of the Uniform Commercial Code in favor of a reclaiming seller of goods or buyer of goods;
(bb)
security given to a public or private utility or any Governmental Authority as required in the ordinary course of business;
(cc)
Liens in the nature of the right of setoff in favor of counterparties to contractual agreements with the Loan Parties in the ordinary course of business;
(dd)
any exclusive or non-exclusive licenses granted under any IP Rights that do not secure or is not granted in connection with incurrence of Indebtedness;
(ee)
Liens securing any Refinancing Facility and Refinancing Notes;
(ff)
Liens pursuant to the documentation securing Additional Notes or Incremental Equivalent Term Indebtedness permitted to be incurred;
provided
, that any such Liens on Collateral securing Indebtedness permitted pursuant to this
clause (dd)
that are
pari passu
or junior in priority to the Obligations incurred hereunder shall have their Lien priority effected pursuant to a customary intercreditor agreement with terms to be mutually agreed by the Administrative Agent, the Borrower and the trustee, agent or holders with respect to such Additional Notes or Incremental Equivalent Term Indebtedness entered into prior to the date of such Incurrence;
(gg)
Liens incurred or assumed in connection with secured Indebtedness permitted to be incurred or assumed pursuant to
Section 7.03(d)
in connection with Permitted Acquisitions or other permitted Investments consisting of the purchase of a business unit, line of business or a division of a Person or all or substantially all of the assets or a majority of the Capital Stock of another Person;
provided,
that (x) after giving Pro Forma Effect to such Permitted Acquisition and the incurrence or assumption of such Liens, the First Lien Leverage Ratio shall not exceed 1.50:1.00 on a Pro Forma Basis and (y) such Lien does not extend to or cover any other assets or property other than the assets acquired pursuant to such Permitted Acquisition or other permitted Investments consisting of the purchase of a business unit, line of business or a division of a Person or all or substantially all of the assets or a majority of the Capital Stock of another Person (other than the proceeds or products thereof and after-acquired property subjected to a Lien pursuant to terms existing at the time of such acquisition, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition);
(hh)
Liens on Securitization Assets arising in connection with a Qualified Securitization Financing;
(ii)
in the case of any non-wholly owned Restricted Subsidiary, any put and call arrangements or restrictions on disposition related to its Capital Stock set forth in its organizational documents or any related joint venture or similar agreement; and
(jj)
Liens securing Swap Contracts so long as (x) such Swap Contracts do not constitute Secured Bank Product Obligations and (y) the fair market value of the Collateral securing such Swap Contracts does not exceed $50,000,000 at any time.
For purposes of determining compliance with this
Section 7.01
, in the event that any Lien meets the criteria of more than one of the categories of Liens described in
clauses (a)
through
(hh)
above, the Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such Lien (or any portion thereof) to the extent such Lien would be permitted to be incurred under such clause at the time of such classification or reclassified, and the Borrower will only be required to include the amount and type of such Lien in one or more of the above clauses;
provided
that all Liens securing the Loan Documents will be deemed to have been incurred in reliance only on the exception in
clause (a)
of this
Section 7.01
.
SECTION 7.02
Investments
. Make or hold any Investments, except:
(f)
Investments by Holdings, the Borrower or any Restricted Subsidiary in (i) assets that were Cash Equivalents when such Investment was made and (ii) deposit accounts and securities accounts opened in the ordinary course of business (so long as the assets credited to such accounts constitute Cash Equivalents);
(g)
loans or advances to officers, directors, members of management, and employees of Holdings, the Borrower or any Restricted Subsidiary (i) in an aggregate amount not to exceed $10,000,000 at any time outstanding for business-related travel, entertainment, relocation and analogous ordinary business purposes, or (ii) in connection with such Person’s purchase of Capital Stock of Holdings in an aggregate amount not to exceed $10,000,000 at any time outstanding (determined without regard to any write-downs or write-offs of such loans or advances);
(h)
Investments (i) by any Loan Party in or to the Borrower or any Subsidiary Guarantor, (ii) by any Restricted Subsidiary that is not a Loan Party in or to the Borrower, any Subsidiary Guarantor or in any other Restricted Subsidiary that is also not a Loan Party (
provided
that, in the case of loans to the Borrower or any Subsidiary Guarantor, all payments thereon must be expressly subordinated to the Obligations under the Loan Documents, it being understood that the Borrower or such Subsidiary Guarantor may make payments thereon prior to the occurrence (but not during the continuance) of an Event of Default under
Section 8.01(a)
,
(e)
or
(f)
) or (iii) by the Borrower and any Subsidiary Guarantor in or to any Restricted Subsidiaries that are not Loan Parties that, solely in the case of Investments in the form of capital contributions to and purchases of Capital Stock of such Restricted Subsidiaries, do not exceed $200,000,000 in an aggregate amount at any time outstanding (in the case of
clause (iii)
, determined without regard to any write-downs or write-offs of such Investments);
(i)
Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business, and Investments consisting of Guarantees of any supplier’s obligations in respect of commodity contracts, including Swap
Contracts, solely to the extent such commodities related to the materials or products to be purchased by the Loan Parties;
(j)
Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions, and Restricted Payments permitted by
Section 7.01
,
Section 7.03
,
Section 7.04
,
Section 7.05
,
Section 7.06
, respectively;
(k)
Investments existing or contemplated on the date hereof and set forth on
Schedule 7.02(f)
and any modification, replacement, restructuring, refinancing, renewal or extension thereof;
provided
that the amount of the original Investment is not increased except (i) as required by the terms of such Investment, (ii) as otherwise permitted by this
Section 7.02
or (iii) by an amount equal to accrued interest, fees, expenses and premium accrued in connection therewith;
provided further
that to the extent any such Investments have been repaid in full, then additional Investments may be made in Foreign Subsidiaries in an aggregate amount up to the amount of such original Investments.
(l)
Investments in Swap Contracts permitted by
Section 7.03
;
(m)
promissory notes and other noncash consideration received in connection with Dispositions permitted by
Section 7.05
;
(n)
the purchase or other acquisition of all or substantially all of the assets or business of, any Person, or of assets constituting a business unit, a line of business or division of, such Person, or of the Capital Stock in a Person that, upon the consummation thereof, will become a Restricted Subsidiary of the Borrower or one or more of its Restricted Subsidiaries (including, without limitation, as a result of a merger or consolidation) and Investments held by any such Person to the extent that such Investments were not made in contemplation of or in connection with such acquisition;
provided
that, with respect to each such purchase or other acquisition made pursuant to this
Section 7.02(i)
(each of the foregoing, a “
Permitted Acquisition
”), each applicable Loan Party and any such newly created or acquired Subsidiary shall, or will within the times specified therein, have complied with the applicable requirements of
Section 6.12
;
(o)
Investments in the ordinary course of business consisting of (i) endorsements for collection or deposit or (ii) customary trade arrangements with customers;
(p)
Investments (including debt obligations and Capital Stock) received in connection with the bankruptcy or reorganization of any Person and in settlement of obligations of, or disputes with, any Person and upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(q)
loans and advances to Holdings in lieu of, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments permitted to be made to Holdings in accordance with
Section 7.06
;
(r)
other Investments that do not exceed the greater of (i) $200,000,000 or (ii) 4.0% of Total Assets (such applicable amount, the “
Permitted Other Investment Amount
”);
provided
that
the Permitted Other Investment Amount may be increased by (x) the amount of any Eligible Equity Proceeds which are Not Otherwise Applied, and (y) so long as immediately after giving effect to any such Investment, no Event of Default has occurred and is continuing, an amount equal to the Available Amount as in effect immediately prior to the time of the making of such Investment;
(s)
advances of payroll payments to employees in the ordinary course of business;
(t)
Guarantees by the Borrower or any Restricted Subsidiary of leases (other than Capitalized Leases), contracts, or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(u)
Investments in Unrestricted Subsidiaries and Joint Ventures;
provided
that immediately after giving effect to any such Investment, the fair market value of such Investments in the applicable Unrestricted Subsidiary or Joint Venture, when aggregated with the fair market value of the Investments in all other Unrestricted Subsidiaries and Joint Ventures made pursuant to this clause (p) (measured at the time made), shall not exceed the greater of $250,000,000 and 5.0% of Total Assets;
(v)
Investments by the Borrower or a Restricted Subsidiary in any Restricted Subsidiary pursuant to (and as contemplated by the definition of) the Permitted Tax Restructuring;
(w)
Investments consisting of promissory notes issued by any Loan Party to future, present or former officers, directors and employees, members of management, or consultants of the Borrower or any of its Subsidiaries or their respective estates, spouses or former spouses to finance the purchase or redemption of Capital Stock of Holdings (or any direct or indirect parent), to the extent the applicable Restricted Payment is permitted by
Section 7.06
;
(x)
earnest money required in connection with Permitted Acquisitions and other permitted Investments;
(y)
Investments consisting of loans and advances to the Borrower or its Restricted Subsidiaries in connection with the reimbursement of expenses incurred on behalf of the Loan Parties in the ordinary course of business;
(z)
capitalization or forgiveness of any Indebtedness (i) owed to any Loan Parties by any other Loan Parties, (ii) owed to any Restricted Subsidiary which is not a Loan Party by a Loan Party and (iii) owed to any Restricted Subsidiary which is not a Loan Party by any Restricted Subsidiary which is not a Loan Party;
(aa)
Investments to the extent the consideration paid therefor consists solely of Capital Stock of Holdings (or any direct or indirect parent thereof);
(bb)
Investments consisting of the Transactions;
(cc)
loans and advances to Advanced Refining Technologies LLC in an aggregate amount not to exceed $50,000,000 at any time outstanding;
(dd)
Investments in a Joint Venture in the Middle East in an aggregate amount not to exceed $150,000,000;
(ee)
(i) Investments in a Securitization Subsidiary or other Subsidiary of the Borrower that in turn then transfers to a Securitization Subsidiary or any Investment by a Securitization Subsidiary in any other Person, in each case, in connection with a Qualified Securitization Financing (
provided
,
however
, that any such Investment in a Securitization Subsidiary or other Subsidiary of the Borrower is in the form of a contribution of additional Securitization Assets or in the form of customary Investments in a Securitization Subsidiary or other Subsidiary of the Borrower in connection with a Qualified Securitization Financing) and (ii) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Purchase Obligation in connection with a Qualified Securitization Financing;
(ff)
Investments in any Captive Insurance Subsidiary in an aggregate amount not to exceed 150% of the minimum amount of capital required under the laws of the jurisdiction in which such Captive Insurance Subsidiary is formed (plus any excess capital generated as a result of any such prior investment that would result in an unfavorable tax or reimbursement impact if distributed), and other investments in any Captive Insurance Subsidiary to cover reasonable general corporate and overhead expenses of such Captive Insurance Subsidiary;
(gg)
Investments by any Captive Insurance Subsidiary;
(hh)
Investments in any Captive Insurance Subsidiary in connection with a push down by the Borrower of insurance reserves;
(ii)
Investments by any Foreign Subsidiary in debt securities issued by any nation in which such Foreign Subsidiary has cash which is the subject of restrictions on export, or any agency or instrumentality of such nation or any bank or other organization organized in such nation, in an aggregate amount not to exceed $50,000,000 at any time outstanding; and
(jj)
additional Investments; provided that the Total Leverage Ratio does not exceed 1.75:1.00, as of the last day of the most recently ended Test Period for which financial statements are internally available after giving Pro Forma Effect to such Investment.
To the extent an Investment is permitted to be made by a Loan Party directly in or to any Restricted Subsidiary or any other Person who is not a Loan Party (each such person, a “
Target Person
”) under any provision of this
Section 7.02
, such Investment may be made by advance, contribution or distribution by a Loan Party to a Restricted Subsidiary or Holdings, and further substantially contemporaneously advanced or contributed to a Restricted Subsidiary for purposes of making the relevant Investment in the Target Person without constituting an Investment for purposes of
Section 7.02
(it being understood that such Investment must satisfy the requirements of, and shall count towards any thresholds in, a provision of this
Section 7.02
as if made by the applicable Loan Party directly in or to the Target Person).
SECTION 7.03
Indebtedness
. Create, incur, assume or suffer to exist any Indebtedness, except:
(a)
any Additional Notes;
(b)
Indebtedness of the Loan Parties under the Loan Documents (including Replacement Loans or Replacement Notes) and Incremental Equivalent Term Indebtedness of any Loan Party incurred pursuant to
Section 2.14(a)(vi)(D)
;
(c)
Attributable Indebtedness and purchase money obligations (including obligations in respect of mortgage, industrial revenue bond, industrial development bond, and similar financings) to finance the purchase, repair or improvement of fixed or capital assets within the limitations set forth in
Section 7.01(i)
and any Permitted Refinancing thereof;
provided
that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed the greater of $150,000,000 and 3.0 % of Total Assets at any time outstanding;
(d)
Indebtedness incurred or assumed in connection with Permitted Acquisitions and other permitted Investments consisting of the purchase of a business unit, line of business or a division of a Person or all or substantially all of the assets or all of the Capital Stock of another Person, so long as (i) if such Indebtedness is secured, the aggregate principal amount of such Indebtedness does not exceed (x) $100,000,000
plus
(y) additional amounts so long as, after giving Pro Forma Effect to such Permitted Acquisition the First Lien Leverage Ratio does not exceed 1.50:1.00 on a Pro Forma Basis as of the last day of the most recent Test Period for which financial statements are internally available (recalculated assuming for the purpose of this calculation that the Net Cash Proceeds of such Indebtedness, if any, are not treated as Cash on Hand for such purpose) and (ii) if such Indebtedness incurred is unsecured, such Indebtedness shall be permitted by
Section 7.03(x)
;
(e)
Designated Credit Lines;
(f)
Indebtedness of the Borrower owing to any Restricted Subsidiary and of any Restricted Subsidiary owing to the Borrower or any other Restricted Subsidiary, in each case, consisting of an Investment permitted by
Section 7.02
or arising pursuant to the Permitted Tax Restructuring;
provided
that all such Indebtedness of the Borrower or any Subsidiary Guarantor owed to any Restricted Subsidiary that is not a Subsidiary Guarantor must be expressly subordinated to the Obligations under the Loan Documents, it being understood that such Borrower or Subsidiary Guarantor may make payments thereon prior to the occurrence (but not during the continuance) of an Event of Default under
Section 8.01(a)
,
(e)
or
(f)
;
(g)
Indebtedness consisting of promissory notes issued to future, present or former officers, directors and employees, members of management, or consultants of Holdings (or any direct or indirect parent) or any of its Subsidiaries or their respective estates, spouses or former spouses to finance the purchase or redemption of Capital Stock of Holdings, to the extent the applicable Restricted Payment is permitted by
Section 7.06
;
(h)
Existing Indebtedness outstanding on the date hereof, including any unused commitment thereunder, and listed on
Schedule 7.03(h)
and any Permitted Refinancing thereof and, in the event any such Existing Indebtedness listed on
Schedule 7.03(h)
is terminated and/or repaid in full, the incurrence of additional Indebtedness of Foreign Subsidiaries in an amount up to the
amount of such terminated and repaid Existing Indebtedness, including any unused commitment thereunder;
(i)
Indebtedness in respect of Swap Contracts incurred in the ordinary course of business and not for speculative purposes and Guarantees of suppliers’ obligations permitted pursuant to
Section 7.02(d)
;
(j)
Guarantees by the Borrower or any Restricted Subsidiary in respect of Indebtedness of the Borrower or any Restricted Subsidiary otherwise permitted hereunder;
provided
that (i) no Guarantee by any Restricted Subsidiary of any Indebtedness constituting a Junior Financing or other Indebtedness of a Loan Party under
Section 7.03(a)
shall be permitted unless such Restricted Subsidiary shall have also provided a Guarantee of the Obligations under the Loan Documents substantially on the terms set forth in the applicable Guarantee Agreement to the extent required by
Section 6.12
, (ii) if the Indebtedness being Guaranteed is subordinated to the Obligations under the Loan Documents, such Guarantee shall be subordinated to the Guarantee of the Obligations under the Loan Documents on terms at least as favorable (taken as a whole) (as reasonably determined in good faith by the Borrower) to the Lenders as those contained in the subordination provisions of such Indebtedness; provided that nothing in this
clause (j)
shall provide for a guarantee that is otherwise prohibited by the definitions of Credit Agreement Refinancing Indebtedness or Incremental Equivalent Term Indebtedness or not permitted to be incurred under
Section 7.03(x)
and (iii) Guarantees by a Loan Party of Indebtedness of Foreign Subsidiaries (including, for the avoidance of doubt, Indebtedness incurred under
Sections 7.03(h)
and
(w)
) shall not exceed an aggregate principal amount of $150,000,000 at any time outstanding;
(k)
Indebtedness of the Borrower or Restricted Subsidiaries in an aggregate principal amount at any time outstanding for all such Persons taken together not to exceed the greater of $200,000,000 and 4.0% of Total Assets, measured at the time of incurrence, or, in the case of an unused commitment, the effectiveness thereof;
(l)
Indebtedness (other than for borrowed money) subject to Liens permitted under
Section 7.01
;
(m)
Indebtedness representing deferred compensation to employees of the Holdings (or any direct or indirect parent) or any Restricted Subsidiary incurred in the ordinary course of business;
(n)
Indebtedness incurred in a Permitted Acquisition, permitted Investment or Disposition under agreements providing for indemnification, the adjustment of the purchase price or similar adjustments;
(o)
Indebtedness consisting of obligations under deferred compensation (including earnouts) or other similar arrangements incurred by such Person in connection with Permitted Acquisitions or permitted Investments consisting of the purchase of a business unit, line of business or a division of a Person or all or substantially all of the assets or all of the Capital Stock of another Person;
(p)
Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with cash management and deposit accounts;
(q)
Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r)
(i) Indebtedness incurred by the Borrower or any Restricted Subsidiary with respect to letters of credit issued in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or (ii) other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
provided
that upon the drawing of such letters of credit or the incurrence of such other Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(s)
obligations in respect of surety, stay, customs and appeal bonds, performance bonds and performance and completion guarantees provided by the Borrower or any Restricted Subsidiary or obligations in respect of letters of credit related thereto, in each case in the ordinary course of business or consistent with past practice;
(t)
Indebtedness in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;
(u)
Attributable Indebtedness and Indebtedness, in each case, incurred in connection with sale-leaseback transactions permitted under
Section 7.05
;
(v)
without duplication of any other Indebtedness, non-cash accruals of interest, accretion or amortization of original issue discount and/or pay-in-kind interest to the extent such Indebtedness is permitted hereunder;
(w)
Indebtedness of Foreign Subsidiaries in an aggregate principal amount at any time outstanding after the Closing Date for all such Persons taken together not to exceed 2.5% of Total Assets, measured at the time of the incurrence or, in the case of an unused commitment, effectiveness thereof;
(x)
any other Indebtedness;
provided
that the Interest Coverage Ratio shall be not less than 2.00:1.00, as of the last day of the most recently ended Test Period for which financial statements are internally available after giving Pro Forma Effect to the incurrence of such Indebtedness and the use of the proceeds thereof;
provided
,
further
, that any such Indebtedness incurred by a Restricted Subsidiary that is not a Guarantor shall not exceed $350,000,000.
(y)
Credit Agreement Refinancing Indebtedness;
(z)
obligations of non-wholly-owned Foreign Subsidiaries that are Restricted Subsidiaries in respect of Disqualified Capital Stock in an amount not to exceed $10,000,000 at any time outstanding;
(aa)
Indebtedness of any Loan Party supported by a Letter of Credit in a principal amount not to exceed the face amount of such Letter of Credit;
(bb)
Indebtedness incurred in connection with a Qualified Securitization Financing; and
(cc)
all premiums (if any), interest (including post-petition interest, accretion of accreted value and payment of interest in kind), fees, expenses, charges and additional or contingent interest on obligations described in
clauses (a)
through
(bb)
.
For purposes of determining compliance with this
Section 7.03
, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in
clauses (a)
through
(bb)
above, the Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) to the extent such Indebtedness would be permitted to be incurred under such clause at the time of such classification or reclassified, and the Borrower will only be required to include the amount and type of such Indebtedness in one or more of the above clauses;
provided
that all Indebtedness outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in
clause (b)
of this
Section 7.03
.
SECTION 7.04
Fundamental Changes
. Merge, dissolve, liquidate, consolidate with or into another Person, except that:
(a)
any Restricted Subsidiary may merge with or liquidate into (i) the Borrower;
provided
that the Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent and the Jurisdictional Requirements shall be satisfied or (ii) any one or more other Restricted Subsidiaries;
provided
that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment permitted by
Section 7.02
and any Indebtedness corresponding to such Investment must be permitted by
Section 7.03
;
(b)
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party (in the case of any merger or consolidation with or into the German Borrower, so long as the German Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the German Borrower in a manner reasonably acceptable to the Administrative Agent and the Jurisdictional Requirements shall be satisfied) and (ii) any Subsidiary (other than the German Borrower) may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the business of the Borrower (provided that a Loan Party may dissolve or liquidate only into another Loan Party);
(c)
the Borrower or any Restricted Subsidiary may merge with any other Person in order to (i) effect an Investment permitted pursuant to
Section 7.02
(
provided
that (A) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of
Section 6.12
and (B) to the extent
constituting an Investment, such Investment must be a permitted Investment in accordance with
Section 7.02
) or (ii) to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with
Section 6.12
;
provided
that if the Borrower is a party to any transaction effected pursuant to this
Section 7.04(c)
, (1) no Event of Default exists or would result therefrom, (2) the Borrower shall be the continuing and surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent and (3) the Jurisdictional Requirements shall be satisfied;
(d)
so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to
Section 7.05
, may be effected;
provided
that if the Borrower or the German Borrower, as applicable, is a party to any transaction effected pursuant to this
Section 7.04(d)
, (i) the Borrower or the German Borrower, as applicable, shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent and (ii) the Jurisdictional Requirements shall be satisfied; and
(e)
so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, in each case, by and among Restricted Subsidiaries, the purpose of which is to effect the Permitted Tax Restructuring.
SECTION 7.05
Dispositions
. Make any Disposition except:
(a)
Dispositions of obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions in the ordinary course of business of property no longer used or useful in, or no longer material to, the conduct of the business of the Borrower and the Restricted Subsidiaries and any dispositions of Capital Stock, properties or assets in a single transaction or series of related transactions with a fair market value (as determined in good faith by the Borrower) of less than $25,000,000 per year;
(b)
Dispositions of inventory and other assets in the ordinary course of business;
(c)
Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d)
Dispositions of property to the Borrower or any Restricted Subsidiary;
provided
that if the transferor of such property is a Loan Party, then (i) the transferee thereof must be a Loan Party, (ii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair value and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with
Section 7.02
or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with
Section 7.02
;
(e)
Dispositions consisting of Investments permitted by
Section 7.02
, fundamental changes under
Section 7.04
and Restricted Payments under
Section 7.06
and Liens permitted by
Section 7.01
;
(f)
Dispositions by the Borrower or any Restricted Subsidiary of property pursuant to sale-leaseback transactions for fair value;
provided
that any such sale of any fixed or capital assets by the Borrower or any Restricted Subsidiary is made for cash consideration in an amount not less than the fair value of such fixed or capital asset and is consummated within 270 days after the Borrower or such Restricted Subsidiary, as applicable, acquires or completes the construction of such fixed or capital asset;
provided
that, if such sale and leaseback results in a Capital Lease obligation, such Capital Lease obligation is permitted by
Section 7.03
and any Lien made the subject of such Capital Lease obligation is permitted by
Section 7.01
and;
provided
,
that
(i) the purchase price for such property shall be paid to the Borrower or any Restricted Subsidiary for not less than 75% cash consideration, and (ii) to the extent the gross proceeds of all Dispositions pursuant to this
Section 7.05(f)
of property, together with all Dispositions permitted hereunder exceeds $50,000,000, all further Net Cash Proceeds shall be applied to prepay Term Loans pursuant to
Section 2.05(b)(ii)
;
(g)
Dispositions of Cash Equivalents;
(h)
Dispositions, licenses or sublicenses of IP Rights to Borrower or any Restricted Subsidiary;
(i)
leases, subleases, licenses or sublicenses (including with respect to IP Rights, including the provision of software under an open source license), in each case (x) in the ordinary course of business and that do not materially and adversely interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole, or (y) would not adversely affect the Lenders in any material respect;
(j)
transfers of property subject to Casualty Events;
(k)
any Dispositions for fair value, provided that (i) no Event of Default exists or would arise as a result of the transaction and (ii) with respect to any Disposition pursuant to this
clause (k)
for a purchase price in excess of $50,000,000, the Person making such Disposition shall receive not less than 75% of such consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) in the form of cash or Cash Equivalents; provided that for the purposes of this
subclause (ii)
the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of any Loan Party (other than subordinated Indebtedness) and the release of the Borrower or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any Restricted Subsidiary from the transferee that are converted into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Disposition and (D) any Designated Non-Cash Consideration
received by the Person making such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to
Section 7.05
that is at that time outstanding, not to exceed the greater of $100,000,000 and 2.00% of Total Assets (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(l)
Dispositions of Investments in Joint Ventures, including to the extent required by, or made pursuant to buy/sell arrangements between the Joint Venture parties set forth in, Joint Venture arrangements and similar binding arrangements;
(m)
(i) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof and (ii) the factoring of accounts receivables by Foreign Subsidiaries consistent with past practice or otherwise in the ordinary course of business, in the case of this clause (ii) in an amount not to exceed $50,000,000 in the aggregate;
(n)
(i) sales of non-core assets acquired in connection with Permitted Acquisitions or other Investments for fair value,
provided
that the aggregate amount of such sales shall not exceed 25% of the fair market value of the acquired entity or business and (ii) Dispositions of property not constituting Collateral, provided that (A) the First Lien Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to
Section 6.01(a)
or
(b)
, as applicable (or, if no Test Period has passed, as of the last four quarters ended), as if such Disposition had been made on the last day of such fiscal quarter, shall be shall be no greater than 1.50:1.00 or (B) the fair market value of such Dispositions that do not meet the requirements of subclause (A) shall not exceed $50,000,000 in the aggregate;
(o)
any “fee in lieu” or other Disposition of assets to any Governmental Authority that continue in use by the Borrower or any Restricted Subsidiary, so long as the Borrower or any Restricted Subsidiary may obtain title to such assets upon reasonable notice by paying a nominal fee;
(p)
[Reserved];
(q)
any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater value or usefulness to the business of Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the management of the Borrower;
(r)
any sale of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(s)
the unwinding of any Swap Contracts pursuant to its terms;
(t)
terminations of leases, subleases, licenses and sublicenses in the ordinary course of business;
(u)
any Disposition by the Borrower or a Restricted Subsidiary of the Capital Stock of, or indebtedness owned by, a Foreign Subsidiary to any Restricted Subsidiary pursuant to the Permitted Tax Restructuring;
(v)
the abandonment, lapse or expiration of any Collateral consisting of IP Rights pursuant to the reasonable business judgment of any Loan Party; and
(w)
any Disposition of Securitization Assets to a Securitization Subsidiary or other Subsidiary of the Borrower that in turn then transfers to a Securitization Subsidiary, in each case, in connection with a Qualified Securitization Financing;
provided
that this clause (w) shall be the exclusive clause of this
Section 7.05
that permits Dispositions in connection with a Qualified Securitization Financing;
provided
that the fair value of any property Disposed of pursuant to this
Section 7.05
shall be the fair market value of such property at the time of such Disposition as reasonably determined in good faith by the Borrower.
SECTION 7.06
Restricted Payments
. Declare or make, directly or indirectly, any Restricted Payment, except:
(c)
each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to (i) the Borrower or such Restricted Subsidiary and (ii) to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests);
(d)
the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Capital Stock (other than Disqualified Capital Stock) of such Person;
(e)
the Borrower and the Restricted Subsidiaries may make Restricted Payments necessary to consummate the Transactions and other capital contributions on the Closing Date;
(f)
to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into transactions expressly permitted by
Section 7.04
,
Section 7.05
or
Section 7.08
;
(g)
the Borrower and the Restricted Subsidiaries may make Restricted Payments to Holdings:
(i)
the proceeds of which will be used to pay the Tax Distribution Amount or any Parent Expenses;
(ii)
the proceeds of which will be used by Holdings (or any direct or indirect parent) to pay for the repurchase, retirement or other acquisition or retirement for value of Capital Stock of Holdings (or any direct or indirect parent) held by any future, present or former employee, director, officer, member of management or consultant of Holdings (or any direct or indirect parent) or any of
its Subsidiaries (or the estate, family members, spouse or former spouse of any of the foregoing) either pursuant to any management equity plan or stock option plan or other management or employee benefit plan or agreement or upon the termination of such employee, director or consultant’s employment or directorship;
provided
that the aggregate amount of Restricted Payments made under this
clause (e)(ii)
does not exceed in any calendar year $20,000,000 (with unused amounts in any calendar year being carried over to succeeding calendar years, subject to a maximum of $5,000,000 of such amounts being applied in any calendar year); and
provided further
that such amount in any calendar year may be increased by an amount not to exceed (1) the cash proceeds from the sale of Capital Stock to employees, directors, officers, members of management or consultants of Holdings or of its Subsidiaries that occurs after the Closing Date to the extent such proceeds constitute Eligible Equity Proceeds
plus
(2) the cash proceeds of key man life insurance policies received by Holdings (to the extent such proceeds are contributed to the Borrower) or the Borrower or any Restricted Subsidiary after the Closing Date (
provided
that the Borrower may elect to apply all or any portion of the aggregate increase contemplated by
clauses (1)
and
(2)
above in any calendar year) less (4) the amount of any Restricted Payments previously made pursuant to
clauses (1)
and
(2)
of this
clause (e)(ii)
;
(iii)
to finance any Investment permitted to be made pursuant to
Section 7.02
;
provided
that (A) such Restricted Payment shall be made substantially concurrently with the closing or consummation of such Investment or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection therewith and (B) Holdings shall, immediately following the closing or consummation thereof, cause or have caused (1) all property acquired (whether assets or Capital Stock) to be contributed to the Borrower or a Restricted Subsidiary (or a Person that will become a Restricted Subsidiary upon receipt of such contribution) or (2) the merger (to the extent permitted in
Section 7.04
) of the Person formed or acquired into the Borrower or a Restricted Subsidiary in order to consummate such Permitted Acquisition, in each case, in accordance with the requirements of
Section 6.12
;
(iv)
the proceeds of which shall be used by Holdings (or any direct or indirect parent) to make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of Holdings (or any direct or indirect parent) or in connection with any dividend, split or combination thereof;
provided
that any such cash payment shall not be for the purpose of evading the limitations set forth in this
Section 7.06
(as determined in good faith by the board of directors or the managing board, as the case may be, of the Borrower (or any authorized committee thereof));
(v)
the proceeds of which shall be used by Holdings (or any direct or indirect parent) to pay fees and expenses (other than to Affiliates) related to any equity or debt offering or Investment permitted by this Agreement;
(vi)
the proceeds of which shall be used by Holdings to pay customary salary, bonus and other benefits payable to officers and employees of Holdings (or any direct or indirect parent) to the extent such salaries, bonuses and other benefits are directly attributable to the ownership or operations of the Borrower and the Restricted Subsidiaries;
(vii)
[Reserved];
(viii)
the proceeds of which shall be used by Holdings (or any direct or indirect parent) (1) to pay withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) in connection with the exercise of stock options by such Person and (2) to repurchase Capital Stock in consideration of such payments (including deemed repurchases in connection with the exercise of stock options); and
(ix)
the proceeds of which shall be used by Holdings to fund payments in respect of the DPO;
(h)
so long as no Event of Default shall have occurred and be continuing or would result therefrom, in addition to the foregoing Restricted Payments, Holdings, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount not to exceed the sum of (A) $500,000,000,
plus
(B) an amount equal to the Available Amount as in effect immediately prior to the time of the making of such prepayment;
(i)
in addition to the foregoing Restricted Payments, Holdings, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments; provided that after giving Pro Forma Effect thereto, the Total Leverage Ratio shall not exceed 1.75:1.00 on a Pro Forma Basis as of the last day of the most recent Test Period for which financial statements are internally available;
(j)
the Borrower or any Restricted Subsidiary may, and may make Restricted Payments to Holdings to permit Holdings to, honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(k)
any Restricted Payment by a Restricted Subsidiary to another Restricted Subsidiary to effectuate the Permitted Tax Restructuring;
(l)
any Restricted Payment required pursuant to, or in connection with the exercise of, the Warrant; and
(m)
the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to this
Section 7.06(k)
shall be deemed to have utilized capacity under such other provision of this Agreement).
SECTION 7.07
Change in Nature of Business
. Engage in any material line of business substantially different from those lines of business conducted by the Borrower and the Restricted Subsidiaries on the date hereof or any business reasonably related, supportive, complementary, corollary or ancillary thereto or reasonable extension thereof.
SECTION 7.08
Transactions with Affiliates
. Enter into any transaction of any kind with any Affiliate of the Borrower with a fair market value in excess of $5,000,000, whether or not in the ordinary course of business, other than (a) transactions between or among the Loan Parties or any entity that becomes a Loan Party as a result of such transaction, (b) on fair and reasonable terms substantially as favorable to the Borrower or such Restricted Subsidiary as would be obtainable by the Borrower or such Restricted Subsidiary in a comparable arm’s-length transaction with a Person other than an Affiliate, (c) the payment of fees, costs and expenses in connection with the consummation of the Transactions, (d) loans and other transactions by the Borrower and the Restricted Subsidiaries to the extent not prohibited by this Agreement, (e) entering into employment and severance arrangements between Holdings, the Borrower and the Restricted Subsidiaries and their respective officers and employees, as determined in good faith by the board of directors or senior management of the relevant Person, (f) the payment of customary fees and reimbursement of reasonable out-of-pocket costs of, and customary indemnities provided to or on behalf of, directors, officers and employees of Holdings, the Borrower and the Restricted Subsidiaries in the ordinary course of business, to the extent attributable to the ownership or operations of the Borrower and the Restricted Subsidiaries, as determined in good faith by the board of directors or senior management of the relevant Person, (g) transactions pursuant to the other permitted agreements in existence on the Closing Date or any amendment thereto to the extent such an amendment (taken as a whole) (as reasonably determined in good faith by the Borrower) is not adverse to the Lenders in any material respect, (h) Restricted Payments permitted under
Section 7.06
by the Borrower and its Restricted Subsidiaries, (i) payment of reasonable compensation to directors, officers, employees and consultants for services actually rendered to any Loan Party or any of its Subsidiaries, (j) stock option, compensation and benefit plans of the Loan Parties and their Subsidiaries, (k) advances and loans to officers, directors, members of management and employees of Holdings, the Borrower or any Restricted Subsidiary to the extent specifically permitted under
Section 7.02(b)
, (l) Investments consisting of promissory notes issued to future, present or former officers, directors and employees, members of management, or consultants of the Borrower (or any direct or indirect parent) or any of its Subsidiaries or their respective estates, spouses or former spouses to finance the purchase or redemption of Capital Stock of Holdings, to the extent the applicable Restricted Payment is permitted by
Section 7.06
, (m) the issuance or transfer of Capital Stock (other than Disqualified Capital Stock) of Holdings to any former, current or future director, manager, officer, employee or consultant (or any Affiliate of any of the foregoing) of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof, and any other issuance of Capital Stock by Holdings, (n) transactions by the Borrower and its Restricted Subsidiaries with customers, clients, joint venture partners, suppliers or purchasers
or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement that are fair to Borrower and the Restricted Subsidiaries, as determined in good faith by the board of directors or the senior management of the relevant Person, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, (o) the Transactions, (p) transactions described on
Schedule 7.08
, (q) any Disposition of Securitization Assets and any repurchase of Securitization Assets pursuant to a Securitization Purchase Obligation, in each case, in connection with any Qualified Securitization Financing, (r) payments to or from, and transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a result of Investments by Holdings and the Restricted Subsidiaries in such joint venture) in the ordinary course of business to the extent otherwise permitted under
Section 7.02
, and (s) other transactions specifically permitted under this Agreement (including, without limitation, sale/leaseback transactions, Dispositions, Investments and Indebtedness).
SECTION 7.09
Burdensome Agreements
. Enter into or permit to exist any Contractual Obligation (other than this Agreement or any other Loan Document or customary terms in any documentation providing for any Permitted Refinancing thereof) that limits the ability of (a) any Restricted Subsidiary to make Restricted Payments to the Borrower or any Guarantor (other than Holdings) or to otherwise transfer property to or invest in the Borrower or any Guarantor (other than Holdings), or (b) the Borrower or any Loan Party to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Secured Parties with respect to the Facilities and the Obligations under the Loan Documents;
provided
that the foregoing shall not apply to Contractual Obligations which (i) (x) arise under Applicable Law, (y) exist on the date hereof and (to the extent not otherwise permitted by this
Section 7.09
) are listed on
Schedule 7.09
hereto or (z) to the extent Contractual Obligations permitted by
clause (y)
are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted renewal, extension, replacement, restructuring or refinancing of such Indebtedness so long as such renewal, extension, replacement, restructuring or refinancing does not (taken as a whole) materially expand the scope of the restrictions described in
clause (a)
or
(b)
that are contained in such Contractual Obligation (as reasonably determined in good faith by the Borrower), (ii) are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of the Borrower, so long as such Contractual Obligations were not entered into in contemplation of such Person becoming a Restricted Subsidiary of the Borrower, (iii) are restrictions contained in documents governing Indebtedness (and Permitted Refinancings thereof) permitted to be incurred pursuant to
Section 7.03
provided that such restrictions (x) apply solely to Restricted Subsidiaries that are not Guarantors, or (y) are no more restrictive than the limitations (taken as a whole) set forth in the Loan Documents or (z) such encumbrances or restrictions do not materially impair the Borrower’s ability to grant the security interests to the Collateral Agent contemplated by the Loan Documents or pay the Obligations under the Loan Documents as and when due (as reasonably determined in good faith by the Borrower), (iv) arise in connection with any Disposition permitted by
Section 7.05
to the extent relating solely to the assets or Capital Stock that are the subject of such Disposition, (v) are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under
Section 7.02
and applicable solely to such joint venture and the Capital Stock issued thereby, (vi) are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under
Section 7.03
but solely to the extent
any negative pledge relates to the property financed by or the subject of such Indebtedness (and excluding in any event any Indebtedness constituting any Junior Financing) or that expressly permits Liens for the benefit of the Agents and the Lenders with respect to the credit facilities established hereunder and the Obligations under the Loan Documents on a senior basis without the requirement that such holders of such Indebtedness be secured by such Liens on an equal and ratable, or junior, basis, (vii) are customary restrictions in leases, subleases, licenses or asset sale agreements and other similar contracts otherwise permitted hereby so long as such restrictions relate to the assets subject thereto, (viii) comprise restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to
Section 7.03
to the extent that such restrictions apply only to the property or assets securing such Indebtedness, (ix) are customary provisions restricting subletting or assignment of any lease governing a leasehold interest, (x) are customary provisions restricting assignment or transfer of any agreement entered into in the ordinary course of business, (xi) are restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business, (xii) arise in connection with cash or other deposits permitted under
Sections 7.01
and
7.02
and limited to such cash or deposit, (xiii) comprise restrictions imposed by any agreement governing Indebtedness entered into on or after the Closing Date and permitted under
Section 7.03
that are, taken as a whole, in the good faith judgment of the Borrower, no more restrictive with respect to the Borrower or any Restricted Subsidiary than customary market terms for Indebtedness of such type, so long as the Borrower shall have determined in good faith that such restrictions will not adversely affect in any material respect its obligation or ability to make any payments required hereunder, (xiv) are restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business, (xv) are restrictions regarding licensing or sublicensing by Holdings and its Restricted Subsidiaries of IP Rights in the ordinary course of business or that is not adverse to the Lenders in any material respect or that is not related to material IP Rights, (xvii) are restrictions pursuant to the terms of a Qualified Securitization Financing and (xvi) are restrictions on cash earnest money deposits in favor of sellers in connection with acquisitions not prohibited hereunder.
SECTION 7.10
Holdings.
Holdings (i) shall not engage in any material business or material activity other than (1) the ownership of all the outstanding Capital Stock in the Borrower (or, indirectly, other Capital Stock in accordance with
clause (ii)
below) and activities incidental thereto, (2) activities necessary or advisable to consummate the Transactions and (3) corporate maintenance activities (including the payment of taxes and similar administrative expenses associated with being a holding company), (ii) shall not own or acquire any material assets (other than Capital Stock in the Borrower or any immaterial Subsidiary in existence on the Closing Date or, indirectly, other Subsidiaries of the Borrower and cash and Cash Equivalents), (iii) shall not create, incur, assume or permit to exist any Lien on the Capital Stock of the Borrower owned by it, other than Liens under the Loan Documents or non-consensual Liens of the type permitted under
Section 7.01
, (iv) may make any public offering of its common stock or any other issuance of its Capital Stock not prohibited by
Article 7
or constituting a Change of Control, (v) may engage in financing activities, including the issuance of securities, incurrence of debt, payment of dividends not otherwise prohibited by
Section 7.08
, contribute to the capital of the Borrower and its Subsidiaries described in
clause (i)
above and guarantee the obligations of the Borrower and its Subsidiaries described in
clause (i)
above, (vi)
may participate in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and the Borrower, (vii) may provide indemnification to officers and directors, (viii) may engage in activities incidental or reasonably related to the foregoing, and (ix) may engage in any transaction that Holdings is otherwise expressly permitted to enter into or consummate under this
Article 7
.
SECTION 7.11
Amendments of Certain Documents
. Amend or otherwise modify (a) any of its Organizational Documents in a manner material and adverse to the Administrative Agent or the Lenders or (b) any subordination terms of any Junior Financing Documentation in any manner material and adverse to the interests of the Administrative Agent or the Lenders (as reasonably determined in good faith by the Borrower) (unless otherwise permitted by an applicable intercreditor agreement or subordination agreement), in each case without the consent of the Administrative Agent.
SECTION 7.12
Fiscal Year
. Neither the Borrower nor Holdings shall make any change in its fiscal year;
provided, however
, that the Borrower and Holdings may, upon written notice to the Administrative Agent, change its fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement and to the covenants contained herein that are deemed reasonably necessary by the Administrative Agent, and not objected to by the Required Lenders, to reflect such change in fiscal year.
SECTION 7.13
Prepayments, Etc. of Subordinated Indebtedness
. Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (it being understood that payments of regularly scheduled principal and interest and AHYDO payments shall be permitted) (A) any subordinated Material Indebtedness Incurred after the Closing Date that is subordinated in right of payment or lien on the Collateral to the Obligations under the Loan Documents, (B) any Permitted Additional Junior Debt to the extent contractually subordinated in right of payment or lien on the Collateral to the Obligations under the Loan Documents or (C) any Additional Notes that are contractually subordinated in right of payment to the Obligations under the Loan Documents (the Indebtedness described in clauses (A) through (C), collectively, “
Junior Financing
”), except (i) so long as no Event of Default shall have occurred and be continuing or would result therefrom, (x) for an aggregate purchase price not to exceed $200,000,000 plus an amount equal to the Available Amount as in effect immediately prior to the time of the making of such prepayment or (y) the refinancing thereof with the Net Cash Proceeds of any Permitted Refinancing or with Eligible Equity Proceeds that are Not Otherwise Applied, (ii) the conversion of any Junior Financing to Capital Stock (other than Disqualified Capital Stock), (iii) payments in respect of any intercompany indebtedness and (iv) additional prepayments, redemptions, purchases, defeasances or satisfaction; provided that after giving Pro Forma Effect thereto, the Total Leverage Ratio shall not exceed 1.75:1.00 on a Pro Forma Basis as of the last day of the most recent Test Period for which financial statements are internally available.
SECTION 7.14
Total Leverage Ratio
. Except with the written consent of the Required Revolving Lenders, the Borrower shall not permit the Total Leverage Ratio as of the last day of any
Test Period, commencing with the Test Period ending on the last day of the first full fiscal quarter of the Borrower following the Closing Date, to be greater than 4.00:1.00.
Article 8.
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01
Events of Default
.
Any of the following events, acts, occurrences or states of facts shall constitute an “
Event of Default
” for purposes of this Agreement:
(kk)
Failure to Make Payments When Due
. There shall occur a default in the payment of (i) principal on any of the Loans or any reimbursement obligation with respect to any Letter of Credit when due; (ii) interest on any of the Loans or any fee pursuant to
Section 2.09
when due and such default in payment shall continue for five (5) Business Days; or (iii) any other amount owing hereunder or under any other Loan Document when due and such default in payment shall continue for ten (10) days; or
(ll)
Representations and Warranties
. Any representation or warranty made by or on the part of the Borrower, any other Loan Party or the German Borrower, as the case may be, contained in any Loan Document or any document, instrument or certificate delivered pursuant hereto or thereto shall have been incorrect in any material respect when made or deemed made; or
(mm)
Covenants
. The Borrower, the German Borrower or any Loan Party shall (i) default in the performance or observance of any term, covenant, condition or agreement on its part to be performed or observed under
Article VII
hereof or
Sections 6.03(a), 6.05
(as to the Borrower and the German Borrower)
or
6.11,
(ii) default in the due performance or observance by it of any other term, covenant or agreement contained in this Agreement and such default shall continue unremedied for a period of thirty (30) days after written notice thereof has been given to the Borrower by the Administrative Agent;
provided
that any Event of Default as a result of the Borrower’s failure to comply with
Section 7.14
shall not constitute an Event of Default with respect to any of the Term Facilities until the date on which the Required Revolving Lenders have declared all Revolving Loans and related Obligations to be immediately due and payable in accordance with the provisions of
Section 8.02
as a result of the Borrower’s failure to perform or observe any term, covenant or agreement contained in
Section 7.14
and such declaration has not been rescinded; or
(nn)
Default Under Other Loan Documents
. Any Loan Party or the German Borrower shall default in the performance or compliance with any term, covenant, condition or agreement on its part to be performed or observed hereunder or under any Loan Document (and not constituting an Event of Default under any other clause of this
Section 8.01
) and such default shall continue unremedied for a period of thirty (30) days after written notice thereof has been given to the Borrower by the Administrative Agent; or
(oo)
Insolvency Proceedings, Etc.
(i) Any Loan Party, the German Borrower or any of the Material Subsidiaries institutes or consents to, or fails to contest in good faith, the institution
of any involuntary proceeding under any Debtor Relief Law against any Loan Party, the German Borrower or any of the Material Subsidiaries, or makes a general assignment for the benefit of creditors or applies for or consents to, or fails to contest in good faith, the entry of an order for relief or the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all or a substantial part of its property; or (ii) any order for relief is entered in any proceeding under any Debtor Relief Law against any Loan Party, the German Borrower or any of the Material Subsidiaries or any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer is appointed for it or for all or a substantial part of its property or business and such appointment shall remain undischarged or unstayed for a period of sixty (60) days; or (iii) any involuntary proceeding under any Debtor Relief Law shall be instituted against any Loan Party, the German Borrower or any of the Material Subsidiaries without the application or consent of such Person and either such proceeding shall remain undismissed or unstayed for a period of sixty (60) days; or (iv) any Loan Party, the German Borrower or any of the Material Subsidiaries shall take any corporate or other organizational action to authorize any of the actions set forth above in this subsection (e); or
(pp)
Inability to Pay Debts
. Any Loan Party, the German Borrower or any Material Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due; or
(qq)
Default Under Other Agreements
. (i) The Borrower, the German Borrower or any of the Material Subsidiaries shall fail to make any payment beyond the applicable grace period with respect thereto, if any, whether at stated maturity or otherwise, of any amount pursuant to any Material Indebtedness (other than Indebtedness owed to the Lenders under the Loan Documents), or (ii) a default shall occur in the performance or observance of any agreement under any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (with the giving of notice, if required), such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to the stated maturity thereof;
provided
that this clause (g)(ii) shall not apply to (x) secured Indebtedness that becomes due (or requires an offer to purchase) as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness or (y) such Indebtedness that is required to be prepaid upon a “Change of Control” (or equivalent term) so long as on or prior to the date the events constituting such “Change of Control” (or equivalent term) occur, either (I) the terms of such Indebtedness have been amended to eliminate the requirement to make such offer, (II) such Indebtedness has been defeased or discharged so that such requirement shall no longer apply (and, in the event such “Change of Control” (or equivalent term) is subject to a requirement that a specific credit ratings event or similar condition subsequent occur, no Event of Default shall exist until such time as the specific credit ratings event or similar condition subsequent has also occurred resulting in the obligor under such Indebtedness becoming unconditionally obligated to make such offer) or (III) solely in the case of Indebtedness of any Person acquired by the Borrower or any of its Subsidiaries where such “Change of Control” (or equivalent term) under such Indebtedness resulted
from the Borrower or one of its Subsidiary’s acquisition of such Person, (x) the sum of Available Liquidity plus any available debt financing commitments from any Revolving Lender or any Affiliate of a Revolving Lender or any other financial institution of nationally recognized standing available to the Borrower or its Subsidiaries for purposes of refinancing such Indebtedness is at least equal to the aggregate amount that would be required to repay such Indebtedness pursuant to any required “Change of Control offer” (or equivalent term) pursuant to the terms of such Indebtedness at all times prior to the expiration of the rights of the holders of such Indebtedness to require the repurchase or repayment of such Indebtedness as a result of such acquisition and (y) the Borrower or the applicable Subsidiary complies with the provisions of such Indebtedness that are applicable as a result of such acquisition (including by consummating any required “Change of Control offer” (or equivalent term) for such Indebtedness;
provided
,
further
, that this clause (g) shall not apply if such failure is remedied or waived by the holders of such Indebtedness prior to any termination of the Revolving Commitments or acceleration of the Loans pursuant to
Section 8.02
; or
(rr)
Judgments
. One or more judgments or decrees shall be entered against any Loan Party, the German Borrower or any Material Subsidiary for the payment of money in an aggregate amount exceeding $50,000,000 (to the extent not covered by independent third-party insurance company or an indemnitor as to which coverage or indemnification, as the case may be, has not been disclaimed) and there is a period of sixty (60) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(ss)
Collateral Documents
. At any time after the execution and delivery thereof, any of the Collateral Documents shall cease to be in full force and (other than as permitted pursuant to the provisions thereof or hereof) cease to create a valid and perfected lien on and security interest in, any material portion of the Collateral having the lien priority required by this Agreement and the Collateral Documents, except (i) to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent (through no fault of the Loan Parties) to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Documents or to file Uniform Commercial Code continuation statements or (ii) as a result of the sale, release or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents; or
(tt)
ERISA
. An ERISA Event shall occur that would reasonably be expected to have a Material Adverse Effect and the same shall remain undischarged for a period of thirty (30) consecutive days during which period any action shall not be legally taken to attach or levy upon any material assets of any Loan Party to enforce any such liability; or
(uu)
Guaranties
. Any material Guarantee under the Guarantee Agreement shall (other than in accordance with its terms) cease to be in full force and effect in accordance with its terms (other than as permitted pursuant to the terms hereof and thereof), or any material Guarantor shall deny or disaffirm in writing such Guarantor’s obligations under the Guarantee Agreement (other than a discharge of such Guarantor in accordance with the terms of the Loan Documents); or
(vv)
Change of Control
. A Change of Control shall occur.
SECTION 8.02
Remedies Upon Event of Default
.
(a) If any Event of Default occurs and is continuing (other than an Event of Default under
Section 8.01(c)(ii)
as a result of the Borrower’s failure to comply with
Section 7.14
unless the conditions of the proviso contained therein have been satisfied), the Administrative Agent may and, at the request of the Required Lenders, shall take any or all of the following actions:
(i)
declare the Commitments to be terminated, whereupon such Commitments shall be terminated;
(ii)
declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be, whereupon all such sums shall become, immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower and the German Borrower;
(iii)
require that the Borrower Cash Collateralize the L/C Obligations issued and then outstanding (in an amount equal to the then stated amount thereof); and
(iv)
exercise
on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law;
provided
that upon the occurrence of an Event of Default under
Section 8.01(e)
or
(f)
with respect to the Borrower or the German Borrower, the obligation of each Lender to make Loans and any L/C Obligations (and the Commitments) shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable without notice of any kind, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
(b) If any Event of Default under
Section 8.01(c)(ii)
as a result of the Borrower’s failure to comply with
Section 7.14
occurs and is continuing, the Administrative Agent may and, at the request of the Required Revolving Lenders, shall take any or all of the following actions:
(i) declare the commitment of each Lender to make Revolving Loans and Swing Line Loans and any L/C Obligations to be terminated, whereupon such commitments and obligation shall be terminated;
(ii) declare the unpaid principal amount of all outstanding Revolving Loans and Swing Line Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document under or in respect of the Revolving Facility to be immediately due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(iii) require that the Borrower Cash Collateralize the outstanding L/C Obligations; and
(iv) exercise on behalf of itself and the Revolving Lenders all rights and remedies available to it and the Revolving Lenders under the Loan Documents or applicable Laws, in each case under or in respect of the Revolving Facilities.
SECTION 8.03
Application of Funds
. After the exercise of remedies provided for in
Section 8.02
(or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in
Section 8.02
), including in any bankruptcy or insolvency proceeding, any amounts received on account of the Obligations shall be applied by the Administrative Agent in accordance with
Section 6.02
of the Security Agreement.
SECTION 8.04
Rights not Exclusive
. The rights provided for in this Agreement and the other Loan Documents are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by law or in equity, or under any other instrument, document or agreement now existing or hereafter arising.
Article 9.
ADMINISTRATIVE AGENT AND OTHER AGENTS
SECTION 9.01
Appointment of Agents.
Goldman Sachs is hereby appointed the Administrative Agent and the Collateral Agent hereunder and under the other Loan Documents and each Lender hereby authorizes Goldman Sachs to act as the Administrative Agent and the Collateral Agent in accordance with the terms hereof and the other Loan Documents. Deutsche Bank Securities Inc. is hereby appointed as the Syndication Agent hereunder, and each Lender hereby authorizes Deutsche Bank Securities Inc. to act as the Syndication Agent in accordance with the terms hereof and the Loan Documents. Bank of America, N.A. and HSBC Securities (USA) Inc. are hereby appointed Documentation Agents hereunder, and each Lender hereby authorizes Bank of America, N.A. and HSBC Securities (USA) Inc. to act as Documentation Agents in accordance with the terms hereof and the other Loan Documents. Each Agent hereby agrees to act in its capacity as such upon the express conditions contained herein and the other Loan Documents, as applicable. The provisions of this
Article 9
are solely for the benefit of the Agents and Lenders and no Loan Party or the German Borrower shall have any rights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, each Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Holdings or any of its Subsidiaries. Each of the Syndication Agent and Documentation Agents, without consent of or notice to any party hereto, may assign any and all of its rights or obligations hereunder to any of its Affiliates. As of the Closing Date, neither Deutsche Bank Securities, Inc. in its capacity as the Syndication Agent, nor Bank of America, N.A. or HSBC Securities (USA)
Inc. in their respective capacities as the Documentation Agents, shall have any obligations but shall be entitled to all benefits of this
Article 9
. Each of the Syndication Agent and Documentation Agents may resign from such role at any time, with immediate effect, by giving prior written notice thereof to the Administrative Agent and the Borrower.
SECTION 9.02
Powers and Duties
.
Each Lender irrevocably authorizes each Agent to take such action on such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other Loan Documents as are specifically delegated or granted to such Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each Agent shall have only those duties and responsibilities that are expressly specified herein and the other Loan Documents. Each Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the other Loan Documents, a fiduciary relationship in respect of any Lender or any other Person; and nothing herein or any of the other Loan Documents, expressed or implied, is intended to or shall be so construed as to impose upon any Agent any obligations in respect hereof or any of the other Loan Documents except as expressly set forth herein or therein.
SECTION 9.03
General ImmunityNo Responsibility for Certain Matters
. No Agent shall be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency hereof or any other Loan Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by any Agent to the Lenders or by or on behalf of any Loan Party or the German Borrower to any Agent or any Lender in connection with the Loan Documents and the transactions contemplated thereby or for the financial condition or business affairs of any Loan Party, the German Borrower or any other Person liable for the payment of any Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Loan Documents or as to the use of the proceeds of the Loans or as to the existence or possible existence of any Event of Default or Default or to make any disclosures with respect to the foregoing. Anything contained herein to the contrary notwithstanding, the Administrative Agent shall not have any liability arising from confirmations of the amount of outstanding Loans or the L/C Obligations or the component amounts thereof.
(x)
Exculpatory Provisions
. No Agent nor any of its officers, partners, directors, employees or agents shall be liable to the Lenders for any action taken or omitted by any Agent under or in connection with any of the Loan Documents except to the extent caused by such Agent’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. Each Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Loan Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from the Required Lenders (or such other Lenders as may be required to give such instructions under
Section 10.01
) and, upon receipt of such instructions from the Required Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions, including for the avoidance of doubt refraining from any action that, in its opinion or the opinion of its counsel, may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law. Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for Holdings and its Subsidiaries), accountants, experts and other professional advisors selected by it; and (ii) no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder or any of the other Loan Documents in accordance with the instructions of the Required Lenders (or such other Lenders as may be required to give such instructions under
Section 10.01
).
(y)
Delegation of Duties
. The Administrative Agent may perform any and all of its duties and exercise its rights and powers under this Agreement or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory, indemnification and other provisions of this
Section 9.03
and of
Section 9.06
and
Section 10.05
shall apply to any Affiliates of the Administrative Agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. All of the rights, benefits, and privileges (including the exculpatory and indemnification provisions) of this
Section 9.03
and of
Section 9.06
and
Section
10.05
shall apply to any such sub-agent and to the Affiliates of any such sub-agent, and shall apply to their respective activities as sub-agent as if such sub-agent and Affiliates were named herein. Notwithstanding anything herein to the contrary, with respect to each sub-agent appointed by the Administrative Agent, (i) such sub-agent shall be a third party beneficiary under this Agreement with respect to all such rights, benefits and privileges (including exculpatory rights and rights to indemnification) and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such rights, benefits and privileges (including exculpatory rights and rights to indemnification) directly, without the consent or joinder of any other Person, against any or all of Loan Parties, the German Borrower and the Lenders, (ii) such rights, benefits and privileges (including exculpatory rights and rights to indemnification) shall not be modified or amended without the consent of such sub-agent, and (iii) such sub-agent shall only have obligations to the Administrative Agent and not to any Loan Party, Lender or any other Person and no Loan Party, Lender or any other Person shall have any rights, directly or indirectly, as a third party beneficiary or otherwise, against such sub-agent.
SECTION 9.04
Agents Entitled to Act as Lender
.
The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Loans and the Letters of Credit, each Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as if it were not performing the duties and functions delegated to it hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity. Any Agent and its Affiliates may accept deposits from, lend money to, own securities of, and generally engage in any kind of banking, trust, financial advisory or other business with Holdings or any of its Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from the Borrower or the German Borrower for services in connection herewith and otherwise without having to account for the same to the Lenders.
SECTION 9.05
Lenders’ Representations, Warranties and Acknowledgment
Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of Holdings and its Subsidiaries in connection with Credit Extensions hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Holdings and its Subsidiaries. No Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of the Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to the Lenders.
(a)
Each Lender, by delivering its signature page to this Agreement or
an Assignment and Assumption or a Joinder Agreement and funding its U.S. Term Loans, Euro Term Loans and/or Revolving Loans on the Closing Date or by the funding of any Delayed Draw Term Loans or Additional Loans
,
as the case may be, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be approved by any Agent, the Required Lenders or the Lenders, as applicable on the Closing Date
or as of the date of funding of such Delayed Draw Term Loans and Additional Loans.
(b)
Each Lender acknowledges that the Borrower may purchase Term Loans hereunder from the Lenders from time to time, subject to the restrictions set forth in the definition of “Eligible Assignee” and in
Section 10.07
.
SECTION 9.06
Right to Indemnity
.
Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify each Agent, to the extent that such Agent shall not have been reimbursed by any Loan Party or the German Borrower, for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent in exercising its powers, rights and remedies or performing its duties hereunder or under the other Loan Documents or otherwise in its capacity as such Agent in any way relating to or arising out of this Agreement or the other Loan Documents;
provided
, no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements resulting from such Agent’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished;
provided
, in no event shall this sentence require any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and
provided
further
, this sentence shall not be deemed to require any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.
SECTION 9.07
Successor Administrative Agent, Collateral Agent and Swing Line Lender.
(a)
The Administrative Agent shall have the right to resign at any time by giving 30 days’ prior written notice thereof to the Lenders and the Borrower and the Administrative Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Borrower and the Administrative Agent and signed by the Required Lenders. The Administrative Agent shall have the right to appoint a financial institution to act as the Administrative Agent and/or Collateral Agent hereunder, subject to the reasonable satisfaction of the Borrower and the Required Lenders, and the Administrative Agent’s resignation shall become effective on the earliest of (i) 30 days after delivery of the notice of resignation (regardless of whether a successor has been appointed or not), (ii) the acceptance of such successor Administrative Agent by the Borrower and the Required Lenders or (iii) such other date, if any, agreed to by the Required Lenders. Upon any such notice of resignation or any such removal, the Required Lenders shall have the right, with the Borrower’s consent (not to be unreasonably withheld or delayed), to appoint a successor Administrative Agent;
provided
that Borrower consent shall not be required if an Event of Default pursuant to
Section 8.01(a)
,
(e)
or
(f)
has occurred and is continuing. If neither the Required Lenders nor the Administrative Agent have appointed a successor Administrative Agent (consented to by the Borrower, if applicable), the Required Lenders shall be deemed to have succeeded to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent;
provided
that, until a successor Administrative Agent is so appointed by the Required Lenders or the Administrative Agent, any collateral security held by the Administrative Agent in its role as Collateral Agent on behalf of the Lenders or L/C Issuers under any of the Loan Documents shall continue to be held by the retiring Collateral Agent as nominee until such time as a successor Collateral Agent is appointed. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent and the retiring or removed Collateral Agent shall promptly (i) transfer to such successor Administrative Agent all sums, securities and other items of Collateral held under the Collateral Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Administrative Agent under the Loan Documents, and (ii) execute and deliver to such successor Administrative Agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Administrative
Agent of the security interests created under the Collateral Documents, whereupon such retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder. Except as provided above, any resignation or removal of Goldman Sachs or its successor as Administrative Agent pursuant to this
Section 9.07
shall also constitute the resignation or removal of Goldman Sachs or its successor as Collateral Agent. After any retiring or removed Administrative Agent’s resignation or removal hereunder as the Administrative Agent, the provisions of this
Article 9
shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent hereunder. Any successor Administrative Agent appointed pursuant to this
Section 9.07
shall, upon its acceptance of such appointment, become the successor Collateral Agent for all purposes hereunder.
(b)
In addition to the foregoing, Collateral Agent may resign at any time by giving 30 days’ prior written notice thereof to the Lenders and the Borrower, and the Collateral Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Borrower and the Collateral Agent signed by the Required Lenders. Administrative Agent shall have the right to appoint a financial institution as the Collateral Agent hereunder, subject to the reasonable satisfaction of the Borrower and the Required Lenders and the Collateral Agent’s resignation shall become effective on the earliest of (i) 30 days after delivery of the notice of resignation, (ii) the acceptance of such successor Collateral Agent by the Borrower and the Required Lenders or (iii) such other date, if any, agreed to by the Required Lenders. Upon any such notice of resignation or any such removal, the Required Lenders shall have the right, with the Borrower’s consent (not to be unreasonably withheld or delayed), to appoint a successor Collateral Agent;
provided
that Borrower consent shall not be required if an Event of Default pursuant to
Section 8.01(a)
,
(e)
or
(f)
has occurred and is continuing. Until a successor Collateral Agent is so appointed by the Required Lenders or the Administrative Agent, any collateral security held by the Collateral Agent on behalf of the Lenders or L/C Issuers under any of the Loan Documents shall continue to be held by the retiring Collateral Agent as nominee until such time as a successor Collateral Agent is appointed. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent under this Agreement and the Collateral Documents, and the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such successor Collateral Agent all sums, securities and other items of Collateral held hereunder or under the Collateral Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement and the Collateral Documents, and (ii) execute and deliver to such successor Collateral Agent or otherwise authorize the filing of such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Collateral Agent of the security interests created under the Collateral Documents, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement and the Collateral Documents. After any retiring or removed Collateral Agent’s resignation or removal hereunder as the Collateral Agent, the provisions of this Agreement and the Collateral Documents shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement or the Collateral Documents while it was the Collateral Agent hereunder.
(c)
Any resignation or removal of Goldman Sachs or its successor as the Administrative Agent pursuant to this
Section 9.07
shall also constitute the resignation or removal of Goldman Sachs or its successor as the Swingline Lender, and any successor Administrative Agent appointed pursuant to this
Section 9.07
shall, upon its acceptance of such appointment, become the successor Swingline Lender for all purposes hereunder. In such event (a) the Borrower shall prepay any outstanding Swingline Loans made by the retiring or removed Administrative Agent in its capacity as Swingline Lender, (b) upon such prepayment, the retiring or removed Administrative Agent and Swingline Lender shall surrender any Swingline Note held by it to Borrower for cancellation, and (c) the Borrower shall issue, if so requested by the successor Administrative Agent and Swingliine Lender, a new Swingline Note to the successor Administrative Agent and Swingline Lender, in the principal amount of the Swingline Sublimit then in effect and with other appropriate insertions.
SECTION 9.08
Collateral Documents and GuarantyAgents under Collateral Documents and Guaranty
. Each Secured Party hereby further authorizes the Administrative Agent or the Collateral Agent, as applicable, on behalf of and for the benefit of Secured Parties, to be the agent for and representative of the Secured Parties with respect to the Guarantee Agreement, the Collateral and the Collateral Documents;
provided
that neither the Administrative Agent nor the Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Hedging Obligations. Subject to
Section 10.01
, without further written consent or authorization from any Secured Party, the Administrative Agent or the Collateral Agent, as applicable may, and each Lender, on behalf of themselves and their respective Affiliates as Secured Bank Product Providers, irrevocably authorizes and directs the Administrative Agent and the Collateral Agent to enter into the Security Agreement and any customary intercreditor agreements as required herein for the benefit of the Lenders and the other Secured Parties, and to execute any documents or instruments necessary to (i) in connection with a sale or disposition of assets permitted by this Agreement or the designation of a Guarantor as an Unrestricted Subsidiary in accordance with
Section 6.12
, release any Lien encumbering any item of Collateral that is the subject of such sale or other disposition of assets or to which the Required Lenders (or such other Lenders as may be required to give such consent under
Section 10.01
) have otherwise consented, or if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under this
Section 9.08
, or (ii) release any Guarantor from the Guarantee Agreement pursuant to
Section 12
of the Guarantee Agreement or with respect to which the Required Lenders (or such other Lenders as may be required to give such consent under
Section 10.01
) have otherwise consented or if such Person otherwise ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Loan Documents or (iii) to subordinate any Lien on any property granted to or held by the Administrative Agent or Collateral Agent under any Loan Document in lieu of any release permitted pursuant to this
Section 9.08
, and the Administrative Agent or Collateral Agent, as applicable, may subordinate any such Liens on the Collateral to another Lien permitted under
Section 7.01
that the Administrative Agent or Collateral Agent, as applicable, determines in its commercially reasonable judgment was intended by operation of Law or otherwise to be subordinate to another Lien permitted under
Section 7.01
.
(a)
Right to Realize on Collateral and Enforce Guaranty
. Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Administrative Agent, the
Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Loan Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit of the Secured Parties in accordance with the terms hereof and thereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (ii) in the event of a foreclosure or similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition (including, without limitation, pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Collateral Agent at such sale or other disposition.
(b)
Release of Collateral and Guarantees, Termination of Loan Documents
. Notwithstanding anything to the contrary contained herein or any other Loan Document, when all Obligations (other than (i) contingent indemnity obligations that are not due and payable and (ii) obligations and liabilities in respect of any Bank Products or Designated Credit Lines) have been paid in full, all Commitments have terminated or expired and no Letter of Credit shall be outstanding (except to the extent Cash Collateralized or as to which other arrangements reasonably satisfactory to the Administrative Agent and the L/C Issuer shall have been made), all obligations under the Loan Documents and all security interests created by the Loan Documents and the guarantees made herein shall automatically terminate and, upon request of the Borrower, the Administrative Agent shall (without notice to, or vote or consent of, any Secured Bank Product Provider or Designated Credit Line Provider) take such actions as shall be required to release its security interest in all Collateral, and to release all guarantee obligations provided for in any Loan Document, whether or not on the date of such release there may be outstanding Obligations in respect of Bank Products or Designated Credit Lines. Any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
(c)
The Collateral Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared
by any Loan Party in connection therewith, nor shall the Collateral Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
SECTION 9.09
Withholding Taxes
.
To the extent required by any Applicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If any payment has been made to any Lender by the Administrative Agent without the applicable withholding Tax being withheld from such payment and the Administrative Agent has paid over the applicable withholding Tax to the IRS or any other Governmental Authority, or the IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding Tax ineffective or for any other reason, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this
Section 9.09
. The agreements in this
Section 9.09
shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
SECTION 9.10
Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim
. In case of the pendency of any proceeding under any Debtor Relief Laws relative to any Loan Party or the German Borrower, the Administrative Agent (irrespective of whether the principal of any Loan or Obligation under a Letter of Credit shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(a)
to file a verified statement pursuant to rule 2019 of the Federal Rules of Bankruptcy Procedure that, in its sole opinion, complies with such rule’s disclosure requirements for entities representing more than one creditor;
(b)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its respective agents and counsel and all other amounts due the Administrative Agent under
Sections
2.03
,
2.04
,
2.09
,
10.04
and
10.05
) allowed in such judicial proceeding; and
(c)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under
Sections
2.09
,
10.04
and
10.05
. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Administrative Agent, its agents and counsel, and any other amounts due the Administrative Agent under
Sections
2.09
,
10.04
and
10.05
. out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Lenders or L/C Issuers may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
SECTION 9.11
Secured Bank Product Provider
(a)
s and Designated Credit Line Providers
.
Each Secured Bank Product Provider, by its acceptance of the benefits of the Collateral, and each Designated Credit Line Provider, by its delivery to the Administrative Agent of notice of its provision of a Designated Credit Line and its acceptance of the benefits of the Collateral, as applicable, agrees to be bound by
Section 6.02
of the Security Agreement and this
Article 9
. Each Secured Bank Product Provider and each Designated Credit Line Provider shall indemnify and hold harmless each Agent and each of its directors, officers, employees, or agents, to the extent not reimbursed by the Loan Parties or the German Borrower, against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against such Agent or its directors, officers, employees, or agents in connection with such provider’s Secured Bank Product Obligations or Designated Credit Lines, as applicable;
provided
,
however
, that no Secured Bank Product Provider or Designated Credit Line Provider shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. No Swap Contract, other Bank Product agreement or Designated Credit Line will create (or be deemed to create)
in favor of any Secured Bank Product Provider or Designated Credit Line Provider, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Loan Documents. By accepting the benefits of the Collateral, each such Secured Bank Product Provider and Designated Credit Line
Provider shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Loan Documents as a Secured Party, subject to the limitations set forth in this
Section 9.11
.
Article 10.
MISCELLANEOUS
SECTION 10.01
Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower, any other Loan Party or the German Borrower therefrom, shall be effective unless (x) in the case of any amendment necessary or reasonably advisable to implement the terms of any Additional Term Loans, Additional Revolving Loans or Extension Offers, as applicable, in accordance with the terms hereof, in writing signed solely by the Borrower, the German Borrower, the Administrative Agent and the relevant Additional Term Lenders, Additional Revolving Lenders or Lenders accepting such Extension Offer, as applicable, and (y) in the case of any other amendment, in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders), the Administrative Agent and the Borrower, the German Borrower or the applicable Loan Party, as the case may be, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given;
provided
that no such amendment, waiver or consent shall:
(f)
change the stated currency in which any Lender is required to make Loans or the Borrower or the German Borrower is required to make payments of principal, interest, fees or other amounts hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby;
(g)
extend or increase the Commitment of any Lender without the written consent of each Lender directly and adversely affected thereby (it being understood that a waiver of any condition precedent set forth in
Section 4.01
or
Section 4.02
, or the waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender);
(h)
postpone any date scheduled for any payment of principal (including final maturity) or interest under
Section 2.07
or
Section 2.08
or fees under
Section 2.09
, without the written consent of each Lender directly and adversely affected thereby (it being understood that the waiver (or amendment to the terms of) of any mandatory prepayment of the Loans, any obligation of the Borrower or the German Borrower to pay interest at the Default Rate, or any Default or Event of Default shall not constitute such a postponement of any date scheduled for the payment of principal, interest or fees and it further being understood that any change to the definition of “Total Leverage Ratio” or the component definitions thereof shall not constitute a postponement of such scheduled payment);
(i)
reduce or forgive the principal of, or the rate of interest specified herein on any Loan or (subject to
clause (i)
of the second proviso to this
Section 10.01
) any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender directly and adversely affected thereby (it being understood that any change to the definition of
“Total Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in any rate of interest);
provided
that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower or the German Borrower to pay interest at the Default Rate;
(j)
change any provision of this
Section 10.01
or the definition of “Required Lenders”, “Required Revolving Lenders”, or any other provision hereof specifying the number or percentage of Lenders (but only to the extent reducing such number or percentage) required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender (it being understood that, with the consent of the Required Lenders or Required Revolving Lenders, as applicable, (if such consent is otherwise required) or the Administrative Agent (if the consent of the Required Lenders or Required Revolving Lenders is not otherwise required), additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders or Required Revolving Lenders, as applicable, on substantially the same basis as the Term Commitments or Revolving Commitments, as applicable);
(k)
change the definition of “Pro Rata Share”,
Section 2.12(a)
,
Section 2.13
,
Section 8.03
or
Section 6.02
of the Security Agreement in any manner that would alter the pro rata sharing of payments or other amounts required thereby without the written consent of Lenders holding more than 50% of the outstanding Loans and Commitments of each Class directly and adversely affected thereby;
provided
that the portion of the Total Outstandings held or deemed held by any Defaulting Lender shall be excluded for purposes of making such determination;
provided
further that modifications to
Sections 2.12(a)
,
2.13
or
8.03
,
Section 6.02
of the Security Agreement or the definition of “Pro Rata Share” in connection with (x) any buy back of Term Loans by the Borrower pursuant to
Section 10.07(j)
, (y) any amendment pursuant to
Section 2.14
or (z) any amendment effectuating an Incremental Equivalent Term Indebtedness, in each case, shall only require approval (to the extent any such approval is otherwise required) of the Required Lenders; or
(l)
release all or substantially all of the Collateral or release any material Guarantor from its obligations under the Guarantee Agreement in any transaction or series of related transactions except as expressly provided in the Loan Documents (including a transaction permitted under
Section 7.04
or
Section 7.05
), without the written consent of each Lender directly and adversely affected thereby;
and
provided further
that (i) no amendment, waiver or consent shall, unless in writing and signed by any L/C Issuer (in addition to the Lenders required above), directly and adversely affect the rights or duties of such L/C Issuer under this Agreement or any L/C Application relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition to the Lenders required above, directly and adversely affect the rights or duties of the Swingline Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, directly and adversely affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent under this Agreement or any other Loan Document, (iv)
Section 10.07(g)
may not be amended, waived or otherwise modified without the
consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification, (v) only the consent of the Required Revolving Lenders shall be necessary to amend or waive the terms and provisions of
Section 7.14
,
Section 8.01(c)
(solely as it relates to
Section 7.14
), and related definitions, if any, solely as used in such Sections, but not as used in other Sections of this Agreement and no such amendment or waiver of any such terms or provisions (and such related definitions) shall be permitted without the consent of the Required Revolving Lenders, and (vi) in connection with an amendment that addresses solely a re-pricing transaction in which any tranche of Term Loans is refinanced with a replacement tranche of term loans that bear (or is modified in such a manner such that the resulting term loans bear) a lower effective yield (a “
Permitted Repricing Amendment
”), only the consent of the Lenders holding Term Loans subject to such permitted repricing transaction that will continue as Lenders in respect of the repriced tranche of Term Loans or modified Term Loans shall be required for such Permitted Repricing Amendment but any such non-continuing Lender shall be entitled to any applicable fee under
Section 2.09(d)
as if such non-continuing Lender was a Non-Consenting Lender. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each directly and adversely affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, the Borrower and the German Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
Notwithstanding anything to the contrary contained in
Section 10.01
but without limitation of
Section 2.15
, in the event that the Borrower request that this Agreement be modified or amended in a manner that would require the unanimous consent of all of the Lenders or of all the Lenders directly and adversely affected thereby and such modification or amendment is agreed to by the Required Lenders, then with the consent of the Borrower, the German Borrower and the Required Lenders, the Borrower, the German Borrower and the Required Lenders shall be permitted to amend the Agreement without the consent of the Non-Consenting Lenders to provide for (a) the termination of the Commitment of each Non-Consenting Lender that are (x) Revolving Lenders, (y) Term Lenders or (z) both, at the election of the Borrower, the German Borrower and the Required Lenders, (b) the addition to this Agreement of one or more other financial institutions (each of which shall be an Eligible Assignee), or an increase in the Commitment of one or more of the Required Lenders (with the written consent thereof), so that the total Commitment after giving effect to such
amendment shall be in the same amount as the total Commitment immediately before giving effect to such amendment, (c) if any Loans are outstanding at the time of such amendment, the making of such additional Loans by such new financial institutions or Required Lender or Lenders, as the case may be, as may be necessary to repay in full with accrued interest, at par, the outstanding Loans of the Non-Consenting Lenders immediately before giving effect to such amendment and (d) such other modifications to this Agreement as may be appropriate to effect the foregoing
clauses (a)
,
(b)
and
(c)
.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Borrower and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all or a portion of the outstanding Term Loans of any Class (“
Refinanced Term Loans
”) with one or more tranches of replacement term loans (“
Replacement Term Loans
”) hereunder;
provided
that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans (plus accrued interest, fees, expenses and premium), (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans unless the maturity of the Replacement Term Loans is at least one year later than the maturity of the Refinanced Term Loans, (c) the Weighted Average Life to Maturity of Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans, at the time of such refinancing (except by virtue of amortization or prepayment of the Refinanced Term Loans prior to the time of such incurrence) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable (taken as a whole) to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest Maturity Date of the Term Loans in effect immediately prior to such refinancing.
Notwithstanding anything to the contrary contained in this
Section 10.01
, guarantees, collateral security documents and related documents executed by Subsidiaries in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended and waived with the consent of the Administrative Agent at the request of the Borrower, without the need to obtain the consent of any Lender, if such amendment or waiver is delivered in order (i) to comply with local law or advice of local counsel or (ii) to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents.
Further, notwithstanding anything to the contrary contained in
Section 10.01
, if at any time after the Closing Date, the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof.
Further, the Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Loan Party or the German Borrower in any case shall entitle any Loan Party or the German Borrower to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this
Section 10.01
shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by a Loan Party, on such Loan Party, and, if signed by the German Borrower, the German Borrower.
SECTION 10.02
Notices and Other Communications; Facsimile Copies
.
(z)
General
. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or any other Loan Document shall be in writing (including by facsimile transmission). All such written notices shall be delivered by hand or overnight courier service, mailed by certified or registered mail, faxed or delivered to the applicable address, facsimile number or (subject to
Section 10.02(c)
) electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)
if to the Borrower, the German Borrower, or any other Loan Party, or the Administrative Agent, any L/C Issuer or the Swingline Lender, to the address, facsimile number, electronic mail address or telephone number specified for such Person on
Schedule 10.02
or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties (provided that any notices to the German Borrower may be delivered to the Borrower as representative for the German Borrower); and
(ii)
if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower) or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the Borrower and the Administrative Agent, the L/C Issuer and the Swingline Lender.
All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient); and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of
Section 10.02(c)
), when delivered;
provided
that notices and other communications to the Administrative Agent, the L/C Issuer and the Swingline Lender pursuant to
Article 2
shall
not be effective until actually received by such Person;
provided, further
, any such notice or other communication shall at the request of Administrative Agent be provided to any sub-agent appointed pursuant to
Section 9.03(c)
as designated by Administrative Agent from time to time. In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder. Notices and other communications delivered through electronic communications to the extent provided in
subsection (b)
below, shall be effective as provided in such
subsection (b)
.
(aa)
Electronic Communications
. Notices and other communications to any Agent, the Lenders, the Swingline Lender and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e‑mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by the Administrative Agent,
provided
that the foregoing shall not apply to notices to any Agent, any Lender, any Swingline Lender or any applicable L/C Issuer pursuant to
Article 2
if such Person has notified the Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it,
provided
that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing
clause (i)
of notification that such notice or communication is available and identifying the website address therefor;
provided
that, for both
clauses (i)
and
(ii)
, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
(bb)
Effectiveness of Facsimile Documents and Signatures
. Loan Documents may be transmitted and/or signed by facsimile or other electronic transmission (e.g., portable document format (“pdf”)). The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually signed originals and shall be binding on all Loan Parties, the German Borrower, the Agents and the Lenders. The Administrative Agent may also require that any such documents and signatures be confirmed by a manually signed original thereof;
provided
that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature.
(cc)
The Platform
. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY
RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent, the Collateral Agent or any of their respective Related Parties (collectively, the “
Agent Parties
”) have any liability to the Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s, the German Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials through the Internet except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence, bad faith, material breach or willful misconduct of the Administrative Agent, the Collateral Agent, their controlled Affiliates or any of their respective officers, directors, employees, agents, controlling persons or members;
provided
,
however
, that in no event shall any Person have any liability to any other Person hereunder for indirect, special, incidental, exemplary, consequential or punitive damages (as opposed to direct or actual damages);
provided
that nothing in this sentence shall limit any Loan Party’s indemnification obligations set forth herein.
(dd)
Change of Address, Etc
. The Borrower, the German Borrower and the Administrative Agent may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Agent, each L/C Issuer and each Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Borrower or the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and Applicable Law, including United States federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States federal or state securities laws.
(ee)
Reliance by Agents and Lenders
. The Agents and the Lenders shall be entitled to rely and act upon any notices (including electronic Committed Loan Notices) purportedly given by or on behalf of the Borrower or the German Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower and the German Borrower shall indemnify the Agent Parties and each Lender from all actual losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower or the German Borrower in accordance with
Section 10.05
. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
SECTION 10.03
No Waiver; Cumulative Remedies; Enforcement
. No failure by any Agent or any Lender to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall impair such power, right or privilege or operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and shall be in addition to and independent of any rights, remedies, powers and privileges provided by Law or any of the other Loan Documents.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties, the German Borrower or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with
Section 8.02
for the benefit of all the Lenders;
provided
,
however
, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with
Section 10.09
(subject to the terms of
Section 2.13
), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party or the German Borrower under any Debtor Relief Law; and
provided
,
further
, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to
Section 8.02
and (ii) in addition to the matters set forth in
clauses (b)
,
(c)
and
(d)
of the preceding proviso and subject to
Section 2.13
, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
SECTION 10.04
Attorney Costs, Expenses and Taxes
. The Borrower agrees upon and following the Closing Date (a) to pay or reimburse the Administrative Agent, the Collateral Agent, the Arrangers and their respective Affiliates for all reasonable out-of-pocket costs and expenses incurred in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents, and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the Transactions contemplated hereby or thereby shall be consummated), and the consummation and administration of the Transactions contemplated hereby and thereby (in the case of legal fees and expenses, limited to reasonable fees, charges and disbursements of one primary counsel for the Administrative Agent, the Collateral Agent, the Arrangers and their respective Affiliates, and such other local counsel in each Material Real Property jurisdiction as reasonably necessary (and other counsel retained with the Borrower’s consent), unless the interests of the Administrative Agent and the Lenders are in actual or perceived conflict, in which case one (1) additional counsel may be appointed for the affected Persons (taken as a whole)), and (b) to pay or reimburse the Administrative Agent, the Collateral Agent, the Arrangers and each Lender for all reasonable out-of-pocket costs and expenses incurred in connection with the enforcement or protection of any rights or remedies under this Agreement or the other Loan
Documents or in connection with the Loans made (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law or during any workout, restructuring or negotiations in respect of such Loans) (in the case of legal fees and expenses, limited to reasonable fees, charges and disbursements of one primary counsel for the Administrative Agent, the Collateral Agent, the Arrangers and the Lenders, such other local counsel as is reasonably necessary, and, in the case of an actual or perceived conflict of interest where the Person affected by such conflict notifies the Borrower of the existence of such conflict, of another firm of counsel for such affected Persons. The foregoing costs and expenses shall include all reasonable search, filing, recording, title insurance and appraisal charges and fees, and other reasonable out-of-pocket expenses incurred by any Agent but, with respect to clause (a) shall not include the expenses and fees of any other consultants or advisors without the prior consent of the Borrower. All amounts due under this
Section 10.04
shall be paid promptly (but in any event within 30 days) following receipt by the Borrower of a written invoice relating thereto setting forth such expenses in reasonable detail. The agreements in this
Section 10.04
shall survive the termination of the Commitments and repayment of all other Obligations. If any Loan Party or the German Borrower fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, upon 5 Business Days’ prior written notice such amount may be paid on behalf of such Loan Party or the German Borrower by the Administrative Agent, the Collateral Agent, any Arranger or any Lender, in its sole discretion. This
Section 10.04
shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
SECTION 10.05
Indemnification by the Borrower
.
(a)
In addition to the payment of expenses pursuant to
Section 10.04
, whether or not the Transactions shall be consummated, Holdings and its Subsidiaries shall indemnify and hold harmless each Agent-Related Person, each Arranger, each L/C Issuer, each Lender and their respective Affiliates, and the respective directors, officers, employees, counsel, agents, members, controlling persons, attorneys-in-fact, trustees, advisors and other representative, permitted assign and successor of each of the foregoing (collectively, the “
Indemnitees
”) from and against any and all liabilities, any and all losses, damages, and claims and reasonable and documented or invoiced out-of-pocket fees and expenses incurred in connection with investigating or defending any of the foregoing (including Attorney Costs (which shall be limited to one (1) counsel to the Administrative Agent and the Lenders (plus one local counsel to the Administrative Agent and the Lenders in each appropriate jurisdiction), and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict notifies the Borrower of the existence of such conflict, of another firm of counsel for such affected Indemnitees) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the Transactions, including the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the Transactions contemplated thereby or the consummation of the Transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (c) any actual or
alleged presence or release of Contaminants on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any inquiry or investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is instituted by a third party or by Borrower, Holdings, Holdings’ equity holders, Affiliates, creditors or any other Loan Party) (all the foregoing, collectively, the “
Indemnified Liabilities
”);
provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, losses, damages, claims, fees or expenses (x) have been determined in the final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its controlled Affiliates, or their respective officers, directors, employees, agents, advisors or controlling persons or members, (y) arise from a material breach of any Loan Document (as determined by a court of competent jurisdiction in a final non-appealable judgment) by any such Indemnitee or its controlled Affiliates, or their respective officers, directors, employees, agents, advisors or controlling persons or members or (z) arise from any claim, litigation, investigation or proceeding (including any inquiry or investigation) that does not involve an act or omission by Borrower or any of its Affiliates and that is brought by an Indemnitee against any other Indemnitee (other than in connection with the a Person acting in its capacity as an Arranger, Swingline Lender, L/C Issuer, Administrative Agent or any other Agent or co-agent (if any) designated by the Arrangers, in each case in their respective capacities as such, or an Agent solely in connection with its syndication activities as contemplated hereunder). By accepting the benefits of this
Section 10.05
, each Indemnitee agrees to refund and return any and all amounts paid by the Borrower to such Indemnitee to the extent there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to clauses (x), (y) or (z) of the foregoing sentence. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through telecommunications, electronic or other information transmission systems (including IntraLinks) in connection with this Agreement except to the extent such damages have resulted from the willful misconduct, bad faith, gross negligence or material breach of such party or any of its affiliates or related parties, as determined in a final, non-appealable judgment of a court of competent jurisdiction. In the case of an investigation, litigation or other proceeding to which the indemnity in this
Section 10.05
applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, shareholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the Transactions contemplated hereunder or under any of the other Loan Documents is consummated. The Borrower shall not be liable for any settlement in connection with any Indemnified Liabilities effected without the Borrower’s written consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s written consent or if there is a final judgment against such Indemnitee, the Borrower agrees to indemnify and hold harmless each Indemnitee from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements by reason of such settlement or judgment in accordance with the other provisions of this
Section 10.05
. The Borrower shall not, without the prior written consent of any Indemnitee (which consent shall not
be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (a) such settlement includes an unconditional release of such Indemnitee in form and substance reasonably satisfactory to such Indemnitee from all liability on claims that are the subject matter of such proceedings and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnitee.
(b)
All amounts due under this
Section 10.05
shall be paid within thirty (30) days after written demand therefor (including documentation reasonably supporting such demand). The agreements in this
Section 10.05
shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
(c)
To the fullest extent permitted by Applicable Law, none of Holdings, the Borrower or the German Borrower, on the one hand, nor the Indemnitees, on the other, shall assert, and each such party hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, the Borrower, the German Borrower or Holdings, as applicable, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the Transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof;
provided
that such waiver does not otherwise affect the indemnification and reimbursement obligations of the Borrower in
Section 10.04
and this
Section 10.05
.
(d)
In case any proceeding is instituted involving any Indemnitee for which indemnification is to be sought hereunder by such Indemnitee, then such Indemnitee will promptly notify the Borrower of the commencement of any proceeding;
provided
,
however
, that the failure to do so will not relieve the Borrower from any liability that it may have to such Indemnitee hereunder, except to the extent that the Borrower is materially prejudiced by such failure. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such proceeding, and, upon such election, the Borrower will not be liable for any legal costs subsequently incurred by such Indemnitee (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnitee in a timely manner, (ii) counsel provided by the Borrower reasonably determines its representation of such Indemnitee would present it with a conflict of interest or (iii) the Indemnitee reasonably determines that there are actual conflicts of interest between the Borrower and the Indemnitee, including situations in which there may be legal defenses available to the Indemnitee which are different from or in addition to those available to the Borrower.
SECTION 10.06
Marshalling; Payments Set Aside
. Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any payment by or on behalf of the Borrower or the German Borrower is made to any Agent or any Lender, or any Agent or any Lender enforces any security interest or exercises any right of setoff, and such payment or
the proceeds of such enforcement or setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law, or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by any Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Federal Funds Effective Rate from time to time in effect. The obligations of the Lenders under
clause (b)
of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
SECTION 10.07
Successors and Assigns
. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns permitted hereby, except that neither the Borrower nor the German Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of
Section 10.07(b)
, (ii) by way of participation in accordance with the provisions of
Section 10.07(d)
, (iii) by way of pledge or assignment of a security interest subject to the restrictions of
Section 10.07(f)
or
Section 10.07(h)
, as the case may be, or (iv) to an SPC in accordance with the provisions of
Section 10.07(g)
(and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in
Section 10.07(d)
and, to the extent expressly contemplated hereby, the Related Parties of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(d)
Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this
Section 10.07(b)
, participation in L/C Obligations and in Swingline Loans) at the time owing to it) upon the giving of notice to the Borrower and the Administrative Agent;
provided
that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the outstanding principal balance of the Loan of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent shall not be less than $2,500,000 in the case of any assignment in respect of the Revolving Facility, or $500,000 (or lesser amounts if agreed between the Borrower and the Administrative Agent), in the case of any assignment in respect of any Term Loans, provided, that contemporaneous assignments by or to two or more Approved Funds related to the same Lender
(or Affiliates thereof) shall be treated as a single assignment for purposes of determining whether such minimum amount has been met; (ii) except in the case of assignments (x) of Term Loans to a Lender, an Affiliate of a Lender or an Approved Fund, (y) made to Goldman Sachs or (z) made by Goldman Sachs to the extent that such assignments are made in the primary syndication to Eligible Assignees to whom the Borrower has consented prior to the Closing Date, each of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, so long as no Event of Default in respect of
Section 8.01(a)
,
(e)
or
(f)
has occurred and is continuing, the Borrower consents to such assignment (which consent shall not be unreasonably withheld or delayed, and
provided
that the Borrower shall be deemed to have consented to any such assignment unless the Borrower shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after a Responsible Officer having received notice thereof); (iii) unless otherwise consented to by the Borrower, so long as the list thereof is available to all Lenders, no such assignment shall be to a Disqualified Institution, (iv) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (iv)
shall not (x) apply to rights in respect of Swingline Loans or (y) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis; (v) any assignment of a Revolving Commitment must be approved by the Administrative Agent, the L/C Issuer and the Swingline Lender (each such consent not to be unreasonably withheld or delayed); (vi) the parties (other than the Borrower unless its consent to such assignment is required hereunder) to each assignment shall (A) execute and deliver to the Administrative Agent an Assignment and Assumption via an electronic settlement system acceptable to the Administrative Agent or (B) manually execute and deliver to the Administrative Agent an Assignment and Assumption; (vii) the parties to each assignment shall deliver to the Administrative Agent such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee under such Assignment and Assumption may be required to deliver pursuant to
Section 3.01(d)
, together with a payment to the Administrative Agent of a processing and recordation fee in the amount of $3,500;
provided
, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment, and such processing and recordation fee shall not apply to any assignments by Goldman Sachs or any of its Affiliates;
provided further
, that only a single fee shall apply to contemporaneous assignments by or to two or more Approved Funds related to the same Lender (or Affiliates thereof); and (viii) the assigning Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent. Subject to acceptance and recording thereof by the Administrative Agent pursuant to
Section 10.07(c)
, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto on the effective date specified in the Assignment and Assumption but shall continue to be entitled to the benefits of
Section 3.01
,
Section 3.04
,
Section 3.05
,
Section 10.04
and
Section 10.05
with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, and the surrender by the assigning Lender of its Note, the Borrower or the German Borrower, as applicable, (at its expense) shall promptly
execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this
clause (b)
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with
Section 10.07(d)
.
(e)
The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the Loans, L/C Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and amounts due under
Section 2.03
, owing to, each Lender pursuant to the terms hereof from time to time (the “
Register
”). The entries in the Register shall be conclusive, absent manifest error and the Borrower, the German Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, any Agent and any Lender (with respect to (i) any entry relating to such Lender’s Loans, and (ii) the identity of the other Lender’s (but not any information with respect to such other Lenders’ Loans) at any reasonable time and from time to time upon reasonable prior notice. The Borrower hereby agrees that, to the extent Administrative Agent acts in its capacity as non-fiduciary agent of the Borrower for purposes of maintaining the Register as set forth in this
Section 10.07(c)
, Administrative Agent and its officers, directors, employees, agents, sub-agents and affiliates shall constitute “Indemnitees.” This
Section 10.07(c)
shall be construed so that the Loans, L/C Obligations and L/C Borrowings are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code.
(f)
Any Lender may at any time, without the consent of, or notice to, the Borrower, the German Borrower or the Administrative Agent, sell participations to any Eligible Assignee, excluding, to the extent the list thereof has been made available to all Lenders, Disqualified Institutions (each, a “
Participant
”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swingline Loans) owing to it);
provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents;
provided
that such agreement or instrument shall provide that the voting rights of such Participant are limited to matters which, under
Section 10.01
, require a unanimous vote of all Lenders or the vote of all directly and adversely affected Lenders (to the extent the Participant is directly and adversely affected). Subject to
Section 10.07(e)
, the Borrower agrees that each Participant shall be entitled to the benefits of
Section 3.01
,
Section 3.04
and
Section 3.05
to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
Section 10.07(b)
and such Participant agrees to be bound by such Sections and
Section 3.06
. To
the extent permitted by Law, each Participant also shall be entitled to the benefits of
Section 10.09
as though it were a Lender. Each Lender that sells a participation shall, acting solely for U.S. federal income tax purposes as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other rights or obligations under the Loan Documents (each such register, a “
Participant Register
”);
provided
,
that
, no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.
(g)
A Participant shall not be entitled to receive any greater payment under
Section 3.01
,
Section 3.04
or
Section 3.05
than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent and such Participant complies with
Section 3.01
and
Section 3.06
as if such Participant were a Lender. A Participant shall not be entitled to the benefits of
Section 3.01
unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01
and
Section 3.06
as though it were a Lender.
(h)
Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender;
provided
that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(i)
Notwithstanding anything to the contrary contained herein, any Lender (a “
Granting Lender
”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “
SPC
”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement;
provided
that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower or the German Borrower under this Agreement (including its obligations under
Section 3.01
,
Section 3.04
or
Section 3.05
), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the Lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.
(j)
Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may, without the consent of or notice to the Administrative Agent or the Borrower, create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities;
provided
that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this
Section 10.07
, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and, (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise (unless such trustee is an Eligible Assignee which has complied with the requirements of
Section 10.07(b)
).
(k)
Notwithstanding anything herein to the contrary, if at any time any Revolving Lender that is also acting as an L/C Issuer or a Swingline Lender assigns all of its Revolving Commitment and Revolving Loans pursuant to clause (b) of this Section, such Revolving Lender may, (i) upon 30 days’ written notice to the Borrower and the Lenders, resign as an L/C Issuer and/or (ii) upon 30 days’ written notice to the Borrower, resign as a Swingline Lender. In the event of any such resignation as an L/C Issuer or a Swingline Lender, the Borrower shall be entitled to appoint from among the Revolving Lenders a successor L/C Issuer or Swingline Lender hereunder;
provided
that no failure by the Borrower to appoint any such successor shall affect the resignation of such Revolving Lender as an L/C Issuer or a Swingline Lender, as the case may be. If any such Revolving Lender resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit issued by it outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund participations in unreimbursed L/C Borrowings pursuant to
Section 2.03(c)
). If any such Revolving Lender resigns as a Swingline Lender, it shall retain all the rights of a Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund participations in outstanding Swingline Loans pursuant to
Section 2.04(c)
. Upon the appointment of a successor L/C Issuer and/or Swingline Lender, (A) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as the case may be, and (B) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to such Revolving Lender to effectively assume the obligations of such Revolving Lender with respect to such Letters of Credit.
(l)
Notwithstanding the foregoing or anything to the contrary set forth herein, any Lender may, at any time, without any consent, assign all or a portion of its Term Loans to the Borrower (x) in accordance with
Section 2.05(a)(iv)
or (y) through open market purchases, in each case, on a non-pro rata basis,
provided
that:
(i)
no Event of Default has occurred or is continuing or would result therefrom;
(ii)
for the avoidance of doubt, Lenders shall not be permitted to assign Revolving Commitments or Revolving Loans to the Borrower;
(iii)
no assignment of Term Loan to the Borrower may be purchased with proceeds of any Revolving Loan or Swingline Loan;
(iv)
each Lender participating in any assignment to the Borrower shall acknowledge and agree that in connection with such assignment, (1) the assignee then may have, and later may come into possession of Excluded Information; (2) such Lender has independently and, without reliance on the Borrower, any other Loan Party or the German Borrower, the Agents or any other Agent-Related Persons, has made its own analysis and determination to participate in such assignment notwithstanding such Lender’s lack of knowledge of the Excluded Information; (3) none of the Borrower, any other Loan Party or the German Borrower, the Agents or any other Agent-Related Persons shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against the Borrower, any other Loan Party and the German Borrower, the Agents and any other Agent-Related Persons, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information; and (4) that the Excluded Information may not be available to the Agents or the other Lenders;
(v)
immediately upon purchase by the Borrower pursuant to this
Section 10.07(j)
, the Term Loans so purchased shall, without further action by any Person, be deemed cancelled for all purposes and no longer outstanding (and may not be resold), for all purposes of this Agreement and all other Loan Documents, including, but not limited to (1) the making of, or the application of, any payments to the Lenders under this Agreement or any other Loan Document, (2) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Loan Document or (3) the determination of Required Lenders, or for any similar or related purpose, under this Agreement or any other Loan Document and, in connection with any Term Loans purchased and cancelled pursuant to this
Section 10.07(j)
, the Administrative Agent is authorized to make appropriate entries in the Register to reflect any such cancellation.
SECTION 10.08
Confidentiality
. Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and their respective Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and agree to keep such Information confidential) on a “need to know” basis; (b) to the extent required or requested by any regulatory authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (c) to the extent required by
Applicable Laws or regulations or by any subpoena or similar legal process; (
provided
that the Agent or Lender that discloses any Information pursuant to this
clause (c)
shall notify the Borrower as soon as practicable of such requested disclosure to the extent permitted by Applicable Law); (d) to any other party to this Agreement; (e) subject to an agreement containing provisions substantially the same as those of this
Section 10.08
or other confidentiality obligations owed to the Borrower or any of its Affiliates (or as may otherwise be reasonably acceptable to the Borrower for the benefit of the Borrower), (i) to any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement other than a Disqualified Institution; (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder; (f) with the prior written consent of the Borrower; (g) to the extent such Information becomes generally available to the public other than as a result of a breach of this
Section 10.08
or becomes available to the Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower or otherwise not in violation of any confidentiality obligation owed to the Borrower or any of its Affiliates; (h) to any state, federal or foreign authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) regulating any Lender (provided that the Agent or Lender that discloses any Information pursuant to this clause (h) shall notify the Borrower as soon as practicable following such requested disclosure to the extent permitted by Applicable Law); (i) on a confidential basis (x) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to the Loan Parties received by it from such Agent or Lender) in connection with rating the Borrower or its Subsidiaries or the credit facilities provided hereunder or (y) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder; or (j) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder. In addition, the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions. For the purposes of this
Section 10.08
, “
Information
” means all information received from the German Borrower or any Loan Party relating to the German Borrower, any Loan Party or its business, other than any such information that is available to any Agent or any Lender on a nonconfidential basis prior to disclosure by the German Borrower or such Loan Party and not in violation of any confidentiality obligation known by such Agent or Lender to be owed to the Borrower or any of its Affiliates. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information but in any event a reasonable degree of care.
Each of the Agents and the Lenders acknowledge that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c)
it will handle such material non-public information in accordance with Applicable Law, including United States federal and state securities Laws.
SECTION 10.09
Setoff
. In addition to any rights and remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, after obtaining the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), each Lender and their Affiliates is authorized at any time and from time to time, without prior notice to the Borrower, any other Loan Party or the German Borrower, any such notice being waived by each of the Borrower (on its own behalf and on behalf of each Loan Party) and the German Borrower, and without notice to any other Person (other than Administrative Agent), to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held by (other than payroll, trust, petty cash, employee benefit or tax accounts), and other Indebtedness (in whatever currency) at any time owing by, such Lender or any such Affiliate to or for the credit or the account of the respective Loan Parties or the German Borrower against any and all Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender shall have made any demand under this Agreement or any other Loan Document, and although such obligations may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness;
provided
, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender;
provided
that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and their respective Affiliates under this
Section 10.09
are in addition to other rights and remedies (including, without limitation, other rights of setoff) that the Administrative Agent and such Lender may have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the assets of any Foreign Subsidiary constitute security, or shall the proceeds of such assets be available for, payment of the Obligations of the Borrower or any Subsidiary, it being understood that (a) the Capital Stock of any Foreign Subsidiary does not constitute such an asset and (b) the provisions hereof shall not limit, reduce or otherwise diminish in any respect the Borrower’s or the German Borrower’s obligations to make any mandatory prepayment pursuant to
Section 2.05(b)
.
SECTION 10.10
Interest Rate Limitation
. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (the “
Maximum Rate
”). If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Person may,
to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
SECTION 10.11
Counterparts
. This Agreement and each other Loan Document may be executed in one or more counterparts (and by different parties hereto in different counterparts), each of which shall be deemed an original, but all of which together shall constitute a single contract. Delivery by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document. The Agents may also require that any such documents and signatures delivered by telecopier be confirmed by a manually signed original thereof;
provided
that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.
SECTION 10.12
Integration
. This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document (other than any intercreditor agreement), the provisions of this Agreement shall control;
provided
that the inclusion of supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.
SECTION 10.13
Survival of Representations and Warranties
. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation (other than contingent indemnification obligations to the extent not then due and payable, Letters of Credit that have been Cash Collateralized in a manner satisfactory to the applicable L/C Issuer or Secured Bank Product Obligations and Designated Credit Lines) hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding except as set forth in
Section 2.03(j)
.
SECTION 10.14
Severability
. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity
of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.14
, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited.
SECTION 10.15
Service of Process
. Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in
Section 10.02
. Such service may be made by mailing or delivering a copy of such process to the German Borrower or such Loan Party at the address set forth in
Section 10.02
. Nothing in this
Section 10.15
shall affect the right of any Lender or the Administrative Agent to serve legal process in any other manner permitted by Applicable Law or affect the right of any Lender or the Administrative Agent to bring any suit, action or proceeding against the German Borrower, each Loan Party or its property in the courts of other jurisdictions.
SECTION 10.16
GOVERNING LAW
. (a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF THE STATE OF NEW YORK THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
(a)
EACH OF THE BORROWER, EACH OTHER LOAN PARTY AND THE GERMAN BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ANY AGENT, ANY LENDER OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL
AFFECT ANY RIGHT THAT ANY AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER, ANY OTHER LOAN PARTY OR THE GERMAN BORROWER OR THEIR RESPECTIVE PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(b)
EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
SECTION 10.17
WAIVER OF RIGHT TO TRIAL BY JURY
. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL‑ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.17 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
SECTION 10.18
No Advisory or Fiduciary Responsibility
. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower, each other
Loan Party and the German Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Arrangers and the Lenders are arm’s-length commercial transactions between the Borrower, each other Loan Party, the German Borrower and their respective Affiliates, on the one hand, and the Administrative Agent, Arrangers and the Lenders, on the other hand, (B) each of the Borrower, the other Loan Parties and the German Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower, each other Loan Party and the German Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent, the Arrangers and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower, any other Loan Party, the German Borrower or any of their respective Affiliates, or any other Person and (B) neither the Administrative Agent, any Arrangers nor any Lender has any obligation to the Borrower, any other Loan Party, the German Borrower or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the other Loan Parties, the German Borrower and their respective Affiliates, and neither the Administrative Agent, the Arrangers nor any Lender has any obligation to disclose any of such interests to the Borrower, any other Loan Party, the German Borrower or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower, each other Loan Party and the German Borrower hereby waives and releases any claims that it may have against the Administrative Agent, the Arrangers or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
SECTION 10.19
Electronic Execution of Assignments and Certain Other Documents
. The words “execute,” “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 10.20
Binding Effect
. This Agreement shall become effective when it shall have been executed by the Borrower, the German Borrower, the Lenders and the Administrative Agent, and the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto, and when the conditions set forth in
Section 4.01
shall have been satisfied or waived, and thereafter shall be binding upon and inure to the benefit of the Borrower, the German Borrower, each Agent and each Lender and their
respective permitted successors and assigns, except that neither the Borrower nor the German Borrower shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders except as permitted by
Section 7.04
.
SECTION 10.21
PATRIOT Act Notice
. Each Lender and L/C Issuer that is subject to the PATRIOT Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Loan Party and the German Borrower that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies each Loan Party and the German Borrower, which information includes the name and address of each Loan Party and the German Borrower and other information that will allow such Lender, L/C Issuer or the Administrative Agent, as applicable, to identify each Loan Party and the German Borrower in accordance with the PATRIOT Act. The Borrower shall, promptly following a request by the Administrative Agent, any Lender or any L/C Issuer, provide all documentation and other information that the Administrative Agent, such Lender or such L/C Issuer requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
SECTION 10.22
Affiliate Activities
. Holdings and its Subsidiaries each acknowledge that each Agent and each Arranger (and their respective Affiliates) is a full service securities firm engaged, either directly or through Affiliates, in various activities, including securities trading, investment banking and financial advisory, investment management, principal investment, hedging, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities, it may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and/or financial instruments (including bank loans) for its own account and for the accounts of its customers and may at any time hold long and short positions in such securities and/or instruments, in each case in accordance with Applicable Law. Such investment and other activities may involve securities and instruments of the Borrower, the German Borrower and their respective Affiliates, as well as of other entities and Persons and their Affiliates which may (i) be involved in transactions arising from or relating to the engagement contemplated hereby and by the other Loan Documents, (ii) be customers or competitors of the Borrower, the German Borrower and their respective Affiliates, or (iii) have other relationships with the Borrower, the German Borrower and their respective Affiliates. In addition, such Agents and Arrangers and their respective Affiliates may provide investment banking, underwriting and financial advisory services to such other entities and Persons. Such Agents and Arrangers and their respective Affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of the Borrower, the German Borrower and their respective Affiliates or such other entities. The transactions contemplated by this Agreement and by the other Loan Documents may have a direct or indirect impact on the investments, securities or instruments referred to in this paragraph.
SECTION 10.23
Obligations Several; Independent Nature of Lenders’ Rights
.
The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitment of any other Lender hereunder. Nothing contained herein or in any other Loan Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
SECTION 10.24
Headings
.
Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF
, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
W. R. GRACE & CO.
,
as Holdings
By:
/s/ Hudson La Force III
Name: Hudson La Force III
Title: Chief Financial Officer
W. R. GRACE & CO.-CONN.
,
as the Borrower
By:
/s/ Hudson La Force III
Name: Hudson La Force III
Title: Chief Financial Officer
GRACE GMBH & CO. KG
,
as the German Borrower
By:
/s/ Dr. David Hartill
Name: Dr. David Hartill
Title: Managing Director (Gesch
ä
ftsf
ü
hrer)
By:
/s/ Robin Frank Pearce
Name: Robin Frank Pearce
Title: Managing Director (Gesch
ä
ftsf
ü
hrer)
KE 29605922.2
NY\6157076.3
GOLDMAN SACHS BANK USA,
as the Administrative Agent, Swingline Lender and a Lender
By:
/s/ Robert Ehudin
Name: Robert Ehudin
Title: Authorized Signatory
228
KE 29605922.2
NY\6157076.3
DEUTSCHE BANK AG NEW YORK BRANCH
,
as a Lender
By:
/s/ Marcus V. Tarkington
Name: Marcus V. Tarkington
Title: Director
By:
/s/ Anca Trifan
Name: Anca Trifan
Title: Managing Director
229
KE 29605922.2
NY\6157076.3
BANK OF AMERICA N.A.
,
as a Lender
By:
/s/ George Hlentzas
Name: George Hlentzas
Title: Director
230
KE 29605922.2
NY\6157076.3
HSBC BANK USA, NATIONAL ASSOCIATION
,
as a Lender
By:
/s/ David A. Mandell
Name: David A. Mandell
Title: Managing Director
231
KE 29605922.2
NY\6157076.3
CITIBANK, N.A.
,
as a Lender
By:
/s/ David Jaffe
Name: David Jaffe
Title: Vice President
232
KE 29605922.2
NY\6157076.3
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
,
as a Lender
By:
/s/ Diane Pockaj
Name: Diane Pockaj
Title: Managing Director
By:
/s/ Michael Weinert
Name: Michael Weinert
Title: Vice President
233
KE 29605922.2
NY\6157076.3
PNC BANK, NATIONAL ASSOCIATION
,
as a Lender
By:
/s/ John E. Hehr
Name: John E. Hehr
Title: Senior Vice President
234
KE 29605922.2
NY\6157076.3
KEYBANK NATIONAL ASSOCIATION
,
as a Lender
By:
/s/ Brian P. Fox
Name: Brian P. Fox
Title: Vice President
235
KE 29605922.2
NY\6157076.3
SUMITOMO MITSUI BANKING CORPORATION
,
as a Lender
By:
/s/ Katsuyuki Kubo
Name: Katsuyuki Kubo
Title: Executive Director
236
KE 29605922.2
NY\6157076.3
SCOTIABANC INC.
,
as a Lender
By:
/s/ J.F. Todd
Name: J.F. Todd
Title: Vice President
237
KE 29605922.2
NY\6157076.3
THE BANK OF NOVA SCOTIA
,
as a Lender
By:
/s/ David Mahmood
Name: David Mahmood
Title: Managing Director
238
KE 29605922.2
NY\6157076.3
SCOTIABANK EUROPE PLC
,
as a Lender
By:
/s/ John O’Connor
Name: John O’Connor
Title: Head of Credit Risk Control
By:
/s/ Steve Caller
Name: Steve Caller
Title: Manager, Credit Risk Control
239
KE 29605922.2
NY\6157076.3
TD BANK, N.A.
,
as a Lender
By:
/s/ Michele Dragonetti
Name: Michele Dragonetti
Title: Senior Vice President
240
KE 29605922.2
NY\6157076.3
UniCredit Bank AG, New York Branch
,
as a Lender
By:
/s/ Douglas Weir
Name: Douglas Weir
Title: Director
By:
/s/ Umberto Serrano
Name: Umberto Serrano
Title: Director
241
KE 29605922.2
NY\6157076.3
SCHEDULE I
GUARANTORS
|
|
|
|
1.
|
Alltech Associates, Inc., an Illinois corporation
|
242
KE 29605922.2
NY\6157076.3
SCHEDULE 1.01(a)
EXISTING U.S. LETTERS OF CREDIT
|
|
|
|
|
|
|
Loan Party
|
Beneficiary
|
Amount (USD)
|
|
W. R. Grace & Co.-Conn.
|
NJ EPA Dept of Environment
|
$2,000,000
|
|
W. R. Grace & Co.-Conn.
|
NJ EPA
|
$2,000,000
|
|
W. R. Grace & Co.-Conn.
|
U.S. EPA
|
$1,135,000
|
|
W. R. Grace & Co.-Conn.
|
Hartford Fire Insurance
|
$5,500,000
|
|
W. R. Grace & Co.-Conn.
|
Hartford Fire Insurance
|
$5,000,000
|
|
W. R. Grace & Co.-Conn.
|
ACE American Insurance
|
$1,000,000
|
|
W. R. Grace & Co.-Conn.
|
MidAmerican Energy
|
$384,164
|
|
W. R. Grace & Co.-Conn.
|
Centerpoint Energy
|
$1,750,000
|
|
W. R. Grace & Co.-Conn.
|
BP- Canada Energy
|
$400,000
|
|
W. R. Grace & Co.-Conn.
|
NIPSCO
|
$88,105
|
|
W. R. Grace & Co.-Conn.
|
Pacificorp
|
$55,000
|
|
W. R. Grace & Co.-Conn.
|
EPB
|
$189,000
|
|
W. R. Grace & Co.-Conn.
|
IBM
|
$2,000,000
|
|
W. R. Grace & Co.-Conn.
|
Nippon Shokubai
|
$1,200,000
|
|
W. R. Grace & Co.-Conn.
|
Nippon Shokubai
|
$800,000
|
|
W. R. Grace & Co.-Conn.
|
NA Industries
|
$2,200,000
|
|
W. R. Grace & Co.-Conn.
|
AK Chemtech
|
$83,200
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$741,576
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$1,436,990
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$1,066,752
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$741,576
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$1,066,752
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$229,726
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$668,472
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$211,411
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$211,411
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$113,358
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$108,990
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$101,024
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$101,024
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$98,784
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$23,500
|
|
W. R. Grace & Co.-Conn.
|
Afianzadora/Pemex
|
$108,990
|
|
W. R. Grace & Co.-Conn.
|
Bank of America
|
$213,957
|
|
W. R. Grace & Co.-Conn.
|
KNPC
|
$2,629,469
|
243
KE 29605922.2
NY\6157076.3
|
|
|
|
|
|
|
Loan Party
|
Beneficiary
|
Amount (USD)
|
|
W. R. Grace & Co.-Conn.
|
PetroPeru
|
$1,443,850
|
|
W. R. Grace & Co.-Conn.
|
Banco Bradesco
|
$12,506,072
|
|
W. R. Grace & Co.-Conn.
|
HSBC Argentina
|
$2,150,000
|
|
W. R. Grace & Co.-Conn.
|
Howard County Government
|
$16,936
|
|
W. R. Grace & Co.-Conn.
|
Howard County Government
|
$845,720
|
|
W. R. Grace & Co.-Conn.
|
Bank of America
|
$2,750,000
|
|
W. R. Grace & Co.-Conn.
|
Bank of America
|
$2,200,000
|
|
W. R. Grace & Co.-Conn.
|
Bank of America
|
$5,000,000
|
|
W. R. Grace & Co.-Conn.
|
Bank of America
|
$5,000,000
|
|
W. R. Grace & Co.-Conn.
|
Bank of America
|
$3,000,000
|
|
W. R. Grace & Co.-Conn.
|
National Union Fire
|
$1,940,000
|
|
W. R. Grace & Co.-Conn.
|
Pemex Refinacion
|
$358,344
|
|
W. R. Grace & Co.-Conn.
|
Pemex Refinacion
|
$406,800
|
|
W. R. Grace & Co.-Conn.
|
Pemex Refinacion
|
$938,190
|
|
W. R. Grace & Co.-Conn.
|
Pemex Refinacion
|
$737,730
|
|
W. R. Grace & Co.-Conn.
|
Pemex Refinacion
|
$702,540
|
|
W. R. Grace & Co.-Conn.
|
Pemex Refinacion
|
$493,500
|
|
W. R. Grace & Co.-Conn.
|
Pemex Refinacion
|
$1,026,144
|
|
W. R. Grace & Co.-Conn.
|
Pemex Refinacion
|
$1,042,182
|
|
W. R. Grace & Co.-Conn.
|
Pemex Refinacion
|
$770,688
|
244
KE 29605922.2
NY\6157076.3
SCHEDULE 1.01(b)
EXISTING MULTICURRENCY LETTERS OF CREDIT
None.
KE 29605922.2
NY\6157076.3
SCHEDULE 2.01
COMMITMENTS
U.S. Term Commitments
|
|
|
|
|
|
|
Lender
|
Commitment
|
Percentage
|
|
Goldman Sachs Bank USA
|
$700,000,000
|
100%
|
Euro Term Commitments
|
|
|
|
|
|
|
Lender
|
Commitment
|
Percentage
|
|
Goldman Sachs Bank USA
|
€150,000,000
|
100%
|
Delayed Draw Term Commitments
|
|
|
|
|
|
|
Lender
|
Commitment
|
Percentage
|
|
Goldman Sachs Bank USA
|
$250,000,000
|
100%
|
U.S. Revolving Commitments
246
KE 29605922.2
NY\6157076.3
|
|
|
|
|
|
|
Lender
|
Commitment
|
Percentage
|
|
Goldman Sachs Bank USA
|
$32,812,500
|
13.125%
|
|
Deutsche Bank AG New York Branch
|
$32,812,500
|
13.125%
|
|
Bank of America N.A.
|
$28,125,000
|
11.250%
|
|
HSBC Bank USA, National Association
|
$28,125,000
|
11.250%
|
|
Citibank, NA
|
$21,875,000
|
8.750%
|
|
Commerzbank AG, New York Branch
|
$21,875,000
|
8.750%
|
|
KeyBank National Association
|
$21,875,000
|
8.750%
|
|
PNC Bank, National Association
|
$21,875,000
|
8.750%
|
|
Sumitomo Mitsui Banking Corporation
|
$21,875,000
|
8.750%
|
|
Scotiabanc, Inc.
|
$6,250,000
|
2.500%
|
|
TD Bank, N.A.
|
$6,250,000
|
2.500%
|
|
Unicredit Bank AG, New York Branch
|
$6,250,000
|
2.500%
|
|
Total
|
$250,000,000
|
100%
|
Multicurrency Revolving Commitments
247
KE 29605922.2
NY\6157076.3
|
|
|
|
|
|
|
Lender
|
Commitment
|
Percentage
|
|
Goldman Sachs Bank USA
|
$19,687,500
|
13.125%
|
|
Deutsche Bank AG New York Branch
|
$19,687,500
|
13.125%
|
|
Bank of America N.A.
|
$16,875,000
|
11.250%
|
|
HSBC Bank USA, National Association
|
$16,875,000
|
11.250%
|
|
Citibank, NA
|
$13,125,000
|
8.750%
|
|
Commerzbank AG, New York Branch
|
$13,125,000
|
8.750%
|
|
KeyBank National Association
|
$13,125,000
|
8.750%
|
|
PNC Bank, National Association
|
$13,125,000
|
8.750%
|
|
Sumitomo Mitsui Banking Corporation
|
$13,125,000
|
8.750%
|
|
ScotiaBank Europe PLC
|
$3,750,000
|
2.500%
|
|
TD Bank, N.A.
|
$3,750,000
|
2.500%
|
|
Unicredit Bank AG, New York Branch
|
$3,750,000
|
2.500%
|
|
Total
|
$150,000,000
|
100%
|
L/C Commitment
|
|
|
|
|
|
|
L/C Issuer
|
Commitment (U.S. L/C Commitment + Multicurrency L/C Commitment)
|
Percentage
|
|
Bank of America, N.A.
|
$150,000,000
|
100%
|
Swingline Commitment
|
|
|
|
|
|
|
Lender
|
Commitment
|
Percentage
|
|
Goldman Sachs Bank USA
|
$50,000,000
|
100%
|
248
KE 29605922.2
NY\6157076.3
SCHEDULE 4.01(i)
FOREIGN CREDIT FACILITIES
|
|
|
|
|
|
|
|
Subsidiary
|
Bank
|
Currency
|
Amount (USD)
|
|
W. R. Grace Argentina S. A.
|
BBVA
|
ARS
|
$100,000
|
|
W. R. Grace Argentina S. A.
|
HSBC
|
ARS
|
$300,000
|
|
Grace Brasil Ltda.
|
Bradesco
|
BRL
|
$800,000
|
|
Grace Brasil Ltda.*
|
Bradesco
|
BRL
|
$9,500,000
|
|
Grace Colombia S.A.
|
Banco de Occidente
|
COP
|
$500,000
|
|
Grace Venezuela, S.A.
|
Banco Venezuela
|
VEF
|
$2,400,000
|
|
Grace Venezuela, S.A.
|
Citibank
|
VEF
|
$10,000,000
|
|
Grace Yapi Kimyasallari Sanayi ve Ticaret A. S.
|
Yapi Kredi Bank
|
TRY
|
$1,000,000
|
|
Grace Yapi Kimyasallari Sanayi ve Ticaret A. S.
|
İş Bank
|
TRY
|
$600,000
|
|
Grace Yapi Kimyasallari Sanayi ve Ticaret A. S.
|
Garantie Bank
|
TRY
|
$100,000
|
|
Grace GmbH & Co. KG
|
Coface
|
EUR
|
$69,300,000
|
|
W. R. Grace Argentina S. A.*
|
HSBC
|
ARS
|
$1,500,000
|
|
Grace Brazil Ltda.
|
HSBC
|
BRL
|
$1,200,000
|
|
Grace Quimica Compania Limitada
|
HSBC
|
CLP
|
$100,000
|
|
Grace Colombia S.A.
|
HSBC
|
COP
|
$400,000
|
|
W. R. Grace Holdings, S. A. de C. V.
|
HSBC
|
MXN
|
$7,000,000
|
|
Grace Container, S. A. de C. V.
|
HSBC
|
MXN
|
$500,000
|
|
W. R. Grace Holdings, S. A. de C. V.
|
HSBC
|
MXN
|
$500,000
|
|
W. R. Grace Vietnam Company Limited
|
HSBC
|
VND
|
$2,000,000
|
|
Various German entities
|
Commerzbank
|
EUR
|
$27,700,000
|
KE 29605922.2
NY\6157076.3
|
|
|
|
|
|
|
|
Subsidiary
|
Bank
|
Currency
|
Amount (USD)
|
|
Grace Canada, Inc.
|
Bank of America
|
USD
|
$7,500,000
|
|
Various Asian Entities
|
Bank of America
|
USD
|
$80,000,000
|
|
W. R. Grace Africa (Pty) Ltd.
|
Citibank
|
ZAR
|
$2,000,000
|
|
Emirates Chemicals LLC
|
HSBC
|
AED
|
$5,400,000
|
|
Grace China Ltd.
|
HSBC
|
CNY
|
$4,900,000
|
250
KE 29605922.2
NY\6157076.3
SCHEDULE 5.11(b)
MATERIAL REAL PROPERTIES
|
|
|
|
1.
|
4099 West 71st Street, Chicago, IL 60629
|
|
|
|
|
2.
|
1800 Davison Road, PO Box 3247 Hwy #27, Sulfur (Lake Charles), LA 70601
|
|
|
|
|
3.
|
7500 Grace Drive, Columbia, MD 21044
|
|
|
|
|
4.
|
5500 Chemical Road, Curtis Bay, MD 21226
|
|
|
|
|
5.
|
1290 Industrial Way, Albany, OR 97322
|
|
|
|
|
6.
|
350 Magnolia Drive, Mt. Pleasant, TN 38474
|
251
KE 29605922.2
NY\6157076.3
SCHEDULE 5.12
SUBSIDIARIES
|
|
|
|
|
|
|
|
|
Subsidiary
|
Holder
|
Jurisdiction
|
Ownership Percentage
|
|
W. R. Grace & Co.-Conn.
|
W. R. Grace & Co.
|
Connecticut
|
100%
|
|
Remedium Group, Inc.
|
W. R. Grace & Co.
|
Delaware
|
100
|
%
|
|
Alltech Associates, Inc.
|
W. R. Grace & Co.-Conn.
|
Illinois
|
100%
|
|
Construction Products Dubai, Inc.
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Darex Puerto Rico, Inc.
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Grace Asia Pacific, Inc.
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Grace Chemical Company of Cuba
|
W. R. Grace & Co.-Conn.
|
Illinois
|
100%
|
|
Grace Chemicals, Inc.
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Grace Collections, Inc.
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Grace Europe, Inc.
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Grace Management Services
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Grace International Holdings, Inc.
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Guanica-Caribe Land Development Corporation
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Hanover Square Corporation
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Dewey and Almy, LLC
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Grace PAR Corporation
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
W. R. Grace Land Corporation
|
W. R. Grace & Co.-Conn.
|
New York
|
100%
|
|
Water Street Corporation
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Grace Energy Corporation
|
W. R. Grace & Co.-Conn.
|
Delaware
|
100%
|
|
Kootenai Development Company
|
W. R. Grace & Co.-Conn.
|
Montana
|
66.667
|
%
|
|
Verifi LLC
|
W. R. Grace & Co.-Conn.
|
Delaware
|
95
|
%
|
|
De Neef Construction Chemicals (US) Inc.
|
W. R. Grace & Co.-Conn.
|
Texas
|
100%
|
|
W. R. Grace Specialty Chemicals (Malaysia) Sdn. Bhd.
|
W. R. Grace & Co.-Conn.
|
Malaysia
|
100%
|
|
Grace China Ltd.
|
W. R. Grace & Co.- Conn.
|
China
|
100%
|
|
W. R. Grace & Co. (India) Private Limited
|
W. R. Grace & Co.-Conn.
|
India
|
99.99
|
%
|
|
Grace (New Zealand) Limited
|
W. R. Grace & Co.-Conn.
|
New Zealand
|
100%
|
252
KE 29605922.2
NY\6157076.3
|
|
|
|
|
|
|
|
|
Subsidiary
|
Holder
|
Jurisdiction
|
Ownership Percentage
|
|
W. R. Grace (Thailand) Limited
|
W. R. Grace & Co.-Conn.
|
Thailand
|
99.99
|
%
|
|
W. R. Grace N.V.*
|
W. R. Grace & Co.-Conn.
|
Netherlands Antilles
|
100%
|
|
Darex UK Limited
|
W. R. Grace & Co.-Conn.
|
United Kingdom
|
100%
|
|
Grace Construction Products (Ireland) Limited
|
W. R. Grace & Co.-Conn.
|
Ireland
|
100%
|
|
Grace Sp. z o. o.
|
W. R. Grace & Co.-Conn.
|
Poland
|
100%
|
|
W. R. Grace Italiana S.p.A.
|
W. R. Grace & Co.-Conn.
|
Italy
|
99.9
|
%
|
|
Grace Hellas E.P.E.
|
W. R. Grace & Co.-Conn.
|
Greece
|
99
|
%
|
|
W. R. Grace Africa (Proprietary) Limited
|
W. R. Grace & Co.-Conn.
|
South Africa
|
100%
|
|
Amicon Ireland Limited
|
W. R. Grace & Co.-Conn.
|
Ireland
|
100%
|
|
Grace, S.A.
|
W. R. Grace & Co.-Conn.
|
Spain
|
100%
|
|
W. R. Grace Foundation, Inc.
|
W. R. Grace & Co.-Conn.
|
Florida
|
100%
|
|
W. R. Grace & Co. Employees Disaster Relief Foundation, Inc.
|
W. R. Grace & Co.-Conn.
|
Maryland
|
100%
|
|
Grace Luxembourg S.à r.l.
|
W. R. Grace & Co.-Conn.
|
Luxembourg
|
100%
|
|
Envases Industriales y Comerciales, S.A.
‡
|
W. R. Grace & Co.-Conn.
|
Cuba
|
100%
|
|
Papelera Camagueyana, S.A.
‡
|
W. R. Grace & Co.-Conn.
|
Cuba
|
100%
|
|
Grace European Finance (Dublin) Limited
|
W. R. Grace & Co.-Conn.
|
Ireland
|
99.99
|
%
|
|
W. R. Grace Finance (NRO) Ltd.
|
W. R. Grace & Co.-Conn.
|
Canada
|
100%
|
|
GEC Divestment Corporation Ltd.
|
W. R. Grace & Co.-Conn.
|
Canada
|
100%
|
|
Grace Canada, Inc.
|
W. R. Grace & Co.-Conn.
|
Canada
|
100%
|
|
Grace N.V.\S.A.
|
W. R. Grace & Co.-Conn.
|
Belgium
|
99.9
|
%
|
|
Grace Venezuela, S.A.
|
W. R. Grace & Co.-Conn.
|
Venezuela
|
100%
|
|
Grace Colombia S.A.
|
W. R. Grace & Co.-Conn.
|
Colombia
|
94.8
|
%
|
|
Inversiones GSC, S.A.
|
W. R. Grace & Co.-Conn.
|
Venezuela
|
100%
|
|
W. R. Grace Holdings, S.A. de C.V.
|
W. R. Grace & Co.-Conn.
|
Mexico
|
99.99
|
%
|
|
W. R. Grace Limited
|
W. R. Grace & Co.-Conn.
|
United Kingdom
|
100%
|
|
W. R. Grace S.A.
|
W. R. Grace & Co.-Conn.
|
France
|
99
|
%
|
|
Alltech Associates (Australia) Pty. Ltd.
|
Alltech Associates, Inc.
|
Australia
|
100%
|
|
Alltech France S.A.R.L.
|
Alltech Associates, Inc.
|
France
|
100%
|
253
KE 29605922.2
NY\6157076.3
|
|
|
|
|
|
|
|
|
Subsidiary
|
Holder
|
Jurisdiction
|
Ownership Percentage
|
|
Alltech Scientific (China) Limited
|
Alltech Associates, Inc.
|
Hong Kong
|
99
|
%
|
|
Alltech Applied Science Labs (HK) Limited
|
Alltech Associates, Inc.
|
Hong Kong
|
99
|
%
|
|
Alltech Italia S.R.L.
|
Alltech Associates, Inc.
|
Italy
|
100%
|
|
Alltech Applied Science B.V.
|
Alltech Associates, Inc.
|
Netherlands
|
100%
|
|
Alltech Associates Applied Science Limited
|
Alltech Associates, Inc.
|
United Kingdom
|
100%
|
|
W. R. Grace (Panama) S.A.
|
Alltech Associates, Inc.
|
Panama
|
100%
|
|
Alltech Grom GmbH
|
Alltech Associates, Inc.
|
Germany
|
100%
|
|
LC Service B.V.*
|
Alltech Associates, Inc.
|
Netherlands
|
100%
|
|
Alltech y Applied Science Para Mexico, S.A. de C.V.*
|
Alltech Associates, Inc.
|
Mexico
|
51%
|
|
Grace Brasil Ltda.
|
Grace Canada, Inc.
|
Brazil
|
99.7
|
%
|
|
Grace Quimica Compania Limitada
|
Grace Canada, Inc.
|
Chile
|
99.7755
|
%
|
|
W. R. Grace Argentina S.A.
|
Grace Canada, Inc.
|
Argentina
|
95
|
%
|
|
Borndear 3 Limited*
|
W. R. Grace Limited
|
United Kingdom
|
100%
|
|
Cormix Limited*
|
W. R. Grace Limited
|
United Kingdom
|
100%
|
|
Emerson & Cuming (Trading) Ltd.*
|
W. R. Grace Limited
|
United Kingdom
|
100%
|
|
Emerson & Cuming (UK) Ltd.*
|
Emerson & Cuming (Trading) Ltd.
|
United Kingdom
|
100%
|
|
Borndear 1 Limited*
|
W. R. Grace Limited
|
United Kingdom
|
100%
|
|
Borndear 2 Limited*
|
Borndear 1 Limited
|
United Kingdom
|
100%
|
|
Servicised Ltd.*
|
Borndear 2 Limited
|
United Kingdom
|
100%
|
|
A.A. Consultancy & Cleaning Company Limited
|
Borndear 2 Limited
|
United Kingdom
|
100%
|
|
Grace Construction Products Limited
|
W. R. Grace Limited
|
United Kingdom
|
100%
|
|
De Neef UK Ltd
|
Grace Construction Products Limited
|
United Kingdom
|
100%
|
|
Grace Silica N.V.*
|
Grace N.V.\S.A.
|
Belgium
|
100%
|
|
Grace Construction Products N.V.
|
Grace N.V.\S.A.
|
Belgium
|
76
|
%
|
|
Inverco Benelux N.V.
|
Grace N.V.\S.A.
|
Belgium
|
100%
|
254
KE 29605922.2
NY\6157076.3
|
|
|
|
|
|
|
|
|
Subsidiary
|
Holder
|
Jurisdiction
|
Ownership Percentage
|
|
Grace Produits de Construction SAS
|
W. R. Grace S.A.
|
France
|
100%
|
|
Grace Construction Products S.A.
|
Grace Construction Produits de S.A.S.
|
Switzerland
|
98
|
%
|
|
Pieri U.K. Limited*
|
Grace Construction Produits de S.A.S.
|
United Kingdom
|
100%
|
|
AP Chem Incorporated
|
Grace Construction Produits de S.A.S.
|
Maryland
|
100%
|
|
Grace Container, S.A. de C.V.
|
W. R. Grace Holdings, S.A. de C.V.
|
Mexico
|
99.99
|
%
|
|
Grace Netherlands B.V.
|
Grace Luxembourg S.à r.l.
|
Netherlands
|
100%
|
|
Grace AB
|
Grace Luxembourg S.à r.l.
|
Sweden
|
100%
|
|
Grace Sweden AB
|
Grace AB
|
Sweden
|
100%
|
|
De Neef Scandinavia AB
|
Grace AB
|
Sweden
|
100%
|
|
Grace Europe Holding Gmbh
|
Grace Luxembourg S.à r.l.
|
Germany
|
100%
|
|
Grace Germany GmbH
|
Grace Europe Holding Gmbh
|
Germany
|
90
|
%
|
|
Grace Értékesito Kft.
|
Grace Germany GmbH
|
Hungary
|
100%
|
|
Denac Nederland B.V.
|
Grace Germany GmbH
|
Netherlands
|
100%
|
|
Grace Catalyst AB
|
Grace Germany GmbH
|
Sweden
|
100%
|
|
Grace Silica GmbH
|
Grace Germany GmbH
|
Germany
|
100%
|
|
Grace Darex GmbH
|
Grace Germany GmbH
|
Germany
|
100%
|
|
Grace Bauprodukte GmbH
|
Grace Darex GmbH
|
Germany
|
100%
|
|
Grace Management GP GmbH
|
Grace Germany GmbH
|
Germany
|
100%
|
|
Grace Davison Ltda.
|
Grace Management GP GmbH
|
Brazil
|
99.9
|
%
|
|
Grace GP GmbH
|
Grace Management GP GmbH
|
Germany
|
100%
|
|
Grace Davison (Proprietary) Limited
|
Grace Management GP GmbH
|
South Africa
|
100%
|
|
Grace GmbH & Co. KG
|
Grace Management GP GmbH
|
Germany
|
99
|
%
|
|
Grace CIS LLC
|
Grace GmbH & Co. KG
|
Russia
|
100%
|
|
Grace Catalysts (Qingdao) Company Limited
|
Grace Luxembourg S.à r.l.
|
China
|
100%
|
|
De Neef Construction Chemicals BVBA (Belgium)
|
Grace Luxembourg S.à r.l.
|
Belgium
|
99
|
%
|
|
Union Financiere SA
|
Grace Luxembourg S.à r.l.
|
Switzerland
|
100%
|
|
De Neef Asia Pte. Ltd. (Singapore)
|
Union Financiere SA
|
Singapore
|
100%
|
|
De Neef Construction Chemicals (China) Limited
|
Union Financiere SA
|
Hong Kong
|
100%
|
|
De Neef France SARL
|
Union Financiere SA
|
France
|
100%
|
|
Grace Portugal, LDA.
|
Union Financiere SA
|
Portugal
|
100%
|
255
KE 29605922.2
NY\6157076.3
|
|
|
|
|
|
|
|
|
Subsidiary
|
Holder
|
Jurisdiction
|
Ownership Percentage
|
|
De Neef Deustchland
|
Union Financiere SA
|
Germany
|
100%
|
|
De Neef Technologies S. L.
|
Union Financiere SA
|
Spain
|
100%
|
|
De Neef (CH) AG
|
Union Financiere SA
|
Switzerland
|
100%
|
|
W. R. Grace (Hong Kong) Limited
|
W. R. Grace Land Corporation
|
Hong Kong
|
100%
|
|
W. R. Grace (Malaysia) Sendiran Berhad
|
W. R. Grace (Hong Kong) Limited
|
Malaysia
|
100%
|
|
W. R. Grace (Singapore) Private Limited
|
W. R. Grace (Hong Kong) Limited
|
Singapore
|
100%
|
|
W. R. Grace Taiwan, Inc.
|
W. R. Grace (Singapore) Private Ltd.
|
Taiwan
|
100%
|
|
Grace Trading (Shanghai) Co. Ltd.
|
W. R. Grace (Singapore) Private Ltd.
|
China
|
100%
|
|
PT. Grace Specialty Chemicals Indonesia
|
W. R. Grace (Singapore) Private Ltd.
|
Indonesia
|
84.4
|
%
|
|
W. R. Grace Vietnam Company Limited
|
W. R. Grace (Singapore) Private Ltd.
|
Vietnam
|
100%
|
|
W. R. Grace (Philippines), Inc.
|
W. R. Grace (Singapore) Private Ltd.
|
Philippines
|
73.7
|
%
|
|
W. R. Grace Operations Center, Inc.
|
W. R. Grace (Philippines), Inc.
|
Philippines
|
99
|
%
|
|
Grace Australia Pty. Ltd.
|
W. R. Grace Land Corporation
|
Australia
|
100%
|
|
Grace Japan Kabushiki Kaisha
|
W. R. Grace Land Corporation
|
Japan
|
100%
|
|
Grace Chemicals Kabushiki Kaisha
|
Grace Japan Kabushiki Kaisha
|
Japan
|
81
|
%
|
|
Exemere Limited
|
Alltech Associates Applied Science Limited
|
United Kingdom
|
100%
|
|
Grace Davison Chemicals India Pvt. Ltd.
|
Alltech Associates Applied Science Limited
|
India
|
100%
|
|
Grace Korea Inc.
|
W. R. Grace & Co.-Conn.
|
Korea
|
100%
|
|
Gloucester New Communities Company, Inc.
|
W. R. Grace Land Corporation
|
New Jersey
|
100%
|
|
W. R. Grace Capital Corporation
|
W. R. Grace Land Corporation
|
New York
|
100%
|
256
KE 29605922.2
NY\6157076.3
SCHEDULE 5.16
LABOR MATTERS
|
|
|
|
1.
|
2013 -2016 Agreement dated as of January 22, 2013, by and between W. R. Grace & Co.-Conn. Grace Davison and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union on Behalf of Local Union No. 9777-17.
|
|
|
|
|
2.
|
Agreement dated as of March 15, 2012, by and between W. R. Grace & Co.-Conn. Grace Davison Lake Charles Plant and Lake Charles Metal Trades Council AFL-CIO.
|
|
|
|
|
3.
|
Collective Bargaining Agreement dated as of April 22, 2012, by and between Grace Construction Products W. R. Grace & Co.-Conn and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union on Behalf of Local Union No. 9777-17.
|
|
|
|
|
4.
|
Cambridge Agreement dated as of December 1, 2012, by and between W. R. Grace & Co.-Conn. Grace Davison and International Chemical Workers Union Council, UFCW, Local No. 560-C.
|
|
|
|
|
5.
|
Agreement dated as of June 1, 2011, by and between W. R. Grace & Co.-Conn. Grace Division and United Steelworkers Local 14087.
|
|
|
|
|
6.
|
Agreement dated as of September 30, 2012, by and between Grace Davison Curtis Bay Site and International Chemical Worker’s Union Council of the United Food and Commercial Workers Union Local 976C.
|
|
|
|
|
7.
|
Agreement dated as of May 1, 2010, by and between Grace Davison W. R. Grace & Co.-Conn. East Chicago Plant and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union & Its Local 00696.
|
|
|
|
|
8.
|
National Master Freight Agreement and New Jersey-New York and Local 701 General Trucking Supplemental Agreement dated as of April 1, 2008, supplemented by New Jersey-New York Over-the-Road Supplemental Agreement dated as of April 1, 2008, and New Jersey-New York General Trucking Supplemental Agreement dated as of April 1, 2008.
|
|
|
|
|
9.
|
Agreement dated as of November 1, 2010, by and between W. R. Grace & Co.-Conn. Grace Construction Products North Bergen, New Jersey, and The New York New Jersey Regional Joint Board Workers United, an SEIU Affiliate, Local 7587.
|
|
|
|
|
10.
|
Memorandum of Agreement Grace Construction Products North Bergen dated as of October 29, 2013, by and between W. R. Grace & Co.-Conn. Grace Construction Products North Bergen, New Jersey, and The New York New Jersey Regional Joint Board Workers United, an SEIU Affiliate, Local 7587.
|
257
KE 29605922.2
NY\6157076.3
|
|
|
|
11.
|
Agreement Between Teamsters Local Union 701 and W. R. Grace dated as of March 20, 2013, by and between W. R. Grace and Teamsters Local Union 701.
|
258
KE 29605922.2
NY\6157076.3
SCHEDULE 6.12
POST-CLOSING COVENANTS
|
|
|
|
1.
|
On or before February 4, 2014, the Loan Parties shall deliver or cause to be delivered to the Administrative Agent, a customary written opinion (addressed to the Administrative Agent, the Collateral Agent and the Lenders) of OPF Partners, counsel for Lux Holdco, reasonably acceptable to the Administrative Agent (it being agreed that the form of opinion approved by the Administrative Agent on January 30, 2014 is reasonably acceptable).
|
|
|
|
|
2.
|
On or before April 4, 2014, each Loan Party shall have delivered or cause to be delivered to the Administrative Agent, each of the following:
|
|
|
|
|
a.
|
Subordination Agreement, by and among Borrower, German Borrower, Holdings, the other Guarantors, WRG Asbestos PI Trust, as Subordinated Creditor (“
PI Trust
”), and the Administrative Agent, in form and substance reasonably acceptable to the Administrative Agent and pursuant to which (a) Borrower’s obligations under that certain Deferred Payment Agreement (PI), dated as of the Closing Date, between the Borrower and PI Trust and (b) Holdings’ obligations under that certain W.R. Grace & Co. Guarantee Agreement (PI), between Holdings and PI Trust, are expressly subordinated to the payment in full of the Obligations;
|
|
|
|
|
b.
|
Subordination Agreement, by and among Borrower, German Borrower, Holdings, the other Guarantors, WRG Asbestos PD Trust, on behalf of the holders of Asbestos PD Claims, as Subordinated Creditor (“
PD Trust
”), and the Administrative Agent, in form and substance reasonably acceptable to the Administrative Agent and pursuant to which (a) Borrower’s obligations under that certain Deferred Payment Agreement (Class 7A PD), dated as of the Closing Date, between the Borrower and PD Trust and (b) Holdings’ obligations under that certain W.R. Grace & Co. Guarantee Agreement (Class 7A PD), between Holdings and PD Trust, are expressly subordinated to the payment in full of the Obligations; and
|
|
|
|
|
c.
|
Subordination Agreement, by and among Borrower, German Borrower, Holdings, the other Guarantors, PD Trust, on behalf of the holders of US ZAI PD Claims, as Subordinated Creditor, and Administrative Agent, in form and substance reasonably acceptable to the Administrative Agent and pursuant to which (a) Borrower’s obligations under that certain Deferred Payment Agreement (Class 7B ZAI), dated as of the Closing Date, between the Borrower and PD Trust and (b) Holdings’ obligations under that certain W.R. Grace & Co. Guarantee Agreement (Class 7B ZAI), between Holdings and PD Trust, are expressly subordinated to the payment in full of the Obligations.
|
|
|
|
|
3.
|
On or before May 4, 2014, each Loan Party shall have delivered to the Collateral Agent each Mortgage, title insurance policy, opinion, survey, certificate, affidavit, document, instrument and other deliverable required by Section 6.12(c).
|
KE 29605922.2
NY\6157076.3
|
|
|
|
4.
|
Each Loan Party shall have executed and delivered to the Collateral Agent all documentation required by Collateral Agent to evidence a perfected pledge of 65% of the outstanding shares of voting Capital Stock and 100% of the outstanding non-voting Capital Stock of each Material First Tier Foreign Subsidiary (other than Lux Holdco) under the relevant laws of its jurisdiction of organization (1) on or before May 3, 2014, with respect to each Material First Tier Foreign Subsidiary organized under the laws of the United Kingdom, Canada, Ireland or Australia, (2) on or before August 3, 2014, with respect to each Material First Tier Foreign Subsidiary organized under the laws of France, Belgium or South Africa and (3) on or before February 3, 2015, with respect to each Material First Tier Foreign Subsidiary (including without limitation Material First Tier Foreign Subsidiaries organized under the laws of Hong Kong, Venezuela or Mexico).
|
260
KE 29605922.2
NY\6157076.3
SCHEDULE 7.01(b)
LIENS
|
|
|
|
1.
|
Asbestos Insurance Transfer Agreement effective as of the Effective Date of the First Amended Joint Plan of Reorganization Under Chapter 11 of W. R. Grace & Co.,
et al.
, by and between the Insurance Contributors and Asbestos PI Trust, all as enumerated and defined therein.
|
261
KE 29605922.2
NY\6157076.3
SCHEDULE 7.02(f)
INVESTMENTS
|
|
|
|
1.
|
The Investments of the Loan Parties set forth on Schedule 5.12 are incorporated by reference herein.
|
|
|
|
|
2.
|
W. R. Grace & Co.-Conn. holds: (i) a 50% interest in Advanced Refining Technologies LLC, a Delaware limited liability company (ii) a 40% interest in Asian Food Investment Limited, a company organized and existing under the laws of Hong Kong; (iii) a 25% interest in GKA Company Limited, a company organized and existing under the laws of the British Virgin Islands; and (iv) a 25.8% interest in Arral & Partners Limited, a company organized and existing under the laws of the British Virgin Islands.
|
|
|
|
|
3.
|
Grace PAR Corporation holds a 50% interest in Paramount Coal Company, a Virginia partnership.
|
|
|
|
|
4.
|
Construction Products Dubai, Inc. holds: (i) a 49% interest in Cormix Middle East, LLC, a company organized and existing under the laws of Dubai; (ii) a 49% interest in Emirates Chemicals, LLC, a company organized and existing under the laws of Dubai; and (iii) a 50% interest in Grace Yapi Kimyasallari Sanayi ve Ticaret A.S., a company organized and existing under the laws of Turkey.
|
|
|
|
|
5.
|
Darex UK Limited holds a 31% interest in OAO Kriz, a company organized and existing under the laws of the Russian Federation.
|
KE 29605922.2
NY\6157076.3
SCHEDULE 7.03(h)
INDEBTEDNESS
|
|
|
|
1.
|
The Foreign Credit Facilities set forth on Schedule 4.01(i) and the guarantees thereof by any Loan Party as indicated therein are incorporated by reference herein.
|
|
|
|
|
2.
|
Indebtedness owed to Advanced Refining Techologies, LLC listed below.
|
|
|
|
|
|
|
|
|
Borrower
|
Lender
|
Currency
|
Amount (USD)
|
|
W. R. Grace & Co.-Conn.
|
Advanced Refining Technologies LLC
|
USD
|
$3,484,632
|
|
W. R. Grace & Co.-Conn.
|
Advanced Refining Technologies LLC
|
USD
|
$1,788,811
|
|
W. R. Grace & Co.-Conn.
|
Advanced Refining Technologies LLC
|
USD
|
$3,473,669
|
|
W. R. Grace & Co.-Conn.
|
Advanced Refining Technologies LLC
|
USD
|
$6,816,008
|
|
W. R. Grace & Co.-Conn.
|
Advanced Refining Technologies LLC
|
USD
|
$6,739,676
|
|
W. R. Grace & Co.-Conn.
|
Advanced Refining Technologies LLC
|
USD
|
$6,461,770
|
KE 29605922.2
NY\6157076.3
SCHEDULE 7.08
TRANSACTIONS WITH AFFILIATES
|
|
|
|
1.
|
The Investments set forth on Schedule 7.02(f) between Loan Parties and Affiliates of Loan Parties are incorporated by reference herein.
|
264
KE 29605922.2
NY\6157076.3
SCHEDULE 7.09
BURDENSOME AGREEMENTS
None.
265
KE 29605922.2
NY\6157076.3
SCHEDULE 10.02
NOTICES
If to any Loan Party:
W. R. Grace & Co.
7500 Grace Drive
Columbia, MD 21044
Facsimile: (410) 531-4545
Attention: Mark Shelnitz
Email: Mark.Shelnitz@grace.com
with a copy to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY, 10022
Facsimile (212) 446-4900
Attention: Ashley Gregory
If to Administrative Agent:
Goldman Sachs Bank USA
Address: 30 Hudson Street, 4th Floor
City/State/Zip: Jersey City, NJ 07302
Facsimile:
Attention: SBD Operations
Email: gsd.link@gs.com and ficc-sbdagency-nydallas@ny.email.gs.com
with a copy to:
Goldman Sachs Bank USA
Address: 200 West Street
City/State/Zip: New York, NY 10282-2198
Facsimile:
Attention: Patrick Pakan
Email: patrick.pakan@gs.com
Telephone: (917) 343-6823
Bank of America, N.A.
Address: 1 Fleet Way
City/State/Zip: Scranton, PA 18507
Facsimile: 1(800) 755-8743
266
KE 29605922.2
NY\6157076.3
Attention: Trade Operations Standby-Unit Al Malave
If to Swing Line Lender:
Goldman Sachs Bank USA
Address: 200 West Street
City/State/Zip: New York, NY 10282-2198
Facsimile:
Attention: Patrick Pakan
Email: patrick.pakan@gs.com
Telephone: (917) 343-6823
267
KE 29605922.2
NY\6157076.3
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ________________
|
|
|
|
To:
|
Goldman Sachs Bank USA, as Administrative Agent
GOLDMAN SACHS BANK USA
|
30 Hudson Street, 4th Floor
Jersey City, NJ 07302
Attention: SBD Operations
Email: gsd.link@gs.com and gs-sbdagency-borrowernotices@gs.com
Re: Credit Agreement, dated as of [______], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, as the Borrower, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Ladies and Gentlemen:
The Borrower refers to the above described Credit Agreement and hereby irrevocably notifies you of the Borrowing requested below:
I. The proposed action is a [U.S. Term Borrowing / Euro Term Borrowing / Delayed Draw Term Borrowing / U.S. Revolving Borrowing / Multicurrency Revolving Borrowing / Swingline Borrowing] / [conversion of [U.S. Term / Euro Term / Delayed Draw Term / U.S. Revolving / Multicurrency Revolving] Loans from [Base Rate / Eurocurrency Rate] Loans to [Base Rate / Eurocurrency Rate] Loans] / [continuation of Eurocurrency Rate Loans].
II. The Business Day of the proposed Borrowing / continuation / conversion is ____________, 20[__].
III. The aggregate amount of the proposed Borrowing / continuation / conversion is $ ____________ (which shall be, except as provided in Section 2.03(c)(i) or Section 2.04(c)(i) of the Credit Agreement, in a whole multiple of $500,000.00 but not less than $1,000,000.00 in the case of Eurocurrency Rate Loans, $100,000.00 but not less than $500,000.00 in the case of Base Rate Loans and $100,000.00 but not less than $500,000.00 in the case Swingline Loans) and which consists of the following Types:
Form of Committed Loan Notice
A-1-1
NY\6158255.3
|
|
|
|
|
|
|
|
Type of Borrowing or Conversion
(Base Rate Loans / Eurocurrency Rate / Swingline Loans)
|
Currency
|
Amount
|
Interest Period for Eurocurrency Rate Loans
|
|
|
|
_______________________
|
[months][weeks]
|
|
|
|
_______________________
|
[months][weeks]
|
|
|
|
_______________________
|
[months][weeks]
|
|
|
|
_______________________
|
[months][weeks]
|
IV. Proceeds of the proposed Borrowing are to be disbursed to the following account(s):
___________________________
___________________________
[V. The Borrower hereby certifies that the following statements are true and correct on the date of the proposed Borrowing, before and after giving effect thereto and to the application of the proceeds therefrom:
A. The representations and warranties of the Loan Parties and the German Borrower contained in the Credit Agreement and the other Loan Documents [(other than Sections 5.05(d), 5.06, 5.15 and 5.16 of the Credit Agreement)
]
are true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, Material Adverse Effect or similar language shall be true and correct in all respects) as though made on and as of the date of the proposed Borrowing (both immediately prior to and after giving effect to the proposed Borrowing); except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, Material Adverse Effect or similar language shall be true and correct in all respects) as of such earlier date; and
B. No Default or Event of Default has occurred and is continuing, or would result from such proposed Borrowing or the application of the proceeds thereof.]
[SIGNATURE PAGE FOLLOWS]
Form of Committed Loan Notice
A-1-2
NY\6158255.3
W. R. GRACE & CO.-CONN.
as Borrower
By:
Name:
Title:
Form of Committed Loan Notice
A-1-3
NY\6158255.3
EXHIBIT B-1
FORM OF INITIAL TERM NOTE
Dated: [______], 20[___]
FOR VALUE RECEIVED, the undersigned, W. R. GRACE & CO.-CONN. (the “
Borrower
”), HEREBY PROMISES TO PAY to the order of [_______________] or its registered assigns (the “
Lender
”) for the account of its applicable Lending Office the aggregate unpaid principal amount of the [U.S. Term Loan][Euro Term Loan] owing from time to time to the Lender by the Borrower pursuant to that certain Credit Agreement, dated as of [______], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”; terms defined therein, unless otherwise defined herein, being used herein as therein defined), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, as the Borrower, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent (together with its permitted successors and assigns, the “
Administrative Agent
”), on the dates and in the amounts specified in the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal amount of the [U.S. Term Loan][Euro Term Loan] owing to the Lender by the Borrower, such interest to be paid from the date of such Term Loan until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in [Dollars][Euros] to the Administrative Agent, at GOLDMAN SACHS BANK USA, 30 Hudson Street, 4th Floor, Jersey City, NJ 07302 Attention: SBD Operations (or such other address as specified by the Administrative Agent to the Borrower in accordance with the Credit Agreement), in same day funds. The [U.S. Term Loan][Euro Term Loan] owing to the Lender by the Borrower, and all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto, which is part of this promissory note (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Promissory Note
”);
provided, however,
that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower under this Promissory Note.
This Promissory Note is one of the Initial Term Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of a [U.S. Term Loan][Euro Term Loan] by the Lender to the Borrower in an amount not to exceed the Dollar amount first above mentioned, the Indebtedness of the Borrower resulting from such [U.S. Term Loan][Euro Term Loan] being evidenced by this Promissory Note, and (ii) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified. The obligations of the Borrower under this Promissory Note and the other Loan Documents, and the obligations of the other Loan Parties under the Loan Documents, are secured by the Collateral as provided in the Loan Documents.
Form of Initial Term Note
B-1-1
NY\6158255.3
This Promissory Note shall be governed by, and construed in accordance with, the laws of the State of New York without regard to the conflict of laws principles of the State of New York.
[SIGNATURE PAGE FOLLOWS]
Form of Initial Term Note
B-1-2
NY\6158255.3
W. R. GRACE & CO.-CONN.,
as the Borrower
By:
Name:
Title:
Form of Initial Term Note
B-1-3
NY\6158255.3
TERM LOAN AND PRINCIPAL PAYMENTS
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Date
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Amount of [U.S. Term Loan][Euro Term Loan] Made
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Interest Period
(If Applicable)
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Amount of
Principal
Repaid
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Unpaid Principal
Balance
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Total
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Notation
Made By
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Base
Rate
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Euro Curr-ency
Rate
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Base
Rate
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Euro Curr-ency
Rate
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Base
Rate
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Euro Curr-ency
Rate
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Form of Initial Term Note
B-1-4
NY\6158255.3
EXHIBIT B-2
FORM OF REVOLVING NOTE
Dated: [______], 20[___]
FOR VALUE RECEIVED, the undersigned, [W. R. GRACE & CO.-CONN. (the “
Borrower
”)][GRACE GMBH & CO. KG (the “German Borrower”)], HEREBY PROMISES TO PAY to the order of [_______________] or its registered assigns (the “
Lender
”) for the account of its applicable Lending Office the lesser of (a) $[_______] and (b) the aggregate unpaid principal amount of all [U.S. Revolving Loans][Multicurrency Revolving Loans] owing from time to time to the Lender by the [Borrower][German Borrower] pursuant to that certain Credit Agreement, dated as of [______], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, as the Borrower, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each lender from time to time party thereto and GOLDMAN SACHS BANK USA, Administrative Agent (together with its permitted successors and assigns, the “
Administrative Agent
”), on the dates and in the amounts specified in the Credit Agreement. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
The [Borrower][German Borrower] also promises to pay interest on the unpaid principal amount of each [U.S. Revolving Loan][Multicurrency Revolving Loan] owing to the Lender by the [Borrower][German Borrower], such interest to be paid from the date of each such [U.S. Revolving Loan][Multicurrency Revolving Loan] until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in [Dollars][Euros] to the Administrative Agent, at at GOLDMAN SACHS BANK USA, 30 Hudson Street, 4th Floor, Jersey City, NJ 07302 Attention: SBD Operations (or such other address as specified by the Administrative Agent to the Borrower in accordance with the Credit Agreement), in same day funds. The [U.S. Revolving Loans][Multicurrency Revolving Loans] owing to the Lender by the [Borrower][German Borrower], and all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto, which is part of this promissory note (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Promissory Note
”);
provided, however,
that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the [Borrower][German Borrower] under this Promissory Note.
This Promissory Note is one of the Revolving Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of [U.S. Revolving Loans][Multicurrency Revolving Loans] by the Lender to the [Borrower][German Borrower] in an amount not to exceed the Dollar amount first above mentioned, the indebtedness of the [Borrower][German Borrower] resulting from such [U.S. Revolving Loans][Multicurrency Revolving Loans] being evidenced by this Promissory Note, and (ii) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and
Form of Revolving Note
B-2-1
NY\6158255.3
also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified. The obligations of the [Borrower][German Borrower] under this Promissory Note and the other Loan Documents, and the obligations of the other Loan Parties under the Loan Documents, are secured by the Collateral as provided in the Loan Documents. The German Borrower shall not be liable for any obligations of the Borrower or any other Loan Party.
This Promissory Note shall be governed by, and construed in accordance with, the laws of the State of New York without regard to the conflict of laws principles of the State of New York.
[SIGNATURE PAGE FOLLOWS]
Form of Revolving Note
B-2-2
NY\6158255.3
[W. R. GRACE & CO.-CONN.
,
as the Borrower][
GRACE GMBH & CO. KG
, as the German Borrower]
By:
Name:
Title:
Form of Revolving Note
B-2-3
NY\6158255.3
REVOLVING LOANS AND PRINCIPAL PAYMENTS
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Date
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Amount of [U.S. Revolving Loan][Multicurrency Revolving Loan] Made
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Interest Period
(If Applicable)
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Amount of
Principal
Repaid
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Unpaid Principal
Balance
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Total
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Notation
Made By
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Base
Rate
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Euro Curr-ency
Rate
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Base
Rate
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Euro Curr-ency
Rate
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Base
Rate
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Euro Curr-ency
Rate
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Form of Revolving Note
B-2-4
NY\6158255.3
EXHIBIT B-3
FORM OF SWINGLINE NOTE
Dated: [______], 20[___]
FOR VALUE RECEIVED, the undersigned, W. R. GRACE & CO.-CONN. (the “
Borrower
”), HEREBY PROMISES TO PAY to the order of [_______________] or its registered assigns (the “
Lender
”) for the account of its applicable Lending Office the lesser of (a) $[_______] and (b) the aggregate unpaid principal amount of all Swingline Loans owing from time to time to the Lender by the Borrower pursuant to that certain Credit Agreement, dated as of [______], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, as the Borrower, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each lender from time to time party thereto and GOLDMAN SACHS BANK USA, Administrative Agent (together with its permitted successors and assigns, the “
Administrative Agent
”), on the dates and in the amounts specified in the Credit Agreement. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal amount of each Swingline Loan owing to the Lender by the Borrower, such interest to be paid from the date of each such Swingline Loan until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United States of America to the Administrative Agent, at GOLDMAN SACHS BANK USA, 30 Hudson Street, 4th Floor, Jersey City, NJ 07302 Attention: SBD Operations (or such other address as specified by the Administrative Agent to the Borrower in accordance with the Credit Agreement), in same day funds. The Swingline Loans owing to the Lender by the Borrower, and all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto, which is part of this promissory note (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Promissory Note
”);
provided, however,
that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower under this Promissory Note.
This Promissory Note is one of the Swingline Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of Swingline Loans by the Lender to the Borrower in an amount not to exceed the Dollar amount first above mentioned, the indebtedness of the Borrower resulting from such Swingline Loans being evidenced by this Promissory Note, and (ii) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified. The obligations of the Borrower under this Promissory Note and the other Loan Documents, and the obligations of the other Loan Parties under the Loan Documents, are secured by the Collateral as provided in the Loan Documents.
Form of Swingline Note
B-3-1
NY\6158255.3
This Promissory Note shall be governed by, and construed in accordance with, the laws of the State of New York without regard to the conflict of laws principles of the State of New York.
[SIGNATURE PAGE FOLLOWS]
Form of Swingline Note
B-3-2
NY\6158255.3
W. R. GRACE & CO.-CONN.,
as the Borrower
By:
Name:
Title:
Form of Swingline Note
B-3-3
NY\6158255.3
SWINGLINE LOANS AND PRINCIPAL PAYMENTS
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Date
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Amount of Swingline Loan Made
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Amount of Principal Repaid
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Unpaid Principal Balance
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Total
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Notation
Made By
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Form of Swingline Note
B-3-4
NY\6158255.3
EXHIBIT B-4
FORM OF DELAYED DRAW TERM NOTE
Dated: [______], 20[___]
FOR VALUE RECEIVED, the undersigned, W. R. GRACE & CO.-CONN. (the “
Borrower
”), HEREBY PROMISES TO PAY to the order of [_______________] or its registered assigns (the “
Lender
”) for the account of its applicable Lending Office the lesser of (a) $[_______] and (b) the aggregate unpaid principal amount of all Delayed Draw Term Loans owing from time to time to the Lender by the Borrower pursuant to that certain Credit Agreement, dated as of [______], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, the Borrower, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each lender from time to time party thereto and GOLDMAN SACHS BANK USA, Administrative Agent (together with its permitted successors and assigns, the “
Administrative Agent
”), on the dates and in the amounts specified in the Credit Agreement. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal amount of each Delayed Draw Term Loan owing to the Lender by the Borrower, such interest to be paid from the date of each such Delayed Draw Term Loan until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in [Dollars][Euros] to the Administrative Agent, at GOLDMAN SACHS BANK USA, 30 Hudson Street, 4th Floor, Jersey City, NJ 07302 Attention: SBD Operations (or such other address as specified by the Administrative Agent to the Borrower in accordance with the Credit Agreement), in same day funds. The Delayed Draw Term Loans owing to the Lender by the Borrower, and all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto, which is part of this promissory note (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Promissory Note
”);
provided, however,
that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower under this Promissory Note.
This Promissory Note is one of the Delayed Draw Term Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of Delayed Draw Term Loans by the Lender to the Borrower in an amount not to exceed the Dollar amount first above mentioned, the indebtedness of the Borrower resulting from such Delayed Draw Term Loans being evidenced by this Promissory Note, and (ii) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified. The obligations of the Borrower under this Promissory Note and the other Loan Documents, and the obligations of the other Loan Parties under the Loan Documents, are secured by the Collateral as provided in the Loan Documents.
Form of Delayed Draw Term Note
B-4-1
NY\6158255.3
This Promissory Note shall be governed by, and construed in accordance with, the laws of the State of New York without regard to the conflict of laws principles of the State of New York.
[SIGNATURE PAGE FOLLOWS]
Form of Delayed Draw Term Note
B-4-2
NY\6158255.3
W. R. GRACE & CO.-CONN.,
as the Borrower
By:
Name:
Title:
Form of Delayed Draw Term Note
B-4-3
NY\6158255.3
DELAYED DRAW TERM LOANS AND PRINCIPAL PAYMENTS
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Date
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Amount of Delayed Draw Term Loan Made
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Amount of Principal Repaid
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Unpaid Principal Balance
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Total
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Notation
Made By
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Base Rate
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Euro Curr-ency Rate
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Base Rate
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Euro Curr-ency Rate
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Base Rate
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Euro Curr-ency Rate
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Form of Delayed Draw Term Note
B-4-4
NY\6158255.3
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
Date of Certificate: _________________
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To:
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Goldman Sachs Bank USA
GOLDMAN SACHS BANK USA
|
30 Hudson Street, 4th Floor
Jersey City, NJ 07302
Attention: SBD Operations
Reference is made to that certain Credit Agreement, dated as of [______], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned, a duly authorized and acting Responsible Officer of the Borrower, hereby certifies (solely in his or her capacity as an officer of the Borrower) to the Administrative Agent as follows:
I.
DEFAULTS / EVENTS OF DEFAULT
.
A. [Except as set forth on Appendix I] no Default or Event of Default has occurred and is continuing.
II. [
EXCESS CASH FLOW
. The reasonably detailed calculations setting forth Excess Cash Flow are attached hereto as
Appendix II
.]
III.
TOTAL LEVERAGE RATIO
. The reasonably detailed calculations setting forth the Total Leverage Ratio as of the last day of the most recently completed Test Period are attached hereto as
Appendix III
.
IV.
FINANCIAL INFORMATION
.
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A.
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Except as set forth in Appendix IV, there has been no material change in GAAP or in the application thereof since ______________________ (the date of the Borrower’s most recent audited financial statements), and if such a change has occurred, the effect of such change on the financial statements is reasonably detailed in
Appendix IV
.
|
(
Note
: if no change has occurred, insert “Not Applicable.”)
Form of Compliance Certificate
C-1
NY\6158255.3
V.
PERFECTION CERTIFICATE
. [An updated Section 2B to the Perfection Certificate since the Perfection Certificate or any update thereof was last delivered to the Administrative Agent is attached as
Appendix V
.] / [There has been no change that requires an update to Section 2B of the Perfection Certificate or any update thereof last delivered to the Administrative Agent.]
[SIGNATURE PAGE FOLLOWS]
Form of Compliance Certificate
C-2
NY\6158255.3
IN WITNESS WHEREOF, the Borrower, on behalf of itself and each of the other Loan Parties, has duly executed this Compliance Certificate as of the date first stated above.
W. R. GRACE & CO.-CONN.
as Borrower
By:
Name:
Title:
Form of Compliance Certificate
C-3
NY\6158255.3
Appendix I to Compliance Certificate
Except as set forth below, no Default or Event of Default has occurred and is continuing. [If a Default or Event of Default has occurred and is continuing, the following describes the nature of the Default or Event of Default in reasonable detail and the steps, if any, being taken or contemplated by the Loan Parties to be taken on account thereof.]
Form of Compliance Certificate
C-4
NY\6158255.3
Appendix II to Compliance Certificate
The following is a calculation of the Excess Cash Flow for the Fiscal Year ending on ______________________:
Form of Compliance Certificate
C-5
NY\6158255.3
Appendix III to Compliance Certificate
The following is a calculation of the Total Leverage Ratio for the [Fiscal Year/Fiscal Quarter] ending on ______________________:
Form of Compliance Certificate
C-6
NY\6158255.3
Appendix IV to Compliance Certificate
Except as set forth below, no material change in GAAP or in the application thereof has occurred since the date of the Borrower’s most recent audited financial statements referred to in Section 6.01(a) of the Credit Agreement. [If such material changes have occurred, the following describes the nature of the changes in reasonable detail and the effect, if any, of each such change in GAAP or in the application thereof on the financial statements delivered in accordance with the Credit Agreement.]
Form of Compliance Certificate
C-7
NY\6158255.3
Appendix V to Compliance Certificate
[Updated Section 2B to the Perfection Certificate, if any]
Form of Compliance Certificate
C-8
NY\6158255.3
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Credit Agreement, dated as of [ ], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
The assignor named below (the “
Assignor
”) and the assignee named below (the “
Assignee
”) agree as follows:
I. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, that interest in and to the Assignor’s rights and obligations as a Lender under the Credit Agreement as of the date hereof that represents the applicable percentage interest(s) specified in Section 1 of
Schedule I
hereto of all outstanding rights and obligations of the Lenders under the Credit Agreement (including, without limitation, such interest in each of the Assignor’s outstanding Commitments, if any, and the Loans (and related Obligations) owing to it).
II. The Assignor (a) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim and that it is legally authorized to enter into this Assignment and Assumption; (b) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in, or in connection with, the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant thereto; (c) makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of their respective obligations under the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant thereto; and (d) confirms, in the case of an Assignee who is not a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, that the amount of the Commitment or Loans subject to this Assignment and Assumption is not less than $500,000.00 for Term Loans or $2,500,000.00 for Revolving Loans and Commitments.
III. The Assignee (a) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 6.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption; (b) agrees that it will, independently and without reliance upon the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit
Form of Assignment and Assumption
D-1
NY\6158255.3
Agreement; (c) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; (d) agrees that it will perform in accordance with their terms all of the obligations which, by the terms of the Credit Agreement, are required to be performed by it as a Lender; (e) specifies as its lending office (and address for notices) the office set forth beneath its name on the signature pages hereof; (f) represents and warrants that it is an Eligible Assignee; and (g) represents and warrants that it is not a Disqualified Institution.
IV. Following the execution of this Assignment and Assumption by the Assignor and the Assignee, it will be delivered, together with (unless waived by the Administrative Agent or unless such assignment is by an Initial Lender or any Affiliate of an Initial Lender) a processing and recordation fee of $3,500.00, to the Administrative Agent for acceptance by the Administrative Agent and recording by the Administrative Agent. The effective date of this Assignment and Assumption shall be the date of recordation thereof by the Administrative Agent, unless otherwise specified on
Schedule I
hereto (the “
Effective Date
”).
V. Upon consent to such assignment by the Administrative Agent (which consent shall not be required if the interest assigned by this Assignment and Assumption is being assigned to a Lender, an Affiliate of a Lender or an Approved Fund) and consent to such assignment by the Borrower (which consent shall not be required in the case of such assignment described in the prior parenthetical or if an Event of Default in respect of [
Section 8.01(a)
,
(e)
or
(f)]
has occurred and is continuing) and recording thereof by the Administrative Agent, from and after the Effective Date, (a) the Assignee shall be a party to the Credit Agreement and, to the extent of the interest assigned by this Assignment and Assumption, shall have the rights and obligations under the Credit Agreement of a Lender thereunder, and (b) the Assignor shall, to the extent of the interest assigned by this Assignment and Assumption, relinquish its rights and be released from its obligations under the Credit Agreement, except as otherwise provided in Section 10.07 of the Credit Agreement.
VI. From and after the Effective Date, the Administrative Agent shall make all payments under the Credit Agreement in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement for periods prior to the Effective Date directly between themselves.
VII. This Assignment and Assumption shall be governed by, and be construed in accordance with, the laws of the State of New York without regard to the conflict of laws principles of the State of New York.
[
Remainder of page intentionally left blank
]
Form of Assignment and Assumption
D-2
NY\6158255.3
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption to be executed by their respective officers thereunto duly authorized, as of the date first above written.
[ ], as Assignor
By:
Name:
Title:
[ ], as Assignee
By:
Name:
Title:
Lending Office (and address for notices):
[Address]
Accepted this ___ day
of ___________, ____
GOLDMAN SACHS BANK USA,
as Administrative Agent
By:
Name:
Title:
Form of Assignment and Assumption
D-3
NY\6158255.3
Acknowledged and, to the extent required under the Credit Agreement, consented to, this ____ day of ____________________, 20__.
W. R. GRACE & CO.-CONN.
,
as Borrower
By: __________________________________
Name:
Title:
[ ]
as L/C Issuer
By: __________________________________
Name:
Title:
[ ]
as Swingline Lender
By: __________________________________
Name:
Title:
Form of Assignment and Assumption
D-4
NY\6158255.3
Schedule I
to
Assignment and Assumption
Dated________________, ______
Section 1
.
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Facility Assigned
3
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Aggregate Amount of Commitment/ Loans for all Lenders
4
|
Amount of Commitment/ Loans Assigned
|
Percentage of Commitment/ Loans
5
|
|
____________
|
$____________
|
$__________
|
%_________
|
|
____________
|
$____________
|
$__________
|
%_________
|
|
____________
|
$____________
|
$__________
|
%_________
|
Section 2
.
Effective Date: ____________,____
3
F
ill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment and Assumption (
e.g.
, “U.S. Term Loans”, “Euro Term Loans,” “U.S. Revolving Commitments”, “Multicurrency Revolving Commitments,” “Additional Term Loans”, etc.).
4
Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made prior to the Effective Date.
5
Set forth, to at least 9 decimals, as a percentage of the Commitment Loans of all Lenders thereunder.
Form of Assignment and Assumption
D-5
NY\6158255.3
EXHIBIT E
FORM OF GUARANTEE AGREEMENT
[To Be Attached]
Form of Guarantee Agreement
E-1
NY\6158255.3
Execution Version
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT (this “
Guarantee Agreement
”), dated as of February 3, 2014, by each of the Persons listed as a “Guarantor” on the signature pages hereto and each other Person who shall become a Party hereto by execution of a Guarantee Joinder Agreement substantially in the form of Exhibit A attached hereto (each such Person, individually, a “
Guarantor
” and, collectively, the “
Guarantors
”) in favor of Goldman Sachs Bank USA, as administrative and collateral agent for its own benefit and the benefit of the other Secured Parties (as defined in the Credit Agreement referred to below) (in such capacities, together with permitted successors and assigns, the “
Agent
”).
W I T N E S S E T H
WHEREAS, reference is made to that certain Credit Agreement, dated as of February 3, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among (i) W. R. Grace & Co., a Delaware corporation (“
Holdings
”), (ii) W. R. Grace & Co.-Conn., a Connecticut corporation (the “
Borrower
”), (iii) Grace GmbH & Co. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357 (the “
German Borrower
”), (iv) each Lender from time to time party thereto and (v) the Agent. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement; and
WHEREAS, the Lenders have agreed to make Loans to the Borrower and the German Borrower, pursuant to, and upon the terms and subject to the conditions expressly specified in, the Credit Agreement. Each Guarantor acknowledges that it is an integral part of a consolidated enterprise and that it will derive substantial direct and indirect benefits from the availability of the Commitments provided for in the Credit Agreement and from the making of the Loans by the Lenders. The obligations of the Lenders to make Loans are conditioned on, among other things, the execution and delivery by the Guarantors of a guarantee agreement in the form hereof. As consideration therefor and in order to induce the Lenders to make Loans and provide the Commitments, the Guarantors are willing to execute this Guarantee Agreement.
Accordingly, the parties hereto agree as follows:
1.
Guarantee
. Each Guarantor unconditionally guarantees, jointly with the other Guarantors and severally, as a primary obligor and not merely as a surety, the due and punctual payment (whether at the stated maturity, by required prepayment, by acceleration or otherwise) of all Obligations (collectively, the “
Guaranteed Obligations
”), including all such Guaranteed Obligations which shall become due but for the operation of the Bankruptcy Code of the United States (the “
Bankruptcy Code
”);
provided
,
however
, that Guaranteed Obligations consisting of obligations arising under any Swap Contract shall exclude all Excluded Swap Obligations. For the purposes of this Section, “
Excluded Swap Obligations
” means, with respect to any Guarantor, any obligation (a “
Swap Obligation
”) to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act (7 U.S.C. § 1 et seq.) (as amended from time to time, and together with any successor statute, the “
Commodity Exchange Act
”) if, and to the extent that, all or a portion of the
Form of Guarantee Agreement
E-2
NY\6158255.3
Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor's failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor would otherwise have been effective. If a Swap Obligation arises under a master agreement governing more than one swap, then to the maximum extent permitted by Applicable Law, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal. Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon the Guarantee Agreement notwithstanding any extension or renewal of any Guaranteed Obligation. Notwithstanding any provision hereof or in any other Loan Document to the contrary, in the event that any Guarantor is not an “eligible contract participant” as such term is defined in Section 1(a)(18) of the Commodity Exchange Act, as amended, at the time (i) any transaction is entered into under a Swap Contract or (ii) such Guarantor becomes a Guarantor hereunder, the Guaranteed Obligations of such Guarantor shall not include (x) in the case of clause (i) above, such transaction and (y) in the case of clause (ii) above, any transactions outstanding under any Swap Contract as of such the date such Guarantor becomes a Guarantor hereunder.
Each Guarantor agrees that it is jointly and severally, directly and primarily liable (subject to the operation of the Bankruptcy Code) for the Guaranteed Obligations.
2.
Guaranteed Obligations Not Waived or Affected
. To the fullest extent permitted by Applicable Law, each Guarantor expressly waives presentment to, demand of payment from and protest to the German Borrower or any Loan Party of any of the Guaranteed Obligations, and also waives notice of acceptance of the Guarantee hereunder, notice of protest for nonpayment and all other notices of any kind. To the fullest extent permitted by Applicable Law, the obligations of each Guarantor hereunder shall not be affected by (a) the failure of the Agent or any other Secured Party to assert any claim or demand or to enforce or exercise any right or remedy against the German Borrower or any Loan Party under the provisions of the Credit Agreement, any other Loan Document or otherwise or against any other party with respect to any of the Guaranteed Obligations, (b) any rescission, waiver, amendment or modification of (including, without limitation, any extension, renewal restructuring, any acceptance of late or partial payments under, or any change in the amount of borrowings), or any release from, any of the terms or provisions of this Guarantee Agreement, the Credit Agreement, or any other Loan Document or any other agreement, with respect to the German Borrower or any Loan Party or with respect to the Guaranteed Obligations, (c) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Agent or any other Secured Party (including, but not limited to, lapse in perfection, impairment of any security for any of the Guaranteed Obligations), (d) any lack of legality, validity or enforceability of the Credit Agreement, any of the Notes or any other Loan Document, or any other agreement or instrument creating, providing security for, or otherwise relating to any of the Guaranteed Obligations, (e) any existence, addition, modification, termination, reduction or impairment of value, or release of any other guaranty (or security therefor) of the Guaranteed Obligations or (f) the lack of legal existence of the German Borrower or any Loan Party or legal obligation to discharge any of the Guaranteed Obligations by the German Borrower or any Loan Party for any reason whatsoever, including, without limitation, in any insolvency, bankruptcy or reorganization of the German Borrower or any Loan Party.
Form of Guarantee Agreement
E-3
NY\6158255.3
It is the express purpose and intent of the parties hereto that this Guarantee Agreement and the Guarantors’ Guaranteed Obligations hereunder and under each Guarantee Joinder Agreement shall be absolute and unconditional under any and all circumstances and shall not be discharged except by payment and performance as herein provided.
3.
Security
. Each Guarantor hereby acknowledges and agrees that the Agent and each of the other Secured Parties may (a) take and hold security for the payment of the Guarantee hereunder and the Guaranteed Obligations and exchange, enforce, waive and release any such security, (b) apply such security and direct the order or manner of sale thereof as they in their sole discretion may determine and (c) release or substitute any one or more endorsees, the Borrower, the German Borrower, other Guarantors or other obligors, in each case without affecting or impairing in any way the liability of any Guarantor hereunder.
4.
Guarantee of Payment
. Each Guarantor further agrees that the Guarantee hereunder constitutes a guarantee of payment when due of all Guaranteed Obligations and not of collection, and waives any right to require that any resort be had by the Agent or any other Secured Party to any of the Collateral or other security held for payment of the Guaranteed Obligations or to any balance of any deposit account or credit on the books of the Agent or any other Secured Party in favor of the German Borrower or any Loan Party or any other Person or to any other guarantor of all or part of the Guaranteed Obligations. Any payment required to be made by the Guarantors hereunder may be required by the Agent or any other Secured Party on any number of occasions and shall be payable to the Agent, for the benefit of the Agent and the other Secured Parties, in the manner provided in the Credit Agreement.
5.
Indemnification
. Each Guarantor, jointly with the other Guarantors and severally, agrees to indemnify and hold harmless the Indemnitees to the same extent that the Borrower is required to do so pursuant to Section 10.05 of the Credit Agreement and shall be bound by the terms and conditions of Section 10.05 of the Credit Agreement as if a signatory thereto. To the fullest extent permitted by Applicable Law, no Guarantor or Indemnitee shall assert, and each Guarantor or Indemnitee hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee or Guarantor, as applicable, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Guarantee Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the Transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof.
6.
No Discharge or Diminishment of Guarantee
. The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the payment in full in cash of the Guaranteed Obligations and as provided in
Section 12
hereof with respect to the release of a Guarantor upon the occurrence of certain permitted transactions), including any claim of waiver, release, surrender, alteration or compromise of any of the Guaranteed Obligations, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise (other than the payment in full in cash of the Guaranteed Obligations). Without limiting the generality of the foregoing, the Guaranteed Obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by the failure of the Agent or any other Secured Party to assert any claim or demand or to enforce any remedy under this Guarantee Agreement, the Credit Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or that would otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the payment in full in cash of the Guaranteed Obligations).
7.
Defenses Waived
. To the fullest extent permitted by Applicable Law, each of the Guarantors waives any defense based on or arising out of any defense of the German Borrower or any
Form of Guarantee Agreement
E-4
NY\6158255.3
Loan Party or the unenforceability of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the German Borrower or any Loan Party, other than the payment in full in cash of all the Guaranteed Obligations (other than contingent indemnity obligations that are not due and payable, obligations and liabilities in respect of any Bank Products or Designated Credit Lines and Letters of Credit that have been Cash Collateralized or as to which other arrangements reasonable satisfactory to the Agent and the applicable L/C Issuer have been made). To the fullest extent permitted by Applicable Law, each Guarantor further waives any defense based on amendment or waiver of any Guaranteed Obligation, non-perfection or release of Collateral or any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation. Each Guarantor hereby acknowledges that the Agent and the other Secured Parties may foreclose on any security held by one or more of the Secured Parties by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with the German Borrower or any Loan Party or exercise any other right or remedy available to them against the German Borrower or any Loan Party without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent that all the Guaranteed Obligations have been paid in full in cash (other than contingent indemnity obligations that are not due and payable, obligations and liabilities in respect of any Bank Products or Designated Credit Lines and Letters of Credit that have been Cash Collateralized or as to which other arrangements reasonable satisfactory to the Agent and the applicable L/C Issuer have been made). Pursuant to and to the extent permitted by Applicable Law, each of the Guarantors waives any defense arising out of any such election and waives any benefit of and right to participate in any such foreclosure action, even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against the German Borrower or any Loan Party, as the case may be, or any security. Each Guarantor agrees that it shall not assert any claim in competition with the Agent or any other Secured Party in respect of any payment made hereunder in any bankruptcy, insolvency, reorganization, or any other proceeding.
Each Guarantor hereby agrees that payment by such Guarantor of its Guaranteed Obligations under this Guarantee Agreement may be enforced by the Agent on behalf of the Secured Parties upon demand by the Agent to such Guarantor without the Agent being required (such Guarantor expressly waiving to the extent permitted by law any right it may have to require the Agent) to (i) prosecute collection or seek to enforce or resort to any remedies against the German Borrower, the Borrower or any other Guarantor or any other guarantor of the Guaranteed Obligations, or (ii) seek to enforce or resort to any remedies with respect to any security interests, Liens or encumbrances granted to the Agent or any Lender or other party to any Loan Document by the Borrower, any other Guarantor or any other Person on account of the Guaranteed Obligations or any guaranty thereof,
IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH GUARANTOR THAT DEMAND UNDER THIS GUARANTEE AGREEMENT MAY BE MADE BY THE AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE AGENT, EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT AGREEMENT.
8.
Agreement to Pay
. In furtherance of the foregoing and not in limitation of any other right that the Agent or any other Secured Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of the German Borrower or any Loan Party to pay any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will promptly pay, or cause to be paid, to the Agent or such other Secured Party as designated thereby in cash the amount of such unpaid Guaranteed Obligations. Upon payment by any Guarantor of any sums to the Agent or any Secured Party as provided above, all rights of such Guarantor
Form of Guarantee Agreement
E-5
NY\6158255.3
against the German Borrower or any Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior payment in full in cash of all the Guaranteed Obligations (other than contingent indemnity obligations that are not due and payable, obligations and liabilities in respect of any Bank Products or Designated Credit Lines and Letters of Credit that have been Cash Collateralized or as to which other arrangements reasonable satisfactory to the Agent and the applicable L/C Issuer have been made). If any amount shall erroneously be paid to any Guarantor on account of such subrogation, contribution, reimbursement, indemnity or similar right, such amount shall be held for the benefit of the Secured Parties and shall forthwith be paid to the Agent to be credited against the payment of the Guaranteed Obligations in accordance with the terms of the Credit Agreement.
9.
Representations and Warranties; Covenants
.
(a)
Each Guarantor warrants and represents to the Agent, for the benefit of the Secured Parties, that, as of the date hereof, (i) it has the applicable power and authority to execute, deliver and perform the terms and provisions of this Guarantee Agreement and has taken all necessary corporate or other organizational action to authorize its execution, delivery and performance of this Guarantee Agreement, (ii) it has duly executed and delivered this Guarantee Agreement and, upon execution, this Guarantee Agreement constitutes such Guarantor’s legal, valid and binding obligation enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights, good faith and fair dealing and by equitable principles (regardless of whether enforcement is sought in equity or at law), (iii) neither the execution, delivery or performance by such Guarantor of this Guarantee Agreement nor the consummation of the transactions contemplated herein (w) will violate any provision of any Applicable Law applicable to any Loan Party or the German Borrower, (x) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant to the Collateral Documents) upon any of the property or assets of any Loan Party or the German Borrower pursuant to the terms of any material Contractual Obligation of any Loan Party, the German Borrower or any of their Restricted Subsidiaries, (y) will violate any provision of any Organizational Document of any Loan Party or the German Borrower or (z) require any approval of stockholders or any approval or consent of any Person (other than a Governmental Authority) except as have been obtained on or prior to the date hereof; except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clause (w), (x) or (z) to the extent that such conflict, breach, contravention or payment would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b)
Each Guarantor represents and warrants to the Agent, for the benefit of the Secured Parties, as of the Closing Date and at the time of each Credit Extension (in each case solely to the extent required on the date for such Credit Extension pursuant to Article 4 of the Credit Agreement), that the representations and warranties set forth in the Credit Agreement as they relate to such Guarantor or to the Loan Documents to which such Guarantor is a party, each of which is incorporated herein by reference, are true and correct in all material respects as of such date, unless expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, and the Agent and the Secured Parties shall be entitled to rely on each of such representations and warranties as if they were fully set forth herein.
(c)
Until (i) the Commitments have expired or been terminated, (ii) the principal of and interest on each Loan and all fees and other Obligations (other than contingent indemnity obligations that are not due and payable, obligations and liabilities in respect of any Bank Products or Designated Credit Lines) shall have been paid in full and (iii) all outstanding Letters of Credit have been Cash Collateralized or as to which other arrangements reasonable satisfactory to the Agent and the applicable L/C Issuer have
Form of Guarantee Agreement
E-6
NY\6158255.3
been made, each Guarantor covenants and agrees with the Agent for the benefit of the Secured Parties that, from and after the date of this Guarantee Agreement until the Borrower is released from its obligations under Article 6 and 7 of the Credit Agreement (or, if earlier, the date such Guarantor is released from this Guarantee Agreement), such Guarantor shall comply with the terms of Article 6 and 7 of the Credit Agreement as if such covenants were fully set forth herein.
10.
Limitation on Guarantee of Guaranteed Obligations
.
(a)
In any action or proceeding with respect to any Guarantor involving any state corporate law, the Bankruptcy Code or any other state or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of such Guarantor under
Section 1
hereof would otherwise be held or determined to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under said
Section 1
, then, notwithstanding any other provision hereof to the contrary, the amount of such liability shall, without any further action by such Guarantor, any Secured Party, the Agent or any other Person, be automatically limited and reduced to the highest amount which is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(a)
Each Guarantor, and by its acceptance of this Guarantee Agreement, the Agent and each other Secured Party, hereby confirms that it is the intention of all such Persons that this Guarantee Agreement and the Guaranteed Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act, any other state or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally or any other similar legislation to the extent applicable to this Guarantee Agreement and the Guaranteed Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Agent, the other Secured Parties and the Guarantors hereby irrevocably agree that the Guaranteed Obligations of each Guarantor (other than Holdings) under this Guarantee Agreement at any time shall be limited to the maximum amount as will result in the Guaranteed Obligations of such Guarantor under this Guarantee Agreement not constituting a fraudulent transfer or conveyance (or similar legal concepts under Applicable Law) after giving full effect to the liability under this Guarantee Agreement and its related contribution rights set forth herein but before taking into account any liabilities under any other Guarantee (other than any other Guarantee of Indebtedness that is pari passu (in right of payment and claims on Collateral) with the Obligations).
(b)
To the extent that any Guarantor shall be required hereunder to pay any portion of any Guaranteed Obligation exceeding the amount such Guarantor would otherwise have paid if such Guarantor had paid the aggregate amount of the Guaranteed Obligations (excluding the amount thereof repaid by the Borrower) in the same proportion as such Guarantor’s net worth on the date enforcement is sought hereunder bears to the aggregate net worth of all the Guarantors on such date, then such Guarantor shall be reimbursed by such other Guarantors for the amount of such excess, pro rata, based on the respective net worth of such other Guarantors on such date. For purposes of determining the net worth of any Guarantor in connection with the foregoing, all Guarantees of such Guarantor other than the Guarantee hereunder and any other Guarantee of Indebtedness that is pari passu (in right of payment and claims on Collateral) with the Obligations will be deemed to be enforceable and payable after the Guarantee hereunder and any other Guarantee of such pari passu Indebtedness.
11.
Information
. Each of the Guarantors assumes all responsibility for being and keeping itself informed of the German Borrower’s and each Loan Party’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that neither the Agent nor any of the other Secured Parties will have any duty to advise any of the Guarantors of information known to it or any of them regarding such circumstances or risks.
Form of Guarantee Agreement
E-7
NY\6158255.3
12.
Termination; Release of Guarantor
. This Guarantee Agreement (a) shall automatically terminate when (i) the Commitments have expired or been terminated and (ii) the Obligations (other than contingent indemnity obligations that are not due and payable, obligations and liabilities in respect of any Bank Products or Designated Credit Lines and Letters of Credit that have been Cash Collateralized or as to which other arrangements reasonable satisfactory to the Agent and the applicable L/C Issuer have been made) under the Credit Agreement shall have been paid in full, and (b) shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Guaranteed Obligation is rescinded or must otherwise be restored by any Secured Party or any Guarantor upon the bankruptcy or reorganization of the German Borrower or any Loan Party or otherwise. This Guarantee Agreement shall automatically terminate as to any Guarantor (x) upon the designation of such Guarantor as an Unrestricted Subsidiary pursuant to (and in accordance with) Section 6.12 of the Credit Agreement, (y) upon the Disposition of such Guarantor permitted pursuant to Section 7.05 of the Credit Agreement and compliance by the German Borrower and the Loan Parties with all of the terms and conditions of the Credit Agreement relating to such Section 7.05 or (z) otherwise in accordance with Section 10.01(g) of the Credit Agreement. The Agent shall take such actions as are necessary to provide evidence of each release described in this
Section 12
.
13.
Costs of Enforcement
. Without limiting any of their obligations under the Credit Agreement or the other Loan Documents, and without duplication of any fees, expenses or indemnification provided for under the Credit Agreement and the other Loan Documents, each Guarantor, jointly with the other Guarantors and severally, agrees to pay all Credit Party expenses to the same extent that the Borrower is required to do so pursuant to Section 10.04 of the Credit Agreement and shall be bound by the terms and conditions of Section 10.04 of the Credit Agreement as if a signatory thereto.
14.
Binding Effect; Several Agreement; Assignments
. Whenever in this Guarantee Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and permitted assigns of such party, and all covenants, promises and agreements by or on behalf of the Guarantors that are contained in this Guarantee Agreement shall bind and inure to the benefit of each party hereto and their respective successors and permitted assigns. This Guarantee Agreement shall be binding upon each of the Guarantors and their respective successors and permitted assigns, and shall inure to the benefit of the Agent and the other Secured Parties, and their respective successors and assigns, except that the duties and obligations of the Guarantors may not be delegated or transferred except as permitted by the Credit Agreement. This Guarantee Agreement shall be construed as a separate agreement with respect to each Guarantor and may be amended, modified, supplemented, waived or released with respect to any Guarantor without the approval of any other Guarantor and without affecting the obligations of any other Guarantor hereunder.
15.
Waivers; Amendment
.
(a)
No failure or delay of the Agent or any Secured Party in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Agent and of the other Secured Parties hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Guarantee Agreement or consent to any departure by any Guarantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Guarantor shall entitle German Borrower or any Loan Party to any other or further notice or demand in the same, similar or other circumstances.
(b)
Neither this Guarantee Agreement nor any provision hereof may be waived, amended or modified except pursuant to a written agreement entered into between the Guarantors with respect to
Form of Guarantee Agreement
E-8
NY\6158255.3
which such waiver, amendment or modification relates and the Agent, subject to any consent of the Lenders required in accordance with Section 10.01 of the Credit Agreement.
16.
Copies and Facsimiles
. This instrument and all documents which have been or may be hereinafter furnished by the Guarantors to the Agent may be reproduced by the Agent by any photographic, microfilm, xerographic, digital imaging, or other process. 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 in the regular course of business).
17.
Governing Law
. THIS GUARANTEE AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS GUARANTEE AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES OF THE STATE OF NEW YORK THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
18.
Notices
. All communications and notices hereunder shall be in writing and given as provided in Section 10.02 of the Credit Agreement, provided that communications and notices to the Guarantors may be delivered to the Borrower on behalf of each of the Guarantors.
19.
Survival of Agreement; Severability
.
(a)
All covenants, agreements, indemnities, representations and warranties made by the Guarantors herein and in the certificates or other instruments delivered in connection with or pursuant to this Guarantee Agreement, the Credit Agreement or any other Loan Document shall be considered to have been relied upon by the Agent and the other Secured Parties and shall survive the execution and delivery of this Guarantee Agreement, the Credit Agreement and the other Loan Documents, regardless of any investigation made by the Agent or other Secured Party or on their behalf and, notwithstanding that the Agent or other Secured Party may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended, and shall continue in full force and effect until (x) the Commitments have expired or been terminated and (y) the Obligations (other than contingent indemnity obligations that are not due and payable, obligations and liabilities in respect of any Bank Products or Designated Credit Lines and Letters of Credit that have been Cash Collateralized or as to which other arrangements reasonable satisfactory to the Agent and the applicable L/C Issuer have been made) under the Credit Agreement shall have been paid in full. The provisions of
Sections 5
and
13
hereof shall survive and remain in full force and effect regardless of the repayment of the Guaranteed Obligations, the expiration or termination of the Commitments or the termination of this Guarantee Agreement or any provision hereof.
(b)
Any provision of this Guarantee Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof, and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
20.
Counterparts
. This Guarantee Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Guarantee Agreement by facsimile transmission or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Guarantee Agreement.
21.
Rules of Interpretation
. The rules of interpretation specified in Section 1.02 through Section 1.12 of the Credit Agreement shall be applicable to this Guarantee Agreement.
22.
Jurisdiction; Consent to Service of Process
.
Form of Guarantee Agreement
E-9
NY\6158255.3
(a)
Each Guarantor agrees that any suit for the enforcement of this Guarantee Agreement may be brought in the courts of the State of New York sitting in the Borough of Manhattan or any federal court sitting therein as the Agent may elect in its sole discretion and consents to the exclusive jurisdiction of such courts. Each Guarantor hereby waives any objection which it may now or hereafter have to the venue of any such suit or any such court or that such suit is brought in an inconvenient forum and agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Guarantee Agreement shall affect any right that any Secured Party may otherwise have to bring any action or proceeding relating to this Guarantee Agreement against a Guarantor or its properties in the courts of any jurisdiction.
(b)
Each party hereto irrevocably consents to service of process in the manner provided for notices in
Section 18
hereof. Nothing in this Guarantee Agreement or any other Loan Document will affect the right of the Agent or any Secured Party to serve process in any other manner permitted by law.
23.
Waiver of Jury Trial
. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS GUARANTEE AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL‑ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS GUARANTEE AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WAR-RANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 23 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
24.
Right of Set-off
. In addition to any rights and remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, after obtaining the prior written consent of the Agent (such consent not to be unreasonably withheld or delayed), each Lender and their Affiliates is authorized at any time and from time to time, without prior notice to any Guarantor, any such notice being waived by each Guarantor, and without notice to any other Person (other than the Agent), to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held by (other than payroll, trust, petty cash, employee benefit or tax accounts), and other Indebtedness (in whatever currency) at any time owing by, such Lender or any such Affiliate to or for the credit or the account of the respective Guarantor against any and all Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender shall have made any demand under this Guarantee Agreement or any other Loan Document, and although such Obligations may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all
Form of Guarantee Agreement
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NY\6158255.3
amounts so set off shall be paid over immediately to the Agent and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees promptly to notify the applicable Guarantor after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Agent, each Lender and their respective Affiliates under this
Section 24
are in addition to other rights and remedies (including, without limitation, other rights of set-off) that the Agent and such Lender may have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the assets of any Foreign Subsidiary constitute security, or shall the proceeds of such assets be available for, payment of the Obligations of the Borrower or any Subsidiary, it being understood that (a) the Capital Stock of any Foreign Subsidiary does not constitute such an asset and (b) the provisions hereof shall not limit, reduce or otherwise diminish in any respect the Borrower’s or the German Borrower’s obligations to make any mandatory prepayment pursuant to Section 2.05(b) of the Credit Agreement.
25.
Acknowledgment and Agreement to Certain Provisions of the Credit Agreement
. Without limiting any of their obligations under the Credit Agreement or the other Loan Documents, each Guarantor acknowledges and agrees to
Sections 2.05(a)(iv)(I)
and
10.18
of the Credit Agreement.
26.
Keepwell
. Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Guarantee Agreement in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 26 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 26, or otherwise under this Guarantee Agreement, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 26 shall remain in full force and effect until payment in full in cash of all the Guaranteed Obligations (other than contingent indemnity obligations that are not due and payable, obligations and liabilities in respect of any Bank Products or Designated Credit Lines and Letters of Credit that have been Cash Collateralized or as to which other arrangements reasonable satisfactory to the Agent and the applicable L/C Issuer have been made). Each Qualified ECP Guarantor intends that this Section 26 constitute, and this Section 26 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. “
Qualified ECP Guarantor
” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
[SIGNATURE PAGES FOLLOW]
Signature page to Guarantee
| NY
6155434.5||
Form of Guarantee Agreement
E-11
NY\6158255.3
Signature page to Guarantee
| NY
6155434.5||
IN WITNESS WHEREOF, the Guarantors have duly executed this Guarantee Agreement as of the day and year first above written.
GUARANTORS:
W. R. GRACE & CO.
,
as a Guarantor
By:
Name:
Title:
W. R. GRACE & CO.-CONN.
,
as a Guarantor
By:
Name:
Title:
ALLTECH ASSOCIATES, INC.
,
as a Guarantor
By:
Name:
Title:
A-3
| NY
6155434.5||
A-1
EXHIBIT A
Form of Guarantee Joinder Agreement
GUARANTEE JOINDER AGREEMENT
Form of Guarantee Agreement
E-12
NY\6158255.3
THIS GUARANTEE JOINDER AGREEMENT
dated as of _____________, 201_ (this “
Guarantee Joinder Agreement
”), is made by
_______________________________
, a ________________ (the “
Joining Guarantor
”), in favor of
GOLDMAN SACHS BANK USA
, as administrative and collateral agent for its own benefit and the benefit of the other Secured Parties (as defined in the Credit Agreement referenced below) (in such capacities, together with successors and permitted assigns, the “
Agent
”).
RECITALS:
A.
W. R. Grace & Co., a Delaware corporation (“
Holdings
”), W. R. Grace & Co.-Conn., a Connecticut corporation (the “
Borrower
”), Grace GmbH & Co. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357 (the “
German Borrower
”), each Lender from time to time party thereto and the Agent are party to a Credit Agreement dated as of February 3, 2014 (as in effect on the date hereof, the “
Credit Agreement
”).
B.
Holdings, the Borrower and certain Subsidiaries of the Borrower are from time to time party to a Guarantee Agreement dated as of February 3, 2014
(as in effect on the date hereof, the “
Guarantee Agreement
”, capitalized terms used but not defined herein have the meanings given to such terms in the Guarantee Agreement or the Credit Agreement, as applicable).
C.
The Joining Guarantor is a Subsidiary of the Borrower and is required by the terms of the Credit Agreement to be joined as a party to the Guarantee Agreement as a Guarantor (as defined in the Guarantee Agreement).
D.
The Joining Guarantor will materially benefit directly and indirectly from the making and maintenance of the extensions of credit made from time to time under the Credit Agreement.
In order to induce the Secured Parties to from time to time make and maintain extensions of credit under the Credit Agreement, the Joining Guarantor hereby agrees as follows:
1.
Joinder
.
The Joining Guarantor hereby irrevocably, absolutely and unconditionally becomes a party to the Guarantee Agreement as a Guarantor and bound by all the terms, conditions, obligations, liabilities and undertakings of each Guarantor or to which each Guarantor is subject thereunder, including without limitation the joint and several, unconditional, absolute, continuing and irrevocable guarantee to the Agent for the benefit of the Secured Parties of the payment in full of the Guaranteed Obligations (as defined in the Guarantee Agreement) whether now existing or hereafter arising, all with the same force and effect as if the Joining Guarantor were a signatory to the Guarantee Agreement.
2.
Affirmations
.
The Joining Guarantor hereby acknowledges and reaffirms as of the date hereof with respect to itself, its properties and its affairs each of the waivers, representations, warranties, acknowledgements and certifications applicable to any Guarantor contained in the Guarantee Agreement.
3.
Severability
.
If any provision of this Guarantee Joinder Agreement is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Guarantee Joinder Agreement shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Form of Guarantee Agreement
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NY\6158255.3
4.
Counterparts
.
This Guarantee Joinder Agreement may be executed in any number of counterparts each of which when so executed and delivered shall be deemed an original, and it shall not be necessary in making proof of this Guarantee Joinder Agreement to produce or account for more than one such counterpart executed by the Joining Guarantor. Without limiting the foregoing provisions of this
Section 4
, the provisions of
Sections 10.11
and
10.12
of the Credit Agreement shall be applicable to this Guarantee Joinder Agreement. Delivery of an executed signature page to this Guarantee Joinder Agreement by facsimile transmission or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Guarantee Joinder Agreement.
5.
Delivery
. The Joining Guarantor hereby irrevocably waives (to the extent permitted by Applicable Law) notice of acceptance of this Guarantee Joinder Agreement and acknowledges that the Guaranteed Obligations are and shall be deemed to be incurred, and credit extensions under the Loan Documents, made and maintained, in reliance on this Guarantee Joinder Agreement and the Joining Guarantor’s joinder as a party to the Guarantee Agreement as herein provided.
6.
Governing Law; Jurisdiction; Waiver of Jury Trial; Etc.
The provisions of
Sections 17
,
22
and
23
of the Guarantee Agreement are hereby incorporated by reference as if fully set forth herein.
[Signature page follows.]
IN WITNESS WHEREOF
, the Joining Guarantor has duly executed and delivered this Guarantee Joinder Agreement as of the day and year first written above.
JOINING GUARANTOR:
__________________________________________
By:_______________________________________
Name:
____________________________________
Title:
____________________________________
[Address for Notices:
________________________________
________________________________
________________________________
Facsimile: (___) ___-____]
Form of Guarantee Agreement
E-14
NY\6158255.3
EXHIBIT F-1
FORM OF SECURITY AGREEMENT
[To Be Attached]
Form of Security Agreement
F-1-1
NY\6158255.3
SECURITY AGREEMENT
among
W. R. GRACE & CO.,
W. R. GRACE & CO.-CONN.,
THE OTHER GRANTORS PARTY HERETO
and
GOLDMAN SACHS BANK USA,
as Collateral Agent
Dated as of February 3, 2014
TABLE OF CONTENTS
Page
Form of Security Agreement
F-1-2
NY\6158255.3
ARTICLE I
Definitions
Section 1.01
Definitions
.
1
Section 1.02
Other Defined Terms
1
ARTICLE II
Pledge of Securities
Section 2.01
Pledge
6
Section 2.02
Delivery of the Pledged Collateral
.
7
Section 2.03
Representations, Warranties and Covenants
8
Section 2.04
Certification of Limited Liability Company and Limited Partnership Interests
10
Section 2.05
Registration in Nominee Name; Denominations
10
Section 2.06
Voting Rights; Dividends and Interest
.
10
Section 2.07
Collateral Agent Not a Partner or Limited Liability Company Member
12
Section 2.08
Conflicting Provisions
12
Section 2.09
Agreement to Be Bound
12
ARTICLE III
Security Interests in Other Personal Property
Section 3.01
Security Interest
12
Section 3.02
Secured Obligations
14
Section 3.03
Representations and Warranties
14
Section 3.04
Covenants
.
16
Section 3.05
[Reserved]
.
18
Section 3.06
Other Actions
18
ARTICLE IV
Special Provisions Concerning Intellectual Property Collateral
Section 4.01
Grant of License to Use Intellectual Property
19
Section 4.02
Protection of Collateral Agent’s Security
.
20
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F-1-3
NY\6158255.3
ARTICLE V
[Reserved]
ARTICLE VI
Remedies
Section 6.01
Remedies Upon Default
21
Section 6.02
Application of Proceeds
24
ARTICLE VII
Indemnity, Subrogation and Subordination
ARTICLE VIII
Miscellaneous
Section 8.01
Notices
26
Section 8.02
Waivers; Amendment
.
26
Section 8.03
Collateral Agent’s Fees and Expenses; Indemnification
.
27
Section 8.04
Successors and Assigns
27
Section 8.05
Survival of Agreement
27
Section 8.06
Counterparts; Effectiveness; Several Agreement
27
Section 8.07
Severability
28
Section 8.08
Right of Set-Off
28
Section 8.09
GOVERNING LAW
.
28
Section 8.10
WAIVER OF RIGHT TO TRIAL BY JURY
29
Section 8.11
Headings
30
Section 8.12
Security Interest Absolute
30
Section 8.13
Termination or Release
.
30
Section 8.14
Additional Grantors
31
Section 8.15
Collateral Agent Appointed Attorney-in-Fact
32
Section 8.16
Recourse; Limited Obligations
32
Section 8.17
Mortgages
33
Section 8.18
Reinstatement
33
Section 8.19
Reasonable Care
33
Form of Security Agreement
F-1-4
NY\6158255.3
SCHEDULES
Schedule I-A
Certain Excluded Instruments
Schedule I-B
Pledged Equity; Pledged Debt
Schedule II
Intellectual Property
EXHIBITS
Exhibit A
Form of Security Agreement Supplement
Exhibit B
Form of Perfection Certificate
Exhibit C
Grant of Security Interest in United States Trademarks
Exhibit D
Grant of Security Interest in United States Patents
Exhibit E
Grant of Security Interest in United States Copyrights
34
| NY
6153312.5||
| NY
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SECURITY AGREEMENT (as amended, supplemented, restated or otherwise modified from time to time pursuant to the terms hereof, this “
Agreement
”) is entered into as of February 3, 2014 by and among W. R. Grace & Co., a Delaware corporation (“
Holdings
”), W. R. Grace & Co.-Conn., a Connecticut corporation (the “
Borrower
”), the grantors party hereto (together with the Borrower, Holdings and any other Person that becomes a party hereto pursuant to Section 8.14, collectively, the “
Grantors
”) and Goldman Sachs Bank USA, as Collateral Agent (together with its successors and assigns, in such capacity, the “
Collateral Agent
”) for the Secured Parties. Capitalized terms used herein and defined in Article I are used herein as therein defined.
Reference is made to that certain Credit Agreement, dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among Holdings, the Borrower, the German Borrower (as defined therein),
Form of Security Agreement
F-1-5
NY\6158255.3
each lender from time to time party thereto (collectively, the “
Lenders
” and individually, each a “
Lender
”) and the Administrative Agent.
The Lenders have agreed to extend credit to the Borrower and the German Borrower, subject to the terms and conditions set forth in the Credit Agreement. The obligations of the Lenders to extend such credit are conditioned upon, among other things, the execution and delivery of this Agreement by each of the Grantors. The Grantors are affiliates of one another, are an integral part of a consolidated enterprise and will derive substantial direct and indirect benefits from the extensions of credit to the Borrower and the German Borrower pursuant to the Credit Agreement and are willing to execute and deliver this Agreement in order to induce the Lenders to extend such credit. Accordingly, the parties hereto agree as follows:
ARTICLE II
ARTICLE III
Definitions
Section .
Definitions
.
(a)
Capitalized terms used in this Agreement and not otherwise defined herein have the meanings specified in the Credit Agreement. Unless otherwise defined in the Credit Agreement, all terms defined in the UCC and used but not defined in this Agreement have the meanings specified in the UCC; the term “instrument” has the meaning specified in Article 9 of the UCC.
(b)
The rules of interpretation specified in Article I of the Credit Agreement also apply to this Agreement.
Section .
Other Defined Terms
. As used in this Agreement, the following terms have the meanings specified below:
“
Account Debtor
” means any Person who is or who may become obligated to any Grantor under, with respect to or on account of an Account.
“
Agreement
” has the meaning assigned to such term in the
preamble
.
“
Article 9 Collateral
” has the meaning assigned to such term in
Section 3.01(a)
.
“
Blue Sky Laws
” has the meaning assigned to such term in
Section 6.01
.
“
Borrower
” has the meaning assigned to such term in the
preamble
.
“
Collateral
” means, collectively, the Article 9 Collateral and the Pledged Collateral.
“
Collateral Agent
” has the meaning assigned to such term in the
preamble
.
“
Copyright License
” means any written agreement, now or hereafter in effect, granting any use right to any third party under any Copyright now or hereafter owned by any Grantor or that such Grantor otherwise has the right to license, or granting any use right to any Grantor under any Copyright now or hereafter owned by any third party, and all rights of such Grantor under any such agreement.
Form of Security Agreement
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NY\6158255.3
“
Copyrights
” means all of the following now owned or hereafter acquired by or assigned to any Grantor: (a) all copyright rights in any work subject to the copyright laws of the United States, whether as author, assignee, transferee or otherwise, whether registered or unregistered and whether published or unpublished, (b) all registrations and applications for registration of any such copyright in the United States, including registrations, supplemental registrations and pending applications for registration in the United States Copyright Office, including those United States copyright registrations and applications owned by such Grantor that are listed on
Schedule II
and all (i) rights and privileges arising under Applicable Law with respect to such Grantor’s use of such copyrights, (ii) renewals and extensions thereof and amendments thereto, (iii) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect thereto, including damages and payments for past, present or future Infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present or future Infringements thereof.
“
Credit Agreement
” has the meaning assigned to such term in the
preamble
.
“
Domain Names
” means all Internet domain names and associated URL addresses in or to which any Grantor now or hereafter has any right, title or interest.
“
Equipment
” means any “equipment” as such term is defined in Article 9 of the UCC.
“
Excluded Assets
” means any of the following assets:
(a)
any property or assets owned by a Foreign Subsidiary;
(b)
Excluded Contracts;
(c)
Excluded Equipment;
(d)
any interest in fee-owned real property of the Borrower and the Grantors other than (x) fee-owned real property set forth on Schedule 5.11(b) of the Credit Agreement and (x) fee-owned real property located in the U.S. and acquired after the Closing Date with a fair market value of at least $20,000,000;
(e)
any interest in leased real property of the Borrower and the Grantors (and no landlord waivers, estoppels or collateral access letters shall be required);
(f)
motor vehicles, airplanes and other assets subject to certificates of title;
(g)
[Reserved];
(h)
any “intent to use” Trademark, unless and until a “Statement of Use” or “Amendment to Allege Use” has been filed with the United States Patent and Trademark Office;
(i)
assets as to which the Collateral Agent, in consultation with the Borrower in accordance with the Collateral Documents, reasonably determines in writing that the burden
Form of Security Agreement
F-1-7
NY\6158255.3
or cost of obtaining such a security interest or perfection thereof are excessive in relation to the benefit of the security to be afforded thereby;
(j)
stock and assets of Excluded Subsidiaries that have not elected to become Guarantors in accordance with the Credit Agreement;
(k)
any assets subject to a Lien permitted by Section 7.01(p) of the Credit Agreement or Section 7.01(ee) of the Credit Agreement, in each case, so long as the agreement governing such Lien does not permit Collateral Agent to validly possess a security interest therein;
(l)
margin stock and stock or assets of any Person other than a wholly-owned Restricted Subsidiary to the extent prohibited by the Organizational Documents of such Person or requiring third party consent;
(m)
Commercial Tort Claims;
(n)
governmental licenses, state or local franchises, charters and authorizations and any other property and assets to the extent that the Collateral Agent may not validly possess a security interest therein under Applicable Laws (including, without limitation, rules and regulations of any governmental authority or agency) or the pledge or creation of a security interest in which would require governmental consent, approval, license or authorization, other than to the extent such prohibition or limitation is rendered ineffective under the UCC or other Applicable Law notwithstanding such prohibition (other than proceeds thereof, the assignment of which is expressly deemed effective under the UCC);
(o)
except for the Lux Holdco Pledge Agreement and as required by Section 6.14(c) of the Credit Agreement, any assets located outside the United States or assets that require action under the law of any non-U.S. jurisdiction to create or perfect a security interest in such assets under such non-U.S. jurisdiction, including any Intellectual Property registered in any non-U.S. jurisdiction (and no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction shall be required);
provided
, that this clause (o) shall not operate to exclude any such asset to the extent that such asset is otherwise included in the definition of Collateral and a security interest in such asset may be created and perfected under the laws of the State of New York (or any other applicable state of the United States) for the purposes of determinations under such laws by the filing of a UCC financing statement;
(p)
any property or assets to the extent that the grant of a security interest therein would result in adverse tax consequences to the Borrower or any of its Subsidiaries, as reasonably determined by the Borrower in consultation with the Administrative Agent; and
(q)
proceeds and products from any and all of the foregoing excluded collateral described in clauses (a) through (p), unless such proceeds or products would otherwise constitute Collateral.
Form of Security Agreement
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“
Excluded Contract
” means at any date any rights or interest of the Borrower or any Grantor under any agreement, contract, license, instrument, document or other general intangible (referred to solely for purposes of this definition as a “Contract”) to the extent that such Contract by the terms of a restriction in favor of a Person who is not the Borrower, a direct or indirect parent of the Borrower, a Grantor or a Restricted Subsidiary or any requirement of law, prohibits, or requires any consent or establishes any other condition for or would terminate because of an assignment thereof or a grant of a security interest therein by the Borrower or a Grantor; provided that: (x) rights under any such Contract otherwise constituting an “Excluded Contract” by virtue of this definition shall be included in the Collateral to the extent permitted thereby or by Sections 9-406, 9-407, 9-408 and 9-409 of the UCC and (y) all proceeds paid or payable to the Borrower or any Grantor from any sale, transfer or assignment of such Contract and all rights to receive such proceeds shall be included in the Collateral (unless such proceeds otherwise constitute Excluded Assets, other than as a result of clause (q) of the definition thereof).
“
Excluded Equipment
” means at any date any Equipment or other assets of the Borrower or any Grantor which is subject to a Capital Lease Obligation, a purchase money obligation or other contract permitted by the Credit Agreement if and to the extent that (i) a restriction in favor of a Person who is not the Borrower, a direct or indirect parent of the Borrower, a Grantor or a Restricted Subsidiary contained in the agreements or documents governing such Capital Lease Obligation, purchase money obligation or similar contract prohibits, or requires any consent or establishes any other conditions for or would result in the termination of such agreement or document because of an assignment thereof, or a grant of a security interest therein, by the Borrower or any Grantor and (ii) in the case of restrictions set forth the agreements or documents governing Capital Lease Obligations and purchase money obligations, such restriction relates only to the asset or assets acquired by the Borrower or any Grantor with the proceeds of such Capital Lease Obligation or purchase money obligation and attachments thereto, improvements thereof or substitutions therefor and, in the case of restrictions set forth in any other contract, such restriction relates only to the Equipment or assets that are the subject of such contract; provided that: (x) any Equipment or other assets that would constitute “Excluded Equipment” by virtue of this definition shall be included in the Collateral to the extent permitted by the agreement or document governing such Capital Lease Obligation, purchase money obligation or other contract or by Sections 9-406, 9-407, 9-408 and 9-409 of the UCC and (y) all proceeds paid or payable to the Borrower or any Grantor from any sale, transfer or assignment of such Equipment or other asset and all rights to receive such proceeds shall be included in the Collateral (unless such proceeds otherwise constitute Excluded Assets, other than as a result of clause (q) of the definition thereof).
“
General Intangibles
” has the meaning provided in Article 9 of the UCC.
“
Grant of Security Interest
” means a Grant of Security Interest in certain Intellectual Property substantially in the form of
Exhibit C
,
D
or
E
attached hereto.
“
Grantors
” has the meaning assigned to such term in the
preamble
.
“
Holdings
” has the meaning assigned to such term in the
preamble
.
Form of Security Agreement
F-1-9
NY\6158255.3
“
Infringement
” means infringement, misappropriation, dilution, tarnishment, impairment or other violation.
“
Intellectual Property
” means all intellectual property of every kind and nature now owned or hereafter acquired by any Grantor, including (a) inventions, designs, Domain Names, Patents, Copyrights, Licenses, Trademarks, trade secrets, and (b) confidential or proprietary technical and business information, know how, show how, or other proprietary data or information relating to its business, software, databases, and all other proprietary information relating to its business.
“
Intellectual Property Collateral
” means Collateral consisting of Intellectual Property.
“
Lenders
” has the meaning assigned to such term in the
preamble
.
“
License
” means any Patent License, Trademark License, Copyright License or other intellectual property license or sublicense agreement relating solely to Intellectual Property to which any Grantor is a party, including the Intellectual Property listed on
Schedule II
.
“
Patent License
” means any written agreement, now or hereafter in effect, granting to any third party any right to make, have made, use, sell, offer to sell or import any invention covered in whole or in part by a Patent, now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, or granting to any Grantor any right to make, have made, use, sell, offer to sell or import any invention covered in whole or in part by a patent, now or hereafter owned by any third party, and all rights of any Grantor under any such agreement.
“
Patents
” means all of the following now owned or hereafter acquired by any Grantor: (a) all letters patent of the United States, all registrations thereof, and all applications for letters patent of the United States, including registrations and pending applications in the United States Patent and Trademark Office, including those United States patents and applications for United States patents owned by such Grantor that are listed on
Schedule II
, and (b) all (i) rights and privileges arising under Applicable Law with respect to such Grantor’s use of any patents, (ii) inventions and improvements described and claimed therein, (iii) reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof and amendments thereto, (iv) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future Infringements thereof, (v) rights corresponding thereto throughout the world and (vi) rights to sue for past, present or future Infringements thereof.
“
Perfection Certificate
” means a certificate substantially in the form of
Exhibit B
, completed and supplemented with the schedules and attachments contemplated thereby, and duly executed on behalf of each Grantor.
“
Pledged Collateral
” has the meaning assigned to such term in
Section 2.01
.
“
Pledged Debt
” has the meaning assigned to such term in
Section 2.01
.
“
Pledged Equity
” has the meaning assigned to such term in
Section 2.01
.
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“
Pledged Securities
” means any promissory notes, stock certificates or other securities now or hereafter included in the Pledged Collateral, including all Pledged Equity, Pledged Debt and all other certificates, instruments or other documents representing or evidencing any Pledged Collateral.
“
Proceeds
” means all “proceeds” as defined in Article 9 of the UCC, with respect to the Collateral.
“
Receivables
” means all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including, without limitation all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment Property, together with all of Grantor’s rights, if any, in any goods or other property giving rise to such right to payment.
“
Secured Obligations
” shall mean all Obligations other than Excluded Swap Obligations (as defined in the Guarantee Agreement).
“
Securities Act
” has the meaning assigned to such term in
Section 6.01
.
“
Security Agreement Supplement
” means an instrument substantially in the form of
Exhibit A
hereto.
“
Security Interest
” has the meaning assigned to such term in
Section 3.01(a)
.
“
Trademark License
” means any written agreement, now or hereafter in effect, granting to any third party any right to use any Trademark now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, or granting to any Grantor any right to use any trademark now or hereafter owned by any third party, and all rights of any Grantor under any such agreement.
“
Trademarks
” means all of the following now owned or hereafter acquired by any Grantor: (a) all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, and designs, now owned or hereafter adopted, acquired or assigned to, all registrations and applications filed in connection therewith, including registrations and applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any political subdivision thereof, including those United States trademark registrations and applications for United States trademark registrations owned by such Grantor that are listed on
Schedule II
and all goodwill or the business connected with the use of any trademark and (b) any and all (i) rights and privileges arising under Applicable Law with respect to such Grantor’s use of any trademarks, (ii) renewals thereof and amendments thereto, (iii) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future Infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present and future Infringements thereof.
ARTICLE V
ARTICLE VI
Pledge of Securities
Section .
Pledge
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. As security for the payment in full of the Secured Obligations, each Grantor hereby pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest in, all of such Grantor’s right, title and interest in, to and under:
(i)
all Capital Stock held by it including, without limitation, those listed on
Schedule I-B
and any other Capital Stock obtained in the future by such Grantor and the certificates representing all such Capital Stock (the “
Pledged Equity
”); provided that (x) in the case of Capital Stock of any Excluded Foreign Subsidiary, shares of Capital Stock of such Excluded Foreign Subsidiary to be pledged shall be limited to 65% of the outstanding shares of voting Capital Stock and 100% of the outstanding non-voting Capital Stock of each such Person; (y) in no event shall Pledged Equity include nor the Security Interest attach to any Excluded Assets and (z) in no event shall Pledged Equity include nor the Security Interest attach to the Capital Stock of any Subsidiaries that are not directly held by a Grantor;
(ii)
(A) the promissory notes and any instruments evidencing indebtedness owned by it and listed opposite the name of such Grantor on
Schedules
I-A
and
I-B
and (B) any promissory notes and instruments evidencing Indebtedness obtained in the future by such Grantor (the “
Pledged Debt
”);
(iii)
all other property that may be delivered to and held by the Collateral Agent pursuant to the terms of this
Section 2.01
;
(iv)
subject to
Section 2.06
, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the securities referred to in
clauses (i)
and
(ii)
above;
(v)
subject to
Section 2.06
, all rights and privileges of such Grantor with respect to the securities and other property referred to in
clauses (i)
,
(ii)
,
(iii)
and
(iv)
above; and
(vi)
all Proceeds of and Supporting Obligations in respect of any of the foregoing (the items referred to in
clauses (i)
through
(v)
above being collectively referred to as the “
Pledged Collateral
”; provided that Excluded Assets shall not constitute Pledged Collateral), including, for the avoidance of doubt, any component definition thereof.
TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title, interest, powers, privileges and preferences pertaining or incidental thereto, unto the Collateral Agent, its successors and assigns, for the benefit of the applicable Secured Parties.
Section .
Delivery of the Pledged Collateral
.
(a)
Each Grantor agrees promptly to deliver or cause to be delivered to the Collateral Agent, for the benefit of the applicable Secured Parties, any and all Pledged Equity (other than any uncertificated securities, but only for so long as such securities remain uncertificated) and all Pledged Debt to the extent such Pledged Debt consists of promissory notes and instruments evidencing Indebtedness, only as are required to be delivered under
clause (b)
immediately below.
(b)
To the extent evidenced by a promissory note, each Grantor will cause any Indebtedness for borrowed money having a principal amount equal to or in excess of $10,000,000, which for avoidance of doubt excludes accounts receivable in the ordinary course of business, owed
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to such Grantor by any Person promptly to be pledged and each such promissory note delivered to the Collateral Agent, for the benefit of the applicable Secured Parties; provided that, until the date that is ninety (90) days following the Closing Date, no Grantor shall be required to deliver the promissory notes set forth on
Schedule I-A
.
(c)
Upon delivery to the Collateral Agent, (i) any Pledged Securities shall be accompanied by stock or bond powers duly executed in blank or other instruments of transfer reasonably satisfactory to the Collateral Agent and by such other instruments and documents as the Collateral Agent may reasonably request (other than instruments or documents requiring actions in any non-U.S. jurisdiction related to Capital Stock of Foreign Subsidiaries, except with respect to the pledge of Capital Stock in Lux Holdco and as otherwise required by Section 6.14 of the Credit Agreement) and (ii) all Pledged Debt and other property comprising part of the Pledged Collateral shall be accompanied by proper instruments of assignment duly executed by the applicable Grantor and such other instruments or documents as the Collateral Agent may reasonably request (other than instruments or documents requiring actions in any non-U.S. jurisdiction related to Capital Stock of Foreign Subsidiaries, except with respect to the pledge of Capital Stock in Lux Holdco and as otherwise required by Section 6.14 of the Credit Agreement). Each delivery of Pledged Securities shall be accompanied by a schedule describing the securities, which schedule shall be deemed to supplement
Schedule I-B
and be made a part hereof; provided that failure to attach any such schedule hereto shall not affect the validity of such pledge of such Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered.
Section .
Representations, Warranties and Covenants
. Each Grantor represents, warrants and covenants, as to itself and the other Grantors, to the Collateral Agent, for the benefit of the Secured Parties, on the Closing Date and at the time of each Credit Extension that:
(a)
Schedule I-B
correctly sets forth, with respect to each Grantor, (i) all Capital Stock owned by such Grantor in any Subsidiary and the percentage of the issued and outstanding units of each class of the Capital Stock of the issuer thereof represented by the Pledged Equity owned by such Grantor and (ii) all Pledged Debt held by such Grantor required to be delivered pursuant to
Section 2.02(b)
;
(b)
the Pledged Equity issued by the Grantors and Pledged Debt (solely with respect to Pledged Debt issued by a Person other than the Borrower or a Subsidiary of the Borrower, to the best of the Borrower’s knowledge) have been duly and validly authorized and issued by the issuers thereof and (i) in the case of Pledged Equity (to the extent applicable), are fully paid and non-assessable and (ii) in the case of Pledged Debt (solely with respect to Pledged Debt issued by a Person other than the Borrower or a Subsidiary of the Borrower, to the best of the Borrower’s knowledge), are legal, valid and binding obligations of the issuers thereof, enforceable in accordance with their terms (except as such enforceability may be (x) limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and (y) subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law);
(c)
except for the security interests granted hereunder, each of the Grantors (i) is and, subject to any transfers made in compliance with the Credit Agreement, will continue
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to be the direct owner, beneficially and of record, of the Pledged Securities indicated on
Schedule I-B
as owned by such Grantors, (ii) holds the same free and clear of all Liens, other than (A) Liens created by the Collateral Documents and (B) Permitted Liens, (iii) will make no collateral assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Pledged Collateral, other than (A) Liens created by the Collateral Documents and (B) Permitted Liens, and (iv) will use commercially reasonable efforts to defend its title or interest thereto or therein against any and all Liens (other than the Liens permitted pursuant to this
Section 2.03(c)
), however arising, of all Persons whomsoever;
(d)
as of the Closing Date, except for (i) restrictions and limitations imposed by the Loan Documents, any Collateral Document or securities laws generally, (ii) in the case of Pledged Equity of Persons that are not wholly owned Subsidiaries, transfer restrictions that existed at the time of acquisition of Capital Stock in such Persons or (iii) as permitted by the Credit Agreement, (x) the Pledged Collateral is and will continue to be freely transferable and assignable, and (y) none of the Pledged Collateral is or will be subject to any option, right of first refusal, shareholders agreement, charter or by-law provisions or contractual restriction of any nature that would prohibit, impair, delay or otherwise affect, in each case, in any manner material and adverse to the Secured Parties the pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Collateral Agent of rights and remedies hereunder;
(e)
each of the Grantors has all requisite organizational power and authority to pledge the Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated (it being understood that such Grantor’s power and authority to pledge the Capital Stock of a non-wholly owned Subsidiary may be limited by the Organizational Documents of such Subsidiary);
(f)
except as described in
Section 2.03(d)
above, no consent or approval of any Governmental Authority was or is necessary to the validity of the pledge effected hereby, except for (i) such as have been obtained or made and are in full force and effect, (ii) filings and recordings necessary to perfect Liens created under the Loan Documents and enforce the rights of the Lenders and the Secured Parties under the Loan Documents or (iii) the failure of which to obtain would not reasonably be expected to result in a Material Adverse Effect;
(g)
by virtue of the execution and delivery by the Grantors of this Agreement, when any Pledged Securities are delivered to the Collateral Agent in accordance with this Agreement, the Collateral Agent will obtain a legal, valid and perfected Lien upon and security interest in such Pledged Securities as security for the payment and performance of the Secured Obligations, except as such Lien may be (i) limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally, (ii) subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law and (iii) subject to the need for filings and registrations necessary to create
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or perfect the Liens on the Collateral granted by the Grantors in favor of the Secured Parties; and
(h)
the pledge effected hereby is effective to vest in the Collateral Agent, for the benefit of the Secured Parties, the rights of the Collateral Agent in the Pledged Collateral as set forth herein.
Section .
Certification of Limited Liability Company and Limited Partnership Interests
. Each interest in any limited liability company controlled by any Grantor and pledged under
Section 2.01
, to the extent such limited liability company elects to treat its limited liability company interests as “securities” within the meaning of Article 8 of the UCC, shall be represented by a certificate, shall be a “security” within the meaning of Article 8 of the UCC and shall be governed by Article 8 of the UCC. If any securities now or hereafter acquired by any Grantor are uncertificated and are issued to such Grantor or its nominee directly by the issuer thereof, upon the Collateral Agent’s request during the continuance of an Event of Default, such Grantor shall promptly notify the Collateral Agent thereof and, at the Collateral Agent’s reasonable request, pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (i) cause the issuer to agree to comply with instructions, subject to compliance with Applicable Law, from the Collateral Agent as to such securities, without further consent of any Grantor or such nominee, or (ii) arrange for the Collateral Agent to become the registered owner of the securities.
Section .
Registration in Nominee Name; Denominations
. If an Event of Default shall occur and be continuing and the Collateral Agent shall give the Borrower three (3) Business Days’ prior written notice of its intent to exercise such rights, (a) the Collateral Agent, on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in its own name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the applicable Grantor, endorsed or assigned in blank or in favor of the Collateral Agent, and each Grantor will promptly give to the Collateral Agent copies of any notices or other communications received by it with respect to Pledged Securities registered in the name of such Grantor and (b) the Collateral Agent shall have the right to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any purpose consistent with this Agreement, to the extent permitted by the documentation governing such Pledged Securities.
Section .
Voting Rights; Dividends and Interest
.
(a)
Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given the Borrower three (3) Business Days’ prior written notice that the rights of the Guarantors under this
Section 2.06
are being suspended:
(i)
Each Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Credit Agreement and the other Loan Documents; provided that, such rights and powers shall not be exercised in any manner in contravention of the Credit Agreement.
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(ii)
The Collateral Agent shall promptly execute and deliver to each Grantor, or cause to be executed and delivered to such Grantor, all such proxies, powers of attorney and other instruments as such Grantor may reasonably request for the purpose of enabling such Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to
subparagraph (i)
above.
(iii)
Each Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Securities, to the extent (and only to the extent) that the payment or making of such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Credit Agreement the other Loan Documents, and Applicable Laws; provided that any noncash dividends, interest, principal or other distributions that would constitute Pledged Equity or Pledged Debt, whether resulting from a subdivision, combination or reclassification of the outstanding Capital Stock of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Pledged Collateral in accordance with
Section 2.01
hereof, to the extent constituting Pledged Collateral, and, if received by any Grantor, shall be promptly delivered to the Collateral Agent in accordance with and to the extent required by
Section 2.02
hereof in the same form as so received (with any necessary endorsement reasonably requested by the Collateral Agent). So long as no Event of Default has occurred and is continuing, the Collateral Agent shall promptly deliver to each Grantor any Pledged Securities in its possession if requested to be delivered to the issuer thereof in connection with any exchange or redemption of such Pledged Securities.
(b)
Upon the occurrence and during the continuance of an Event of Default, after the Collateral Agent shall have notified the Borrower of the suspension of the rights of the Grantors in accordance with
Section 2.06(a)(i)
or
Section 2.06(a)(iii)
, then all rights of any Grantor to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to
Section 2.06(a)(i)
and to receive any dividends and other amounts pursuant to
Section 2.06(a)(iii)
, and the obligations of the Collateral Agent under
Section 2.06(a)(ii)
, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers and to receive dividends; provided that the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Grantors to exercise such rights. After all Events of Default have been cured or waived, each Grantor shall have the exclusive right to exercise the voting and/or consensual rights and powers that such Grantor would otherwise be entitled to exercise pursuant to the terms of
Section 2.06(a)(i)
and, to the extent not otherwise applied to repay Secured Obligations pursuant to the terms of the Loan Documents, the Collateral Agent shall promptly repay to each Grantor (without interest unless such Collateral consists of cash held in a Cash Collateral Account bearing interest) any dividends, interest, principal or other distributions that such Grantor would otherwise be permitted to retain pursuant to the terms of
Section 2.06(a)(iii)
which then remain in the Collateral Agent’s possession, each Grantor shall have the exclusive right to receive any dividends and other amounts pursuant to
Section 2.06(a)(iii)
, and the obligations of the Collateral Agent under
Section 2.06(a)(ii)
shall be reinstated.
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(c)
Any notice given by the Collateral Agent to the Borrower suspending the rights of the Grantors under
Section 2.06(a)(i)
or
Section 2.06(a)(iii)
(i) shall be given in writing, (ii) may be given with respect to one or more of the Grantors at the same or different times and (iii) may suspend the rights of the Grantors under
Section 2.06(a)(i)
or
(iii)
in part without suspending all such rights (as specified by the Collateral Agent in its sole and absolute discretion) and without waiving or otherwise affecting the Collateral Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.
Section .
Collateral Agent Not a Partner or Limited Liability Company Member
. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership and neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the absolute owner of Pledged Equity consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Section .
Conflicting Provisions
.
To the extent any provision, representation or warranty in this Article II is duplicative of, or in conflict with, any provision in Article III as applied to Pledged Collateral, the Article II provision shall prevail.
Section .
Agreement to Be Bound
. Each Grantor that is the issuer of Pledged Equity agrees that it will be bound by the terms of this Agreement with respect to the Pledged Equity issued by it and will comply with such terms insofar as such terms are applicable to it.
ARTICLE VIII
ARTICLE IX
Security Interests in Other Personal Property
Section .
Security Interest
.
(a)
As security for the payment in full of the Secured Obligations, each Grantor hereby pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest (the “
Security Interest
”) in, all of its right, title or interest in or to any and all of the following assets and properties whether now existing or hereafter arising or acquired from time to time (collectively, the “
Article 9 Collateral
”):
(i)
all Accounts;
(ii)
all Chattel Paper;
(iii)
all Deposit Accounts;
(iv)
all Documents;
(v)
all General Intangibles;
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(vi)
all Goods (including, without limitation, Inventory and Equipment);
(vii)
Instruments;
(viii)
all insurance;
(ix)
Intellectual Property;
(x)
Investment Property;
(xi)
Letter of Credit Rights;
(xii)
Money;
(xiii)
all Cash Collateral Accounts, and all cash, securities and other investments deposited therein;
(xiv)
all Receivables;
(xv)
all Supporting Obligations;
(xvi)
all Security Entitlements in any or all of the foregoing;
(xvii)
all books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon; and
(xviii)
to the extent not otherwise included, all Proceeds and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
provided, however, that notwithstanding anything herein to the contrary, in no event shall the Collateral include nor the Security Interest attach to any Excluded Assets.
(b)
Each Grantor hereby irrevocably authorizes the Collateral Agent for the benefit of the Secured Parties at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets, whether now existing or hereafter arising” of such Grantor or words of similar effect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (A) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (B) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon request.
(c)
The Security Interest is granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral.
(d)
The Collateral Agent is authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such recordings with such offices as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in United States Intellectual Property (other than immaterial Copyrights) of each Grantor in which a security interest has been granted by each Grantor, and naming any Grantor
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or the Grantor as debtors and the Collateral Agent as secured party; provided that Collateral Agent will use commercially reasonable efforts to provide copies of such filings to such Grantor.
(e)
Notwithstanding anything to the contrary, none of the Grantors shall be required (i) to perfect the Security Interest or the security interests granted pursuant to Article II or III by any means other than by (A) filings pursuant to the UCC in the office of the secretary of state (or similar central filing office) of the relevant State(s), (B) filings in United States government offices with respect to registered or applied-for United States Patents, Trademarks and material Copyrights owned by such Grantor or registered U.S. copyrights exclusively licensed to such Grantor, but only to the extent the applicable copyright registration number is specifically referenced in such license, as expressly required elsewhere herein, (C) the delivery to the Collateral Agent to be held in its possession of all Pledged Collateral as required and in accordance with
Section 2.02
and Instruments as required and in accordance with
Section 3.06(a)
, (D) the grant to the Collateral Agent of control over certain investment property in accordance with
Section 3.06(b)
, or (E) other methods provided herein or (ii) to take any action (other than the actions expressly listed in clause (i)(C) above) with respect to any assets located outside of the United States.
Section .
Secured Obligations
. This Agreement secures, and the Collateral is collateral security for, the prompt and complete payment in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a) (and any successor provision thereof)), of all Secured Obligations.
Section .
Representations and Warranties
. Each Grantor represents and warrants, as to itself and the other Grantors, to the Collateral Agent, for the benefit of the Secured Parties, on the Closing Date and at the time of each Credit Extension that:
(a)
Each Grantor has good and valid rights (not subject to any Liens other than Permitted Liens) and/or title in the Article 9 Collateral with respect to which it has purported to grant a Security Interest hereunder (which rights and/or title, are in any event, sufficient under Section 9-203 of the UCC), except where a failure to do so would not reasonably be expected to result in a Material Adverse Effect, and has all requisite organizational power and authority to grant to the Collateral Agent the Security Interest in such Article 9 Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of, registration or filing with, or any other action by, any Governmental Authority (except for (i) such as have been obtained or made and are in full force and effect, (ii) filings and recordings necessary to perfect Liens created under the Loan Documents and enforce the rights of the Lenders and the Secured Parties under the Loan Documents or release Liens as contemplated hereunder or (iii) the failure of which to obtain would not reasonably be expected to result in a Material Adverse Effect).
(b)
The Perfection Certificate has been duly prepared, completed, executed and delivered to the Collateral Agent and the information set forth therein, including the exact legal name of each Grantor, is correct and complete in all material respects as of the Closing Date (or, with respect to any supplements to the Perfection Certificate required pursuant to the terms of the
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Credit Agreement, as of the date such supplement is delivered to the Collateral Agent). The UCC financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations prepared by the Collateral Agent based upon the information provided to the Collateral Agent in the Perfection Certificate for filing in each governmental, municipal or other office in the jurisdiction of organization of each Grantor specified in Section I.A. of the Perfection Certificate, are all the filings, recordings and registrations (other than filings required to be made in the United States Patent and Trademark Office and the United States Copyright Office in order to perfect the Security Interest in Article 9 Collateral consisting of United States Patents, Trademarks and material Copyrights) that are necessary to establish a legal, valid and perfected security interest under the UCC in favor of the Collateral Agent (for the benefit of the Secured Parties) in respect of all Article 9 Collateral in which the Security Interest may be perfected by (except as may be (i) limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and (ii) subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law) such filing, recording or registration in the United States (or any political subdivision thereof) and its territories and possessions. Each Grantor represents and warrants that, as of the Closing Date, fully executed Grants of Security Interest substantially in the form attached as
Exhibit C
,
D
or
E
, as applicable, containing a description of all Collateral consisting of Intellectual Property that is (i) United States issued Patents (and Patents for which United States applications are pending), (ii) registered United States Trademarks (and Trademarks for which United States applications to register are pending) or (iii) United States registered material Copyrights, as applicable, and, in each case of (i) through (iii), owned by such Grantor, have been delivered to the Collateral Agent for recording in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, pursuant to 35 U.S.C. § 261, 15 U.S.C. § 1060 or 17 U.S.C. § 205 and the regulations thereunder.
(c)
The Security Interest constitutes (i) a legal and valid security interest (except as may be (x) limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally, (y) subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law and (z) subject to the need for filings and registrations in foreign jurisdictions necessary to create the Liens on the Collateral granted by the Grantors in favor of the Secured Parties) in all the Article 9 Collateral securing the payment of the Secured Obligations, (ii) subject to the filings described in
Section 3.01(b)
, a perfected security interest in all Article 9 Collateral in which a security interest may be perfected by filing, recording or registering a financing statement or analogous document in the United States (or any political subdivision thereof) and its territories and possessions pursuant to the UCC and (iii) subject to the recording of the relevant Grant of Security Interest in the form attached as
Exhibit C
,
D
or
E
with the United States Patent and Trademark Office and the United States Copyright Office, as applicable, a security interest that shall be perfected in all Collateral (other than immaterial Copyrights) in which a security interest may be perfected upon (and to the extent such security interest is perfected by) recording with the United States Patent and Trademark Office and the United States Copyright Office, as applicable, within the three-month period (commencing as of the date hereof) pursuant to 35 U.S.C. § 261 or 15 U.S.C. § 1060 or the one-month period (commencing as of the date hereof) pursuant to 17 U.S.C. § 205. The Security Interest is and shall be prior to any other Lien on any of the Article 9 Collateral, other than Permitted Liens to the extent permitted by the Credit Agreement.
(d)
The representations and warranties set forth in Article V of the Credit Agreement as they relate to such Grantor or to the Loan Documents to which such Grantor is a party, each of
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which is hereby incorporated herein by reference, are true and correct, in all material respects, except for representations and warranties that are qualified as to “materiality”, “Material Adverse Effect” or similar language, in which case such representations and warranties shall be true and correct (after giving effect to any such qualification therein) in all respects as of such date, in each case unless expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, and the Secured Parties shall be entitled to rely on each of such representations and warranties as if they were fully set forth herein.
Section .
Covenants
.
(a)
Each Grantor agrees to promptly notify the Collateral Agent in writing (x) at least five (5) Business Days prior to (or such shorter period as the Administrative Agent may agree in its reasonable discretion) of any change (i) in the legal name of any Grantor, (ii) in the identity or type of organization or corporate structure of any Grantor or(iii) in the jurisdiction of organization of any Grantor and (y) within twenty (20) Business Days (or such longer period as the Administrative Agent may agree in its reasonable discretion) after any change (i) in the “location” (as determined in accordance with Section 9-307 of the UCC) of any Grantor or (ii) in the organizational identification number of any Grantor. In addition, if any Grantor does not have an organizational identification number on the Closing Date (or the date such Grantor becomes a party to this Agreement) and later obtains one, the Borrower shall promptly thereafter notify the Collateral Agent of such organizational identification number and shall take all actions necessary to maintain the security interests (and the priority thereof) of the Collateral Agent in the Collateral intended to be granted hereby fully perfected (to the extent perfection of the security interest in such Collateral is required by the terms hereof) and in full force and effect.
(b)
Subject to
Section 3.01(f)
, each Grantor shall, at its own expense, take any and all commercially reasonable actions necessary, as determined by each Grantor’s business judgment, to defend title to the Article 9 Collateral against all Persons and to defend the Security Interest of the Collateral Agent in the Article 9 Collateral and the priority thereof against any Lien that is not a Permitted Lien and each Grantor shall take all commercially reasonable actions necessary to maintain the Collateral Agent’s first-priority security interest (subject, in the case of priority, to Permitted Liens) in all Article 9 Collateral;
provided
that, nothing in this Agreement shall prevent any Grantor from discontinuing the operation or maintenance of any of its assets or properties if such discontinuance is permitted by the Credit Agreement.
(c)
[Reserved].
(d)
Subject to
Section 3.01(f)
, the Borrower agrees, on its own behalf and on behalf of each other Grantor, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as necessary as reasonably determined by the Borrower or as reasonably requested by the Collateral Agent or such other instruments or documents as the Collateral Agent may reasonably request, to assure, preserve, protect and perfect the Security Interest and the rights and remedies created hereby, including the payment of any fees and taxes required in connection with the execution and delivery of this Agreement, the granting of the Security Interest and the filing of any financing statements (including fixture filings) or other documents in connection herewith or therewith.
(e)
At its option and upon five (5) Business Days’ prior written notice to the Grantors, during the continuance of an Event of Default, the Collateral Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or
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placed on the Article 9 Collateral (other than Permitted Liens), and may pay for the maintenance and preservation of the Article 9 Collateral to the extent any Grantor fails to do so as required by the Credit Agreement or this Agreement and within a reasonable period of time after the Collateral Agent has requested that it do so, and each Grantor jointly and severally agrees to reimburse the Collateral Agent for such costs and expenses to the same extent that Borrower is required to do so pursuant to Section 10.04 of the Credit Agreement and shall be bound by the terms and conditions of Section 10.04 of the Credit Agreement as if a signatory thereto. Nothing in this paragraph shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Collateral Agent or any Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Loan Documents.
(f)
Each Grantor (rather than the Collateral Agent or any Secured Party) shall remain liable (as between itself and any relevant counterparty) to observe and perform all the conditions and obligations to be observed and performed by it under each contract agreement or instrument relating to the Article 9 Collateral, all in accordance with the terms and conditions thereof, and each Grantor jointly and severally agrees to indemnify and hold harmless the Collateral Agent and the Secured Parties from and against any and all liability for such performance to the same extent that Borrower is required to do so pursuant to Section 10.05 of the Credit Agreement and shall be bound by the terms and conditions of Section 10.05 of the Credit Agreement as if a signatory thereto. In addition, each Grantor hereby acknowledges and agrees that the Collateral Agent shall have no obligation or duty to perform any obligation of any Grantor under the contracts, agreements or instruments constituting or relating to the Collateral and that each Grantor shall at all times remain solely and exclusively liable to observe and perform all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument constituting or relating to the Collateral.
(g)
Until (i) the Commitments have expired or been terminated, (ii) the principal of and interest on each Loan and all fees and other Obligations (other than contingent indemnity obligations that are not due and payable, obligations and liabilities in respect of any Bank Products or Designated Credit Lines) shall have been paid in full and (iii) all outstanding Letters of Credit have been Cash Collateralized or as to which other arrangements reasonable satisfactory to the Agent and the applicable L/C Issuer have been made, each Grantor covenants and agrees with the Agent for the benefit of the Secured Parties that, from and after the date of this Agreement until the Borrower is released from its obligations under Article 6 and 7 of the Credit Agreement (or, if earlier, the date such Grantor is released from this Agreement), such Grantor shall comply with the terms of Article 6 and 7 of the Credit Agreement as if such covenants were fully set forth herein.
Section .
[Reserved]
.
Section .
Other Actions
. In order to further insure the attachment, perfection and priority of, and the ability of the Collateral Agent to enforce, the Security Interest, each Grantor agrees, in each case at such Grantor’s own expense, to take the following actions with respect to the following Article 9 Collateral:
(a)
Instruments
. If any Grantor shall at any time hold or acquire any Instrument constituting Collateral and evidencing an amount equal to or in excess of $10,000,000 such Grantor shall promptly endorse, assign and deliver the same to the Collateral Agent for the benefit of the applicable Secured Parties, accompanied by such instruments of transfer or
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assignment duly executed in blank as the Collateral Agent may from time to time reasonably request (other than instruments or documents requiring actions in any non-U.S. jurisdiction related to Capital Stock of Foreign Subsidiaries);
provided
that, until the date that is ninety (90) days following the Closing Date, no Grantor shall be required to deliver the Instruments set forth on
Schedule 1-A
.
(b)
Investment Property
. Except to the extent otherwise provided in
Article II
, if any Grantor shall at any time hold or acquire any certificated securities, such Grantor shall promptly endorse, assign and deliver the same to the Collateral Agent for the benefit of the applicable Secured Parties, accompanied by such instruments of transfer or assignment duly executed in blank as the Collateral Agent may from time to time reasonably request (other than instruments or documents constituting Excluded Assets or requiring actions in any non-U.S. jurisdiction related to Capital Stock of Foreign Subsidiaries). If any securities now or hereafter acquired by any Grantor are uncertificated and are issued to such Grantor or its nominee directly by the issuer thereof, upon the Collateral Agent’s request during the continuance of an Event of Default, such Grantor shall promptly notify the Collateral Agent thereof and, at the Collateral Agent’s reasonable request, pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (i) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Grantor or such nominee, or (ii) arrange for the Collateral Agent to become the registered owner of the securities. Each Grantor that is the issuer of Pledged Equity agrees that it will be bound by the terms of this Agreement with respect to the Pledged Equity issued by it and will comply with such terms insofar as such terms are applicable to it.
(c)
Use and Disposition of Collateral
. None of the Grantors shall make or permit to be made any collateral assignment, pledge or hypothecation of the Collateral or shall grant any other Lien in respect of the Collateral or shall grant Control (for purposes of security) of any Collateral to any Person, except for Permitted Liens. Except as permitted pursuant to Section 7.05 of the Credit Agreement, none of the Grantors shall make or permit to be made any sale or transfer of the Collateral.
(d)
[Reserved].
(e)
Insurance
. The Grantors shall maintain insurance on the Collateral as required by Section 6.07 of the Credit Agreement, which insurance shall include the endorsements and provisions required by Section 6.07 of the Credit Agreement. All such insurance policies shall name the Collateral Agent as additional insured or loss payee, as applicable, to the extent required by Section 6.07 of the Credit Agreement. Each Grantor hereby irrevocably makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as such Grantor’s true and lawful agent and attorney-in-fact, exercisable only after the occurrence and during the continuance of an Event of Default, for the purpose of making, settling and adjusting claims in respect of Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance
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and for making all determinations and decisions with respect thereto. In the event any Grantor at any time or times shall fail to obtain or maintain any of the policies of insurance required hereby within the grace periods established therefor in this Agreement or in the Credit Agreement, or to pay any premium in whole or part relating thereto, the Collateral Agent may, without waiving or releasing any obligation or liability of the Grantors hereunder or any Default or Event of Default, in its sole discretion and upon five (5) Business Days’ prior written notice to the Grantors, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Collateral Agent deems reasonably advisable. All sums disbursed by the Collateral Agent in connection with this
Section 3.06(e)
, including reasonable attorneys’ fees, court costs, out-of-pocket expenses and other charges relating thereto, shall be payable by the Grantors to the Collateral Agent to the same extent that such costs would be payable by the Borrower in accordance with Section 10.04 of the Credit Agreement and shall be additional Secured Obligations secured hereby.
(f)
Legend
. At the request of the Collateral Agent during the continuance of an Event of Default, each Grantor shall legend, in form and manner reasonably satisfactory to the Collateral Agent, its Accounts and its books, records and documents evidencing or pertaining thereto with an appropriate reference to the fact that such Accounts have been pledged to the Collateral Agent for the benefit of the Secured Parties and that the Collateral Agent has a security interest therein.
ARTICLE XI
ARTICLE XII
Special Provisions Concerning Intellectual Property Collateral
Section .
Grant of License to Use Intellectual Property
. Without limiting the provisions of
Section 3.01
hereof or any other rights of the Collateral Agent as the holder of a Security Interest in any Intellectual Property Collateral, for the purpose of enabling the Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor shall, upon request by the Collateral Agent at any time after the occurrence and during the continuance of an Event of Default, grant to the Collateral Agent to the full extent such Grantor is permitted to grant such a nonexclusive license (exercisable without payment of royalty or other compensation to the Grantors and revocable in accordance with the termination of this Agreement pursuant to
Section 8.13
) to use, license or, solely to the extent necessary to exercise such rights and remedies, sublicense any of the Intellectual Property Collateral now owned or hereafter acquired by such Grantor, and wherever the same may be located, and, to the extent permitted by such Grantor’s existing contractual obligations, including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Collateral Agent may be exercised, at the option of the Collateral Agent, only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Collateral Agent in accordance herewith shall be binding upon the Grantors notwithstanding any subsequent cure of an Event of Default and provided, further, that the terms of any license or sublicense shall include all terms and restrictions that are customarily required to
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ensure the continuing validity and effectiveness of the Intellectual Property at issue, such as, without limitation, quality control and inure provisions with regard to Trademarks, patent designation provisions with regard to Patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software. In the event the license set forth in this
Section 4.01
is exercised with regard to any Trademarks, then the following shall apply: (i) all goodwill arising from any licensed or sublicensed use of any Trademark shall inure to the Grantor; (ii) the licensed or sublicensed Trademarks shall only be used in association with goods or services of a quality and nature consistent with the quality and reputation with which such Trademarks were associated when used by Grantor prior to the exercise of the license rights set forth herein; and (iii) at the Grantor’s request and expense, licensees and sublicensees shall provide reasonable cooperation in any effort by the Grantor to maintain the registration or otherwise secure the ongoing validity and effectiveness of such licensed Trademarks, including, without limitation, the actions and conduct described in
Section 4.02
below.
Section .
Protection of Collateral Agent’s Security
.
(a)
Except to the extent that failure to act would not reasonably be expected to have a Material Adverse Effect, with respect to any registration or pending application of each item of its Intellectual Property Collateral owned by a Grantor, each such Grantor agrees to take, at its expense, all commercially reasonable steps in the U.S. Patent and Trademark Office and the U.S. Copyright Office, to (i) maintain the validity and enforceability of any registered Intellectual Property Collateral owned by such Grantor and maintain such registered Intellectual Property Collateral owned by such Grantor in full force and effect, and (ii) pursue the registration and maintenance of each material Patent, Trademark, or Copyright registration or application, now or hereafter included in such Intellectual Property Collateral and owned by such Grantor, including, without limitation, the payment of required fees and taxes, the filing of responses to office actions issued by the U.S. Patent and Trademark Office or the U.S. Copyright Office, the filing of applications for renewal or extension, the filing of affidavits under Sections 8 and 15 of the U.S. Trademark Act, the filing of divisional, continuation, continuation-in-part, reissue and renewal applications or extensions, the payment of maintenance fees and the participation in interference, reexamination, opposition and cancellation proceedings.
(b)
Except to the extent that failure to act would not reasonably be expected to have a Material Adverse Effect, no Grantor shall do or knowingly omit to do any act whereby any of its registered Intellectual Property Collateral would reasonably be expected to prematurely lapse, be terminated, or become invalid or unenforceable or placed in the public domain (or in case of a trade secret, become publicly known).
(c)
Except to the extent that failure to act would not reasonably be expected to have a Material Adverse Effect, each Grantor shall take all reasonable steps to preserve and protect each item of its Intellectual Property Collateral, including, without limitation, maintaining the quality of any and all products or services used or provided in connection with any of the Trademarks owned by such Grantor, consistent with the quality of (or of higher quality than) the products and services as of the date hereof, and taking all commercially reasonable steps necessary to ensure that all licensed users of any of the Trademarks owned by such Grantor abide by the applicable license’s terms with respect to the standards of quality.
(d)
Each Grantor agrees that, should it obtain an ownership or other interest in any Intellectual Property Collateral after the Closing Date (i) the provisions of this Agreement shall
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automatically apply thereto, and (ii) any such Intellectual Property and, in the case of Trademarks, the goodwill symbolized thereby, shall automatically become part of the Intellectual Property Collateral subject to the terms and conditions of this Agreement with respect thereto.
(e)
Within ninety (90) days after the date on which the certificate required by Section 6.02(b)(ii) of the Credit Agreement is required to be delivered, each Grantor shall sign and deliver to the Collateral Agent an appropriate Grant of Security Interest substantially in the form of Exhibits C, D and E, as applicable, with respect to all registered or applied for United States Intellectual Property (other than immaterial Copyrights) owned by such Grantor and registered U.S. copyrights exclusively licensed to such Grantor, but only to the extent the applicable copyright registration number is specficially referenced in such license, to the extent that such Intellectual Property is not covered by any previous Grant of Security Interest so signed and delivered by it. In each case, it will promptly cooperate as reasonably necessary to enable the Collateral Agent to make any necessary or reasonably desirable recordations with the U.S. Copyright Office or the U.S. Patent and Trademark Office.
(f)
Notwithstanding the foregoing provisions of this
Section 4.02
or elsewhere in this Agreement, nothing in this Agreement shall prevent any Grantor from disposing of, discontinuing the use or maintenance of, causing or permitting expiration, lapse or abandonment, or failing to renew any applications or registrations of any of its Intellectual Property Collateral to the extent not prohibited by the Credit Agreement if such Grantor determines in its reasonable business judgment that such actions are desirable in the conduct of its business.
ARTICLE XIII
ARTICLE XIV
ARTICLE XV
[Reserved]
ARTICLE XVI
ARTICLE XVII
ARTICLE XVIII
Remedies
Section .
Remedies Upon Default
. Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Collateral Agent shall have the right to exercise any and all rights afforded to a secured party with respect to the Secured Obligations, as applicable, under the UCC or other Applicable Law, and also may, (i) require each Grantor to, and each Grantor agrees that it will at its expense and promptly following request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such exercise or as otherwise required hereby; (iv) withdraw any and all cash or other Collateral from any Cash Collateral Account and apply such cash and other Collateral to the payment of any and all Secured Obligations in the manner provided in
Section 6.02
of this Agreement; (v) subject to the mandatory requirements of Applicable Law and the notice
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requirements described below, sell or otherwise dispose of all or any part of the Collateral securing the Secured Obligations at a public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Collateral Agent shall deem appropriate; and (vi) with respect to any Intellectual Property Collateral, on demand (but subject to any and all rights or licenses previously granted to any Person), cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Intellectual Property Collateral by the applicable Grantors to the Collateral Agent, or license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Intellectual Property Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine (subject to the terms of Licenses that are included in such Intellectual Property Collateral (to the extent such terms are enforceable under Applicable Law)); provided that such terms shall include all terms and restrictions customarily required to ensure the continuing validity and effectiveness of the Intellectual Property at issue, such as, without limitation, quality control and inure provisions with regard to Trademarks, patent designation provisions with regard to Patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software. The Grantors recognize that (a) the Collateral Agent may be unable to effect a public sale of all or a part of the Collateral consisting of securities by reason of certain prohibitions contained in the Securities Act of 1933, 15 U.S.C. § 77 (as amended and in effect, the “
Securities Act
”), or the securities laws of various states (the “
Blue Sky Laws
”), but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof, (b) that private sales so made may be at prices and upon other terms less favorable to the seller than if such securities were sold at public sales, (c) that neither the Collateral Agent nor any other Secured Party has any obligation to delay sale of any of the Collateral for the period of time necessary to permit such securities to be registered for public sale under the Securities Act or the Blue Sky Laws, and (d) that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. Upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
The Collateral Agent shall give the applicable Grantors ten (10) days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix and state in the notice (if any) of such sale. The Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Collateral
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Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. The Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by law, private) sale made pursuant to this Agreement, any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Grantor (all said rights being also hereby waived and released to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to such Secured Party from any Grantor as a credit against the purchase price, and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. For purposes of determining the Grantors’ rights in the Collateral, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof; the Collateral Agent shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full, provided that such terms shall include all terms and restrictions that customarily required to ensure the continuing validity and effectiveness of the Intellectual Property at issue, such as, without limitation, quality control and inure provisions with regard to Trademarks, patent designation provisions with regard to Patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software. As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court appointed receiver. Any sale pursuant to the provisions of this
Section 6.01
shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610(b) of the UCC or its equivalent in other jurisdictions.
With respect to any Collateral consisting of Inventory, Goods, and Equipment, the Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned,
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leased, or occupied by any Grantor (subject to any restrictions on the use of such premises set forth in any applicable lease or by Applicable Law). The Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.
By accepting the benefits of this Agreement and each other Collateral Document, the Secured Parties expressly acknowledge and agree that this Agreement and each other Collateral Document may be enforced only by the action of the Collateral Agent and that no other Secured Party shall have any right individually to seek to enforce or to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may be exercised by the Collateral Agent for the benefit of the Secured Parties upon the terms of this Agreement and the other Collateral Documents.
Section .
Application of Proceeds
.
After the exercise of remedies provided for in Section 8.02 of the Credit Agreement (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in Section 8.02), including in any bankruptcy or insolvency proceeding, any amounts received on account of the Secured Obligations shall be applied by the Collateral Agent in the following order:
First
, to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest) payable to the Administrative Agent and to the Collateral Agent in its capacity as such;
Second
, to payment of that portion of the Secured Obligations constituting fees, indemnities (other than principal and interest, reimbursement obligations with respect to Letters of Credit and obligations to Cash Collateralize Letters of Credit) payable to the Secured Parties, ratably among them in proportion to the amounts described in this
clause Second
payable to them;
Third
, to payment of any outstanding Swingline Loans and amounts drawn under Letters of Credit and not reimbursed by the Borrower or the applicable Revolving Lenders;
Fourth
, to payment of that portion of the Secured Obligations constituting accrued and unpaid interest (including, but not limited to, post-petition interest), ratably among the Secured Parties in proportion to the respective amounts described in this
clause Fourth
payable to them;
Fifth
, to payment of that portion of the Secured Obligations constituting unpaid principal
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of the Loans and Designated Credit Lines and the face amounts, principal and Swap Termination Value under Secured Bank Product Obligations and for the account of each L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit, ratably among the Secured Parties in proportion to the respective amounts described in this
clause Fifth
held by them;
Sixth
, to the payment of all other Secured Obligations of the Loan Parties that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Secured Obligations owing to the Administrative Agent and the other Secured Parties on such date; and
Last
, the balance, if any, after all of the Secured Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. It is understood and agreed that the Grantors shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral and the aggregate amount of the Secured Obligations.
ARTICLE XX
ARTICLE XXI
Indemnity, Subrogation and Subordination
Each Grantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower or any other Grantor that arise from the existence, payment, performance or enforcement of such Grantor’s Secured Obligations under or in respect of this Agreement or any other Collateral Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Secured Party against the Borrower or any other Grantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Borrower or any other Grantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Secured Obligations (other than (i) contingent indemnity obligations that are not due and payable and (ii) obligations and liabilities in respect of any Bank Products or Designated Credit Lines) have been paid in full, all Commitments have terminated or expired and no Letter of Credit shall be outstanding (except to the extent Cash Collateralized or as to which other arrangements reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer shall have been made). If any amount shall erroneously be paid to the Borrower or any other Grantor on account of such subrogation, contribution, reimbursement, indemnity or similar right, such amount shall be held in trust for the benefit of the Secured Parties and shall promptly be paid to the Collateral Agent to be
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credited against the payment of the Secured Obligations, whether matured or unmatured, in accordance with the terms of the Credit Agreement and the other Loan Documents.
ARTICLE XXIII
ARTICLE XXIV
Miscellaneous
Section .
Notices
. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 10.02 of the Credit Agreement.
Section .
Waivers; Amendment
.
(a)
No failure or delay by the Collateral Agent or any other Secured Party in exercising any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder, or any abandonment or discontinuance of steps to enforce such a right, remedy, power or privilege, preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges of the Collateral Agent and the other Secured Parties hereunder and under the other Loan Documents are cumulative and are not exclusive of any other rights, remedies, powers and privileges that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this
Section 8.02
and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.
(b)
Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Collateral Agent and the Grantors, subject to any consent required in accordance with Section 10.01 of the Credit Agreement. This Agreement shall be construed as a separate agreement with respect to each Grantor and may be amended, modified, supplemented, waived or released with respect to any Grantor without the approval of any other Grantor and without affecting the obligations of any other Grantor hereunder.
Section .
Collateral Agent’s Fees and Expenses; Indemnification
.
(a)
The parties hereto agree that the Collateral Agent shall be entitled to reimbursement of its expenses incurred hereunder as provided in Section 10.04 of the Credit Agreement and Section 13 of the Guarantee Agreement and shall be indemnified as set forth in Section 10.05 of the Credit Agreement and Section 5 of the Guarantee Agreement.
(b)
Any such amounts payable as provided hereunder shall be additional Secured Obligations secured by the Collateral Documents. The provisions of this
Section 8.03
shall remain operative and in full force and effect regardless of the termination of this Agreement or any other Loan Document, the consummation of the transactions contemplated hereby, the repayment of any of the Secured Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Collateral Agent or any other Secured Party. All amounts due under this
Section 8.03
shall be payable within thirty (30) Business Days of written demand therefor (including documentation reasonably supporting such request).
Section .
Successors and Assigns
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. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of any Grantor or the Collateral Agent that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns.
Section .
Survival of Agreement
. All covenants, agreements, indemnities, representations and warranties made by the Grantors in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the incurrence of the Loans thereunder regardless of any investigation made by any such other party or on its behalf and, notwithstanding that the Collateral Agent or any other Secured Party may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended, and shall continue in full force and effect until this Agreement is terminated as provided in
Section 8.13
hereof, or with respect to such Grantor or such Grantor is otherwise released from its obligations under this Agreement in accordance with the terms hereof.
Section .
Counterparts; Effectiveness; Several Agreement
. This Agreement and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or by electronic pdf copy of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document. This Agreement shall become effective when it shall have been executed by the Grantors and the Collateral Agent and thereafter shall be binding upon and inure to the benefit of each Grantor and the Collateral Agent and their respective permitted successors and assigns, except that no Grantor shall have the right to assign its rights hereunder or any interest herein except as otherwise permitted by the Credit Agreement.
Section .
Severability
. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section .
Right of Set-Off
. In addition to any rights and remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, after obtaining the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), each Lender and their Affiliates is authorized at any time and from time to time, without prior notice to any Grantor, any such notice being waived each Grantor, and without notice to any other Person (other than Administrative Agent), to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at
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any time held by (other than payroll, trust, petty cash, employee benefit or tax accounts), and other Indebtedness (in whatever currency) at any time owing by, such Lender or any such Affiliate to or for the credit or the account of the respective Grantor against any and all Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender shall have made any demand under this Agreement or any other Loan Document, and although such Obligations may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees promptly to notify the applicable Grantor and the Administrative Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and their respective Affiliates under this
Section 8.08
are in addition to other rights and remedies (including, without limitation, other rights of set-off) that the Administrative Agent and such Lender may have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the assets of any Foreign Subsidiary constitute security, or shall the proceeds of such assets be available for, payment of the Obligations of the Borrower or any Subsidiary, it being understood that (a) the Capital Stock of any Foreign Subsidiary does not constitute such an asset and (b) the provisions hereof shall not limit, reduce or otherwise diminish in any respect the Borrower’s or the German Borrower’s obligations to make any mandatory prepayment pursuant to Section 2.05(b) of the Credit Agreement.
Section .
GOVERNING LAW
.
(a)
THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF THE STATE OF NEW YORK THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK;
PROVIDED
,
HOWEVER
, THAT IF THE LAWS OF ANY JURISDICTION OTHER THAN NEW YORK SHALL GOVERN IN REGARD TO THE VALIDITY, PERFECTION OR EFFECT OF PERFECTION OF ANY LIEN OR IN REGARD TO PROCEDURAL MATTERS AFFECTING ENFORCEMENT OF ANY LIENS IN COLLATERAL, SUCH LAWS OF SUCH OTHER JURISDICTIONS SHALL CONTINUE TO APPLY TO THAT EXTENT.
(b)
THE BORROWER AND EACH GRANTOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE
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COLLATERAL AGENT, ANY LENDER OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE COLLATERAL AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c)
THE BORROWER AND EACH GRANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
Section .
WAIVER OF RIGHT TO TRIAL BY JURY
. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL‑ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WAR-RANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS
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WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 8.10 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section .
Headings
. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
Section .
Security Interest Absolute
. All rights of the Collateral Agent hereunder, the Security Interest, the grant of a security interest in the Pledged Collateral and all obligations of each Grantor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Loan Document, any agreement with respect to any of the Secured Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement, any other Loan Document, or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Secured Obligations or (d) subject only to termination of a Grantor’s obligations hereunder in accordance with the terms of
Section 8.13
or the defense of payment or performance in full, but without prejudice to reinstatement rights under Section 12 of the Guarantee Agreement, any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor in respect of the Secured Obligations or this Agreement.
Section .
Termination or Release
.
(a)
This Agreement, the Security Interest and all other security interests granted hereby remain in full force and effect until the Secured Obligations (other than (1) contingent indemnity obligations that are not due and payable and (2) obligations and liabilities in respect of any Bank Products or Designated Credit Lines) have been paid in full, all Commitments have terminated or expired and no Letter of Credit shall be outstanding (except to the extent Cash Collateralized or as to which other arrangements reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer shall have been made).
(b)
Any Grantor that is a Subsidiary Guarantor shall automatically be released from its obligations hereunder and the Security Interest in the Collateral of such Grantor shall be automatically released upon the consummation of any transaction permitted by the Credit Agreement as a result of which such Grantor ceases to be a Subsidiary Guarantor; provided that the Required Lenders shall have consented to such transaction (to the extent required by the Credit Agreement) and the terms of such consent did not provide otherwise.
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(c)
Upon any sale or other transfer by any Grantor of any Collateral (other than to another Grantor) that is permitted under the Credit Agreement, or upon the effectiveness of any written consent to the release of the Security Interest granted hereby in any Collateral pursuant to Section 9.08 or 10.01 of the Credit Agreement, the Security Interest in such Collateral shall be automatically released.
(d)
In connection with evidencing any termination or release pursuant to
paragraph (a)
,
(b)
, or
(c)
, the Collateral Agent shall promptly (after reasonable advance notice) execute and deliver to any Grantor, at such Grantor’s expense, all documents that such Grantor shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this
Section 8.13
shall be without representation, recourse to or warranty by the Collateral Agent.
(e)
The Security Interest granted hereby in any Collateral shall be automatically subordinated to another Lien permitted by Section 7.01 of the Credit Agreement, in accordance with the terms of Section 9.08(a) of the Credit Agreement, either (i) upon a written election by the Administrative Agent to subordinate such security interest or (ii) in respect of liens permitted by Sections 7.01(g) and 7.01(i) of the Credit Agreement, upon Borrower’s request (with Administrative Agent’s consent, not to be unreasonably withheld, delayed or conditioned).
(f)
At any time that the respective Grantor desires that the Collateral Agent take any action described in the preceding
clause (d)
, it shall, upon request of the Collateral Agent, deliver to the Collateral Agent an officer’s certificate certifying that the release of the respective Collateral is permitted pursuant to
paragraph (a)
,
(b)
or
(c)
. The Collateral Agent shall have no liability whatsoever to any Secured Party as the result of any release of Collateral by it as permitted (or which the Collateral Agent in good faith believes to be permitted) by this Agreement.
Section .
Additional Grantors
. From time to time subsequent to the date hereof, in accordance with the terms of Section 6.12 of the Credit Agreement, additional Persons may be required to (or elect to) become party hereto as additional Grantors, by executing a Security Agreement Supplement. Upon delivery of any such Security Agreement Supplement to the Collateral Agent, notice of which is hereby waived by the Grantors, each such additional Grantor shall be a Grantor and shall be as fully a party hereto as if such Grantor were an original signatory hereto. Each Grantor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Grantor hereunder, nor by any election of Collateral Agent not to cause any Subsidiary of the Borrower to become an additional Grantor hereunder. This Agreement shall be fully effective as to any Grantor that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Grantor hereunder.
Section .
Collateral Agent Appointed Attorney-in-Fact
. Each Grantor hereby appoints the Collateral Agent the attorney-in-fact of such Grantor for the purpose of carrying out the provisions of this Agreement and, upon three (3) Business Days’ prior written notice to the Grantors, taking any action and executing any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof at any time after and during the continuance of an Event of Default, as applicable, which appointment is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, the Collateral Agent shall have the right, upon the occurrence and during the continuance of an Event of Default and (unless an Event of Default of the type specified in Sections 8.01(a), (e) or (f) of the Credit Agreement has occurred and is ongoing) delivery of three (3) Business Days’ prior written notice by the Collateral
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Agent to the Borrower of its intent to exercise such rights, with full power of substitution either in the Collateral Agent’s name or in the name of such Grantor (a) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (b) to sign the name of any Grantor on any invoice or bill of lading relating to any of the Collateral; (c) to send verifications of Accounts to any Account Debtor; (d) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (e) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; (f) to notify, or to require any Grantor to notify, Account Debtors to make payment directly to the Collateral Agent or to an account designated by the Collateral Agent and adjust, settle or compromise the amount of payment of any Account; and (g) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Collateral Agent were the absolute owner of the Collateral for all purposes; provided that nothing herein contained shall be construed as requiring or obligating the Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Collateral Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and neither they nor their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct or that of any of their Affiliates, directors, officers, employees, counsel, agents or attorneys-in-fact.
Section .
Recourse; Limited Obligations
. This Agreement is made with full recourse to each Grantor and pursuant to and upon all the warranties, representations, covenants and agreements on the part of such Grantor contained herein, in the Loan Documents and the other Loan Documents and otherwise in writing in connection herewith or therewith, with respect to the Secured Obligations of each applicable Secured Party. It is the desire and intent of each Grantor and each applicable Secured Party that this Agreement shall be enforced against each Grantor to the fullest extent permissible under the laws applied in each jurisdiction in which enforcement is sought.
Section .
Mortgages
. In the event that any of the Collateral hereunder is also subject to a valid and enforceable Lien under the terms of a Mortgage and the terms thereof are inconsistent with the terms of this Agreement, then with respect to such Collateral, the terms of such Mortgage shall control in the case of Fixtures and real estate leases, letting and licenses of, and contracts, and agreements relating to the lease of, real property, and the terms of this Agreement shall control in the case of all other Collateral.
Section .
Reinstatement
. The obligations of the Grantors under this Agreement shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or other
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Loan Party in respect of the Secured Obligations is rescinded or must be otherwise restored by any holder of any of the Secured Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.
Section .
Reasonable Care
. The Collateral Agent is required to use reasonable care in the custody and preservation of any of the Collateral in its possession; provided, that the Collateral Agent shall be deemed to have used reasonable care in the custody and preservation of any of the Collateral, if such Collateral is accorded treatment substantially similar to that which the Collateral Agent accords its own property.
[Signature Pages Follow]
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Signature page to Security Agreement
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement under seal as of the day and year first above written.
GRANTORS:
W. R. GRACE & CO.
,
as Holdings
By:
Name:
Title:
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W. R. GRACE & CO.-CONN.
,
as the Borrower
By:
Name:
Title:
ALLTECH ASSOCIATES, INC.
, as a Grantor
By:
Name:
Title:
COLLATERAL AGENT:
GOLDMAN SACHS BANK USA
By:
Name:
Title:
[Schedule I]
1
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SCHEDULE I-A
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Certain Excluded Instruments
SCHEDULE I-B
Pledged Equity; Pledged Debt
Pledged Equity
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[Schedule II]
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SCHEDULE II
Intellectual Property
UNITED STATES PATENTS:
Registrations:
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Applications:
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Date
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UNITED STATES TRADEMARKS:
Registrations:
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Mark
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Filing Date
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Applications:
MATERIAL UNITED STATES COPYRIGHTS
Registrations:
Applications:
A-4
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B-1
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EXHIBIT A TO SECURITY AGREEMENT
FORM OF SECURITY AGREEMENT SUPPLEMENT
SUPPLEMENT NO. __, dated as of ________ (this “
Supplement
”), to the Security Agreement (as amended, supplemented, restated or otherwise modified from time to time pursuant to the terms thereof, the “
Security Agreement
”), dated as of February 3, 2014 by and among W. R. GRACE & CO., a Delaware corporation (the “
Holdings
”), W. R. GRACE & CO.-CONN., a Connecticut corporation (the “
Borrower
”), the grantors party thereto (together with the Borrower and any other Person that becomes a party thereto pursuant to Section 8.14 of the Security Agreement, collectively, the “
Grantors
”) and GOLDMAN SACHS BANK USA, as Collateral Agent (together with its successors and assigns, in such capacity, the “
Collateral Agent
”) for the Secured Parties.
1.
Reference is made to that certain Credit Agreement, dated as of February 3, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among the Borrower, Holdings, the German Borrower (as defined therein), the Lenders from time to time party thereto and the Administrative Agent.
2.
Capitalized terms used herein and not otherwise defined herein have the meanings assigned to such terms in the Credit Agreement or the Security Agreement, as applicable.
3.
The Grantors have entered into the Security Agreement in order to induce the Lenders to make Loans. The undersigned Restricted Subsidiary (the “
New Subsidiary
”) is executing this Supplement in accordance with the requirements of the Credit Agreement to become a Grantor under the Security Agreement in order to induce the Lenders to make additional Loans and as consideration for Loans previously made.
Accordingly, the Collateral Agent and the New Subsidiary agree as follows:
Section 1. In accordance with Section 8.14 of the Security Agreement, the New Subsidiary by its signature below becomes a Grantor under the Security Agreement with the same force and effect as if originally named therein as a Grantor and the New Subsidiary hereby (a) agrees to all the terms and provisions of the Security Agreement applicable to it as a Grantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct in all material respects on and as of the date hereof (provided that representations and warranties that specifically refer to an earlier date shall be made with respect to the date hereof). In furtherance of the foregoing, the New Subsidiary, as security for the payment in full of the Secured Obligations, does hereby create and grant to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, their successors and permitted assigns, a security interest in and Lien on all of
Form of Security Agreement
F-1-42
NY\6158255.3
the New Subsidiary’s right, title and interest in and to the Collateral (as defined in the Security Agreement) of the New Subsidiary. Each reference to a “Grantor” in the Security Agreement shall be deemed to include the New Subsidiary. The Security Agreement is hereby incorporated herein by reference.
Section 2. The New Subsidiary represents and warrants to the Collateral Agent, for the benefit of the Secured Parties that, as of the date hereof, (a) it is duly authorized by all necessary corporate, membership, partnership or other necessary action to execute and deliver this Supplement and to perform its obligations under this Supplement; (b) this Supplement has been duly executed and delivered by the New Subsidiary; and (c) this Supplement when executed and delivered by the New Subsidiary will constitute, a legal, valid and binding obligation of the New Subsidiary Guarantor, enforceable in accordance with its terms, except as such enforceability may be (i) limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally, (ii) subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law and (iii) subject to the need for filings and registrations necessary to create or perfect the Liens on the Collateral granted by the Guarantor in favor of the Secured Parties.
Section 3. This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Collateral Agent shall have received a counterpart of this Supplement that bears the signature of the New Subsidiary and the Collateral Agent has executed a counterpart hereof. Delivery of an executed signature page to this Supplement by facsimile transmission or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.
Section 4. The New Subsidiary hereby represents and warrants the information set forth in the attached Perfection Certificate is correct and complete in all material respects. Such Perfection Certificate shall be deemed to supplement the Schedules to the Security Agreement.
Section 5. Except as expressly supplemented hereby, the Security Agreement shall remain in full force and effect.
Section 6. THIS SUPPLEMENT and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this SUPPLEMENT and the transactions contemplated hereby SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF THE STATE OF NEW YORK.
Section 7. In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and in the
Form of Security Agreement
F-1-43
NY\6158255.3
Security Agreement shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
Section 8. All communications and notices hereunder shall be in writing and given as provided in Section 8.01 of the Security Agreement.
Section 9. The New Subsidiary agrees to reimburse the Collateral Agent for its reasonable out-of-pocket expenses in connection with this Supplement in accordance with (and subject to) Section 8.03(a) of the Security Agreement;
provided
however, that the Borrower shall remain primarily liable for such expenses pursuant to the Credit Agreement.
IN WITNESS WHEREOF, the New Subsidiary and the Collateral Agent have duly executed this Supplement to the Security Agreement as of the date first above written.
[NAME OF NEW SUBSIDIARY],
as the New Subsidiary and a Grantor
By:
Name:
Title:
Legal Name:
Jurisdiction of Formation:
Location of Chief Executive Office:
GOLDMAN SACHS BANK USA,
as the Collateral Agent
By:
Form of Security Agreement
F-1-44
NY\6158255.3
Name:
Title:
B-1
| NY
6153312.5||
EXHIBIT B TO SECURITY AGREEMENT
FORM OF PERFECTION CERTIFICATE
[To be attached.]
C-3
| NY
6153312.5||
| NY
5630343.4||
EXHIBIT C TO SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS
This Trademark Security Agreement
, dated as of [______________] by and between [
Name of Grantor
], a [________] formed under the laws of [_________] (the “
Grantor
”), in favor of GOLDMAN SACHS BANK USA, in its capacity as Collateral Agent pursuant to the Credit Agreement dated as of February 3, 2014 (in such capacity together with its successors and assigns, the “
Grantee
”).
W I T N E S S E T H:
Whereas, the Grantor is party to a Security Agreement dated as of February 3, 2014 (as amended, modified or supplemented, the “
Security Agreement
”) in favor of the Grantee pursuant to which the Grantor is required to execute and deliver this Trademark Security Agreement;
Form of Security Agreement
F-1-45
NY\6158255.3
Now, therefore, in consideration of the premises and to induce the Grantee, for the benefit of the Secured Parties, to enter into the Credit Agreement, the Grantor hereby agrees with the Grantee as follows:
SECTION 1.
Defined Terms
. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement.
SECTION 2.
Grant of Security Interest in Trademark Collateral
. The Grantor hereby pledges and grants to the Grantee for the benefit of the Secured Parties a security interest in and to all of its right, title and interest in, to and under all the Trademarks owned by such Grantor including, without limitation, those registered or applied for Trademarks listed on
Schedule I
attached hereto and all Proceeds of any and all of the foregoing; provided that with respect to any United States Trademark, applications in the United States Patent and Trademark Office on the basis of any Grantor’s “intent to use” such Trademarks will not be deemed to be Collateral unless and until a “Statement of Use” or “Amendment to Allege Use” has been filed with the United States Patent and Trademark Office, whereupon such application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral.
SECTION 3.
Security Agreement
. The security interest granted pursuant to this Trademark Security Agreement is granted in connection with the Security Agreement and is expressly subject to the terms and conditions thereof. Grantor hereby acknowledges and affirms that the rights and remedies of the Grantee with respect to the security interest in the Trademarks made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. The Security Agreement (and all rights and remedies of the Lenders thereunder) shall remain in full force and effect in accordance with its terms. In the event that any provision of this Trademark Security Agreement is deemed to conflict with or is otherwise inconsistent with the Security Agreement, the provisions of the Security Agreement shall control.
SECTION 4.
Purpose
. This Agreement has been executed and delivered by the Grantor for the purpose of recording the grant of security interest herein with the United States Patent and Trademark Office.
SECTION 5.
Termination
. Upon termination of the Security Agreement, the security interest granted pursuant to this Trademark Security Agreement shall be automatically released and the Grantee shall, at the reasonable request of the Grantor, execute, acknowledge, and deliver to the Grantor an instrument in writing in recordable form releasing the collateral pledge, grant, lien and security interest in all the Trademarks owned by the Grantor, including, without limitation, those registered or applied for Trademarks listed on
Schedule I
attached hereto. Upon (i) the sale or other transfer by the Grantor of any Collateral constituting Trademarks (other than to another Grantor) that is permitted under the Credit Agreement or (ii) the Grantor being released
Form of Security Agreement
F-1-46
NY\6158255.3
from its obligations under the Security Agreement, in each case, the security interest granted pursuant to this Trademark Security Agreement shall be automatically released in accordance with (and subject to) Section 8.13 of the Security Agreement.
SECTION 6.
Governing Law
. THIS TRADEMARK SECURITY AGREEMENT and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF THE STATE OF NEW YORK.
SECTION 7.
Counterparts
. This Trademark Security Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Trademark Security Agreement by signing and delivering one or more counterparts. Delivery of an executed signature page to this Trademark Security Agreement by facsimile transmission or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Trademark Security Agreement.
[
signature page follows
]
IN WITNESS WHEREOF, the Grantor has caused this Trademark Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
Very truly yours,
[NAME OF GRANTOR],
as the Grantor
By:
Name:
Title:
Accepted and Agreed:
GOLDMAN SACHS BANK USA,
Form of Security Agreement
F-1-47
NY\6158255.3
as the Collateral Agent and the Grantee
By:
Name:
Title
C-
4
| NY
6153312.5||
| NY
5630343.4||
SCHEDULE I
to
GRANT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS
|
|
|
|
|
|
Trademark
|
Registration No. or Application No.
|
|
|
|
D-4
| NY
6153312.5||
| NY
5630343.4||
Form of Security Agreement
F-1-48
NY\6158255.3
EXHIBIT D TO SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES PATENTS
This
Patent Security Agreement
, dated as of [________], by and between [
Name of Grantor
], a [________] formed under the laws of [___________] (the “
Grantor
”), in favor of GOLDMAN SACHS BANK USA, in its capacity as Collateral Agent pursuant to the Credit Agreement dated as of February 3, 2013 (in such capacity together with its successors and assigns, the “
Grantee
”).
W I T N E S S E T H:
Whereas, the Grantor is party to a Security Agreement dated as of February 3, 2014 (as amended, modified or supplemented, the “
Security Agreement
”) in favor of the Grantee pursuant to which the Grantor is required to execute and deliver this Patent Security Agreement;
Now, therefore, in consideration of the premises and to induce the Grantee, for the benefit of the Secured Parties, to enter into the Credit Agreement, the Grantor hereby agrees with the Grantee as follows:
SECTION 1.
Defined Terms
. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement.
SECTION 2.
Grant of Security Interest in Patent Collateral
. The Grantor hereby pledges and grants to the Grantee for the benefit of the Secured Parties a security interest in and to all of its right, title and interest in, to and under all the Patents owned by the Grantor including, without limitation, those issued Patents and Patent applications on
Schedule I
attached hereto and all Proceeds of any and all of the foregoing.
SECTION 3.
Security Agreement
. The security interest granted pursuant to this Patent Security Agreement is granted in connection with the Security Agreement and is expressly subject to the terms and conditions thereof. Grantor hereby acknowledges and affirms that the rights and remedies of the Grantee with respect to the security interest in the Patents made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. The Security Agreement (and all rights and remedies of the Lenders thereunder) shall remain in full force and effect in accordance with its terms. In the event that any provision of this Patent Security Agreement is deemed to conflict with or is otherwise inconsistent with the Security Agreement, the provisions of the Security Agreement shall control.
Form of Security Agreement
F-1-49
NY\6158255.3
SECTION 4.
Purpose
. This Agreement has been executed and delivered by the Grantor for the purpose of recording the grant of security interest herein with the United States Patent and Trademark Office.
SECTION 5.
Termination
. Upon termination of the Security Agreement, the security interest granted pursuant to this Patent Security Agreement shall be automatically released and the Grantee shall, at the reasonable request of the Grantor, execute, acknowledge, and deliver to the Grantor an instrument in writing in recordable form releasing the collateral pledge, grant, lien and security interest in all Patents owned by the Grantor, including, without limitation, those issued Patents and Patent applications listed on
Schedule I
attached hereto. Upon (i) the sale or other transfer by the Grantor of any Collateral constituting Patents (other than to another Grantor) that is permitted under the Credit Agreement or (ii) the Grantor being released from its obligations under the Security Agreement, in each case, the security interest granted pursuant to this Patent Security Agreement shall be automatically released in accordance with (and subject to) Section 8.13 of the Security Agreement.
SECTION 6.
Governing Law
. THIS PATENT SECURITY AGREEMENT and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF THE STATE OF NEW YORK.
SECTION 7.
Counterparts
. This Patent Security Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Patent Security Agreement by signing and delivering one or more counterparts. Delivery of an executed signature page to this Patent Security Agreement by facsimile transmission or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Patent Security Agreement.
[
signature page follows
]
IN WITNESS WHEREOF, the Grantor has caused this Patent Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
Very truly yours,
[NAME OF GRANTOR],
as the Grantor
Form of Security Agreement
F-1-50
NY\6158255.3
By:
Name:
Title:
Accepted and Agreed:
GOLDMAN SACHS BANK USA,
as the Collateral Agent and the Grantee
By:
Name:
Title:
SCHEDULE I
to
GRANT OF SECURITY INTEREST
IN UNITED STATES PATENTS
|
|
|
|
|
|
PATENT AND
PATENT
APPLICATION
NUMBER
|
TITLE
|
|
|
|
E-4
| NY
6153312.5||
Form of Security Agreement
F-1-51
NY\6158255.3
| NY
5630343.4||
EXHIBIT E TO SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
This Copyright Security Agreement
, dated as of [__________], by and between [
Name of Grantor
] , a [____________] formed under the laws of [_________] (the “
Grantor
”), in favor of GOLDMAN SACHS BANK USA, in its capacity as Collateral Agent pursuant to the Credit Agreement dated as of February 3, 2014 (in such capacity together with its successors and assigns, the “
Grantee
”).
W I T N E S S E T H:
Whereas, the Grantor is party to a Security Agreement dated as of February 3, 2014 (as amended, modified or supplemented, the “
Security Agreement
”) in favor of the Grantee pursuant to which the Grantor is required to execute and deliver this Copyright Security Agreement;
Now, therefore, in consideration of the premises and to induce the Grantee, for the benefit of the Secured Parties, to enter into the Credit Agreement, the Grantor hereby agrees with the Grantee as follows:
SECTION 1.
Defined Terms
. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement.
SECTION 2.
Grant of Security Interest in Copyright Collateral
. The Grantor hereby pledges and grants to the Grantee for the benefit of the Secured Parties a security interest in and to all of its right, title and interest in, to and under all the Copyrights owned by the Grantor including, without limitation, those registered Copyrights and Copyright applications listed on
Schedule I
attached hereto and all Proceeds of any and all of the foregoing.
SECTION 3.
Security Agreement
. The security interest granted pursuant to this Copyright Security Agreement is granted in connection with the Security Agreement and is expressly subject to the terms and conditions thereof. Grantor hereby acknowledges and affirms that the rights and remedies of the Grantee with respect to the security interest in the Copyrights made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. The Security Agreement (and all rights and remedies of the Lenders thereunder) shall remain in full force and effect in accordance with its
Form of Security Agreement
F-1-52
NY\6158255.3
terms. In the event that any provision of this Copyright Security Agreement is deemed to conflict with or is otherwise inconsistent with the Security Agreement, the provisions of the Security Agreement shall control.
SECTION 4.
Purpose
. This Agreement has been executed and delivered by the Grantor for the purpose of recording the grant of security interest herein with the United States Copyright Office.
SECTION 5.
Termination
. Upon termination of the Security Agreement, the security interest granted pursuant to this Copyright Security Agreement shall be automatically released and the Grantee shall, at the reasonable request of the Grantor, execute, acknowledge, and deliver to the Grantor an instrument in writing in recordable form releasing the collateral pledge, grant, lien and security interest in all Copyrights owned by the Grantor including, without limitation, those registered Copyrights and Copyright applications listed on
Schedule I
attached hereto. Upon (i) the sale or other transfer by the Grantor of any Collateral constituting Copyrights (other than to another Grantor) that is permitted under the Credit Agreement or (ii) the Grantor being released from its obligations under the Security Agreement, in each case, the security interest granted pursuant to this Copyright Security Agreement shall be automatically released in accordance with (and subject to) Section 8.13 of the Security Agreement.
SECTION 6.
Governing Law
. THIS COPYRIGHT SECURITY AGREEMENT and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF THE STATE OF NEW YORK.
SECTION 7.
Counterparts
. This Copyright Security Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Copyright Security Agreement by signing and delivering one or more counterparts.
[
signature page follows
]
IN WITNESS WHEREOF, the Grantor has caused this Copyright Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
Very truly yours,
[NAME OF GRANTOR],
as the Grantor
Form of Security Agreement
F-1-53
NY\6158255.3
By:
Name:
Title:
Accepted and Agreed:
GOLDMAN SACHS BANK USA,
as the Collateral Agent and the Grantee
By:
Name:
Title:
SCHEDULE I
to
GRANT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
|
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|
Title
|
Registration Number
|
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|
Form of Security Agreement
F-1-54
NY\6158255.3
EXHIBIT F-2
FORM OF LUX HOLDCO PLEDGE AGREEMENT
[To Be Attached]
Form of Lux HoldCo Pledge Agreement
F-2-1
NY\6158255.3
FEBRUARY 3, 2014
BETWEEN
W.R. Grace & Co.-Conn
as Pledgor
AND
Goldman Sachs Bank USA
as Collateral Agent
AND
Grace Luxembourg S.à r.l.
as Company
TABLE OF CONTENTS
Form of Lux HoldCo Pledge Agreement
F-2-2
NY\6158255.3
1.
DEFINITIONS AND INTERPRETATION
4
2.
PLEDGE
6
3.
RELATED RIGHTS
7
4.
REPRESENTATIONS AND WARRANTIES
8
5.
GENERAL OBLIGATIONS
10
6.
EFFECTIVENESS OF THE PLEDGE
13
7.
RIGHTS OF RECOURSE
14
8.
ENFORCEMENT
14
9.
EXPENSES AND INDEMNITY
15
10.
DELEGATION
16
11.
RELEASE
16
12.
AMENDMENTS AND WAIVERS
16
13.
SEVERABILITY
16
14.
COUNTERPARTS - ORIGINAL COPIES
17
15.
NOTICES
17
16.
LANGUAGE
17
17.
JURISDICTION
17
18.
GOVERNING LAW
17
SCHEDULE A - RESOLUTIONS OF THE PLEDGOR
21
THIS AGREEMENT
(the “
Pledge Agreement
”)
is made on February 3, 2014.
BETWEEN:
|
|
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(1)
|
W.R. Grace & Co.-Conn
, a corporation incorporated under the laws of the state of Connecticut, having its registered office at 7500, Grace Drive, USA - Columbia, Maryland,
|
hereinafter referred to as the “
Pledgor
”;
|
|
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|
(2)
|
Goldman Sachs Bank USA
, having its registered office at 200 West Street, New York, New York 10282-2198, in its capacity as Administrative Agent under the Credit Agreement (as defined below) acting for and on behalf of itself and the Secured Parties,
|
hereinafter referred to as the “
Collateral Agent
”;
Form of Lux HoldCo Pledge Agreement
F-2-3
NY\6158255.3
AND
|
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(3)
|
Grace Luxembourg S.à r.l.
, a private limited liability company (
société à responsabilité limitée
) incorporated under the laws of Luxembourg, having a share capital of EUR 193,275,261, having its registered office at 7A, rue Robert Stümper, L-2557 Luxembourg, registered with the Luxembourg Trade and Companies Register under number B 162209,
|
hereinafter referred to as the “
Company
”.
The Pledgor, the Collateral Agent and the Company are hereinafter referred to as the Parties.
RECITALS
|
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(A)
|
Pursuant to the Credit Agreement, the Lenders have agreed to make available to the Pledgor the Loans (as defined therein);
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(B)
|
The Pledgor currently owns the Shares and of the Voting Rights (each as defined below) in the Company.
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(C)
|
The Pledgor enters into this Pledge Agreement in favour of the Collateral Agent in order to secure payment and discharge of the Secured Obligations (as defined below).
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(D)
|
In consideration of the above, the Parties have agreed to enter into and execute this Pledge Agreement on the following terms:
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1.
|
DEFINITIONS AND INTERPRETATION
|
In this Pledge Agreement, unless the context otherwise requires:
|
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(a)
|
a reference to a person is, where relevant, deemed to be a reference to or to include, as appropriate, their respective successors, permitted assigns or transferees;
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(b)
|
references to Clauses and Schedules are references to Clauses and Schedules of this Pledge Agreement and references to this Pledge Agreement include its Schedules;
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(c)
|
references in this Pledge Agreement to any other agreement shall be construed as a reference to that other agreement as the same may from time to time be, amended, varied, supplemented or novated (however fundamentally, including in case of an increase of the Secured Obligations);
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(d)
|
a reference to a law or statutory instrument or any provision thereof is to be construed as a reference to that law or statutory instrument or such provision thereof as the same may have been, or may from time to time hereafter be, amended or re-enacted;
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(e)
|
a time of day is a reference to Luxembourg time (unless otherwise specified);
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(f)
|
the headings in this Pledge Agreement are inserted for convenience only and are to be ignored in construing this Pledge Agreement;
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(g)
|
words importing the plural shall include the singular and vice versa; and
|
Form of Lux HoldCo Pledge Agreement
F-2-4
NY\6158255.3
|
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|
|
(h)
|
unless otherwise defined in this Pledge Agreement, words and expressions defined in the Credit Agreement shall bear the same meanings when used in this Pledge Agreement.
|
When used in this Pledge Agreement:
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“
Business Day
”
|
means a day, other than a Saturday or Sunday, on which banks are open to the public in Luxembourg-City.
|
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“
Credit Agreement
”
|
means the credit agreement dated on or about the date of this Pledge Agreement between, among others, the Pledgor as borrower, the Collateral Agent as administrative agent and the other Lenders (as defined therein).
|
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“
Discharge Date
”
|
means the
date when the Secured Obligations (other than (i) contingent indemnity obligations that are not due and payable and (ii) obligations and liabilities in respect of any Bank Products or Designated Credit Lines (as both terms are defined in the Credit Agreement)) have been fully paid, all Commitments (as defined in the Credit Agreement) have terminated or expired and no Letter of Credit shall be outstanding (except to the extent Cash Collateralized (as defined in the Credit Agreement) or as to which other arrangements reasonably satisfactory to the Administrative Agent and the L/C Issuer (both terms as defined in the Credit Agreement) shall have been made)
. The obligations of the Pledgor under this Pledge Agreement shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or other Loan Party in respect of the Secured Obligations is rescinded or must be otherwise restored by any holder of any of the Secured Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.
|
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"
Event of Default
"
|
has the meaning given to it in the Credit Agreement.
|
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“
Financial
Collateral
Law
”
|
means the Luxembourg law of 5 August 2005 on financial collateral arrangements.
|
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“
Pledge
”
|
means the first ranking pledge (
gage de premier rang
) created by this Pledge Agreement.
|
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“
Register
”
|
means the register of shares of the Company.
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“
Related Rights
”
|
means any dividend or other distribution paid or payable in relation to any of the Shares and any rights, moneys or property accruing or offered at any time in relation to any of the Shares by way of redemption, substitution, exchange, bonus or preference, under option rights or otherwise, and, where permitted under the Credit Agreement, the proceeds of sale of the Shares.
|
Form of Lux HoldCo Pledge Agreement
F-2-5
NY\6158255.3
|
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“
Rights of Recourse
”
|
means any and all rights, actions and claims the Pledgor may have against any Secured Party, including the rights, actions and claims arising under or pursuant to the enforcement of the present Pledge including, in particular, any rights of recourse the Pledgor may have under the terms of articles 1251, 1285, 2021, 2022, 2026 and 2028 ss. of the Luxembourg Civil Code (including, for the avoidance of doubt, any right of recourse prior to enforcement), or any right of recourse by way of subrogation and any other similar right, action or claim under any applicable law.
|
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"
Secured Obligations
”
|
has the meaning given to it in the Credit Agreement.
|
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“
Secured Parties
”
|
has the meaning given to it in the Credit Agreement.
|
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“
Security Assets
”
|
means the Shares and the Related Rights.
|
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“
Security Period
“
|
means the period commencing on the date of this Pledge Agreement and ending on the Discharge Date or the date on which the Pledge is released pursuant to Clause 11 (Release).
|
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“
Shares
”
|
means the shares issued by the Company and representing at any time 65% of the share capital of the Company entitled to vote, and such additional shares to be issued by the Company, regardless of the reason of such issuance (the “
Future Shares
”), provided that in no event shall the Future Shares combined with any existing shares constitute more than 65% of the Company’s share capital entitled to vote.
|
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“
Voting Rights
”
|
means the voting rights attached to any of the Shares
as well as any and all ancillary and/or accessory rights to such voting rights.
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The Pledgor hereby pledges the Security Assets in favour of the Collateral Agent, acting for itself and on behalf of the other Secured Parties, who accepts, as a first ranking security for the full payment and discharge of the Secured Obligations.
The Company shall, on the date hereof, register the Pledge in the Register and deliver a certified copy of the Register to the Collateral Agent, by fax or email.
The following wording shall be used for the registration of the Pledge in the Register of the Company:
“Pursuant to a share pledge agreement dated February 3, 2014 (the “Share Pledge Agreement”),
W.R. Grace & Co.-Conn has pledged its Shares and Related Rights (as defined in the Share Pledge Agreement), representing at all times 65% of the share capital of Grace Luxembourg S.à r.l., and in particular 19,327,526,100 shares owned by W.R. Grace & Co.-Conn on the date of the Share Pledge Agreement, in favour of Goldman Sachs Bank USA, acting as collateral agent for the Secured Parties (as defined in the Share Pledge Agreement), as first ranking security interest in order to secure the Secured Obligations (as defined in the Share Pledge Agreement). The Shares and the Related Rights
Form of Lux HoldCo Pledge Agreement
F-2-6
NY\6158255.3
may not be disposed of in any way without the prior written consent of the Collateral Agent. No second ranking pledge may be taken on the Shares without the prior written consent of the Collateral Agent”.
The Parties appoint any manager of the Company in order to record the Pledge in the Company’s Register.
In case any Future Shares are issued to or acquired by the Pledgor, the Pledgor shall, on the date of issuance or acquisition, as the case may be, notify the Company, procure the registration of the Pledge over the Future Shares in the Company’s Register and provide the Collateral Agent with a certified copy of the updated Register.
The Pledgor hereby authorises the Collateral Agent to take any steps to be taken for the purposes of perfecting the Pledge, and undertakes to take any such steps itself if so requested by the Collateral Agent.
The Company undertakes that all certificates (if any) representing the Shares shall, on the date of execution of this Pledge Agreement and on the date of any issuance of further certificates, be deposited with the Collateral Agent.
Prior to the occurrence of an Event of Default, all dividends or any other distributions (including by way of reduction of share premium) permitted under the Credit Agreement with respect to the Shares issued by the Company will be distributed to the Pledgor and not to the Collateral Agent.
After the occurrence of an Event of Default which is continuing, any dividends shall be paid exclusively to the Collateral Agent, which shall hold the same as additional collateral apply it towards the Secured Obligations in accordance with Section 8.03 of the Credit Agreement.
Prior to the occurrence of an Event of Default, only the Pledgor will be entitled to exercise the Voting Rights, provided that it shall not exercise those Voting Rights in any manner which adversely affects the rights of the Collateral Agent and the Secured Parties hereunder in any material respect and/or the validity or enforceability of the Pledge, or cause an Event of Default to occur, or cause the Collateral Agent to incur liabilities. The Pledgor shall not cast any vote, give any consent or waiver or take any action which would be inconsistent with or violate any provision of this Pledge Agreement and/or any Loan Document.
Following the occurrence and during the continuance of an Event of Default, the Collateral Agent shall
Form of Lux HoldCo Pledge Agreement
F-2-7
NY\6158255.3
be entitled, after giving written notice to this effect to the Pledgor and the Company, to exercise the Voting Rights in any manner the Collateral Agent deems reasonably fit, including the right to appear, participate in and cast votes at any shareholders’ meeting or written resolution.
In the exercise of such Voting Rights, and after the occurrence and during the continuance of an Event of Default, the Collateral Agent may only have consideration for its interests and the interests of the Secured Parties and need not to have any consideration for the interests of any other person (including the Pledgor).
The Pledgor shall deliver to the Collateral Agent a copy of convening notices, proposal of written resolutions or information of any shareholders’ meeting and/or shareholders written resolutions which may in any material respect adversely affect the validity or enforceability of the Pledge or cause an Event of Default to occur, or cause the Collateral Agent to incur liabilities.
The Pledgor waives any claim it may have in respect of the exercise by the Collateral Agent of the Voting Rights in case of the occurrence and continuance of an Event of Default, except in case of fraud, gross negligence or wilful misconduct of the Collateral Agent, or as otherwise provided for in the Credit Agreement.
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4.
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REPRESENTATIONS AND WARRANTIES
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1.
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The Pledgor represents and warrants to the Collateral Agent that, on the date hereof and on the date of a Credit Extension (as defined in the Credit Agreement), except to the extent that the representations and warranties refer specifically to an earlier date, in which case they are given as of such earlier date:
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i.
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It is and will remain the only registered and absolute legal and beneficial owner of the Security Assets and it has the power and authority, including all necessary corporate authorizations, to pledge the Security Assets in the manner hereby done or contemplated.
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ii.
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It has not transferred, assigned, pledged or in any way encumbered, except in favour of the Collateral Agent pursuant to this Pledge Agreement, the Security Assets or any rights relating thereto.
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iii.
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The Security Assets are free and clear of any and all disputes, liens, encumbrances, debts, options to purchase or sell, warrant, third party rights, security interests or mortgages, except for those expressly provided for in this Pledge Agreement.
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iv.
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By virtue of the execution by the Pledgor of this Pledge Agreement and the recording of the Pledge as provided for in Clause 2 (Pledge) above, the Collateral Agent will obtain a valid, binding and perfected first lien upon and security interest in the Security Assets enforceable under the laws of Luxembourg as security for the Secured Obligations, not subject to any prior or pari passu encumbrances.
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v.
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No person (other than the Pledgor) holds any rights or warrants entitling it to subscribe the Shares.
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Form of Lux HoldCo Pledge Agreement
F-2-8
NY\6158255.3
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2.
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Each of the Pledgor and the Company represents and warrants to the Collateral Agent that, on the date hereof and on the date of a Credit Extension (as defined in the Credit Agreement), except to the extent that the representations and warranties refer specifically to an earlier date, in which case they are given as of such earlier date:
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i.
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For the purposes of The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings (the “
Regulation
”) the Company’s center of main interest (as that term is used in Article 3(1) of the Regulation) is situated in Luxembourg and it has no “establishment” (as that term is used in Article 2(h) of the Regulation) in any other Member State of the European Union.
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ii.
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Neither the Company nor the Pledgor is subject to any bankruptcy or similar insolvency proceeding.
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iii.
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The Shares are fully paid-up, validly issued and are not subject to any options to purchase or similar rights of any person.
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iv.
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The Company has not declared any dividends that remain unpaid at the date hereof in relation to the Shares.
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v.
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No unsatisfied judgement or award is outstanding against the Pledgor or the Company.
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vi.
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No counterclaim as to which a right of set-off or right of retention could be exercised exists with respect to the Security Assets.
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vii.
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No guarantee, loan capital, borrowed money or interest is overdue for payment by the Pledgor or the Company, and no other obligation or indebtedness is outstanding which is overdue for performance or payment where such fact could have a Material Adverse Effect.
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viii.
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The execution and performance of this Pledge Agreement does not violate or conflict with any provision of the Company’s organizational or corporate documents, and shall not constitute a violation or a breach of any agreement to which the Company is a party.
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ix.
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There is no agreement or other document, right or claim of any sort whatsoever regarding the issuance, subscription, acquisition, repurchase, redemption, assignment, voting rights, rights of first refusal or pre-emptive rights with respect to any of the Shares and which could adversely affect the liens created under this Pledge Agreement or any of the rights granted hereby to the Collateral Agent.
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x.
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All necessary authorisations to enable it to enter into this Pledge Agreement have been obtained and are in full force and effect, including especially but not exclusively, the written approval by the shareholders of the Company dated February 3, 2014 (a copy of which is attached as Schedule A) of any transferee of the Shares further to the enforcement of the Pledge, and it has the necessary power to enter into and perform its obligations under this Pledge Agreement.
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1.
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Except with the Collateral Agent’s prior written consent, the Pledgor shall not be entitled to transfer or grant a lien over the Security Assets during the Security Period.
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2.
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The Pledgor hereby undertakes to notify the Collateral Agent of any future Shares to be issued by the Company.
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Form of Lux HoldCo Pledge Agreement
F-2-9
NY\6158255.3
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3.
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The Pledgor will immediately inform the Collateral Agent of any insolvency or liquidation proceedings commenced in respect of the Pledgor or the Company, and the Pledgor shall use its best efforts to ensure that no attachment (
saisie
) is made on the Security Assets and that any such attachment (
saisie
)
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4.
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The Pledgor shall promptly inform the Collateral Agent of the occurrence of any event which may render any of the representations set out in this Pledge Agreement materially inaccurate or of any event which may be expected to have an adverse effect on the validity or enforceability of the Pledge.
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5.
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During the Security Period, the Pledgor shall not, after a claim has been made or by virtue of any payment made, security realised or moneys received hereunder for or on the account of the liabilities of any other party:
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(i)
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be subrogated to any rights, security or moneys held, received or receivable by the Collateral Agent or be entitled to any right of contribution or indemnity; or
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(ii)
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claim, rank, prove or vote as a creditor of any party to this Pledge Agreement for its estate in competition with the Collateral Agent;
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(i)
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receive claims or have the benefit of payments, distributions or security from or on account of any party to this Pledge Agreement, or exercise any rights of set off as against such other party to this Pledge Agreement, other than as permitted by the Credit Agreement or hereunder;
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6.
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It is expressly agreed that, notwithstanding anything to the contrary herein contained, the Pledgor shall remain liable to observe and to perform all of the conditions and obligations assumed by it in respect of this Pledge and the Collateral Agent shall be under no obligation or liability by reason of or arising out of this Pledge, other than by its fraud, gross negligence or wilful neglect, except as provided for in the Credit Agreement.
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7.
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Except in accordance with the terms of the Credit Agreement or this Pledge Agreement or with the written consent of the Collateral Agent, the Pledgor shall not, until the expiry of the Security Period:
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i.
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permit any person other than itself, the Collateral Agent or the Collateral Agent’s nominee to be registered as holder of the Shares or of any part thereof; or
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ii.
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create or permit to be outstanding any pledge over all or any of the Security Assets, other than the Pledge created hereby; or
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iii.
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grant or promise to grant any rights over, sell, transfer, assign or otherwise dispose of any of the Security Assets or permit any person to do any such thing; or
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iv.
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exercise the Voting Rights so as to violate or otherwise adversely affect the rights of the Collateral Agent in any material respect under this Pledge Agreement or cause an Event of Default to occur;
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8.
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The Pledgor shall, until the expiry of the Security Period:
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i.
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protect the Security Assets against and hold the Security Assets and the security interest created hereby harmless from any and all acts, lawsuits or other proceedings that may, in any way, affect the rights of the Collateral Agent under this Pledge Agreement. The Pledgor shall promptly notify the Collateral Agent of any event, fact, act or circumstance, including, without limitation, any
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Form of Lux HoldCo Pledge Agreement
F-2-10
NY\6158255.3
decision, suit, claim, investigation or change in law (or in the interpretation thereof), or, to the best of its knowledge, any threatened event, fact, act or circumstance, which could reasonably be expected to affect the validity, legality, perfection and first priority of the liens created hereby on the Security Assets or otherwise restrict, reduce or adversely affect the rights of the Collateral Agent under this Pledge Agreement;
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ii.
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act in good faith to maintain the rights of the Collateral Agent (and the Secured Parties) hereunder, and in particular shall not take steps nor do anything which would adversely affect the existence of the Pledge or cause an Event of Default to occur; and
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iii.
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cooperate with the Collateral Agent and sign or cause to be signed all such further documents and take all such further action as the Collateral Agent may from time to time reasonably request to perfect and protect the Pledge of the Security Assets and to carry out the provisions and purposes of this Pledge Agreement, including the exercise by the Collateral Agent of the Voting Rights pursuant to clause 3.2 above;
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9.
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Each of the Pledgor and the Company hereby undertakes that, during the subsistence of this Pledge Agreement, the Shares will be kept in registered form.
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10.
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The Company undertakes that all certificates (if any) representing the Shares shall, on the date of execution of this Pledge Agreement and on the date of any issuance of further certificates, be deposited with the Collateral Agent.
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11.
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The Pledgor shall at its own expense execute and do all such assurances, acts and things as the Collateral Agent may reasonably require for perfecting or protecting the security interest intended to be created hereby over the Security Assets or any part thereof or for facilitating (if and when this security becomes enforceable) the realisation of the Security Assets or any part thereof and in the exercise of all powers, authorities and discretions vested in the Collateral Agent over the Security Assets or any part thereof or in any delegate of the Collateral Agent.
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12.
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The Pledgor irrevocably appoints the Collateral Agent to be its attorney and in its name and on its behalf to execute, deliver and perfect all documents and do all things that the Collateral Agent may consider to be requisite for (i) carrying out any obligation imposed on the Pledgor under this Agreement or (ii) exercising any of the rights conferred on the Collateral Agent by this Pledge Agreement or by law. The Pledgor shall ratify and confirm all things done and all documents executed by the Collateral Agent in the exercise of that power of attorney.
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13.
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Upon the transfer by the Pledgor of any shares it holds in the Company, other than the Shares, the Pledgor undertakes to (i) request the managers of the Company to convene a general shareholders’ meeting, or, (ii) if not done by the managers, convene a shareholders’ meeting, in accordance to article 196 of the law dated 10 August 1915 on commercial companies, for the purpose of approving as potential future shareholder of the Company in case of enforcement of the Pledge:
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Form of Lux HoldCo Pledge Agreement
F-2-11
NY\6158255.3
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a.
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the Collateral Agent as well as any wholly owned affiliate of the Collateral Agent who has obtained the Collateral Agent’s position as collateral agent under this Pledge Agreement, in accordance with the terms and conditions of the Credit Agreement, or
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b.
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any third party who has obtained the Collateral Agent’s position as collateral agent under this Pledge Agreement, in accordance with the terms and conditions of the Credit Agreement, or
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c.
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any third party that has been delegated by the Collateral Agent expressly in writing and in compliance with this Pledge Agreement and the Credit Agreement.
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14.
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The Pledgor undertakes to take the steps in 5.13 above and procures that any new shareholder of the Company votes to approve any other person designated by the Collateral Agent for this purpose.
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6.
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EFFECTIVENESS OF THE PLEDGE
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1.
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The liens to be created hereunder in favour of the Collateral Agent shall be senior in all respects and prior to any other liens on the Security Assets, notwithstanding the date, manner or order of grant, attachment or perfection of such other liens.
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2.
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The Pledge shall remain in full force and effect until the expiry of the Security Period.
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3.
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The Pledge shall not be affected by the unused committed credit facility(ies) or temporary repayment of the credit facility(ies) or by the partial fulfilment of the obligations under the Credit Agreement.
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4.
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It is expressly agreed between the Parties to this Pledge Agreement that all rights and claims of the Collateral Agent under this Pledge Agreement shall not be affected or discharged if the Collateral Agent should agree to defer payments, to release any collateral given or to be given, to release the guarantors from their liability under their respective guarantee, or to conclude arrangements of whatsoever kind with the Pledgor.
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5.
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The rights, powers and discretions of the Collateral Agent herein are in addition to and not exclusive of those provided by law, by any agreement with or any security in favour of the Collateral Agent.
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6.
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For the purpose of article 1278 of the Luxembourg civil Code, to the extent required under applicable law and without prejudice to the provisions in the Credit Agreement, the Collateral Agent hereby expressly reserves the preservation of this Pledge and the security interest created hereunder in case of assignment, novation, amendment or any other transfer of the Secured Obligations or any other rights arising for it under the Credit Agreement.
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7.
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Neither the obligations of the Pledgor contained in this Pledge Agreement nor the rights, powers and remedies conferred upon the Collateral Agent by this Pledge Agreement or by law, nor the Pledge created hereby shall be discharged, impaired or otherwise affected by:
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•
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any amendment to, or any variation, waiver or release of, any Secured Obligation, except in case of release in accordance with clause 11 upon expiry of the Security Period or as otherwise agreed in writing by the Collateral Agent;
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•
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any failure to take, or fully take, any security contemplated by the Loan Documents or otherwise agreed to be taken in respect of the Secured Obligations;
|
Form of Lux HoldCo Pledge Agreement
F-2-12
NY\6158255.3
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•
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any failure to realise, or fully realise, the value of, or any release, discharge, exchange or substitution of, any security taken in respect of the Secured Obligations, except in case of release of the Pledge granted hereunder pursuant to clause 11; or
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•
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any other act, event or omission which, but for this clause might operate to discharge, impair or otherwise affect any of the obligations of the Pledgor contained in this Pledge Agreement, the rights, powers and remedies conferred upon the Collateral Agent by this Pledge Agreement, the Pledge or by law, except in case of release pursuant to clause 11.
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1.
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The Pledgor waives the exercise of Rights of Recourse or any other rights against any Loan Party by way of provisional measures such as provisional attachment (
saisie arrêt conservatoire
) or by way of set off or the taking of any action in relation to such Rights of Recourse or other similar rights.
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2.
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The Pledgor hereby waives the exercise of Rights of Recourse against any Loan Party following the enforcement of the Pledge, in accordance with Article 2 (6) of the Financial Collateral Law.
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3.
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This Clause 7 (Rights of Recourse) shall remain in full force and effect notwithstanding any discharge or release of this Pledge Agreement.
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Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent shall be entitled to enforce to Pledge in the most favourable manner provided for by law and may, in particular, but without limitation:
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(a)
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appropriate the Shares or have a third party appropriate the Shares, at a value determined, on or after appropriation, by an independent auditor (
réviseur d’entreprise
) appointed by the Collateral Agent. The value of such Shares shall be determined in accordance with standard practice evaluation rules based on the net assets of the Company reflected in the most recent annual accounts of the Company and, if required, as adjusted in order to reflect the real economic value of these net assets. The costs incurred by such valuation shall be paid by the Pledgor; and/or
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(b)
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proceed to a private sale at arm’s length terms (
conditions commerciales normales
) in accordance with applicable legal provisions; and/or
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(c)
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demand payment, transfer and delivery of the Security Assets and in view to satisfy the Secured Obligations in compliance with article 11 paragraph (1) c) of the
Financial Collateral Law; and/or
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(d)
|
proceed to the sale of the Shares on the stock exchange or by public auction by a public officer appointed by the Collateral Agent.
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All moneys from time to time received by the Collateral Agent shall after an occurrence and continuance of an Event of Default be applied in accordance with the Credit Agreement and any amount exceeding
Form of Lux HoldCo Pledge Agreement
F-2-13
NY\6158255.3
the Secured Obligations shall be transferred to the Pledgor as soon as possible.
In compliance with article 12 (2) of the Financial Collateral Law, the Pledgor, in its capacity as shareholder of the Company, has accepted (i) the Collateral Agent as well as any wholly owned affiliated of the Collateral Agent who has obtained the Collateral Agent’s position as collateral agent under this Pledge Agreement in accordance with the terms and conditions of the Credit Agreement, (ii) any third party who has obtained the Collateral Agent’s position under this Pledge Agreement or (iii) any third party that has been delegated expressly in writing by the Collateral Agent, as potential future shareholder of the Company, in case of enforcement of the Pledge (a copy of the resolution being enclosed as Schedule A).
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9.
|
EXPENSES AND INDEMNITY
|
All reasonable costs, expenses, taxes, duties and similar charges incurred by the Pledgor and/or the Collateral Agent by virtue of this Pledge Agreement, now or in the future, including all costs of perfection, any costs of registration and notification, and all court and legal expenses arising out of the enforcement of their rights shall be paid in accordance with the terms of the Credit Agreement.
The Collateral Agent shall not be liable for any losses arising in connection with the exercise of any of its rights, powers or discretions hereunder save for liabilities and expenses that have been determined in the final, non-appealable judgement of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or wilful misconduct of the Collateral Agent.
The Pledgor shall indemnify the Collateral Agent in accordance with the terms of the Credit Agreement.
The Collateral Agent may delegate all or any of the powers, authorities and discretions which are for the time being exercisable by the Collateral Agent under this Pledge Agreement in relation to the Security Assets or any part thereof, subject to the terms and conditions of the Credit Agreement.
The Pledge created hereby shall be released at the request and cost of the Pledgor upon the expiry of the Security Period or as otherwise agreed in writing by the Collateral Agent.
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12.
|
AMENDMENTS AND WAIVERS
|
This Pledge Agreement may not be waived, changed, modified or discharged orally, but only by an agreement in writing signed by the Parties hereto.
Form of Lux HoldCo Pledge Agreement
F-2-14
NY\6158255.3
If a provision of this Pledge Agreement becomes illegal, invalid, or unenforceable in any jurisdiction, that shall not affect:
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(a)
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the validity or enforceability in that jurisdiction of any other provisions of this Pledge Agreement; or
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(b)
|
the validity or enforceability in other jurisdictions of that or any other provision of this Pledge Agreement.
|
If any provision of this Pledge Agreement is or becomes prohibited or unenforceable in any jurisdiction, that shall not affect the validity or enforceability of any other provisions hereof or affect the validity or enforceability of such provision in any other jurisdiction. The prohibited or unenforceable provisions shall be replaced by the Parties by new provisions reflecting the initial intention of the Parties.
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14.
|
COUNTERPARTS - ORIGINAL COPIES
|
This Pledge Agreement shall be executed in as many original copies as parties and each party to this Pledge Agreement declares having received one original copy.
This Pledge Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be an original, but all of which when taken together shall constitute a single instrument.
All notices or other communications under or in connection with this Pledge Agreement shall be given in the manner and become effective as set forth in the Credit Agreement.
Any notice given under or in connection with this Pledge Agreement shall be in English.
All other documents provided under or in connection with this Pledge Agreement shall be in English, or if not English, accompanied with a certified English translation and, in this case, the English translation shall prevail unless the document is a statutory or other official document.
Exclusive jurisdiction is granted to the Courts of the City of Luxembourg (Grand Duchy of Luxembourg) and any claims arising under this Pledge Agreement shall be submitted to the Courts of the City of Luxembourg.
Form of Lux HoldCo Pledge Agreement
F-2-15
NY\6158255.3
This Pledge Agreement (and any dispute, controversy, proceedings or claims of whatever nature arising out of or in any way relating to this Pledge Agreement) shall be exclusively governed by and construed in all respects in accordance with Luxembourg law.
THIS PLEDGE AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS PLEDGE AGREEMENT.
EXECUTION PAGES
1.
W.R. Grace & Co.-Conn
as
Pledgor
By:
________________________________
Title:
By:
________________________________
Title:
2.
Goldman Sachs Bank USA
as
Collateral Agent
By:
________________________________
Title:
By:
________________________________
Title:
3.
Grace Luxembourg S.à r.l.
Form of Lux HoldCo Pledge Agreement
F-2-16
NY\6158255.3
By:
________________________________
Title:
By:
________________________________
Title:
SCHEDULE A - RESOLUTIONS OF THE PLEDGOR
Grace Luxembourg S.à r.l.
Société à responsabilité limitée
Registered office: 7A, rue Robert Stümper, L-2557 Luxembourg
RCS Luxembourg: B 162209
(the “
Company
”)
RESOLUTIONS OF THE SOLE SHAREHOLDER OF THE COMPANY ADOPTED ON _____________ 2014
W.R. Grace & Co.-Conn
, a US law governed corporation, having its registered office at 7500, Grace Drive, USA - Columbia, Maryland, United Stated of America, being the sole shareholder of the Company (the “
Sole Shareholder
”), has decided to take the following resolution on the following agenda:
AGENDA:
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•
|
Acceptance as potential future shareholder of the Company of (i) Goldman Sachs Bank USA (the “
Collateral Agent
”) as well as any wholly owned affiliate of the Collateral Agent who has obtained the Collateral Agent’s position as collateral agent under a pledge granted over 65% of the shares issued by the Company pursuant to the terms and conditions of a share pledge agreement governed by Luxembourg law entered into on February 3, 2014 between the Sole Shareholder as pledgor, the Collateral Agent and the Company (the “
Pledge Agreement
”), in accordance with the terms and conditions of the Credit Agreement (as defined in the Pledge Agreement), (ii) any third party who has obtained the Collateral Agent’s position as collateral agent under the Pledge Agreement, in accordance with the terms and conditions of the Credit Agreement (as defined in the Pledge Agreement), or (iii) any third party that has been delegated by the Collateral Agent expressly in writing and in compliance
|
Form of Lux HoldCo Pledge Agreement
F-2-17
NY\6158255.3
with the Pledge Agreement and the Credit Agreement, as a result of the enforcement of the pledge granted under the Pledge Agreement.
According to Article 12 (2) of the law dated 5 August 2005 on financial collateral arrangements, as amended, and in compliance with Articles 189 and 200-2 of the law of 10 August 1915 on commercial companies, as amended, the Sole Shareholder
adopted the following resolution:
SOLE RESOLUTION
The Sole Shareholder hereby
RESOLVES
to accept:
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•
|
the Collateral Agent as well as any wholly owned affiliate of the Collateral Agent who has obtained the Collateral Agent’s position as collateral agent under the Pledge Agreement, in compliance with the Credit Agreement, or
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•
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any third party who has obtained the Collateral Agent’s position as collateral agent under the Pledge Agreement, in compliance with the Credit Agreement, or
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•
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any third party that has been delegated by the Collateral Agent expressly in writing and in compliance with the Pledge Agreement’s and the Credit Agreement’s terms and conditions,
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as potential future shareholder of the Company in case of enforcement of the pledge granted under the Pledge Agreement (attached as Schedule A).
________________________________
W.R. Grace & Co.-Conn
By:
Capacity:
Schedule A - Pledge Agreement
Form of Lux HoldCo Pledge Agreement
F-2-18
NY\6158255.3
EXHIBIT G
FORM OF ADMINISTRATIVE QUESTIONNAIRE
GOLDMAN SACHS BANK USA
30 Hudson Street, 4th Floor
Jersey City, NJ 07302
Attention: SBD Operations
Email: gsd.link@gs.com and gs-sbdagency-borrowernotices@gs.com
ADMINISTRATIVE QUESTIONNAIRE FOR:
Please accurately complete the following information and return via fax or e-mail to the attention of SBD Operations at Goldman Sachs Bank USA as soon as possible. It is very important that all of the requested information is accurately completed and returned promptly.
LEGAL NAME OF LENDING INSTITUTION TO APPEAR IN DOCUMENTATION:
NUMBER OF LINES NEEDED FOR SIGNATURE PAGE:
GENERAL INFORMATION -- DOMESTIC LENDING OFFICE:
Institution Name:
Street Address:
City, State, Zip Code:
CREDIT CONTACTS/NOTIFICATION METHODS
Contact Name:
Street Address:
City, State, Zip Code:
Telephone Number:
Fax Number:
E-Mail Address:
TAX STATUS:
Is your institution a non-Resident Alien, foreign corporation or partnership?
Yes No
If yes:
What is the country of incorporation or organization? :
Form of Administrative Questionnaire
G-1
NY\6158255.3
Tax Form W-8BEN or W-8EC1 should be enclosed as per the Tax Section of the referenced Credit Agreement. Failure to properly complete and return the applicable form will subject your institution to withholding tax.
If no:
Please submit Tax Form W-9
Lender's Tax Identification Number:
CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS—BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact Name:
Street Address:
City, State, Zip Code:
Telephone Number:
Fax Number:
E-Mail Address:
BID LOAN NOTIFICATION: (IF APPLICABLE)
Contact Name:
Street Address:
City, State, Zip Code:
Telephone Number:
Fax Number:
E-Mail Address:
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be transferred:
Routing Transit/ ABA Number of Bank where funds are to be transferred:
Name of Account, if applicable:
Account Number:
Additional Information:
Form of Administrative Questionnaire
G-2
NY\6158255.3
EXHIBIT H
FORM OF DISCOUNT RANGE PREPAYMENT NOTICE
Date: _____, 20__
To: [________________], as Auction Agent
Ladies and Gentlemen:
This Discount Range Prepayment Notice is delivered to you pursuant to Section 2.05(a)(iv) of that certain Credit Agreement, dated as of [ ], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent (together with its permitted successors and assigns, the “
Administrative Agent
”). Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. In the event of any conflict between this Discount Range Prepayment Notice and the Credit Agreement, the terms of the Credit Agreement shall control.
Pursuant to Section 2.05(a)(iv) of the Credit Agreement, the undersigned hereby requests that [each Lender] [each Lender of the [_____] tranche[s] of the [_____] Class of Loans] submit a Discount Range Prepayment Offer. Any Discounted Loan Prepayment made in connection with this solicitation shall be subject to the following terms:
1. This Borrower Solicitation of Discount Range Prepayment Offers is extended at the sole discretion of the undersigned to [each Lender] [each Lender of the [_______] tranche[s] of the [_______] Class of Loans].
2. The maximum aggregate principal amount of the Discounted Loan Prepayment that will be made in connection with this solicitation is [$[●] of Loans] [$[●] of the [________] tranche[(s)] of the [________] Class of Loans] (the “
Discount Range Prepayment Amount
”).
3. The undersigned is willing to make Discounted Loan Prepayments at a percentage discount to par value greater than or equal to [[●]% but less than or equal to [●]% in respect of the Loans] [[●]% but less than or equal to [●]% in respect of the [_________] tranche[(s)] of the [_____] Class of Loans] (the “
Discount Range
”)
.
To make an offer in connection with this solicitation, you are required to deliver to the Auction Agent a Discount Range Prepayment Offer by no later than 5:00 p.m., Eastern time, on the date that is the third Business Day following the date of delivery of this notice pursuant to Section 2.05(a)(iv)(B) of the Credit Agreement [(or such later date specified herein)].
The undersigned hereby represents and warrants to the Auction Agent and [the Lenders] [each Lender of the [______] tranche[s] of the [______] Class of Loans] as follows:
Pursuant to Section 2.05(a)(iv) of the Credit Agreement (a) no Event of Default has occurred and is continuing or would result therefrom and (b) no proceeds of Revolving Loans will be used to make any Discounted Loan Prepayment.
Form of Discount Range Prepayment Notice
H-1
NY\6158255.3
The undersigned acknowledges that the Auction Agent and the relevant Lenders are relying on the truth and accuracy of the foregoing representations and warranties in connection with any Discount Range Prepayment Offer made in response to this Discount Range Prepayment Notice and the acceptance of any prepayment made in connection with this Discount Range Prepayment Notice.
The undersigned requests that the Auction Agent promptly notify each Lender party to the Credit Agreement of this Discount Range Prepayment Notice.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
Form of Discount Range Prepayment Notice
H-2
NY\6158255.3
IN WITNESS WHEREOF, the undersigned has executed this Discount Range Prepayment Notice as of the date first above written.
[NAME OF APPLICABLE LOAN PARTY OR SUBSIDIARY]
By:
Name:
Title:
Enclosure: Form of Discount Range Prepayment Offer
Form of Discount Range Prepayment Notice
H-3
NY\6158255.3
EXHIBIT I
FORM OF DISCOUNT RANGE PREPAYMENT OFFER
Date: ______, 20___
To: [____________], as Auction Agent
Ladies and Gentlemen:
Reference is made to (a) that certain Credit Agreement, dated as of [______], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent (together with its permitted successors and assigns, the “
Administrative Agent
”), and (b) that certain Discount Range Prepayment Notice, dated [______], 20[_], from the applicable Loan Party or Subsidiary of a Loan Party (the “
Discount Range Prepayment Notice
”). Capitalized terms used herein and not otherwise defined herein shall have the meaning ascribed to such terms in the Discount Range Prepayment Notice or, to the extent not defined therein, in the Credit Agreement. In the event of any conflict between this Discount Range Prepayment Offer and the Credit Agreement, the terms of the Credit Agreement shall control.
The undersigned Lender hereby gives you irrevocable notice, pursuant to Section 2.05(a)(iv)(C) of the Credit Agreement, that it is hereby offering to accept a Discounted Loan Prepayment on the following terms:
1. This Discount Range Prepayment Offer is available only for prepayment on [the Loans] [the [_______] tranche[s] of the [_______] Class of Loans] held by the undersigned.
2. The maximum aggregate principal amount of the Discounted Loan Prepayment that may be made in connection with this offer shall not exceed (the “
Submitted Amount
”):
[Loans - $[●]]
[[________] tranche[s] of the [______] Class of Loans - S[●]]
3. The percentage discount to par value at which such Discounted Loan Prepayment may be made is [[●]% in respect of the Loans] [[●]% in respect of the [_______] tranche[(s)] of the [_______] Class of Loans] (the “
Submitted Discount
”).
The undersigned Lender hereby expressly and irrevocably consents and agrees to a prepayment of its [Loans] [[_______] tranche[s] of the [____] Class of Loans] indicated above pursuant to Section 2.05(a)(iv)(C) of the Credit Agreement at a price equal to the Applicable Discount and in an aggregate outstanding amount not to exceed the Submitted Amount, as such amount may be reduced in accordance with the Discount Range Proration, if any, and as otherwise determined in accordance with and subject to the requirements of the Credit Agreement.
The undersigned Lender acknowledges and agrees that, in connection with any prepayment on the terms indicated above:
Form of Discount Range Prepayment Offer
I-1
NY\6158255.3
1.
[Insert Name of Loan Party or Subsidiary that delivered the Notice] may have and later may come into possession of Excluded Information.
2.
Such undersigned Lender has independently and, without reliance on the Loan Parties or any of their Subsidiaries, the Agents or any other Agent-Related Persons, made its own analysis and determination to participate in such prepayment notwithstanding such undersigned Lender’s lack of knowledge of the Excluded Information.
3.
None of the Loan Parties, their respective Subsidiaries or Affiliates, the Agents or any other Agent-Related Persons shall have any liability to such undersigned Lender, and such undersigned Lender hereby waives and releases, to the maximum extent permitted by law, any claims such undersigned Lender may have against the Loan Parties, any of their Subsidiaries or Affiliates, the Agents and any other Agent-Related Persons, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information.
4.
The Excluded Information may not be available to the Agents or the other Lenders.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
Form of Discount Range Prepayment Offer
I-2
NY\6158255.3
IN WITNESS WHEREOF, the undersigned has executed this Discount Range Prepayment Offer as of the date first above written.
[NAME OF LENDER]
By:
Name:
Title:
Form of Discount Range Prepayment Offer
I-3
NY\6158255.3
EXHIBIT J
FORM OF SPECIFIED DISCOUNT PREPAYMENT NOTICE
Date:_______, 20___
To: [____________], as Auction Agent
Ladies and Gentlemen:
This Specified Discount Prepayment Notice is delivered to you pursuant to Section 2.05(a)(iv)(B) of that certain Credit Agreement, dated as of [______], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent (together with its permitted successors and assigns, the “
Administrative Agent
”). Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. In the event of any conflict between this Specified Discount Prepayment Notice and the Credit Agreement, the terms of the Credit Agreement shall control.
Pursuant to Section 2.05(a)(iv)(B) of the Credit Agreement, the undersigned hereby offers to make a Discounted Loan Prepayment [to each Lender] [to each Lender of the [_______] tranche[s] of the [_____] Class of Loans] on the following terms:
1. This Borrower Offer of Specified Discount Prepayment is available only [to each Lender] [to each Lender of the [______] tranche[s] of the [_____] Class of Loans].
2. The aggregate principal amount of the Discounted Loan Prepayment that will be made in connection with this offer shall not exceed [$[●] of Loans] [$[●] of the [_____] tranche[(s)] of the [_____] Class of Loans] (the “
Specified Discount Prepayment Amount
”).
3. The percentage discount to par value at which such Discounted Loan Prepayment will be made is [[●]% in respect of the Loans] [[●]% in respect of the [______] tranche[(s)] of the [______] Class of Loans] (the “
Specified Discount
”).
To accept this offer, you are required to submit to the Auction Agent a Specified Discount Prepayment Response by no later than 5:00 p.m., Eastern time, on the date that is the third Business Day following the date of delivery of this notice pursuant to Section 2.05(a)(iv)(B) of the Credit Agreement [(or such later date specified herein)].
The undersigned hereby represents and warrants to the Auction Agent and [the Lenders] [each Lender of the [____] tranche[s] of the [____] Class of Loans] as follows:
Pursuant to Section 2.05(a)(iv) of the Credit Agreement, (a) no Event of Default has occurred and is continuing and (b) no proceeds of Revolving Loans will be used to make any Discounted Loan Prepayment.
The undersigned acknowledges that the Auction Agent and the relevant Lenders are relying on the truth and accuracy of the foregoing representations and warranties in connection with their decision whether or not to accept the offer set forth in this Specified Discount Prepayment Notice
Form of Specified Discount Prepayment Notice
J-1
NY\6158255.3
and the acceptance of any prepayment made in connection with this Specified Discount Prepayment Notice.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
Form of Specified Discount Prepayment Notice
J-2
NY\6158255.3
IN WITNESS WHEREOF, the undersigned has executed this Specified Discount Prepayment Notice as of the date first above written.
[NAME OF APPLICABLE LOAN PARTY
OR SUBSIDIARY]
By:
Name:
Title:
Enclosure: Form of Specified Discount Prepayment Response
Form of Specified Discount Prepayment Notice
J-3
NY\6158255.3
EXHIBIT K
FORM OF SPECIFIED DISCOUNT PREPAYMENT RESPONSE
Date: ______, 20___
To: [____________], as Auction Agent
Ladies and Gentlemen:
Reference is made to (a) that certain Credit Agreement, dated as of [______], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent (together with its permitted successors and assigns, the “
Administrative Agent
”), and (b) that certain Specified Discount Prepayment Notice, dated [______], 20[__], from the applicable Loan Party or Subsidiary of a Loan Party (the “
Specified Discount Prepayment Notice
”). Capitalized terms used herein and not otherwise defined herein shall have the meaning ascribed to such terms in the Specified Discount Prepayment Notice or, to the extent not defined therein, in the Credit Agreement. In the event of any conflict between this Specified Discount Prepayment Response and the Credit Agreement, the terms of the Credit Agreement shall control.
The undersigned Lender hereby gives you irrevocable notice, pursuant to Section 2.05(a)(iv)(B) of the Credit Agreement, that it is willing to accept a prepayment of the following [Loans] [[__________] tranche[s] of the [___] Class of Loans - $[●]] held by such Lender at the Specified Discount in an aggregate outstanding amount as follows:
[Loans - $[●]]
[[_______] tranche[s] of the [_______] Class of Loans - $[●]]
The undersigned Lender hereby expressly and irrevocably consents and agrees to a prepayment of its [Loans] [[_______] tranche[s] of the [___] Class of Loans] pursuant to Section 2.05(a)(iv)(B) of the Credit Agreement at a price equal to the [applicable] Specified Discount in the aggregate outstanding amount not to exceed the amount set forth above, as such amount may be reduced in accordance with the Specified Discount Proration, and as otherwise determined in accordance with and subject to the requirements of the Credit Agreement.
The undersigned Lender acknowledges and agrees that, in connection with any prepayment on the terms indicated above:
1.
[Insert Name of Loan Party or Subsidiary that delivered the Notice] may have and later may come into possession of Excluded Information.
2.
Such undersigned Lender has independently and, without reliance on the Loan Parties or any of their Subsidiaries, the Agents or any other Agent-Related Persons, made its own analysis and determination to participate in such prepayment notwithstanding such undersigned Lender’s lack of knowledge of the Excluded Information.
Form of Specified Discount Prepayment Response
K-1
NY\6158255.3
3.
None of the Loan Parties, their respective Subsidiaries or Affiliates, the Agents or any other Agent-Related Persons shall have any liability to such undersigned Lender, and such undersigned Lender hereby waives and releases, to the maximum extent permitted by law, any claims such undersigned Lender may have against the Loan Parties, any of their Subsidiaries or Affiliates, the Agents and any other Agent-Related Persons, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information.
4.
The Excluded Information may not be available to the Agents or the other Lenders.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
Form of Specified Discount Prepayment Response
K-2
NY\6158255.3
IN WITNESS WHEREOF, the undersigned has executed this Specified Discount Prepayment Response as of the date first above written.
[NAME OF LENDER]
By:
Name:
Title:
Form of Specified Discount Prepayment Response
K-3
NY\6158255.3
EXHIBIT L
FORM OF SOLICITED DISCOUNTED PREPAYMENT NOTICE
Date: ______, 20____
To: [________________], as Auction Agent
Ladies and Gentlemen:
This Solicited Discounted Prepayment Notice is delivered to you pursuant to Section 2.05(a)(iv)(D) of that certain Credit Agreement, dated as of [______], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent (together with its permitted successors and assigns, the “
Administrative Agent
”). Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. In the event of any conflict between this Solicited Discount Prepayment Notice and the Credit Agreement, the terms of the Credit Agreement shall control.
Pursuant to Section 2.05(a)(iv)(D) of the Credit Agreement, the undersigned hereby requests that [each Lender] [each Lender of the [________] tranche[s] of the [____] Class of Loans] submit a Solicited Discounted Prepayment Offer. Any Discounted Loan Prepayment made in connection with this solicitation shall be subject to the following terms:
1. This Borrower Solicitation of Discounted Prepayment Offers is extended at the sole discretion of the undersigned to [each Lender] [each Lender of the [_______] tranche[s] of the [______] Class of Loans].
2. The maximum aggregate amount of the Discounted Loan Prepayment that will be made in connection with this solicitation is (the “
Solicited Discounted Prepayment Amount
”):
[Loans - $[●]]
[[____________] tranche[s] of the [___] Class of Loans - $[●]]
To make an offer in connection with this solicitation, you are required to deliver to the Auction Agent a Solicited Discounted Prepayment Offer by no later than 5:00 p.m., Eastern time on the date that is the third Business Day following delivery of this notice pursuant to Section 2.05(a)(iv)(D) of the Credit Agreement [(or such later date specified herein)].
The undersigned requests that the. Auction Agent promptly notify each Lender party to the Credit Agreement of this Solicited Discounted Prepayment Notice.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
Form of Solicitated Discounted Prepayment Notice
L-1
NY\6158255.3
IN WITNESS WHEREOF, the undersigned has executed this Solicited Discounted Prepayment Notice as of the date first above written.
[NAME OF LOAN PARTY OR SUBSIDIARY]
By:
Name:
Title:
Enclosure: Form of Solicited Discounted Prepayment-Offer
Form of Solicitated Discounted Prepayment Notice
L-2
NY\6158255.3
EXHIBIT M
FORM OF ACCEPTANCE AND PREPAYMENT NOTICE
Date: _____, 20____
To: [________________], as Auction Agent
Ladies and Gentlemen:
This Acceptance and Prepayment Notice is delivered to you pursuant to (a) Section 2.05(a)(iv)(D) of that certain Credit Agreement, dated as of [______], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”; terms defined therein, unless otherwise defined herein, being used herein as therein defined), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent (together with its permitted successors and assigns, the “
Administrative Agent
”), and (b) that certain Solicited Discounted Prepayment Notice, dated _____, 20___, from the undersigned (the “
Solicited Discounted Prepayment Notice
”). Capitalized terms used herein and not otherwise defined herein shall have the meaning ascribed to such terms in the Credit Agreement. In the event of any conflict between this Acceptance and Prepayment Notice and the Credit Agreement, the terms of the Credit Agreement shall control.
Pursuant to Section 2.05(a)(iv)(D) of the Credit Agreement, the undersigned hereby irrevocably notifies you that it accepts offers delivered in response to the Solicited Discounted Prepayment Notice having an Offered Discount equal to or greater than [[●]% in respect of the Loans] [[●]% in respect of the [__________] tranche[(s)] of the [___] Class of Loans] (the “
Acceptable Discount
”) in an aggregate amount not to exceed the Solicited Discounted Prepayment Amount.
The undersigned expressly agrees that this Acceptance and Prepayment Notice shall be irrevocable and is subject to the provisions of Section 2.05(a)(iv)(D) of the Credit Agreement.
The undersigned hereby represents and warrants to the Auction Agent and [the Lenders][each Lender of the [__________] tranche[s] of the [____] Class of Loans] as follows:
Pursuant to Section 2.05(a)(iv) of the Credit Agreement, no Event of Default has occurred and is continuing.
The undersigned acknowledges that the Auction Agent and the relevant Lenders are relying on the truth and accuracy of the foregoing representations and warranties in connection with the acceptance of any prepayment made in connection with a Solicited Discounted Prepayment Offer.
The undersigned requests that the Auction Agent promptly notify each Lender party to the Credit Agreement of this Acceptance and Prepayment Notice.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
Form of Acceptance and Prepayment Notice
M-1
NY\6158255.3
IN WITNESS WHEREOF, the undersigned has executed this Acceptance and Prepayment Notice as of the date first above written.
[NAME OF LOAN PARTY OR SUBSIDIARY]
By:
Name:
Title:
Form of Acceptance and Prepayment Notice
M-2
NY\6158255.3
EXHIBIT N
FORM OF SOLICITED DISCOUNTED PREPAYMENT OFFER
Date: ______, 20____
To: [_______________], as Auction Agent
Ladies and Gentlemen:
Reference is made to (a) that certain Credit Agreement, dated as of [ ], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent (together with its permitted successors and assigns, the “
Administrative Agent
”), and (b) that certain Solicited Discounted Prepayment Notice, dated [______], 20[__], from the Loan Party or Subsidiary of a Loan Party (the “
Solicited Discounted Prepayment Notice
”). Capitalized terms used herein and not otherwise defined herein shall have the meaning ascribed to such terms in the Solicited Discounted Prepayment Notice or, to the extent not defined therein, in the Credit Agreement. In the event of any conflict between this Solicited Discount Prepayment Offer and the Credit Agreement, the terms of the Credit Agreement shall control.
To accept the offer set forth herein, you must submit an Acceptance and Prepayment Notice by or before no later than 5:00 p.m., Eastern time, on the third Business Day following your receipt of this notice.
The undersigned Lender hereby gives you irrevocable notice, pursuant to Section 2.05(a)(iv)(D) of the Credit Agreement, that it is hereby offering to accept a Discounted Loan Prepayment on the following terms:
1. This Solicited Discounted Prepayment Offer is available only for prepayment on the [Loans] [[_______] tranche[s] of the [____] Class of Loans] held by the undersigned.
2. The maximum aggregate principal amount of the Discounted Loan Prepayment that may be made in connection with this offer shall not exceed (the “
Offered Amount
”):
[Loans - $[●]]
[[____________] tranche[s] of the [____] Class of Loans - $[●]]
3. The percentage discount to par value at which such Discounted Loan Prepayment may be made is [[●]% in respect of the Loans] [[●]% in respect of the [____________] tranche[(s)] of the [_____] Class of Loans] (the “
Offered Discount
”).
The undersigned Lender hereby expressly-and irrevocably consents and agrees to a prepayment of its [Loans] [[________] tranche[s] of the [___] Class of Loans] pursuant to Section 2.05(a)(iv)(D) of the Credit Agreement at a price equal to the Acceptable Discount and in an aggregate outstanding amount not to exceed such Lender’s Offered Amount as such amount may be reduced in accordance with the Solicited Discount Proration, if any, and as otherwise determined in accordance with and subject to the requirements of the Credit Agreement.
Form of Solicited Discounted Prepayment Offer
N-1
NY\6158255.3
The undersigned Lender acknowledges and agrees that, in connection with any prepayment on the terms indicated above:
1.
[Insert Name of Loan Party or Subsidiary that delivered the Notice] may have and later may come into possession of Excluded Information.
2.
Such undersigned Lender has independently and, without reliance on the Loan Parties or any of their Subsidiaries, the Agents or any other Agent-Related Persons, made its own analysis and determination to participate in such prepayment notwithstanding such undersigned Lender’s lack of knowledge of the Excluded Information.
3.
None of the Loan Parties, their respective Subsidiaries or Affiliates, the Agents or any other Agent-Related Persons shall have any liability to such undersigned Lender, and such undersigned Lender hereby waives and releases, to the maximum extent permitted by law, any claims such undersigned Lender may have against the Loan Parties, any of their Subsidiaries or Affiliates, the Agents and any other Agent-Related Persons, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information.
4.
The Excluded Information may not be available to the Agents or the other Lenders.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
Form of Solicited Discounted Prepayment Offer
N-2
NY\6158255.3
IN WITNESS WHEREOF, the undersigned has executed this Solicited Discounted Prepayment Offer as of the date first above written.
[NAME OF LENDER]
By:
Name:
Title:
Form of Solicited Discounted Prepayment Offer
N-3
NY\6158255.3
EXHIBIT O
FORM OF SOLVENCY CERTIFICATE
of
W. R. GRACE & CO.-CONN.
AND ITS RESTRICTED SUBSIDIARIES
[DATE]
Pursuant to Section 4.01(k) of that certain Credit Agreement, dated as of [______], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”; terms defined therein, unless otherwise defined herein, being used herein as therein defined), by and among W. R. GRACE & CO., a Delaware corporation, as Holdings, W. R. GRACE & CO.-CONN., a Connecticut corporation, as the Borrower, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent, the undersigned hereby certifies to the Administrative Agent and Lenders, solely in such undersigned’s capacity as chief financial officer of Holdings, and not individually (and without personal liability), as follows:
As of the date hereof, on a pro forma basis after giving effect to the consummation of the Transactions, including the making of the Loans under the Credit Agreement on the date hereof, and after giving effect to the application of the proceeds of such Loans:
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(a)
|
the fair value of the assets (on a going concern basis) of the Borrower and its Restricted Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated, contingent or otherwise;
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(b)
|
the present fair saleable value of the property (on a going concern basis) of the Borrower and its Restricted Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured in the ordinary course of business;
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(c)
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The Borrower and its Restricted Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured in the ordinary course of business; and
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(d)
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The Borrower and its Restricted Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business contemplated as of the date hereof for which they have unreasonably small capital.
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For purposes of this solvency certificate, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured
Form of Solvency Certificate
O-1
NY\6158255.3
liability. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
The undersigned is familiar with the business and financial position of the Borrower and its Restricted Subsidiaries (taken as a whole). In reaching the conclusions set forth in this solvency certificate, the undersigned has made such other investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature of the particular business anticipated to be conducted by the Borrower and its Restricted Subsidiaries (taken as a whole) after consummation of the transactions contemplated by the Credit Agreement.
[
Signature Page Follows.
]
Form of Solvency Certificate
O-2
NY\6158255.3
IN WITNESS WHEREOF, the undersigned has executed this solvency certificate in such undersigned’s capacity as chief financial officer of Holdings, on behalf of Holdings, and not individually, as of the date first stated above.
______________________________
Name:
Title: Chief Financial Officer of
W. R. GRACE & CO.
Form of Solvency Certificate
O-3
NY\6158255.3
EXHIBIT P
FORM OF PREPAYMENT NOTICE
Date: _______, ____
To: Goldman Sachs Bank USA,
as Administrative Agent
[●]
Attention: _______________
Telephone: ______________
Facsimile: _______________
Email: __________________
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of [_____], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Agreement
”; terms defined therein, unless otherwise defined herein, being used herein as therein defined), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent (together with its permitted successors and assigns, the “
Administrative Agent
”).
This Prepayment Notice is delivered to you pursuant to
Section 2.05(a)
of the Agreement. The Borrower hereby gives notice of a prepayment of Loans as follows:
1. (select Type(s) of Loans)
Eurocurrency Rate Loans with an Interest Period ending ______, 20__ in the aggregate principal amount of $________.
Base Rate Loans in the aggregate principal amount of $________.
Swingline Loans in the aggregate principal amount of $________.
2. (list applicable tranche(s) and class(es) of Loans (e.g., U.S. Term Loan, Euro Term Loan, Additional Term Loan, U.S. Revolving Loan, Multicurrency Revolving Loan, Additional Revolving Loan, Swingline Loan, Other Loan or Extended Term Loan, etc.).)
3. On __________, 20__ (a Business Day).
4. Borrower directs prepayment to be applied ___________.
Form of Prepayment Notice
P-1
NY\6158255.3
[
Signature Page Follows.
]
Form of Prepayment Notice
P-2
NY\6158255.3
W. R. GRACE & CO.-CONN.
,
as Borrower
By:
Name:
Title:
Form of Prepayment Notice
P-3
NY\6158255.3
EXHIBIT Q
FORM OF JOINDER AGREEMENT
JOINDER AGREEMENT
THIS JOINDER AGREEMENT
, dated as of
[
__________ __, 20__
]
(this “
Agreement
”), by and among
[
NEW LENDERS
]
(each a “
Lender
” and collectively the “
Lenders
”),
W. R. GRACE & CO.-CONN.
, a Connecticut corporation
(“
Borrower
”), and
GOLDMAN SACHS BANK USA
(“
GS
”), as Administrative Agent.
RECITALS:
WHEREAS,
reference is hereby made to the Credit Agreement, dated as of [___________], 2014 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among
Borrower
,
W. R. GRACE & CO.
, a Delaware corporation,
GRACE GMBH & CO. KG
, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, the Lenders party thereto from time to time, and
GS
, as Administrative Agent; and
WHEREAS,
subject to the terms and conditions of the Credit Agreement, Borrower may request Additional U.S. Revolving Commitments, Additional Multicurrency Revolving Commitments and/or Additional Term Commitments by entering into one or more Joinder Agreements with the Additional Revolving Lenders and/or Additional Term Lenders, as applicable.
NOW, THEREFORE,
in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
Each Lender party hereto hereby agrees to commit to provide its respective Commitment as set forth on Schedule A annexed hereto, on the terms and subject to the conditions set forth below:
Each Lender (i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Joinder Agreement (this “
Agreement
”) and it is sophisticated with respect to decisions to make loans similar to those contemplated to be made hereunder and it is experienced in making loans of such type; (ii) agrees that it will, independently and without reliance upon Administrative Agent or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes Administrative Agent and Syndication Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to Administrative Agent and Syndication Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.
Each Lender hereby agrees to make its Commitment on the following terms and conditions:
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1.
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Applicable Rate.
The Applicable Rate for each Series
[
__
]
Additional Term Loan shall mean, as of any date of determination,
[
___
]
% per annum. [Insert other pricing terms as applicable, to the extent consistent with Section 2.14 of the Credit Agreement.]
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2.
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Principal Payments.
Borrower shall make principal payments on the Series
[
__
]
Additional Term Loans in installments on the dates and in the amounts set forth below:
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(A)
Payment
Date
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(B)
Scheduled
Repayment of
Series [__] Additional Term Loans
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$__________
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$__________
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$__________
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$__________
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$__________
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$__________
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$__________
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$__________
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$__________
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$__________
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$__________
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$__________
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$__________
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$__________
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TOTAL
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$__________
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3.
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Voluntary and Mandatory Prepayments.
Scheduled installments of principal of the Series
[
__
]
Additional Term Loans set forth above shall be reduced in connection with any voluntary or mandatory prepayments of the Series
[
__
]
Additional Term Loans in accordance with Sections 2.05 and 2.07 of the Credit Agreement, respectively.
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4.
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Prepayment Fees.
Borrower agrees to pay to each Additional Term Lender the following prepayment fees, if any:
[
__________
]
. [Insert other prepayment provisions with respect to Additional Term Loans, to the extent consistent with Section 2.14 of the Credit Agreement.]
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5.
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Maturity Date
. The maturity date for the Series [__] Additional Term Loans shall be: [____].
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6.
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Proposed Borrowing
. This Agreement represents Borrower’s request to borrow
[
Series
[
__
]
New Term Loans
]
from New Term Loan Lender as follows (the “
Proposed Borrowing
”):
|
a. Business Day of Proposed Borrowing: ___________, ____
b. Amount of Proposed Borrowing: $___________________
c. Interest rate option: a. Base Rate Loan(s)
b. Eurocurrency Rate Loans
with an initial Interest
Period of ____ month(s)
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7.
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Additional Provisions
. [Insert other provisions with respect to the Series [__] Additional Term Loans, to the extent consistent with Section 2.14 of the Credit Agreement.]
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8.
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[
Other Fees
.
Borrower agrees to pay each [Additional Term Lender] [Additional Revolving Lender] its Pro Rata Share of an aggregate fee equal to
[
________ __, ____
]
on
[
_________ __, ____
]
.]
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9.
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[New Lenders
. Each [Additional Term Lender] [Additional Revolving Lender] acknowledges and agrees that upon its execution of this Agreement [and the making of Series [___] Additional Term Loans] that such [Additional Term Lender] [Additional Revolving Lender] shall become a “Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.
]
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10.
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Credit Agreement Governs.
Except as set forth in this Agreement, [Series
[
__
]
Additional Revolving Loans] [Series
[
__
]
Additional Term Loans] shall otherwise be subject to the provisions of the Credit Agreement and the other Loan Documents.
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11.
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Borrower’s Certifications
. By its execution of this Agreement, the undersigned officer of the Borrower hereby certifies, in the capacity of an officer and not in any individual capacity, that Borrower has performed in all material respects all agreements and satisfied all conditions which the Credit Agreement provides shall be performed or satisfied by it on or before the Additional Commitments Effective Date.
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12.
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Borrower Covenants
. By its execution of this Agreement, Borrower hereby covenants that:
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i.
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[Borrower shall make any payments required pursuant to Section 3.04 of the Credit Agreement in connection with the [Additional U.S. Revolving Commitments] [Additional Multicurrency Revolving Commitments;]]
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ii.
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Borrower shall deliver or cause to be delivered all certificates, resolutions, opinions, agreements and other documents required to be delivered by
|
Section 2.14 of the Credit Agreement, including without limitation the certificate of Responsible Officer described in Section 2.14(b) of the Credit Agreement.
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13.
|
Eligible Assignee.
By its execution of this Agreement, each [Additional Term Lender][Additional Revolving Lender]
represents and warrants that it is an Eligible Assignee.
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14.
|
Notice
. For purposes of the Credit Agreement, the initial notice address of each [Additional Term Lender][Additional Revolving Lender]
shall be as set forth below its signature below.
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15.
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Non-US Lenders
. For each [Additional Term Lender][Additional Revolving Lender]
that is a Non-US Lender, delivered herewith to Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such
[Additional Term Lender][Additional Revolving Lender]
may be required to deliver to Administrative Agent pursuant to Section 3.01(d) of the Credit Agreement.
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16.
|
Recordation of the New Loans
. Upon execution and delivery hereof, Administrative Agent will record the [Series
[
__
]
Additional Term Loans][ Series
[
__
]
Additional Revolving Loans] made by [Additional Term Lenders][Additional Revolving Lenders]
in the Register.
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17.
|
Amendment, Modification and Waiver.
This Agreement may not be amended, restated, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.
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18.
|
Entire Agreement
. This Agreement, the Credit Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.
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19.
|
GOVERNING LAW. THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF THE STATE OF NEW YORK THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
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20.
|
Severability
. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
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21.
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Counterparts
. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or by electronic .tif or .pdf copy of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement.
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[
Remainder of page intentionally left blank
]
IN WITNESS WHEREOF
, each of the undersigned has caused its duly authorized officer to execute and deliver this Joinder Agreement as of
[
_____________, ______
]
.
[NAME OF LENDER]
By:______________________________
Name:
Title:
Notice Address:
Attention:
Telephone:
Facsimile:
W. R. GRACE & CO.-CONN.
By: __________________________
Name:
Title:
Consented to by:
GOLDMAN SACHS BANK USA,
as Administrative Agent
By: _____________________________
Authorized Signatory
SCHEDULE A
TO JOINDER AGREEMENT
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Name of Lender
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Type of Commitment
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Amount
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[
___________________
]
|
[Additional Term Commitment]
[Additional U.S. Revolving Commitment]
[Additional Multicurrency Revolving Commitment]
|
$________________
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Total: $_________________
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EXHIBIT R
FORM OF CERTIFICATE OF NON BANK STATUS
[To Be Attached]
Form of Joinder Agreement
R-1
NY\6158255.3
EXHIBIT R-1
TAX COMPLIANCE CERTIFICATE
(For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to that certain Credit Agreement, dated as of [ ], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to the provisions of Section 3.01(d) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
[NAME OF LENDER]
By:
Name:
Title:
Date: ________ __, 20[ ]
Form of Joinder Agreement
R-2
NY\6158255.3
EXHIBIT R-2
TAX COMPLIANCE CERTIFICATE
(For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to that certain Credit Agreement, dated as of [ ], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to the provisions of Section 3.01(d) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
[NAME OF PARTICIPANT]
By:
Name:
Title:
Date: ________ __, 20[ ]
Form of Joinder Agreement
R-3
NY\6158255.3
EXHIBIT R-3
TAX COMPLIANCE CERTIFICATE
(For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to that certain Credit Agreement, dated as of [ ], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to the provisions of Section 3.01(d) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
[NAME OF PARTICIPANT]
By:
Name:
Title:
Date: ________ __, 20[ ]
Form of Joinder Agreement
R-4
NY\6158255.3
EXHIBIT R-4
TAX COMPLIANCE CERTIFICATE
(For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to that certain Credit Agreement, dated as of [ ], 2014, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), by and among W. R. GRACE & CO., a Delaware corporation, W. R. GRACE & CO.-CONN., a Connecticut corporation, GRACE GMBH & CO. KG, a limited partnership organized and existing under the laws of Germany, registered with the local court Mainz under number HRA 11357, each Lender from time to time party thereto and GOLDMAN SACHS BANK USA, as Administrative Agent. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to the provisions of Section 3.01(d) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
[NAME OF LENDER]
By:
Name:
Title:
Date: ________ __, 20[ ]
Form of Joinder Agreement
R-5
NY\6158255.3
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re:
W. R. Grace & Co.,
et al.
,
Debtors.
|
))))))))))
|
Chapter 11
Case No.: 01-01139 (KJC)
Jointly Administered
|
EXHIBIT 11 TO EXHIBIT BOOK
ASBESTOS PI DEFERRED PAYMENT AGREEMENT
EXHIBIT 11
Attached.
DEFERRED PAYMENT AGREEMENT (PI)
THIS DEFERRED PAYMENT AGREEMENT (PI) (this “
Deferred Payment Agreement (PI)
”) is made and entered into as of February 3, 2014 by and between W. R. Grace & Co. Conn, a Connecticut corporation (together with any successor thereto pursuant to the terms and conditions of
Section 16
, “
Grace
”), and the WRG Asbestos PI Trust (the “
Trust (PI)
”), a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan of Reorganization (as hereinafter defined). Unless otherwise defined herein or the context otherwise requires, all capitalized terms used herein and defined in the Plan of Reorganization shall be used herein as therein defined.
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
Definitions; Rules of Interpretation
.
(a)
The following terms are defined as
follows:
“
Administrative Agent
” has the meaning set forth in
Section 16(d)(3)
.
“
Authorized Officer
” means, with respect to any Entity, the chief executive officer, president, chief financial officer, controller, executive vice president or senior vice president of such Entity.
“
Bona Fide Compensation Transaction
” means any payment, grant or award, whether in cash, securities, options or other consideration, including without limitation salary or bonus, to or for the benefit of any director, officer or employee of any Transferor or any of its Affiliates made for legitimate, bona fide compensation and/or incentivization purposes;
provided
that compensation paid, granted or awarded to any one such individual in any Fiscal Year of Transferor whose aggregate value at the time or times of payment, grant or award is in excess of $15,000,000 shall be a Bona Fide Compensation Transaction only (i) if the relevant Transferor is then obligated to file or furnish, or is otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, it is approved by an independent committee of the Board of Directors of the Transferor (or other similar management body of the Transferor) or (ii) if the relevant Transferor is not then obligated to file or furnish, or is not otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, a reputable independent compensation expert or consultant selected by the Transferor with the consent of the Permitted Holder (which consent shall not be unreasonably withheld, conditioned or delayed) shall have determined, in its reasonable, good faith judgment, that such payment, grant or award is reasonable and appropriate. For purposes of the proviso in the previous sentence, (A) no payment or other value received in a given year pursuant to the terms of a grant or award in a previous year shall be taken into account for calculating the compensation in such given year; and (B) in the event of multiple payments, grants or awards in a given Fiscal Year, the independent committee approval, or independent compensation expert or consultant determination, as appropriate, shall be made with respect to each payment, grant or award beginning with the payment, grant or award that causes the compensation to be in excess of $15,000,000.
“
Business Day
” means any day other than a Saturday, Sunday, or any other day on which banks are authorized or required to close in New York, New York or Columbia, Maryland.
“
Capital Stock
” means, with respect to any Entity, any share of stock, or any depositary receipt or other certificate representing any share of stock, or any similar equity ownership interest, and any warrant, option, or any other security providing for the right to acquire any such share of stock or similar equity ownership interest.
“
Claims
” has the meaning set forth in
Section 17(b)
.
“
Collateral Agent
” has the meaning set forth in
Section 16(d)(3)
.
“
Common Stock
” has the meaning set forth in the Share Issuance Agreement.
“
Compliance Certificate
” means a certificate in the form of
Exhibit C
.
“
Control
” means, as to any Entity, the power to direct the management and policies of such Entity directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlling” and “Controlled” have meanings correlative to the foregoing.
“
Controlled Affiliate
” means, as to any Entity (the “
Controlling Entity
”), any Affiliate that is Controlled by such Controlling Entity.
“
Courts
” has the meaning set forth in
Section 17(b)
.
“
Default Rate
” means a floating rate equal to the Prime Rate plus 2.00% per annum.
“
Deferred Payments
” means, collectively, the Deferred Payments (PI), the Deferred Payments (PD) and the Deferred Payments (ZAI).
“
Deferred Payment Agreement (PD)
” means the Deferred Payment Agreement (Class 7(a) PD) dated as of even date herewith between Grace and the Trust (PD) (as defined in the Deferred Payment Agreement (PD)).
“
Deferred Payment Agreement (PI)
” has the meaning set forth in the introductory paragraph hereof.
“
Deferred Payment Agreement (ZAI)
” means the Deferred Payment Agreement (Class 7(b) ZAI) dated as of even date herewith between Grace and the Trust (ZAI) (as defined in the Deferred Payment Agreement (ZAI)).
“
Deferred Payment Date (PI)
” means, in respect of a Deferred Payment (PI), each corresponding date set forth in
Section 2(a)
.
“
Deferred Payment Documents
” means the Deferred Payment Documents (PI), the Deferred Payment Documents (PD) (as defined in the Deferred Payment Agreement (PD)) and the Deferred Payment Documents (ZAI) (as defined in the Deferred Payment Agreement (ZAI)).
“
Deferred Payment Documents (PI)
” means this Deferred Payment Agreement (PI), the Parent Guarantee (PI) and the Share Issuance Agreement.
“
Deferred Payment (PD)
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Deferred Payment (PI)
” means each payment to be made on a Deferred Payment Date (PI) as set forth in
Section 2
.
“
Deferred Payment (ZAI)
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Demand for Issuance of the Section 524(g) Shares
” has the meaning set forth in the Share Issuance Agreement.
“
Designated Senior Indebtedness
” means Senior Indebtedness issued, pursuant to a facility with an aggregate principal amount, commitments and/or other financial accommodations then outstanding and/or available (disregarding for purposes of this definition whether any conditions for draws thereunder have been satisfied), as of the relevant date of determination, of at least $25,000,000.
“
Disposition Transaction
” has the meaning set forth in
Section 6(b)
.
“
Disqualified Equity Interest
” means that portion of any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof on or prior to the final Deferred Payment Date (PI).
“
Dollars
” and “
$
” means the legal currency of the United States of America.
“
EBITDA
” means, for any Entity for any period, such Entity’s and its Subsidiaries’ consolidated net income (determined in accordance with GAAP) for such period plus, without duplication, in respect of any such item of such Entity and/or any of its Subsidiaries (i) to the extent deducted in determining such consolidated net income, the sum, without duplication, of (a) interest expense, (b) provisions for any income or similar Taxes paid or accrued, (c) all amounts treated as expenses for depreciation and amortization of any kind, (d) cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents, (e) items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period, and (f) any non-cash charges minus (ii) to the extent included in determining such consolidated net income, the sum, without duplication, of (a) gross interest income received during such period and (b) items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period, all, in the cases of clauses (i) and (ii) above, as determined on a consolidated basis in accordance with GAAP.
“
Equity Interest
” means shares of capital stock or equity, equity securities or ownership interests in any Entity or any rights (including any (x) options, warrants or other rights to purchase or acquire any such stock, equity or interests (whether or not at the time exercisable), or (y) securities by their terms convertible into or exchangeable for any such stock, equity or interests (whether or not at the time so convertible or exchangeable) or options, warrants or rights to purchase such convertible or exchangeable securities.
“
Event of Default
” has the meaning set forth in
Section 8
.
“
Fair Market Value
” means, with respect to each share of Common Stock:
(i)
If traded on the NYSE, NASDAQ or another stock exchange, the average sale price (as of the close of business of each relevant trading date) of the Common Stock on the NYSE, NASDAQ or such other exchange for the 30 trading days immediately prior to the date for which the value is to be determined (or if no sale took place on such trading date, the average of the closing bid and ask prices of the Common Stock on such trading date);
(ii)
If traded over-the-counter other than on NASDAQ, the average of the closing bid and ask prices (as of the close of business of each relevant trading date) of the Common Stock for the 30 trading days immediately prior to the date for which the value is to be determined; and
(iii)
If there is no public market for the Common Stock, the fair market value of the Common Stock as of the day immediately prior to the date for which the value is to be determined, as determined by a reputable investment bank or valuation firm selected jointly by Parent and the Trusts’ Representative (the “
Independent Appraiser
”). Parent and the Trusts’ Representative shall instruct the Independent Appraiser to render its decision within thirty days of its acceptance of its selection. The fees and expenses of the Independent Appraiser shall be borne by Parent.
“
Fiscal Quarter
” means, in respect of any Entity, a fiscal quarter of such Entity as determined by it.
“
Fiscal Year
” means, in respect of any Entity, a fiscal year of such Entity as determined by it.
“
GAAP
” means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis; provided, however, that as of such time, if any, when any Entity begins to provide financial information generally on the basis of IFRS, then any reference to GAAP with respect to such Entity shall be given effect as a reference to IFRS.
“
Governing Documents
” means, as to any Entity, its articles or certificate of incorporation and by-laws, its partnership agreement, its certificate of formation and operating agreement and/or the organizational or governing documents of such Entity.
“
Governmental Authority
” means the government of the United States of America or any other country, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
“
Grace
” has the meaning set forth in
the introductory paragraph hereof.
“
IFRS
” means the International Financial Reporting Standards as adopted by the International Accounting Standards Board and in effect from time to time, consistently applied.
“
Insolvent
” means the financial condition of the Parent Guarantor, its Subsidiaries and Grace taken as a whole such that as of the date specified, the sum of their liabilities is greater than a fair valuation of all of their property and other assets.
“
Intercreditor Agreement
” means the Intercreditor Agreement, dated as of the date hereof, among the Trusts’ Representative, the Trust (PI) and the Trust (PD).
“
Laws
” means, collectively, all applicable international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances and codes, including the binding interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof.
“
NASDAQ
” shall mean The NASDAQ Stock Market (including any of its subdivisions such as the NASDAQ Global Select Market) or any successor market thereto.
“
NYSE
” shall mean The New York Stock Exchange or any successor stock exchange thereto.
“
NY UCC
” means the Uniform Commercial Code, as enacted and in effect in the State of New York from time to time.
“
Ordinary Dividends
” means, in respect of any Entity, ordinary cash dividends declared and paid out of surplus and/or net profits (as determined in accordance with applicable law) in accordance with the dividend policy of such Entity as in effect from time to time;
provided
,
however
, that notwithstanding the foregoing, the excess, if any, of (a) the aggregate amount of dividends declared and paid by such Entity in any Fiscal Year over (b) 50% of such Entity’s and its Subsidiaries’ consolidated net income (determined in accordance with GAAP) for the immediately preceding Fiscal Year shall not constitute “Ordinary Dividends” to the extent of such excess.
“
Parent Guarantee (PI)
” means the W. R. Grace & Co. Guarantee Agreement (PI) dated as of even date herewith by the Parent Guarantor in favor of the Trust (PI).
“
Parent Guarantor
” means W. R. Grace & Co., a Delaware corporation, and any successor guarantor of the obligations of Grace (or a successor Entity) arising under this Deferred Payment Agreement (PI) pursuant to the terms and conditions of the Parent Guarantee (PI).
“
Payment Blockage Notice
” has the meaning set forth in
Section 7(a)(ii).
“
Payment Blockage Period
” has the meaning set forth in
Section 7(a)(ii)
.
“
Permitted Holder
” means, as of any date of determination, collectively, (a)(i) if the Trust (PI) has not, as of such date, assigned any of its rights or privileges under this Deferred Payment Agreement (PI) (other than granting a security interest in its rights and privileges under this Deferred Payment Agreement (PI)), the Trust (PI) and (ii) otherwise, the Administrative Agent and (b) the Collateral Agent.
“
Permitted Payee
” means, as of any date of determination, the Permitted Holder or any permitted assignee of all or any portion of the Deferred Payments (PI) and the rights and interests therein and thereto pursuant to the terms and conditions of
Section 16
.
“
Permitted Payor
” means any Entity (other than Grace but including the Parent Guarantor) acting on behalf of, or designated by Grace.
“
Plan of Reorganization
” means that certain First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms.
“
Post-Transaction Certificate
” means a certificate in the form of
Exhibit D
.
“
Post-Transaction Pro Forma Cash Balance
” means with respect to any Entity as of any date of determination, the aggregate amount of such Entity’s and its consolidated Subsidiaries’ cash and cash equivalents as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring on or prior to such date, notwithstanding that such Significant Transaction may not have actually been consummated as of such date), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
“
Post-Transaction Pro Forma EBITDA
” means, with respect to any Entity for any four-Fiscal Quarter period and any specified Disposition Transaction, such Entity’s Pro Forma EBITDA for such four-Fiscal Quarter period, computed assuming that such Disposition Transaction, and any other Significant Transaction the Transaction Date of which occurs on or prior to the Transaction Date of such Disposition Transaction and during the same Fiscal Quarter as the Transaction Date of such Disposition Transaction, were consummated on the same terms in effect on the respective Transaction Dates at the beginning of the four-Fiscal Quarter period most recently ended prior to the Transaction Date of such Disposition Transaction, and shall include adjustments which give effect to events that are (i) directly attributable to such Disposition Transaction and any such Significant Transactions, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable.
“
Post-Transaction Pro Forma Senior Indebtedness
” means with respect to any Entity as of any date of determination, the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) with a Transaction Date occurring on or prior to such date, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) may not have actually been consummated as of such date).
“
Post-Transaction Pro Forma Valuation
” means, with respect to any Entity as of any date of determination, the amount resulting from (a) the product of (i) such Entity’s Post-Transaction Pro Forma EBITDA for the four-Fiscal Quarter period most recently ended,
multiplied
by
(ii) seven (7),
minus
(b) such Entity’s Post-Transaction Pro Forma Senior Indebtedness as of such date,
plus
(c) such Entity’s Post-Transaction Pro Forma Cash Balance as of such date.
“
Prime Rate
” means as of any date of determination, the
per annum
rate publicly announced on such date as the daily “U.S. prime rate” by The Wall Street Journal (National Edition) for transactions in Dollars. Any change in the Default Rate resulting from a change in the Prime Rate shall become effective on the Business Day on which each change in the Prime Rate is publicly announced by The Wall Street Journal (National Edition).
“
Proceeding
” means, with respect to any Entity, any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, or other winding up of such Entity or all or substantially all of the properties of such Entity.
“
Pro Forma Cash Balance
” means with respect to any Entity as of the last day of any four-Fiscal Quarter period, the aggregate amount of such Entity’s and its consolidated Subsidiaries’ cash and cash equivalents as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction may not have actually been consummated during such four-Fiscal Quarter period), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
“
Pro Forma EBITDA
” means, with respect to any Entity for any four Fiscal-Quarter period, such Entity’s EBITDA for such four Fiscal-Quarter period, computed assuming that any Significant Transaction the Transaction Date of which occurred during the relevant four-Fiscal Quarter period was consummated, on the terms in effect on such Transaction Date, at the beginning of such four-Fiscal Quarter period most recently ended prior to the Transaction Date of such Significant Transaction, and shall include adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable.
“
Pro Forma Senior Indebtedness
” means with respect to any Entity as
of the last day of any four-Fiscal Quarter period, the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) may not have actually been consummated during such four-Fiscal Quarter period).
“
Pro Forma Valuation
” means, with respect to any Entity as of the last day of any four-Fiscal Quarter period, the amount resulting from (a) the product of (i) such Entity’s Pro Forma EBITDA for such four-Fiscal Quarter period,
multiplied
by
(ii) seven (7),
minus
(b) such Entity’s Pro Forma Senior Indebtedness as of such date,
plus
(c) such Entity’s Pro Forma Cash Balance as of such date.
“
Quarterly EBITDA and Valuation Certificate
” means a certificate in the form of
Exhibit B
.
“
Regulation S-X
” means Regulation S-X promulgated by the United States Securities and Exchange Commission as in effect on the date hereof.
“
Related Party
” means in respect of an Entity (the “
Affected Entity
”): (a) any senior key employee, officer or director of the Affected Entity or, in respect of an officer or director, any person holding a similar position in an Affected Entity that is not a corporation (any such person, an “
Insider
”); (b) any spouse, child, parent or sibling of an Insider; (c) another Entity which alone or together with other Entities under its Control directly or indirectly Controls or holds ten percent (10%) or more of the Equity Interests that (i) generally entitle the holders thereof to vote for the election of the board of directors or other governing body of the Affected Entity, or (ii) confer upon the holders thereof an interest in the capital or profits of the Affected Entity; (d) any Entity Controlled by the Affected Entity or by any Insider or in which the Affected Entity or any Insider Controls or holds ten percent (10%) or more of the stock or other Equity Interests which (i) generally entitle the holders thereof to vote for the election of the board of directors or other governing body of the Affected Entity or (ii) confer upon the holders thereof an interest in the capital or profits of such Affected Entity; or (e) any Controlled Affiliate of any Entity that is a Related Person by virtue of clause (d) of this definition;
provided
,
however
, that any direct or indirect 100% owned Subsidiary of Grace shall not constitute a “Related Party” for purposes of this Deferred Payment Agreement (PI).
“
Section 524(g) Shares
” has the meaning set forth in the Share Issuance Agreement.
“
Senior Indebtedness
” means any and all present and/or future, direct and/or indirect, indebtedness, liabilities and other obligations of Grace and/or the Parent Guarantor owed to any Entity (whether as senior or subordinated indebtedness, as a first lien, second lien, any other position or priority, and any mezzanine, subordinated or other indebtedness), including any principal, interest and premiums, fees, investment points, reimbursement obligations, issuance discounts and/or other costs, indemnities, liabilities and/or expenses thereon or in connection therewith (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable Law), in each case, under or with respect to (i) any credit or loan facilities (whether provided by one or more banks, insurance companies, financial institutions, private equity or hedge funds, lenders, and/or other Entities) and/or (ii) any debt, bonds, debentures, notes, repurchase, discount, securitization, factoring and/or other similar facilities providing for indebtedness, including any and all obligations of any nature in respect of loans, credit agreements, indentures, and bonds, together with obligations in respect of hedging arrangements (whether in respect of interest rates, currencies, commodities, equities, indebtedness and/or otherwise), in each case, entered into with banks, insurance companies, financial institutions, private equity or hedge funds, lenders and/or other Entities who are engaged in the business of providing financing (but not customers of or suppliers to Grace and/or the Parent Guarantor to the extent constituting trade payables), notes, letters of credit, and synthetic letters of credit in connection therewith, and/or (iii) any reimbursement, payment, indemnities, fees, guarantees or other obligations in connection with any credit or loan facilities or indebtedness, liabilities and other obligations referenced in clauses (i) or (ii);
except
in each case, for indebtedness of Grace and/or the Parent Guarantor (A) that by its express terms is not Senior Indebtedness for purposes of this Deferred Payment Agreement (PI) and the Parent Guarantee (PI) and is to be treated as
pari passu
or junior and subordinated with respect thereto in accordance with its terms, (B) for the avoidance of doubt, consisting of obligations to trade creditors and other trade payables in connection with the purchase of goods, materials or services, (C) owed to, or guaranteed by Grace or the Parent Guarantor on behalf of, any director, officer or senior key employee of (1) Grace, (2) the Parent Guarantor or (3) any Subsidiary or Affiliate of Grace or the Parent Guarantor, (D) represented by Disqualified Equity Interests, (E) owed to (1) Grace, (2) the Parent Guarantor or (3) any Subsidiary or Affiliate of Grace or the Parent Guarantor and (F) resulting from the Deferred Payment Documents (PD) or the Deferred Payment Documents (ZAI).
“
Senior Non-Payment Default
” has the meaning set forth in
Section 7(a)(ii)
.
“
Senior Payment Default
” has the meaning set forth in
Section 7(a)(i)
.
“
Senior Remedies
” means, if an event of default has occurred and is continuing under the terms of any agreement or document relating to Senior Indebtedness, any of the following by the holder (or any agent or trustee of the holder) of any Senior Indebtedness: (1) exercising or seeking to exercise any rights or remedies against Grace or the Parent Guarantor with respect to such event of default or (2) instituting any action or proceeding with respect to such rights or remedies (including any action of foreclosure, contest or protest) under any agreement or document relating to Senior Indebtedness, or under such event of default or otherwise or (3) attempting to do any of the foregoing.
“
Significant Transaction
” means (a) any Disposition Transaction or (b) any transaction of the type described in Section 210.11-01(a)(1) or Section 210.11-01(a)(2) of Regulation S-X (disregarding, for purposes of clause (b) of this definition, whether the Entity entering into such transaction is at the time obligated to file or furnish, or is otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, as amended).
“
Subsidiary
” means, with respect to any Entity at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (i) the accounts of which would be consolidated with those of such Entity in such Entity’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (ii) of which more than 50% of (A) the outstanding Capital Stock having (in the absence of contingencies) ordinary voting power to elect a majority of the board of directors or other managing body of such Entity, (B) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (C) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or Controlled directly or indirectly through one or more intermediaries, by such Entity.
“
Taxes
” means any and all present or future taxes, levies, imposts, fees, assessments, levies, duties, deductions, charges, liabilities or withholdings (including interest, fines, penalties or additions to tax) imposed by any Governmental Authority.
“
Threshold Amount
” means, as of any date of determination, the sum of (a) $2,000,000,000
minus
(b) the aggregate amount of Deferred Payments (PI) made by Grace and any Permitted Payor under this Deferred Payment Agreement (PI) on or prior to such date
plus
(c) the aggregate amount of Deferred Payments (PI) received by the Permitted Holder or any Permitted Payee under this Deferred Payment Agreement (PI) from Grace or any relevant Permitted Payor that have subsequently been invalidated, declared to be fraudulent or preferential, set aside and/or required or agreed to be repaid or returned by the Permitted Holder or such Permitted Payee under this Deferred Payment Agreement (PI) as of such date under any Law or in respect of any Proceeding or other litigation to which Grace, the relevant Permitted Payor, the Permitted Holder or any Permitted Payee is subject plus, without duplication,
plus
(d) the aggregate amount of Deferred Payments (PI) received by the Permitted Holder or any Permitted Payee that the relevant Permitted Holder or such Permitted Payee has delivered to the holders of any Senior Indebtedness pursuant to
Section 7(c)
of this Deferred Payment Agreement (PI) as of such date.
“
Transaction Date
” means, with respect to any Significant Transaction, (a) the date, if any, on which final, definitive documentation providing for such Significant Transaction is executed;
provided
,
however
, that the “Transaction Date” shall no longer be deemed to have occurred with respect to any Significant Transaction if the final, definitive documentation providing for such Significant Transaction is terminated for any reason, or (b) if no such final, definitive documentation for such Significant Transaction is executed, the date on which such Significant Transaction is consummated.
“
Transfer
” has the meaning set forth in
Section 6(b)
.
“
Transferor
” has the meaning set forth in
Section 6(b)
.
“
Trust (PD)
” means the WRG Asbestos PD Trust, a Delaware statutory trust established pursuant to § 524(g) of the Bankruptcy Code in accordance with the Plan of Reorganization, on behalf of the Holders of Asbestos PD Claims.
“
Trust (PI)
” has the meaning set forth in the introductory paragraph hereof.
“
Trusts
” has the meaning set forth in the Share Issuance Agreement.
“
Trusts’ Representative
” has the meaning set forth in the Share Issuance Agreement.
“
Valuation
” means, with respect to any Entity as of the last day of any four-Fiscal Quarter period, the amount resulting from (a) the product of (i) such Entity’s EBITDA for such four-Fiscal Quarter period,
multiplied
by
(ii) seven (7),
minus
(b) the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date,
plus
(c) the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
(b)
Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All references herein to Sections shall be deemed references to Sections of this Deferred Payment Agreement (PI) unless the context shall otherwise require.
(c)
Unless otherwise indicated, (i) the term “including” means “including without limitation,” except when used in the computation of time periods, and (ii) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein).
(d)
For purposes of the computation of time periods, whenever this Deferred Payment Agreement (PI) provides for an event to occur “within” a specified number of days of a preceding event, it shall mean that the latter event shall occur before the close of business on the last of the specified days, and the day on which the preceding event occurs shall not be included in the computation of days elapsed. The word “from” means “from and including”, “after” means “after and excluding”, and “to” and “until” mean “to and including”.
(e)
All terms defined in this Deferred Payment Agreement (PI) or any other Deferred Payment Documents (PI) in the singular form shall have comparable meanings when used in the plural form and vice versa.
2.
Payment of Deferred Payments (PI)
.
(a)
Subject to
Sections 2(b)
,
3(c)
,
(f)
,
and
(g)
and
Section 7
, Grace agrees to make each Deferred Payment (PI) in full in the amount set forth below to the Permitted Holder (or, if the Permitted Holder directs in writing, to one or more other Permitted Payees pursuant to such written direction received by Grace pursuant to
Section 16
) not later than 12:00 noon New York City time on the payment date specified in the table below (each a “
Deferred Payment Date (PI)
”):
|
|
|
|
|
|
|
Deferred Payment No.
|
Deferred Payment Date (PI) (if not a Business Day, to be the immediately following Business Day)
|
Deferred Payment (PI)
|
|
1
|
January 2, 2019
|
$110,000,000
|
|
2
|
January 2, 2020
|
$110,000,000
|
|
3
|
January 2, 2021
|
$110,000,000
|
|
4
|
January 2, 2022
|
$110,000,000
|
|
5
|
January 2, 2023
|
$110,000,000
|
|
6
|
January 2, 2024
|
$100,000,000
|
|
7
|
January 2, 2025
|
$100,000,000
|
|
8
|
January 2, 2026
|
$100,000,000
|
|
9
|
January 2, 2027
|
$100,000,000
|
|
10
|
January 2, 2028
|
$100,000,000
|
|
11
|
January 2, 2029
|
$100,000,000
|
|
12
|
January 2, 2030
|
$100,000,000
|
|
13
|
January 2, 2031
|
$100,000,000
|
|
14
|
January 2, 2032
|
$100,000,000
|
|
15
|
January 2, 2033
|
$100,000,000
|
(b)
To the extent that the Trusts’ Representative exercises its rights on behalf of the Trust (PI) under the Share Issuance Agreement and the Section 524(g) Shares are issued and delivered to the Trust (PI) (or its permitted successors or assigns), the amount of the remaining Deferred Payments (PI) shall automatically be reduced, in the order directed by Grace, by the Fair Market Value of the portion of the Section 524(g) Shares allocated to the Trust (PI) pursuant to Section 4 of the Intercreditor Agreement (as such Section 4 of the Intercreditor Agreement, together with any defined terms used (directly or indirectly) in such Section 4 of the Intercreditor Agreement are in effect as
of the date hereof, or as amended or modified from time to time with the consent (not to be unreasonably withheld) of Grace and the Parent Guarantor after the date hereof).
3.
Payments
.
(a)
All payments to be made hereunder or in respect hereof shall be made in Dollars by wire transfer of immediately available funds to the Permitted Holder (or, if the Permitted Holder directs in writing, to one or more other Permitted Payees pursuant to such written direction received by Grace pursuant to
Section 16
) in accordance with wire transfer instructions provided by the Permitted Holder or Permitted Payees in writing from time to time. Upon request by the Permitted Holder, Grace shall provide, or cause to be provided, the Federal Reserve Bank wire reference numbers and other wire information related to any payments hereunder.
(b)
Subject to
Sections 2(b)
,
3(e)
,
(f)
and
(g)
, all payments hereunder or in respect hereof shall be made in full, without any reduction, set-off or counterclaim.
(c)
Whenever any payment to be made under this Deferred Payment Agreement (PI) (including a Deferred Payment (PI) on a Deferred Payment Date (PI)) shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day.
(d)
All payments made hereunder or in respect hereof (i) during the existence of an Event of Default shall be applied,
first
to pay any fees, costs and expenses payable by Grace pursuant to
Section 16(h)
and
Section 19
,
second
, to any unpaid interest accrued on the Deferred Payments (PI) and,
third
, to the Deferred Payments (PI) in direct order of maturity, and (ii) at any other time, as directed by the Permitted Payor.
(e)
If, after giving effect to (y) any Disposition Transaction or any assignment, delegation or transfer by Grace of its rights or obligations under this Deferred Payment Agreement (PI) or (z) any election to have a Permitted Payor make any payment on behalf of Grace pursuant to
Section 4(a)
, Grace, any successor Entity to Grace or such Permitted Payor shall be required by applicable Law to withhold any Taxes from any payments of Deferred Payments (PI) or interest at the Default Rate hereunder, and if such requirement would not have been imposed by such applicable Law but for such Disposition Transaction, assignment or transfer, then (i) the sum payable on account of Deferred Payments (PI) or interest at the Default Rate shall be increased as necessary so that after making all withholdings required by applicable Law (including withholdings applicable to additional sums payable under this
Section 3(e))
the Permitted Payee receives an amount equal to the sum it would have received on account of Deferred Payments (PI) or interest at the Default Rate had no such withholdings been made, (ii) Grace or such successor Entity, shall, or shall cause such Permitted Payor to, make such withholdings; and (iii) Grace or such successor Entity shall, or shall cause such Permitted Payor to, timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Law. This
Section 3(e)
shall survive the termination of this Deferred Payment Agreement (PI) pursuant to
Section 11
.
(f)
If, after giving effect to any permitted assignment or Transfer by the Permitted Holder of its rights or obligations under this Deferred Payment Agreement (PI), Grace or a Permitted Payor shall be required by applicable Law to withhold any Taxes from any payments of Deferred Payments (PI) or interest at the Default Rate hereunder, and if such requirement would not have been imposed by such applicable Law but for such assignment or Transfer, then the obligation of Grace or the Permitted Payor to make the relevant payment of a Deferred Payment (PI) or interest at the Default Rate hereunder shall be discharged by making such payment net of such Taxes. This
Section 3(f)
shall survive the termination of this Deferred Payment Agreement (PI) pursuant to
Section 11.
(g)
If, due to either (i) the introduction of or any change in any Law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of Law), in each case adopted after the date hereof, Grace or a Permitted Payor shall be required to withhold any Taxes from any payments of Deferred Payments (PI) or interest at the Default Rate hereunder, then the obligation of Grace or the Permitted Payor to make the relevant payment of a Deferred Payment (PI) or interest at the Default Rate hereunder shall be discharged by making such payment net of such Taxes. This
Section 3(g)
shall survive the termination of this Deferred Payment Agreement (PI) pursuant to
Section 11
.
4.
Permitted Payor; Prepayments
.
(a)
The obligation of Grace to make all or any portion of any Deferred Payment (PI) may be satisfied by direct payment of such amounts by a Permitted Payor.
(b)
To the extent any Deferred Payment (PI) is timely paid by a Permitted Payor, and except as set forth in
Section 4(d)
, the obligation of Grace in respect of the amounts paid shall be deemed satisfied in full, Grace shall have no further obligation in connection therewith and Grace shall not be considered in default in respect of such amounts so paid.
(c)
Any Permitted Payor and Grace may at any time and from time to time prepay any Deferred Payment (PI) in whole or in part without penalty, premium or discount. Any such prepayment(s) shall be applied to the Deferred Payments (PI) as directed by Grace.
(d)
To the extent that any Entity makes a payment to the Permitted Holder or any Permitted Payee on account of this Deferred Payment Agreement (PI) that (in whole or in part) is subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required or agreed to be repaid or returned by the Permitted Holder or such Permitted Payee under any Law or in respect of any Proceeding or other litigation to which Grace, the relevant Permitted Payor, the Permitted Holder or any Permitted Payee is subject, then, to the extent of the amount of such payment, the portion of the obligations under this Deferred Payment Agreement (PI) which has been paid, reduced or satisfied by such amount shall be reinstated and continue to be in full force and effect as of the time immediately preceding such initial payment, reduction or satisfaction.
5.
Representations and Warranties
. Grace hereby represents and warrants to the Trust (PI) that as of the Effective Date:
(a)
Grace is duly organized and validly existing under the laws of the State of Connecticut.
(b)
Grace has the corporate power and authority to execute and deliver each Deferred Payment Document (PI) to which it is a party. Each Deferred Payment Document (PI) to which Grace is a party has been duly authorized by all necessary corporate action of Grace and has been duly executed and delivered by Grace.
(c)
Each Deferred Payment Document (PI) to which Grace is a party is a legal, valid and binding obligation of Grace, enforceable against Grace in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally, by the discretion of the court in which enforcement is sought, and/or by general equitable principles (whether enforcement is sought by proceedings at law or in equity).
(d)
The execution, delivery and performance by Grace of each Deferred Payment Document (PI) to which it is party does not conflict with, result in a breach of any of the provisions of, or violate the Governing Documents of Grace.
6.
Covenants
. Grace covenants and agrees that, from the Effective Date until this Deferred Payment Agreement (PI) terminates in accordance with
Section 11
:
(a)
Affirmative Covenants
. Grace shall:
(i)
Maintenance of Existence and Qualifications.
Maintain and preserve in full force and effect its existence and all other rights, powers, franchises, licenses and qualifications necessary or desirable for its ownership or use of properties or the conduct of its business, except (A) as permitted by
Section 16
, and (B) where the failure to do so would not be reasonably likely to adversely affect Grace’s ability to make the Deferred Payments (PI) under this Deferred Payment Agreement (PI) or to perform its obligations under the Deferred Payment Documents (PI) to which it is a party.
(ii)
Notices of Event of Default, Senior Payment Default and Senior Non-Payment Default.
Furnish to the Permitted Holder (x) within five (5) Business Days after an Authorized Officer of Grace shall first learn of an Event of Default, and (y) on or before the earlier of (A) the fifteenth (15th) day after an Authorized Officer of Grace shall first learn of a Senior Payment Default or Senior Non-Payment Default and (B) the first Business Day following the date on which a Payment Blockage Notice is delivered pursuant to
Section 7(a)(ii)
, the written statement of an Authorized Officer of Grace setting forth the material details of such Event of Default, Senior Payment Default or Senior Non-Payment Default, as the case may be, and the actions that Grace proposes to take with respect thereto.
(iii)
Financial Statements.
If (x) the financial statements of Grace are no longer consolidated with the financial statements of the Parent Guarantor and (y) Grace is not obligated to file or furnish, or is not otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, Grace shall furnish to the Permitted Holder:
(A)
Annual Financial Statements.
As soon as available but in no event later than ninety (90) days after the last day of each of Grace’s Fiscal Years, its annual consolidated financial statements audited by a nationally recognized registered independent public accounting firm allowed to practice before the Securities and Exchange Commission or any successor Governmental Authority, consisting of a consolidated balance sheet of Grace and its consolidated Subsidiaries as of the end of such year and consolidated statements of income, cash flows and stockholders equity for such year (all in reasonable detail and with all notes and supporting schedules); and
(B)
Quarterly Financial Statements.
As soon as available and in any event within forty-five (45) days after the end of each of the first three Fiscal Quarters in each Fiscal Year of Grace, its consolidated balance sheet as of the end of such Fiscal Quarter, and consolidated statements of income and cash flows of Grace and its consolidated Subsidiaries for such Fiscal Quarter, all in reasonable detail and certified by an Authorized Officer of Grace to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustments and the absence of footnotes).
(iv)
Officer’s Certificates.
Grace shall furnish to the Permitted Holder:
(A)
If the financial results of Grace are no longer consolidated with the financial results of the Parent Guarantor, no later than ninety (90) days after the last day of each of Grace’s Fiscal Years and no later than forty-five (45) days after the end of each of the first three Fiscal Quarters in each Fiscal Year of Grace, a Quarterly EBITDA and Valuation Certificate executed by an Authorized Officer of Grace setting forth (I) if the Transaction Date of a Significant Transaction has occurred during the four-Fiscal Quarter period ending on the last day of such Fiscal Quarter or Fiscal Year, as the case may be, the Pro Forma EBITDA of Grace for such four-Fiscal Quarter period and the Pro Forma Valuation of Grace as of the last day of such four-Fiscal Quarter period or (II) if the Transaction Date of a Significant Transaction did not occur during the four-Fiscal Quarter period ending on the last day of such Fiscal Quarter or Fiscal Year, as
the case may be, the EBITDA of Grace for such four-Fiscal Quarter period and the Valuation of Grace as of the last day of such four-Fiscal Quarter period; provided, however, that Grace shall not be required to furnish to the Permitted Holder a Quarterly EBITDA and Valuation Certificate under this subclause (A) if (x) Grace is filing or furnishing reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, and (y)(1) if the Transaction Date of a Significant Transaction has occurred during the four-Fiscal Quarter period ending on the last day of the applicable Fiscal Quarter or Fiscal Year, the Pro Forma EBITDA of Grace for such four-Fiscal Quarter period and the Pro Forma Valuation of Grace as of the last day of such four-Fiscal Quarter period is readily ascertainable from such reports or (2) if the Transaction Date of a Significant Transaction did not occur during the four-Fiscal Quarter period ending on the last day of the applicable Fiscal Quarter or Fiscal Year, the EBITDA of Grace for such four-Fiscal Quarter period and Valuation of Grace as of the last day of such four-Fiscal Quarter period is readily ascertainable from such reports;
(B)
no later than ninety (90) days after the last day of each of Grace’s Fiscal Years, a Compliance Certificate executed by an Authorized Officer of Grace for such Fiscal Year; and
(C)
no later than thirty (30) days after the consummation by a Transferor of a Disposition Transaction of the type described in
clause (ii)
or
clause (iii)
of
Section 6(b)
, a Post-Transaction Certificate setting forth the Post-Transaction Pro Forma EBITDA of Grace with respect to such Disposition Transaction executed and delivered by an Authorized Officer of Grace.
(b)
Negative Covenant.
Grace shall not, and shall cause each of its Subsidiaries and Controlled Affiliates (each, a “
Transferor
”) to not, sell, assign, transfer, license, lease or otherwise dispose of (each, a “
Transfer
”) any property and/or other assets and/or enter into any transaction or obligation, whether constituting or by way of merger, consolidation, sale of assets or other disposition, reorganization, recapitalization, dividend, other distribution, or otherwise, or any related series of the foregoing (any such Transfer other than Ordinary Dividends, Bona Fide Compensation Transactions and other Transfers in the ordinary course of business, a “
Disposition Transaction
”), if the Transferor (taken together with all of its direct and indirect wholly owned Subsidiaries) would (1) receive (directly or indirectly) less than a reasonably equivalent value in such Disposition Transaction, (2) become or be rendered Insolvent as a result of such Transfer and/or such Disposition Transaction, or (3) be engaged in business and/or transactions, and/or would be about to engage in business and/or transactions, for which the Transferor’s (taken together with all of its direct and indirect wholly owned Subsidiaries) remaining property and other assets would be unreasonably small capital;
provided
,
however
, that notwithstanding the foregoing, a Transferor:
(i)
that is a direct or indirect wholly-owned Subsidiary of Grace may make a Transfer to or engage in a Disposition Transaction exclusively with Grace or any other direct or indirect wholly-owned Subsidiary of Grace;
(ii)
may engage in a Disposition Transaction whereby such Transferor (A) pays or makes (directly or indirectly) dividends or distributions (whether in cash, securities or other property) with respect to any of its Capital Stock (including by way of a spin-off or spinout of any of its assets), or (B) repurchases its Capital Stock, provided that, in the case of any Disposition Transaction under
subclause (A)
or
(B)
above, all of the following conditions are satisfied:
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|
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|
1.
|
no Event of Default has occurred and is continuing at the time of, or would result from, such Disposition Transaction;
|
|
|
|
|
2.
|
as of the Transaction Date of such Disposition Transaction, the Post-Transaction Pro Forma Valuation of (x) the Parent Guarantor or (y) Grace shall equal or exceed the Threshold Amount; and
|
|
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|
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3.
|
if such Disposition Transaction exceeds $15,000,000 and is not publicly disclosed at least 10 days prior to the consummation of such Disposition Transaction, then Grace shall provide the Permitted Holder with at least 10 days prior to the consummation of such Disposition Transaction, a written notice describing in reasonable detail the material terms of such Disposition Transaction and setting forth the Post-Transaction Pro Forma Valuation of Grace as of the Transaction Date of such Disposition Transaction; and
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(iii)
other than as
set forth in
Section 6(b)(ii)
above, shall not enter into any Disposition Transaction with a Related Party to the Transferor in which the aggregate value of the assets or other property Transferred in such Disposition Transaction to such Related Party exceeds $15,000,000 if the Transferor (taken together with all of its direct and indirect wholly owned Subsidiaries) would (1) receive (directly or indirectly) less than a reasonably equivalent value in such Disposition Transaction, as determined by a reputable investment bank or valuation firm jointly selected by Grace and the Permitted Holder, (2) become or be rendered Insolvent as a result of such Transfer and/or such Disposition Transaction or (3) be engaged in business and/or transactions, and/or would be about to engage in business and/or transactions, for which the Transferor’s (taken together with all of its direct and indirect wholly owned Subsidiaries) remaining property and other assets would be unreasonably small capital;
provided
, that if the aggregate value of the assets or other property Transferred to such Related Party in such Disposition Transaction exceeds $15,000,000 and the existence of such Disposition Transaction is not publicly disclosed at least 10 days prior to the consummation of such Disposition Transaction, then Grace shall provide the Permitted Holder with at least 10 days’ prior to the consummation of such Disposition Transaction, a written notice describing in reasonable detail the material terms of such Disposition Transaction and setting forth the Post-Transaction Pro Forma Valuation of Grace as
of the Transaction Date of such Disposition Transaction;
provided
further
that if Grace is not the surviving or succeeding Entity as a result of any Disposition Transaction (but in the case of a sale of assets, only if such sale involves a sale of all or substantially all of the assets of Grace) otherwise permitted by the exceptions to this
Section 6(b)
, such Disposition Transaction shall be permitted under this
Section 6(b)
only if Grace and the Parent Guarantor shall comply with the requirements of
Section 16(g)
.
7.
Subordination Terms
.
Any and all obligations of Grace in respect of Deferred Payments (PI) and this Deferred Payment Agreement (PI) shall be subordinated and otherwise junior at all times in right of payment and in all other respects, in the manner and to the extent set forth herein, to any and all present and future obligations of Grace in respect of any Senior Indebtedness.
(a)
Blockage of Deferred Payments (PI)
.
(iv)
If any payment default occurs and is continuing beyond any applicable grace period pursuant to the terms and conditions of any Senior Indebtedness (a “
Senior Payment Default
”), then subject to
Section 7(g)
, no payment or distribution of cash, securities or any other assets shall be made by Grace with respect to any Deferred Payments (PI) or pursuant to the Deferred Payment Documents (PI) for as long as such Senior Payment Default is continuing.
(v)
If any default other than a Senior Payment Default occurs pursuant to the terms and conditions of any Designated Senior Indebtedness that would allow the holders thereof to accelerate the maturity thereof (a “
Senior Non-Payment Default
”), then subject to
Section 7(g)
, no payment or distribution of cash, securities or, any other assets shall be made by Grace with respect to any Deferred Payments (PI) or pursuant to the Deferred Payment Documents (PI) during the period (the “
Payment Blockage Period
”) (x) beginning on the date that the Permitted Holder receives from the Entity entitled to give notice under any document evidencing such Designated Senior Indebtedness (or from Grace acting at the direction or request of such Entity) a written notice (a “
Payment Blockage Notice
”) that such a Senior Non-Payment Default has occurred and is continuing and (y) ending on the earliest to occur of (1) 180 days from the date the Permitted Holder shall have received the Payment Blockage Notice, (2) the date such Senior Non-Payment Default shall have been cured or waived or shall have ceased to exist and (3) the date such Payment Blockage Period shall have been terminated by written notice to the Permitted Holder from the Entity initiating such Payment Blockage Period.
(vi)
Notwithstanding the foregoing, (A) in no event will a Payment Blockage Period extend beyond 180 days from the date the Payment Blockage Notice in respect thereof was received by the Permitted Holder, (B) there shall be a period of at least 180 consecutive days in each period of 360 consecutive days when no Payment Blockage Period is in effect, and (C) no Senior Non-Payment Default that existed or was continuing on the date of delivery of any Payment Blockage Notice (whether or not such Senior Non-Payment Default is with respect to the same issue of Designated Senior Indebtedness) may be, or be made, the basis for a subsequent Payment Blockage Notice, unless such Senior Non-Payment Default has been cured or waived for a period of not less than 90 consecutive calendar days.
(vii)
The making of Deferred Payments (PI) or other payments pursuant to this Deferred Payment Agreement (PI) shall resume, and any Deferred Payments (PI) or other payments pursuant to this Deferred Payment Agreement (PI) not paid due to a suspension thereof pursuant to
clause (i)
or
clause (ii)
of this
Section 7(a)
shall be paid, together with accrued interest thereon at the Default Rate, when such suspension is no longer in effect (either due to cure or waiver of the relevant Senior Payment Default or the expiration or termination of the Payment Blockage Period pursuant to
clause (i)
or
clause (ii)
of this
Section 7(a))
unless a subsequent Payment Blockage Notice has been delivered in accordance with
clause (iii)
of this
Section 7(a)
and is not prohibited from being delivered by
clause (iii)
of this
Section 7(a)
.
(viii)
The failure of Grace to make any Deferred Payments (PI) or to pay any other amounts under this Deferred Payment Agreement (PI) by reason of the operation of this
Section 7(a)
shall not be construed as preventing the occurrence of an Event of Default or from characterizing any Deferred Payments (PI) as “past due” for purposes of
Section 9(c)
.
(b)
Proceedings.
Upon any payment made by Grace, or any distribution of cash, securities or other assets of any kind of Grace (other than securities issued in substitution for the obligation to make Deferred Payments (PI) that are subordinated to at least the extent described herein for Deferred Payments (PI), which Securities the Permitted Holder (or any Permitted Payee, if applicable) is specifically authorized to receive notwithstanding any other provision of this
Section 7
), to creditors in any Proceeding with respect to Grace or its properties, all obligations due on all Senior Indebtedness shall first be paid in full in cash before any payment or distribution is made on account of any Deferred Payments (PI) or otherwise pursuant to the Deferred Payment Documents (PI).
(c)
Improper Payments Held in Trust.
Any payments or property received by the Permitted Holder or any Permitted Payee in breach of this
Section 7
shall be held by the Permitted Holder or such Permitted Payee in trust and promptly delivered in the form received to the holder of Senior Indebtedness entitled to receive the same (any such payment or property delivered by the Permitted Holder or such Permitted Payee to any holder of Senior Indebtedness, a “
Turnover Payment
”). To the maximum extent permitted under applicable Law, Grace agrees that any Turnover Payment shall be treated as a payment by Grace on account of such Senior Indebtedness and shall not satisfy Grace’s obligation with respect to any amount due to the Permitted Holder or such Permitted Payee under this Deferred Payment Agreement (PI). If, notwithstanding the preceding sentence, it is determined (by a court of competent jurisdiction or otherwise) that a Turnover Payment is a payment by Grace on account of, and satisfies any obligation of Grace with respect to, any amount due to the Permitted Holder or any Permitted Payee under this Deferred Payment Agreement (PI), then, to the extent of the amount of such Turnover Payment, the portion of the obligation which has been determined to be paid and satisfied by such Turnover Payment shall be reinstated and shall continue to be in full force and effect as of the time immediately preceding the initial payment thereof by Grace to the Permitted Holder or such Permitted Payee. If, notwithstanding the preceding sentence, any portion of an obligation of Grace in respect of such Turnover Payment is not reinstated and continued to the extent of the amount of the relevant Turnover Payment, then the Permitted Holder or the applicable Permitted Payee shall, upon the payment in full in cash of all Senior Indebtedness owed to the holder thereof to whom the Permitted Holder or such Permitted Payee delivered such Turnover Payment, be subrogated to the rights of such holder to receive payments or distributions applicable to such Senior Indebtedness, and for the purpose of such subrogation such Turnover Payment shall not, as between Grace and the Permitted Holder or such Permitted Payee, be deemed to be payment by Grace to or on account of such Senior Indebtedness.
(d)
Remedies Blockage.
Subject in any event to the other terms and conditions of this
Section 7
(including
Section 7(a)
and
Section 7(g))
, and not in abrogation thereof, if an Event of Default has occurred and is continuing and any Senior Indebtedness is then outstanding, the Permitted Holder hereby agrees for itself and its assigns that it
will not (1) exercise or seek to exercise any rights or remedies against Grace or the Parent Guarantor with respect to such Event of Default or (2) institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure, contest or protest) under any Deferred Payment Document (PI) or any agreement or document relating thereto, or under such Event of Default or otherwise or (3) attempt to do any of the foregoing (collectively, the “
Remedies
”), for a period commencing on the date that such Event of Default occurs and ending on the earliest to occur of (i) 180 days after the first date on which such Event of Default shall have occurred, (ii) the commencement of a Proceeding with respect to Grace, the Parent Guarantor or their respective properties, (iii) the date that the holder (or any agent or trustee of the holder) of any Senior Indebtedness commences exercising any Senior Remedies with respect to such Senior Indebtedness (including, without limitation, the acceleration of all or any portion of such Senior Indebtedness) and (iv) the payment in full in cash of all Senior Indebtedness.
(e)
Notwithstanding the foregoing, as applied to the Permitted Holder, the term “Remedies” shall not include, and the Permitted Holder shall not be impaired by
Section 7(d)
from doing, any of the following: (A) exercising rights and remedies for specific performance or injunctive relief to compel Grace or the Parent Guarantor to comply with any non-payment obligations under the Deferred Payment Documents (PI) (including commencing any action contemplated by
Section 16(h))
, (B) instituting or maintaining any suit or action solely to prevent the running of any applicable statute of limitations, (C) accruing interest on the Deferred Payments (PI) at the Default Rate pursuant to
Section 9(c)
and (D) giving any notice (including notice of an Event of Default) to Grace under the Deferred Payment Documents (PI).
(f)
No Secured Obligation.
Except for the Parent Guarantee and the share issuance obligation with respect to the Section 524(g) Shares as and to the extent contemplated in the Share Issuance Agreement, no credit support or security interest shall be granted by Grace, the Parent Guarantor or any of its Subsidiaries in connection with, or otherwise support or secure any obligation set forth in, the Deferred Payment Documents (PI). Notwithstanding the foregoing, the Permitted Holder may obtain to the extent permitted under applicable Law a judgment lien on the properties of Grace and/or the Parent Guarantor to secure the payment and performance of a judgment obtained by the Permitted Holder against Grace and/or the Parent Guarantor.
(g)
No Impairment of Right to Receive Section 524(g) Shares or Warrant Shares.
Nothing in this
Section 7
shall impair the rights of the Trust (PI) (or its permitted successor or assigns) (i) acting through the Trusts’ Representative pursuant to the Intercreditor Agreement, to deliver to the Parent Guarantor a Demand for Issuance of the Section 524(g) Shares and to receive the Trust (PI)’s percentage of the Section 524(g) Shares pursuant to the Share Issuance Agreement or (ii) to exercise all or any portion of the Warrant and to receive the shares of Common Stock in connection therewith.
(h)
Further Assurances.
At the reasonable request of Grace or the Parent Guarantor, the Permitted Holder will, at the sole expense of Grace and the Parent Guarantor, execute such agreements, documents, certificates and/or other instruments confirming the existence and extent of the subordination terms detailed in this Section.
8.
Events of Default
.
The occurrence of any of the following events shall constitute an “Event of Default” under this Deferred. Payment Agreement (PI):
(a)
Neither Grace nor any Permitted Payor shall make (i) any
Deferred Payment (PI) on any Deferred Payment Date (PI) and such failure shall continue for five (5) Business Days after the relevant Deferred Payment Date (PI) or (ii) any payment of interest at the Default Rate owing under this Deferred Payment Agreement (PI) within seven (7) Business Days after demand therefor by the Permitted Holder (or the Permitted Payee, if applicable) entitled thereto;
(b)
Grace or the Parent Guarantor (A) shall institute any proceeding or voluntary case seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts pursuant to any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Entity or for any substantial part of its property, (B) shall be generally not paying its debts as such debts become due or shall admit in writing its inability to pay its debts generally, or (C) shall make a general assignment for the benefit of creditors;
(c)
Any proceeding shall be instituted against Grace or the Parent Guarantor seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Entity or for any substantial part of its property, and either such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive days;
(d)
Grace shall breach any covenant set forth in
Section 6(a)(i)
, or the Parent Guarantor shall breach any covenant set forth in Section 7(a)(i) of the Parent Guarantee (PI), and in any such case such breach shall continue for thirty (30) days after the earlier of (A) any Authorized Officer of Grace obtains knowledge of such failure and (B) the Permitted Holder’s written notice to Grace and the Parent Guarantor of such failure;
(e)
Grace shall breach any covenant set forth in
Section 6(a)(iv)(A)
, or the Parent Guarantor shall breach any covenant set forth in Section 7(a)(iv)(A) of the Parent Guarantee (PI), and in any such case such breach shall continue for ten (10) days after the Permitted Holder’s written notice to Grace and the Parent Guarantor of such breach;
(f)
Grace shall breach any covenant set forth in
Section 6(b)
(other than any notice requirement set forth therein), or the Parent Guarantor shall breach any covenant set forth in Section 7(b) of the Parent Guarantee (PI) (other than any notice requirement set forth therein), and in any such case, as
of the Transaction Date of the Disposition Transaction that resulted in such breach, the Post-Transaction Pro Forma Valuation of the Parent Guarantor shall not exceed the Threshold Amount and the Post-Transaction Pro Forma Valuation of Grace shall not exceed the Threshold Amount;
(g)
(i) Neither Grace nor the Parent Guarantor shall deliver the written notice required by
Section 6(b)
of this Deferred Payment Agreement (PI) or Section 7(b) of the Parent Guarantee (PI) with respect to a Disposition Transaction on or prior to the date required by
Section 6(b)
of this Deferred Payment Agreement (PI) or Section 7(b) of the Parent Guarantee (PI), as applicable, and (ii) as of the four-Fiscal Quarter period ended most recently prior to the consummation of such Disposition Transaction, either (A) if the Transaction Date of a Significant Transaction has occurred during such four-Fiscal Quarter period, the Pro Forma Valuation of Grace and the Pro Forma Valuation of Parent Guarantor were each less than the Threshold Amount, or (B) if the Transaction Date of a Significant Transaction has not occurred during such four-Fiscal Quarter period, the Valuation of Grace and the Valuation of the Parent Guarantor were each less than the Threshold Amount;
(h)
Grace or the Parent Guarantor shall assert in writing that any Deferred Payment Document (PI) or any material term thereof is not a legal, valid and binding obligation of Grace or the Parent Guarantor, as the case may be, enforceable in accordance with its terms in any material respect; or
(i)
A default occurs under the Deferred Payment Agreement (PD) or the Deferred Payment Agreement (ZAI) that causes any of the Deferred Payments due under either or both the Deferred Payment Agreement (PD) or the Deferred Payment Agreement (ZAI), respectively, to be accelerated and become due prior to its or their stated maturity.
9.
Remedies
.
(a)
Subject to
Section 7
, the Permitted Holder shall have the right, power and authority to do all things deemed necessary or advisable to enforce the provisions of, and protect its rights under, this Deferred Payment Agreement (PI) and upon the occurrence and during the continuance of an Event of Default the Permitted Holder may institute or appear in such appropriate proceedings permitted and not prohibited under this Deferred Payment Agreement (PI) as the Permitted Holder shall deem most effectual to protect and enforce any of its rights hereunder, whether for the specific enforcement of any covenant or agreement in this Deferred Payment Agreement (PI) or to enforce any other proper remedy.
(b)
Subject to
Section 7
, without limiting the foregoing, upon the occurrence and during the continuance of an Event of Default, the Permitted Holder may declare the unpaid Deferred Payments (PI), together with all other amounts payable hereunder, to be immediately due and payable, whereupon such Deferred Payments (PI) and other amounts shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind (except that in the case of an Event of Default of the type described in subsection
(b)
or
(c)
under
Section 8
, such acceleration shall occur without any action of the Permitted Holder or any other Entity).
(c)
In addition, upon the occurrence and during the continuance of an Event of Default, all Deferred Payments (PI) that are past due shall accrue interest at the Default Rate, which, subject to the terms of
Section 7
, shall be payable to the Permitted Holder on demand until such Event of Default shall have been cured or waived, or all remaining Deferred Payments (PI) shall have been paid in full.
10.
Waiver
. There shall be no implied waiver based upon any delay on the part of any party hereto in exercising any right or remedy such party may have pursuant to this Deferred Payment Agreement (PI).
11.
Termination
.
Upon all of the Deferred Payments (PI) and other amounts payable hereunder having been paid in full, any and all obligations under this Deferred Payment Agreement (PI) shall be discharged and this Deferred Payment Agreement (PI) shall terminate without any further action by the parties thereto or any other Entity (except to the extent all or any portion of any Deferred Payment (PI) or such other amount is reinstated pursuant to Section 4(d) or to the extent any provision hereof expressly survives the termination of this Deferred Payment Agreement (PI)). Promptly upon such termination, the Permitted Holder shall execute and deliver to Grace, at Grace’s sole cost and expense, such documents as are reasonably requested by Grace to fully document the payment, termination and discharge of all obligations hereunder.
12.
Severability
.
Whenever possible, each provision of this Deferred Payment Agreement (PI) will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Deferred Payment Agreement (PI) by any party hereto is held to be invalid, void, voidable, illegal or unenforceable in any respect under any applicable Law in any jurisdiction, such event will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, or the obligations of any other party to this Deferred Payment Agreement (PI), and this Deferred Payment Agreement (PI) will be reformed, construed and enforced in such jurisdiction as if such invalid, void, voidable, illegal, unenforceable or rejected provision had never been contained herein. The parties hereto further agree to use commercially reasonable efforts to replace such invalid, void, voidable, illegal, unenforceable or rejected provision of this Deferred Payment Agreement (PI) with an effective, valid and enforceable provision which will achieve, to the fullest extent possible, the economic, business and other purposes of the invalid, void, voidable, illegal, unenforceable or rejected provision.
13.
Complete Agreement
.
This Deferred Payment Agreement (PI), together with the Parent Guarantee (PI), the Share Issuance Agreement, the Plan of Reorganization and the Confirmation Order, embodies the complete agreement and understanding between the parties hereto in respect of the subject matter hereof and supersedes, preempts and terminates all other prior understandings, agreements or representations by or among the parties hereto, written or oral, to the extent relating thereto.
14.
Counterparts
.
This Deferred Payment Agreement (PI) may be executed (including by facsimile or portable document format (.pdf)) in separate counterparts, each of which will be deemed to be an original and all of which taken together will constitute one and the same agreement.
15.
No Third Party Beneficiaries
.
Other than the Parent Guarantor, there are no third party beneficiaries of this Deferred Payment Agreement (PI) and nothing in this Deferred Payment Agreement (PI), express or implied, is intended to confer on any Entity other than the parties hereto and their respective successors, and assigns, any rights, remedies, obligations or liabilities.
16.
Assignment
.
(a)
This Deferred Payment Agreement (PI) shall be binding upon Grace and its successors and permitted assigns and shall inure to the benefit of the Permitted Holder and its successors and permitted assigns.
(b)
Except as expressly permitted by
Section 16(c)
and
Section 16(d)
with respect to this Deferred Payment Agreement (PI), as expressly set forth in Section 16(b) of the Parent Guarantee (PI) with respect to the Parent Guarantor or as expressly set forth in Section 12(b) of the Share Issuance Agreement, in no event shall (i) any Deferred Payment Document (PI) or any rights, interests, duties, obligations or liabilities of the Permitted Holder under the Deferred Payment Documents (PI) (including this Deferred Payment Agreement (PI)), the Plan of Reorganization or the Confirmation Order be Transferred to, or assumed by, any Entity or (ii) the Permitted Holder grant a security interest in any right or interest it has or may have under any Deferred Payment Document (PI) (including this Deferred Payment Agreement (PI)), in each case, without the prior written consent of Grace and the Parent Guarantor.
(c)
Subject to compliance with
sub-clauses (d)(1)
and
(d)(2)
below, upon the occurrence and during the continuance of an Event of Default, the Permitted Holder shall have the right to Transfer, in whole or in part, or grant a security interest in, this Deferred Payment Agreement (PI) or all or any of its rights, interests, duties, liabilities or obligations under this Deferred Payment Agreement (PI) without the prior written consent of Grace or the Parent Guarantor. Any such Transfer or grant, if made in compliance with this
Section 16(c)
, shall be effective notwithstanding any subsequent cure or waiver of any Event of Default.
(d)
Subject to compliance with
sub-clauses (d)(1)
through
(d)(5)
below, the Permitted Holder shall have the right, at any time and from time to time, to Transfer, in whole or in part, or grant a security interest in, this Deferred Payment Agreement (PI) or all or any of its rights, interests, duties, liabilities or obligations under this Deferred Payment Agreement (PI):
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1.
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The Trust (PI) shall provide notice of such Transfer to Grace and the Parent Guarantor in accordance with NY UCC § 9-406 or any successor provision.
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2.
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Unless expressly consented to in advance in writing by Grace and the Parent Guarantor, such Transfer or such grant of a security interest shall not adversely change the duty of, increase the burden, costs or risk imposed upon, or impair the chance of obtaining return performance of, either Grace or the Parent Guarantor under any of the Deferred Payment Documents (PI), as such terms are used, with respect to an assignment or other Transfer, in NY UCC § 2-210(2) or any successor provision, and any such Transfer or grant of a security interest shall not result in increased liabilities or costs for Grace and/or the Parent Guarantor (including on account of any Taxes).
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3.
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Unless expressly consented to in advance in writing by Grace and the Parent Guarantor, upon and following such Transfer or such grant of a security interest, no more than one Entity on behalf of the Trust (PI) and all Entities to whom Transfers have been made (the “
Administrative Agent
”) and one Entity on behalf of all recipients of grants of security interests (the “
Collateral Agent
”) shall have, or shall have the ability to bring, or be able to enforce, any claim, right or cause of action against Grace, the Parent Guarantor or any of their respective Affiliates (other than the Trust (PI)) under this Deferred Payment Agreement (PI) or any document or instrument effecting or evidencing such Transfer or grant of a security interest, regardless of whether any such claim, right, cause of action, or enforcement right arises out of a contract, statute, law, in
equity, common law or otherwise.
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4.
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Any such Transfer or such grant of a security interest shall comply with all applicable Laws, including all applicable federal, state and foreign securities laws.
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5.
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No such Transfer and no such grant of a security interest shall relieve the Trust (PI) of any of its duties or obligations under this Deferred Payment Agreement (PI), the other Deferred Payment Documents (PI), the Plan of Reorganization, the Confirmation Order or any agreements entered into by the Trust (PI) pursuant to the Plan of Reorganization or the Confirmation Order.
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(e)
Subject to
Section 16(f)
, Grace may not Transfer its rights, interests, duties, liabilities or obligations under this Deferred Payment Agreement (PI) without the prior written consent of the Permitted Holder, such consent not to be unreasonably withheld, conditioned or delayed.
(f)
Subject to
Section 16(g)
, neither
Section 16(e)
nor anything else in this Deferred Payment Agreement (PI) or any other Deferred Payment Document (PI) shall prohibit or restrict the ability of Grace to undertake any Disposition Transaction;
provided
that, unless the Permitted Holder otherwise consents in writing, (i) such Disposition Transaction shall not violate
Section 6(b)
, (ii) no Event of Default and, no event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, exists at the time of, or would exist immediately following, the consummation of such Disposition Transaction; (iii) such Disposition Transaction does not conflict with, or result in a breach of, any of the provisions of, or constitute a default under, the Governing Documents of Grace or the surviving or succeeding Entity that results from such Disposition Transaction; and (iv) at least ten (10) days prior to consummation of such Disposition Transaction, Grace shall, subject to reasonable confidentiality arrangements between the Permitted Holder and Grace, deliver to the Permitted Holder written notice of its intention to consummate such Disposition Transaction.
(g)
If the surviving or succeeding Entity as a result of any such Disposition Transaction (but in the case of a sale of assets, only if such sale involves a sale of all or substantially all of the assets of Grace) as applicable, is not Grace, then prior to, or concurrently with, the consummation of any such Disposition Transaction, (i) the surviving or succeeding Entity shall by written instrument substantially in the form of
Exhibit A
signed by such Entity, Grace and, at its option, the Permitted Holder expressly assume the rights and obligations of Grace hereunder, whereupon such Entity shall be the successor of all rights and obligations of Grace hereunder, with the same effect as if it had been originally named herein (it being expressly acknowledged and agreed by Grace and the Permitted Holder that such written instrument shall, and shall expressly provide that it shall, be binding upon, and inure to the benefit of, the Permitted Holder, Grace and such surviving or succeeding Entity whether or not the Permitted Holder shall have executed such written instrument) and (ii) the Parent Guarantor shall confirm in writing to such Entity, Grace and the Permitted Holder that the Parent Guarantee (PI) shall remain in full force and effect after giving effect to such Disposition Transaction and the assumption by the surviving or succeeding Entity of all of the rights and obligations hereunder;
provided
,
however
, that Grace shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under this Deferred Payment Agreement (PI).
(h)
Grace shall be responsible for, and shall pay promptly upon demand all, documented and direct out-of-pocket costs and expenses incurred by the Permitted Holder (including legal fees and expenses of legal counsel) in connection with any Disposition Transactions proposed by Grace pursuant to
Section 16(f)
if the Permitted Holder challenges such Disposition Transaction in a judicial or other proceeding or otherwise as being in
breach of the provisions of the Deferred Payment Documents (PI) and the Permitted Holder is successful in such challenge.
(i)
Any Transfer in breach of this
Section 16
shall be null and void, and shall not Transfer any right, interest, duty, liability or obligation in or under this Deferred Payment Agreement (PI) to any other Entity.
17.
Governing Law; Submission to Jurisdiction; Waiver of Jury Trial
.
(a)
This Deferred Payment Agreement (PI) and the rights and obligations of the parties hereto shall be construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
(b)
With respect to claims, suits, actions, proceedings, and other disputes arising out of, in respect of or relating to this Deferred Payment Agreement (PI) (such claims, suits, actions, proceedings, and other disputes, the “
Claims
”) each of the parties to this Deferred Payment Agreement (PI) hereby irrevocably submits to the jurisdiction of the Bankruptcy Court for the District of Delaware or the United States District Court for the District of Delaware, or, if both such Courts are not permitted under applicable Law to exercise jurisdiction with respect to the matter in question then to the jurisdiction of any other federal or state court in the state, county and city of New York, New York (the “
Courts
”) and each of the parties to this Deferred Payment Agreement (PI) agrees that any and all Claims may be brought, heard and determined in such courts.
(c)
Each of the parties to this Deferred Payment Agreement (PI) agrees that (i) venue shall be proper in the courts referenced in
Section 17(b)
and hereby waives any objection or defense which it may now or hereafter have to the laying of venue in such courts, including any of the foregoing based upon the doctrine of
forum non conveniens
; and (ii) all process which may be or be required to be served in respect of any such Claim (including any pleading, summons or other paper initiating any such Claim) may be served upon it, which service shall be sufficient for all purposes, in the manner for the provision of notice under this Deferred Payment Agreement (PI) and shall be deemed in every respect effective service of process upon such party when so given.
(d)
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS DEFERRED PAYMENT AGREEMENT (PI) OR ANY OF THE DEFERRED PAYMENT DOCUMENTS (PI). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS DEFERRED PAYMENT AGREEMENT (PI) AND THE OTHER DEFERRED PAYMENT DOCUMENTS (PI), AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PROVISION.
18.
Notices
. All notices required or permitted under this Deferred Payment Agreement (PI) must be in writing and will be deemed to be delivered and received (i) if personally delivered or if delivered by the United States Postal Service, facsimile or courier service, when actually received by the party to whom notice is sent or (ii) with respect to parties located other than within the United States, if deposited with the United States Postal Service (whether actually received or not), at the close of business on the seventh Business Day after the day when placed in the mail, postage prepaid, certified or registered with return receipt requested, addressed to the appropriate party or parties, at the address of such party or parties set forth below (or at such other address as
such party may designate by written notice to all other parties in accordance with this Section 18):
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If to Grace:
W. R. Grace
&
Co.-Conn. 7500 Grace Drive
Columbia, MD 21044
Attn: Corporate Secretary Facsimile: (410) 531-4545
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With copies, which shall constitute notice to:
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Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attn: Adam C. Paul
Facsimile: (312) 862-2200
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If to the Parent Guarantor:
W. R. Grace
&
Co.
7500 Grace Drive
Columbia, MD 21044
Attn: Corporate Secretary Facsimile: (410) 531-4545
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With copies, which shall constitute notice to:
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Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attn: Adam C. Paul
Facsimile: (312) 862-2200
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If to the Permitted Holder:
B. Thomas Florence
Executive Director
WRG Asbestos PI Trust
C/O ARPC
1220 19
th
Street NW
Suite 700
Washington, DC 20036
Facsimile: (202) 797-3619
t.florence@arpc.com
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With copies, which shall constitute notice to:
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James C. Melville
Kaplan, Strangis and
Kaplan, P.A.
5500 Wells Fargo Center
Minneapolis, MN 55402
Facsimile: (612) 375-1143
jcm@kskpa.com
and
Edward E. Steiner
Keating Muething &
Klekamp PLL
One East Fourth Street
Suite 1400
Cincinnati, OH 45202
Facsimile: (513) 579-6457
esteiner@kmklaw.com
and
Marla Rosoff Eskin
Campbell & Levine, LLC
222 Delaware Ave, Ste. 1620
Wilmington, DE 19801
Facsimile: (302) 426-9947
meskin@camlev.com
and
Philip E. Milch
Campbell & Levine, LLC
1700 Grant Building
Pittsburgh, PA 15219
Facsimile: (412) 261-5066
pem@camlev.com
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19.
Costs and Expenses
.
Grace agrees to reimburse the Permitted Holder promptly upon demand for all, documented and direct out-of-pocket costs and expenses, including all attorney’s fees and expenses of legal counsel, which may be incurred by the Permitted Holder in enforcing this Deferred Payment Agreement (PI) or the Parent Guarantee (PI) or protecting the rights of the Permitted Holder hereunder or thereunder, but only to the extent that the Permitted Holder succeeds in enforcing this Deferred Payment Agreement (PI) or the Parent Guarantee (PI) or protecting the rights of the Permitted Holder hereunder or thereunder.
20.
Amendments and Waivers
. No provision of this Deferred Payment Agreement (PI) may be waived, amended, supplemented or modified except by a written instrument executed by the Parent Guarantor, Grace and the Permitted Holder.
21.
Further Assurances
.
At the reasonable request of the Permitted Holder, Grace will, at the sole expense of the Permitted Holder, execute such agreements, documents, certificates and/or other instruments confirming the existence of this Agreement, the obligations of Grace hereunder and the rights of the Permitted Holder hereunder.
22.
Specific Performance
.
Each of the parties hereto acknowledges and agrees that, in the event of any breach of, or any failure to perform, any specific provision of this Deferred Payment Agreement (PI), the non-breaching party would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that, subject to
Section 7
, the parties hereto (a) shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to compel specific performance of any specific provision of this Deferred Payment Agreement (PI) or to obtain injunctive relief to prevent breaches of any specific provision of this Deferred Payment Agreement (PI) exclusively in the Courts, (b) shall waive, in any action for specific performance or injunctive relief, the defense of the adequacy of a remedy at law, and (c) shall waive any requirement for the securing or posting of any bond in connection with the obtaining of any such specific performance or injunctive relief. For the avoidance of doubt, the parties agree that the Permitted Holder shall be entitled to enforce specifically the terms and provisions of this Deferred Payment Agreement (PI) to prevent breaches of or enforce compliance with those covenants of Grace set forth in
Section 6
.
Any party’s pursuit of specific performance or injunctive relief at any time will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which such party may be entitled, including the right to pursue remedies for liabilities or damages incurred or suffered by such party.
23.
Other Remedies
.
Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law on such party, and the exercise of any one remedy shall not preclude the exercise of any other.
IN WITNESS WHEREOF, the parties hereto have executed this Deferred Payment Agreement (PI) as of the date first written above.
GRACE
: W. R. GRACE & CO.-CONN.
By:
/s/HUDSON LA FORCE, III
Name: Hudson La Force, III
Title: Senior Vice President and Chief Financial Officer
TRUST (PI)
:
WRG ASBESTOS PI TRUST
By:
/s/LEWIS R. SIFFORD
Name: Lewis R. Sifford
Title: Trustee
By:
/s/DEAN M. TRAFELET
Name: Dean M. Trafelet
Title: Trustee
By:
/s/HARRY HUGE
Name: Harry Huge
Title: Trustee
Solely for purposes of
Section 20
:
PARENT GUARANTOR
:
W. R. GRACE & CO.
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By:
/s/HUDSON LA FORCE, III
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Name: Hudson La Force, III
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Title: Senior Vice President and Chief Financial Officer
EXHIBIT A
FORM OF
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT
This Assumption Agreement (the “
Assumption Agreement
”) is made and entered into as of [•], by and between [W. R. Grace & Co.-Conn., a Connecticut corporation] // [W. R. Grace & Co., a Delaware corporation] (“
Grace
”), and [•], a [•] (the “
Buyer
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the [Purchase Agreement].
BACKGROUND
WHEREAS, Grace, the Buyer and [•] are party to that certain [•] (the “[
Purchase Agreement
]”), pursuant to which Grace has agreed to [•];
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”); and
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” requiring the delivery of this Assumption Agreement under the Contracts.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
[Grace hereby assigns and transfers to the Buyer all of Grace’s right, title and interest in the Contracts,
free and clear of all [Liens except for Permitted Liens)]. The Buyer hereby accepts the assignment herein and assumes from Grace and agrees to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the Contracts remain in full force and effect and that Grace will continue to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the [corporation] surviving the [Merger] is subject to and bound by the Contracts, that the Contracts are and will remain in full force and effect and that the [corporation] surviving the [Merger] shall hold all right, title and interest in the Contracts. The Buyer hereby agrees that the [corporation] surviving the [Merger] shall be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts;
provided
,
however
, that Grace shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under the Contracts.]
Each of the parties hereto covenants and agrees, at its own expense, to execute and deliver, promptly after the reasonable request of the other party hereto, such further instruments and to take such other action as such other party may reasonably request to more effectively consummate the transactions contemplated by this Assumption Agreement.
In the event of a conflict between the terms and conditions of this Assumption Agreement and the terms and conditions of the [Purchase Agreement], the terms and conditions of this Assumption Agreement shall govern, supersede and prevail.
All questions concerning the construction, validity and interpretation of this Assumption Agreement shall be governed by and construed in accordance with the domestic laws of the State of New York, without giving effect to any choice of law or conflict of law provision (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
This Assumption Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature pages delivery by electronic transmission in portable document format (.pdf)), all of which taken together shall constitute one and the same instrument. This Assumption Agreement and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or electronic transmission in portable document format (.pdf), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
This Assumption Agreement shall be binding on the parties hereto and shall inure to the benefit of the Permitted Holder (as defined in the [Contracts]) regardless of whether such Permitted Holder executes this Assumption Agreement.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Assumption Agreement as of the date first above written.
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ASSIGNEE
:
[•]
By:
[•]
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SELLER
:
[W. R. GRACE & CO.-CONN.]
By:
[•]
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[W. R. GRACE & CO.]
By:
[•]
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[Acknowledged and Agreed
:
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WRG ASBESTOS PI TRUST
By:
]
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Schedule 1
Contracts
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1.
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Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
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2.
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W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
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3.
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Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
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4.
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W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
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5.
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Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
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6.
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W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
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7.
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Share Issuance Agreement, dated as of [], by and between W. R. Grace & Co., WRG Asbestos PD Trust, and the WRG Asbestos PI Trust.
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EXHIBIT B
FORM OF
QUARTERLY EBITDA AND VALUATION CERTIFICATE
QUARTERLY EBITDA AND VALUATION CERTIFICATE
This Quarterly EBITDA and Valuation Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation] // [W. R. Grace & Co.-Conn., a Connecticut corporation] (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section [7(a)(iv)(A)] // [6(a)(iv)(A)] of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
A Significant Transaction [has] // [has not] occurred
during the four-Fiscal Quarter period ending on [•] (the “
Measurement Period
”).
The [Pro Forma] EBITDA of Grace for the Measurement Period was [•] and the [Pro Forma] Valuation of Grace as of [•]
was [•]. Attached hereto are worksheets showing the calculation of the foregoing amounts.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
[W. R. GRACE & CO.]
By:
[•]
|
|
|
[W. R. GRACE & CO.-CONN.]
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
4.
|
[Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
5.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
6.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.]
|
Worksheet 1 -- EBITDA
All amounts are for the period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
[describe]
|
|
|
Total EBITDA
|
|
Worksheet 2 – Pro Forma EBITDA
All amounts are for the four Fiscal-Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Pro Forma EBITDA
|
|
Worksheet 3 -- Valuation
All amounts are as of the last day of the relevant four-Fiscal Quarter Period period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Total EBITDA (determined based on worksheet 1)
multiplied
by 7
|
|
|
|
Minus
the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date
|
[describe any exceptions from inclusion in Senior Indebtedness based on the definition thereof and the related excepted amounts]
|
|
|
Plus
the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
|
[describe any such material restrictions and the related excluded amounts]
|
|
|
Total Valuation
|
|
Worksheet 4 – Pro Forma Valuation
All amounts are as of the last day of the relevant four-Fiscal Quarter Period period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Total Pro Forma EBITDA (determined based on worksheet 2)
multiplied
by 7
|
|
|
|
Minus
the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) may not have actually been consummated during such four-Fiscal Quarter period)
|
[describe any exceptions from inclusion in Senior Indebtedness based on the definition thereof and the related excepted amounts]
[indicate the amount of Senior Indebtedness included as a result of the Significant Transaction]
|
|
|
Plus
the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction may not have actually been consummated during such four-Fiscal Quarter period), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries
|
[describe any such material restrictions and the related excluded amounts]
[indicate any amounts included as a result of the Significant Transaction]
|
|
|
Total Pro Forma Valuation
|
|
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”).
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section 7(a)(iv)(B) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
Grace has complied with the covenants set forth in
Section 7 of each Contract.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co.-Conn., a Connecticut corporation (“
Grace
”), to [•], a [•](the “
Permitted Holder
”).
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section 6(a)(iv)(B) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
Grace has complied with the covenants set forth in
Section 6 of each Contract.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.-CONN.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
2.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
EXHIBIT D
FORM OF
POST-TRANSACTION CERTIFICATE
POST-TRANSACTION CERTIFICATE
This Post-Transaction Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, Grace and [•] are party to that certain [•] (the “[
Purchase Agreement
]”);
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” under the Contracts;
WHEREAS, Section 7(a)(iv)(C) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
As of the date of the consummation of the transactions contemplated by the Purchase Agreement, the Post-Transaction Pro Forma EBITDA of Grace was [•]. Attached hereto is a worksheet showing the calculation of such Post-Transaction Pro Forma EBITDA.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
Worksheet 1 – Post-Transaction Pro Forma EBITDA
All amounts are for the four Fiscal Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Post-Transaction Pro Forma EBITDA
|
|
POST-TRANSACTION CERTIFICATE
This Post-Transaction Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co.-Conn., a Connecticut corporation (“
Grace
”), to [•], a [•](the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, Grace and [•] are party to that certain [•] (the “[
Purchase Agreement
]”);
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” under the Contracts;
WHEREAS, Section 6(a)(iv)(C) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
As of the date of the consummation of the transactions contemplated by the Purchase Agreement, the Post-Transaction Pro Forma EBITDA of Grace was [•]. Attached hereto is a worksheet showing the calculation of such Post-Transaction Pro Forma EBITDA.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.-CONN.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
2.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
Worksheet 1 – Post-Transaction Pro Forma EBITDA
All amounts are for the four Fiscal Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Post-Transaction Pro Forma EBITDA
|
|
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
|
|
|
|
|
|
|
In re:
W. R. GRACE & CO.,
et al.
Debtors.
|
)
)
)
)
)
|
Chapter 11
Case No. 01-01139 (KJC)
Jointly Administered
|
EXHIBIT 15 TO EXHIBIT BOOK
W. R. GRACE & CO. GUARANTEE AGREEMENT (PI)
EXHIBIT 15
Attached.
W. R. GRACE & CO. GUARANTEE AGREEMENT (PI)
$1,550,000,000 Deferred Payment Agreement (PI)
This W. R. GRACE & CO. GUARANTEE AGREEMENT (PI) (this “
Guarantee (PI)
”) is made and entered into as of February 3, 2014, by and between W. R. Grace & Co., a Delaware corporation (together with any successor thereto pursuant to the terms and conditions of
Section 16
, the “
Guarantor
”), and the WRG Asbestos PI Trust (the “
Trust (PI)
”), a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan of Reorganization (as hereinafter defined). Unless otherwise defined herein or the context otherwise requires, capitalized terms used herein and defined in the Plan of Reorganization shall be used herein as therein defined.
This Guarantee (PI) is the “
Parent Guarantee
” described and defined in the Deferred Payment Agreement (PI) (as defined below) and is effective as of the Effective Date.
WITNESSETH
In consideration of the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.
Definitions; Rules of Interpretation
.
(a)
As used in this Guarantee (PI), the following terms shall have the following meanings:
“
Authorized Officer
” means, with respect to any Entity, the chief executive officer, president, chief financial officer, controller, executive vice president or senior vice president of such Entity.
“
Bona Fide Compensation Transaction
” means any payment, grant or award, whether in cash, securities, options or other consideration, including without limitation salary or bonus, to or for the benefit of any director, officer or employee of any Transferor or any of its Affiliates made for legitimate, bona fide compensation and/or incentivization purposes; provided that compensation paid, granted or awarded to any one such individual in any Fiscal Year of Transferor whose aggregate value at the time or times of payment, grant or award is in excess of $15,000,000 shall be a Bona Fide Compensation Transaction only (i) if the relevant Transferor is then obligated to file or furnish, or is otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, it is approved by an independent committee of the Board of Directors of the Transferor (or other similar management body of the Transferor) or (ii) if the relevant Transferor is not then obligated to file or furnish, or is not otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, a reputable independent compensation expert or consultant selected by the Transferor with the consent of the Permitted Holder (which consent shall not be unreasonably withheld, conditioned or delayed) shall have determined, in its reasonable, good faith judgment, that such payment, grant or award is reasonable and appropriate. For purposes of the proviso in the previous sentence, (A) no payment or other value received in a given year pursuant to the terms of a grant or award in a previous year shall be taken into account for calculating the compensation in such given year; and (B) in the event of multiple payments, grants or awards in a given Fiscal Year, the independent committee approval, or independent compensation expert or consultant determination, as appropriate, shall be made with respect to each payment, grant or award beginning with the payment, grant or award that causes the compensation to be in excess of $15,000,000.
“
Business Day
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Capital Stock
” means, with respect to any Entity, any share of stock, or any depositary receipt or other certificate representing any share of stock, or any similar equity ownership interest, and any warrant, option, or any other security providing for the right to acquire any such share of stock or similar equity ownership interest.
“
Claims
” has the meaning set forth in
Section 17(b)
.
“
Collateral Agent
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Compliance Certificate
” means a certificate in the form of Exhibit C.
“
Control
” means, as to any Entity, the power to direct the management and policies of such Entity directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlling” and “Controlled” have meanings correlative to the foregoing.
“
Controlled Affiliate
” means, as to any Entity (the “
Controlling Entity
”), any Affiliate that is Controlled by such Controlling Entity.
“
Default Rate
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Deferred Payment Agreement (PI)
” means that certain Deferred Payment Agreement (PI), dated as of the date hereof, between Grace and the Trust (PI).
“
Deferred Payment Date (PI)
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Deferred Payment Documents
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Deferred Payment Documents (PI)
” means this Guarantee (PI), the Deferred Payment Agreement (PI) and the Share Issuance Agreement.
“
Deferred Payment Documents (PD)
” has the meaning set forth in the Deferred
Payment Agreement (PI).
“
Deferred Payment Documents (ZAI)
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Deferred Payment (PI)
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Demand for Issuance of the Section 524(g) Shares
” has the meaning set forth in the Share Issuance Agreement.
“
Designated Guarantor Senior Indebtedness
” means Guarantor Senior Indebtedness issued, pursuant to a facility with an aggregate principal amount, commitments and/or other financial accommodations then outstanding and/or available (disregarding for purposes of this definition whether any conditions for draws thereunder have been satisfied), as of the relevant date of determination, of at least $25,000,000.
“
Disposition Transaction
” has the meaning set forth in
Section 7(b)
.
“
Disqualified Equity Interest
” means that portion of any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof on or prior to the final Deferred Payment Date (PI).
“
EBITDA
” means, for any Entity for any period, such Entity’s and its Subsidiaries’ consolidated net income (determined in accordance with GAAP) for such period plus, without duplication, in respect of any such item of such Entity and/or any of its Subsidiaries (i) to the extent deducted in determining such consolidated net income, the sum, without duplication, of (a) interest expense, (b) provisions for any income or similar taxes paid or accrued, (c) all amounts treated as expenses for depreciation and amortization of any kind, (d) cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents, (e) items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period, and (f) any non-cash charges minus (ii) to the extent included in determining such consolidated net income, the sum, without duplication, of (a) gross interest income received during such period and (b) items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period, all, in the cases of clauses (i) and (ii) above, as determined on a consolidated basis in accordance with GAAP.
“
Equity Interest
” means shares of Capital Stock or equity, equity securities or ownership interests in any Entity or any rights (including any (x) options, warrants or other rights to purchase or acquire any such stock, equity or interests (whether or not at the time exercisable), or (y) securities by their terms convertible into or exchangeable for any such stock, equity or interests (whether or not at the time so convertible or exchangeable) or options, warrants or rights to purchase such convertible or exchangeable securities.
“
Event of Default
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Fiscal Quarter
” means, in respect of any Entity, a fiscal quarter of such Entity as determined by it.
“
Fiscal Year
” means, in respect of any Entity, a fiscal year of such Entity as determined by it.
“
GAAP
” means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis; provided, however, that as of such time, if any, when any Entity begins to provide financial information generally on the basis of IFRS, then any reference to GAAP with respect to such Entity shall be given effect as a reference to IFRS.
“
Governing Documents
” means, as to any Entity, its articles or certificate of incorporation and by-laws, its partnership agreement, its certificate of formation and operating agreement and/or the organizational or governing documents of such Entity.
“
Governmental Authority
” means the government of the United States of America or any other country, or
of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
“
Grace
” means W. R. Grace & Co.-Conn., a Connecticut corporation, and any successor to its obligations under the Deferred Payment Agreement (PI) pursuant to the terms and conditions of Section 16 thereof.
“
Guaranteed Obligations (PI)
” has the meaning set forth in
Section 2(a)
.
“
Guarantee Payment Blockage Notice
” has the meaning set forth in
Section 8(a)(ii)
.
“
Guarantee Payment Blockage Period
” has the meaning set forth in
Section 8(a)(ii)
.
“
Guarantor
” has the meaning set forth in the introductory paragraph.
“
Guarantor Senior Indebtedness
” means any and all present and/or future, direct and/or indirect, indebtedness, liabilities and other obligations of the Guarantor owed to any Entity (whether as senior or subordinated indebtedness, as a first lien, second lien, any other position or priority, and any mezzanine, subordinated or other indebtedness) including any principal, interest and premiums, fees, investment points, reimbursement obligations, issuance discounts and/or other costs, indemnities, liabilities and/or expenses thereon or in connection therewith (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable Law), in each case, under or with respect to (i) any credit or loan facilities (whether provided by one or more banks, insurance companies, financial institutions, private equity or hedge funds, lenders, and/or other Entities) and/or (ii) any debt, bonds, debentures, notes, repurchase, discount, securitization, factoring and/or other similar facilities providing for indebtedness, including any and all obligations of any nature in respect of loans, credit agreements, indentures, and bonds, together with obligations in respect of hedging arrangements (whether in respect of interest rates, currencies, commodities, equities, indebtedness and/or otherwise), in each case, entered into with banks, insurance companies, financial institutions, private equity or hedge funds, lenders and/or other Entities who are engaged in the business of providing financing (but not customers of or suppliers to the Guarantor to the extent constituting trade payables), notes, letters of credit, and synthetic letters of credit in connection therewith, and/or (iii) any reimbursement, payment, indemnities, fees, guarantees or other obligations in connection with any credit or loan facilities or indebtedness, liabilities and other obligations referenced in clauses (i) or (ii);
except in each case, for any indebtedness owed by the Guarantor (A) that by its express terms is not Guarantor Senior Indebtedness for purposes of the Deferred Payment Agreement (PI) and this Guarantee (PI) and is to be treated as
pari passu
or junior and subordinated with respect thereto in accordance with its terms, (B) for the avoidance of doubt, consisting of obligations to trade creditors and other trade payables in connection with the purchase of goods, materials or services, (C) owed to, or guaranteed by Grace or the Guarantor on behalf of, any director, officer or senior key employee of (1) Grace, (2) the Guarantor or (3) any Subsidiary or Affiliate of Grace or the Guarantor (D) represented by Disqualified Equity Interest, (E) owed to (1) Grace or (2) any Subsidiary or Affiliate of Grace or the Guarantor and (F) resulting from the Deferred Payment Documents (PD) or the Deferred Payment Documents (ZAI).
“
Guarantor Senior Non-Payment Default
” has the meaning set forth in
Section 8(a)(ii)
.
“
Guarantor Senior Payment Default
” has the meaning set forth in
Section 8(a)(i)
.
“
Guarantor Senior Remedies
” means, if an event of default has occurred and is continuing under the terms of any agreement or document relating to Guarantor Senior Indebtedness, any of the following by the holder (or any agent or trustee of the holder) of any Guarantor Senior Indebtedness: (1) exercising or seeking to exercise any rights or remedies against Grace or the Guarantor with respect to such event of default or (2) instituting any action or proceeding with respect to such rights or remedies (including any action of foreclosure, contest or protest) under any agreement or document relating to Guarantor Senior Indebtedness, or under such event of default or otherwise or (3) attempting to do any of the foregoing.
“
IFRS
” means the International Financial Reporting Standards as adopted by the International Accounting Standards Board and in effect from time to time, consistently applied.
“
Insolvent
” means the financial condition of the Guarantor and its Subsidiaries taken as a whole such that, as of the date specified, the sum of their liabilities is greater than a fair valuation of all of their property and assets.
“
Intercreditor Agreement
” means the Intercreditor Agreement, dated as of the date hereof, among the Trusts’ Representative, the Trust (PI) and the Trust (PD).
“
Laws
” means, collectively, all applicable international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances and codes, including the binding interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof.
“
NASDAQ
” shall mean The NASDAQ Stock Market (including any of its subdivisions such as the NASDAQ Global Select Market) or any successor market thereto.
“
NYSE
” shall mean The New York Stock Exchange or any successor stock exchange thereto.
“
Ordinary Dividends
” means, in respect of any Entity, ordinary cash dividends declared and paid out of surplus and/or net profits (as determined in accordance with applicable law) in accordance with the dividend policy of such Entity as in effect from time to time; provided, however, that notwithstanding the foregoing, the excess, if any, of (a) the aggregate amount of dividends declared and paid by such Entity in any Fiscal Year over (b) 50% of such Entity’s and its Subsidiaries’ consolidated net income (determined in accordance with GAAP) for the immediately preceding Fiscal Year shall not constitute “Ordinary Dividends” to the extent of such excess.
“
Permitted Holder
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Permitted Payee
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Permitted Payor
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Plan of Reorganization
” means that certain First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms.
“
Post-Transaction Certificate
” means a certificate in the form of Exhibit D.
“
Post-Transaction Pro Forma Cash Balance
” means with respect to any Entity as of any date of determination, the aggregate amount of such Entity’s and its consolidated Subsidiaries’ cash and cash equivalents as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring on or prior to such date, notwithstanding that such Significant Transaction may not have actually been consummated as of such date), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
“
Post-Transaction Pro Forma EBITDA
” means, with respect to any Entity for any four-Fiscal Quarter period and any specified Disposition Transaction, such Entity’s Pro Forma EBITDA for such four-Fiscal Quarter period, computed assuming that such Disposition Transaction, and any other Significant Transaction the Transaction Date of which occurs on or prior to the Transaction Date of such Disposition Transaction and during the same Fiscal Quarter as the Transaction Date of such Disposition Transaction, were consummated on the same terms in effect on the respective Transaction Dates at the beginning of the four-Fiscal Quarter period most recently ended prior to the Transaction Date of such Disposition Transaction, and shall include adjustments which give effect to events that are (i) directly attributable to such Disposition Transaction and any such Significant Transactions, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable.
“
Post-Transaction Pro Forma Guarantor Senior Indebtedness
” means with respect to any Entity as of any date of determination, the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Guarantor Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Guarantor Senior Indebtedness) with a Transaction Date occurring on or prior to such date, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Guarantor Senior Indebtedness) may not have actually been consummated as of such date).
“
Post-Transaction Pro Forma Valuation
” means, with respect to any Entity as of any date of determination, the amount resulting from (a) the product of (i) such Entity’s Post-Transaction Pro Forma EBITDA for the four-Fiscal Quarter period most recently ended,
multiplied
by
(ii) seven (7),
minus
(b) such Entity’s Post-Transaction Pro Forma Guarantor Senior Indebtedness as of such date,
plus
(c) such Entity’s Post-Transaction Pro Forma Cash Balance as of such date.
“
Proceeding
” means, with respect to any Entity, any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, or other winding up of such Entity or all or substantially all of the properties of such Entity.
“
Pro Forma Cash Balance
” means with respect to any Entity as of the last day of any four-Fiscal Quarter period, the aggregate amount of such Entity’s and its consolidated Subsidiaries’ cash and cash equivalents as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction may not have actually been consummated during such four-Fiscal Quarter period), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
“
Pro Forma EBITDA
” means, with respect to any Entity for any four Fiscal-Quarter period, such Entity’s EBITDA for such four Fiscal-Quarter period, computed assuming that any Significant Transaction the Transaction Date of which occurred during the relevant four-Fiscal Quarter period was consummated, on the terms in effect on such Transaction Date, at the beginning of such four-Fiscal Quarter period most recently ended prior to the Transaction Date of such Significant Transaction, and shall include adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable.
“
Pro Forma Guarantor Senior Indebtedness
” means with respect to any Entity as of the last day of any four-Fiscal Quarter period, the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Guarantor Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Guarantor Senior Indebtedness) with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Guarantor Senior Indebtedness) may not have actually been consummated during such four-Fiscal Quarter period).
“
Pro Forma Valuation
” means, with respect to any Entity as of the last day of any four-Fiscal Quarter period, the amount resulting from (a) the product of (i) such Entity’s Pro Forma EBITDA for such four-Fiscal Quarter period,
multiplied by
(ii) seven (7),
minus
(b) such Entity’s Pro Forma Guarantor Senior Indebtedness as of such date,
plus
(c) such Entity’s Pro Forma Cash Balance as of such date.
“
Quarterly EBITDA and Valuation Certificate
” means a certificate in the form of Exhibit B.
“
Regulation S-X
” means Regulation S-X promulgated by the United States Securities and Exchange Commission as in effect on the date hereof.
“
Related Party
” means in respect of an Entity (the “
Affected Entity
”): (a) any senior key employee, officer or director of the Affected Entity or, in respect of an officer or director, any person holding a similar position in an Affected Entity that is not a corporation (any such person, an “
Insider
”); (b) any spouse, child, parent or sibling of an Insider; (c) another Entity which alone or together with other Entities under its Control directly or indirectly Controls or holds ten percent (10%) or more of the Equity Interests that (i) generally entitle the holders thereof to vote for the election of the board of directors or other governing body of the Affected Entity, or (ii) confer upon the holders thereof an interest in the capital or profits of the Affected Entity; (d) any Entity Controlled by the Affected Entity or by any Insider or in which the Affected Entity or any Insider Controls or holds ten percent (10%) or more of the stock or other equity interests which (i) generally entitle the holders thereof to vote for the election of the board of directors or other governing body of the Affected Entity or (ii) confer upon the holders thereof an interest in the capital or profits of such Affected Entity; or (e) any Controlled Affiliate of any Entity that is a Related Person by virtue of clause (d) of this definition; provided, however, that any direct or indirect 100% owned Subsidiary of the Guarantor shall not constitute a “Related Party” for purposes of this Guarantee (PI).
“
Section 524(g) Shares
” has the meaning set forth in the Share Issuance Agreement.
“
Significant Transaction
” means (a) any Disposition Transaction or (b) any transaction of the type described in Section 210.11-01(a)(1) or Section 210.11-01(a)(2) of Regulation S-X (disregarding, for purposes of clause (b) of this definition, whether the Entity entering into such transaction is at the time obligated to file or furnish, or is otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, as amended).
“
Subsidiary
” means, with respect to any Entity at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (i) the accounts of which would be consolidated with those of such Entity in such Entity’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (ii) of which more than 50% of (A) the outstanding Capital Stock having (in the absence of contingencies) ordinary voting power to elect a majority of the board of directors or other managing body of such Entity, (B) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (C) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or Controlled directly or indirectly through one or more intermediaries, by such Entity.
“
Taxes
” means any and all present or future taxes, levies, imposts, fees, assessments, levies, duties, deductions, charges, liabilities or withholdings (including interest, fines, penalties or additions to tax) imposed by any Governmental Authority.
“
Threshold Amount
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Transaction Date
” means, with respect to any Significant Transaction, (a) the date, if any, on which final, definitive documentation providing for such Significant Transaction is executed;
provided
,
however
, that the “Transaction Date” shall no longer be deemed to have occurred with respect to any Significant Transaction if the final, definitive documentation providing for such Significant Transaction is terminated for any reason, or (b) if no such final, definitive documentation for such Significant Transaction is executed, the date on which such Significant Transaction is consummated.
“
Transfer
” has the meaning set forth in
Section 7(b)
.
“
Transferor
” has the meaning set forth in
Section 7(b)
.
“
Trust (PD)
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Trust (PI)
” has the meaning set forth in the introductory paragraph hereof.
“
Trusts
” has the meaning set forth in the Share Issuance Agreement.
“
Trusts’ Representative
” has the meaning set forth in the Share Issuance Agreement.
“
Valuation
” means, with respect to any Entity as of the last day of any four-Fiscal Quarter period, the amount resulting from (a) the product of (i) such Entity’s EBITDA for such four-Fiscal Quarter period,
multiplied
by
(ii) seven (7),
minus
(b) the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Guarantor Senior Indebtedness as of such date,
plus
(c) the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
(b)
Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All references herein to Sections shall be deemed references to Sections of this Guarantee (PI) unless the context shall otherwise require.
(c)
Unless otherwise indicated, (i) the term “including” means “including without limitation”, except when used in the computation of time periods, and (ii) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein).
(d)
For purposes of the computation of time periods, whenever this Guarantee (PI) provides for an event to occur “within” a specified number of days of a preceding event, it shall mean that the latter event shall occur before the close of business on the last of the specified days, and the day on which the preceding event occurs shall not be included in the computation of days elapsed. The word “from” means “from and including”, “after” means “after and excluding”, and “to” and “until” mean “to and including”.
(e)
All terms defined in this Guarantee (PI) in the singular form shall have comparable meanings when used in the plural form and vice versa.
2.
Guarantee (PI)
.
(a)
For value received and in consideration of the transactions set forth in the Deferred Payment Agreement (PI) and in the Plan of Reorganization, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees for the benefit of the Permitted Holder and each Permitted Payee, as a primary obligor and not merely as a surety, and pursuant to the terms and conditions of this
Guarantee (PI)
, (i) the full and prompt payment when due (whether by acceleration or otherwise) of (A) all Deferred Payments (PI) and (B) all other amounts payable under the Deferred Payment Agreement (PI) (including interest at the Default Rate) accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding and at all times thereafter, and (ii) the due performance by Grace of all of its other obligations under the Deferred Payment Agreement (PI) (the obligations described in items (i) and (ii), the “
Guaranteed Obligations (PI)
”).
(b)
The Guarantor hereby agrees that this Guarantee (PI) is an absolute, unconditional guarantee of payment and performance and is not merely a surety or guarantee of collection, and that the Guarantor and Grace are jointly and severally liable for the Guaranteed Obligations (PI), which liability is a continuing, absolute and unconditional obligation of payment or performance, as the case may be, regardless of the solvency or insolvency of Grace or the Guarantor at any time.
(c)
The obligations of the Guarantor hereunder are secured by the Guarantor’s obligation to issue and deliver to the Trusts’ Representative, for the benefit of the Trusts, the Section 524(g) Shares under the circumstances, and upon the terms and subject to the conditions, set forth in the Share Issuance Agreement.
(d)
If the acceleration of the Guaranteed Obligations (PI) is stayed in connection with any Proceeding commenced by or against Grace, all such Guaranteed Obligations (PI) shall nonetheless be payable by the Guarantor immediately upon demand by the Permitted Holder.
3.
Enforceability of Obligations
.
(a)
Subject to
Section 3(b)
, the Guarantor hereby agrees that its obligations in
respect of this Guarantee (PI) shall be enforceable against the Guarantor irrespective of:
(i)
the legality, validity, enforceability, avoidance or subordination of any of the Guaranteed Obligations (PI) or the Deferred Payment Agreement (PI);
(ii)
any Law, regulation, or order of any jurisdiction, or any other event, affecting any term of the Guaranteed Obligations (PI) or the Deferred Payment Agreement (PI);
(iii)
the absence of any attempt by, or on behalf of, the Permitted Holder to collect, or to take any other action to enforce, all or any part of the Guaranteed Obligations (PI) whether from or against Grace or any other Entity;
(iv)
the election of any remedy available under the Deferred Payment Agreement (PI) or applicable Law or in equity by, or on behalf of, the Permitted Holder with respect to all or any part of the Guaranteed Obligations (PI);
(v)
any change in the corporate existence, structure or ownership of Grace or the Guarantor;
(vi)
any impairment of the capital of Grace or the Guarantor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting Grace, the Guarantor or their assets, or any resulting release or discharge of the Guaranteed Obligations (PI);
(vii)
any amendment, waiver, consent, extension, forbearance or granting of any indulgence by, or on behalf of, the Permitted Holder with respect to any provision of the Deferred Payment Agreement (PI), or any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Grace or the Guarantor, including any renewal or extension of the time or change of the manner or place of payment or performance, as the case may be, of the Guaranteed Obligations (PI);
(viii)
the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the claims against Grace held by the Permitted Holder for payment or performance, as the case may be, of all or any part of the Guaranteed Obligations (PI);
(ix)
the existence of any right, claim, counterclaim, or right of set-off, whether arising from or relating to the Guaranteed Obligations (PI) or Grace or otherwise, that the Guarantor may have at any time against Grace, the Permitted Holder or any other Entity, whether in connection herewith or any unrelated transactions,
provided
,
however
, that nothing herein shall prevent the assertion of a separate suit or compulsory counterclaim;
(x)
the cessation for any reason of the liability of Grace under the Deferred Payment Agreement (PI) or any other circumstance which might otherwise constitute a legal or equitable discharge of Grace or the Guarantor; or
(xi)
any other act or circumstance which might or could be deemed a discharge or modification hereunder other than payment in full of the Guaranteed Obligations (PI).
(b)
Notwithstanding
Section 3(a)
and
Section 4
, or any other provision to the contrary in this Guarantee (PI), from and after such time, if any, that the Guarantor has notified the Permitted Holder in writing that Grace is no longer a Subsidiary or a Controlled Affiliate of the Guarantor, any amendment, waiver, modification, supplement, restatement or change in respect of the terms and conditions of the Deferred Payment Agreement (PI) or any other Deferred Payment Document (PI) shall require the prior written consent of the Guarantor.
4.
Waivers
. With respect to the Guaranteed Obligations (PI), the Guarantor
hereby waives (subject to
Section 3(b)
) (a) acceptance, promptness, diligence, presentment, demand of payment, filing of claims with a court in the event of receivership or bankruptcy of Grace, protest or notice, all setoffs and counterclaims and all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Guarantee (PI) or the Deferred Payment Agreement (PI) (and shall not require that the same be made on or given to Grace as a condition to the Guarantor’s obligations hereunder), (b) any defense arising by reason of any disability or other defense of Grace or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Permitted Holder or any other Entity) of the liability of Grace; (c) any right to, or to require the Permitted Holder to, proceed against Grace, proceed against or exhaust any security (including the Section 524(g) Shares) for the Guaranteed Obligations (PI), or pursue any other remedy in the power of the Permitted Holder whatsoever, (d) any benefit of and any right to participate in any security now or hereafter securing the Guaranteed Obligations (PI), (e) the benefits of all statutes of limitation, and (f) all other demands and defenses whatsoever (other than payment in full of all Guaranteed Obligations (PI)).
5.
Payments
.
(a)
All payments to be made by the Guarantor pursuant to this Guarantee (PI) shall be made in lawful currency of the United States of America by wire transfer of immediately available funds to the Permitted Holder in accordance with such wire transfer instructions as are provided by the Permitted Holder in writing from time to time. Subject to
Sections 5(b)
,
(c)
and
(d)
, all payments under this Guarantee (PI) shall be made in full, without any set-off, counterclaim or any deduction whatsoever.
(b)
If, after giving effect to any Disposition Transaction or any assignment, delegation or transfer by the Guarantor of its rights or obligations under this Guarantee (PI), the Guarantor shall be required by applicable Law to withhold any Taxes from any payments hereunder, and if such requirement would not have been imposed by such applicable Law but for such Disposition Transaction, assignment or transfer, then (i) the sum payable shall be increased as necessary so that after making all withholdings required by applicable Law (including withholdings applicable to additional sums payable under this
Section 5(b)
) the payee receives an amount equal to the sum it would have received had no such withholdings been made, (ii) the Guarantor shall make such withholdings and (iii) the Guarantor shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Law. This
Section 5(b)
shall survive the termination of this Guarantee (PI) pursuant to
Section 15
.
(c)
If, after giving effect to any permitted assignment or Transfer by the Permitted Holder of its rights or obligations under this Guarantee (PI), the Guarantor shall be required by applicable Law to withhold any Taxes from any payments hereunder, and if such requirement would not have been imposed by such applicable Law but for such assignment or Transfer, then the obligation of the Guarantor or the Permitted Payor to make the relevant payment hereunder shall be discharged by making such payment net of such Taxes. This
Section 5(c)
shall survive the termination of this Guarantee (PI) pursuant to
Section 15
.
(d)
If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case adopted after the date hereof, the Guarantor or a Permitted Payor shall be required to withhold any Taxes from any payments hereunder, then the obligation of the Guarantor or the Permitted Payor to make the relevant payment hereunder shall be discharged by making such payment net of such Taxes. This
Section 5(d)
shall survive the termination of this Guarantee (PI) pursuant to
Section 15
.
6.
Representations and Warranties
. The Guarantor represents and warrants,
as of the Effective Date, that:
(a)
The Guarantor is duly organized, validly existing and in good standing under the laws of the jurisdiction of the Guarantor’s incorporation;
provided
,
however
, with respect to good standing, only to the extent the concept of good standing exists in such jurisdiction of incorporation.
(b)
The Guarantor has the corporate power and authority to execute and deliver this Guarantee (PI) and each other Deferred Payment Document (PI) to which it is a party. This Guarantee (PI) and each other Deferred Payment Document (PI) to which the Guarantor is a party has been duly authorized by all necessary corporate action of the Guarantor and has been duly executed and delivered by the Guarantor.
(c)
This Guarantee (PI) and each other Deferred Payment Document (PI) to which the Guarantor is a party is a legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally, by the discretion of the court in which enforcement is sought, and/or by general equitable principles (whether enforcement is sought by proceedings at law or in equity).
(d)
The execution, delivery and performance by the Guarantor of this Guarantee (PI) and each other Deferred Payment Document (PI) to which the Guarantor is a party do not conflict with, result in a breach of any of the provisions of, or constitute a default under, the Governing Documents of the Guarantor.
7.
Guarantor Covenants
. The Guarantor covenants and agrees that, from the
Effective Date until all Guaranteed Obligations (PI) are paid and performed in full:
(a)
Affirmative Covenants
. The Guarantor shall:
(i)
Maintenance of Existence and Qualifications
. Maintain and preserve in
full force and effect its existence and good standing (to the extent the concept of good standing exists in the Guarantor’s jurisdiction of incorporation) and all other rights, powers, franchises, licenses and qualifications necessary or desirable for its ownership or use of properties or the conduct of its business, except (A) as permitted by
Section 16
, and (B) where the failure to do so would not reasonably be likely to adversely affect the Guarantor’s ability to make payments in respect of the Guaranteed Obligations (PI) or to perform its obligations under the Deferred Payment Documents (PI) to which it is a party.
(ii)
Notice of Event of Default, Guarantor Senior Payment Default and Guarantor Senior Non-Payment Default
. Furnish to the Permitted Holder (x) within five (5) days after an Authorized Officer of the Guarantor shall first learn of an Event of Default, and (y) on or before the earlier of (A) the fifteenth (15th) day after an Authorized Officer of the Guarantor shall first learn of a Guarantor Senior Payment Default or Guarantor Senior Non-Payment Default and (B) the first Business Day following the date upon which a Guarantee Payment Blockage Notice is delivered pursuant to
Section 8(a)(ii)
, a written statement of an Authorized Officer of the Guarantor stating that an Event of Default, Guarantor Senior Payment Default or Guarantor Senior Non-Payment Default, as the case may be, has occurred, which written statement shall, to the extent known by the Guarantor, set forth in reasonable detail the facts giving rise to and status of such Event of Default, Guarantor Senior Payment Default or Guarantor Senior-Non Payment Default, as the case may be, and the actions, if any, the Guarantor is taking or proposes to take with respect thereto.
(iii)
Information Covenants
. If the Guarantor is not obligated to file or furnish, or is not otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, the Guarantor shall furnish to the Permitted Holder:
(A)
Annual Financial Statements
. As soon as available but in no event later than ninety (90) days after the last day of each of the Guarantor’s Fiscal Years, its annual consolidated financial statements audited by a nationally recognized registered independent public accounting firm allowed to practice before the Securities and Exchange Commission or any successor Governmental Authority, consisting of a consolidated balance sheet of the Guarantor and its consolidated Subsidiaries as of the end of such year and consolidated statements of income, cash flows and stockholders equity for such year (all in reasonable detail and with all notes and supporting schedules); and
(B)
Quarterly Financial Statements
. As soon as available and in any event within forty-five (45) days after the end of each of the first three Fiscal Quarters in each Fiscal Year of the Guarantor, its consolidated balance sheet as of the end of such Fiscal Quarter, and consolidated statements of income and cash flows of the Guarantor and its consolidated Subsidiaries for such Fiscal Quarter, all in reasonable detail and certified by an Authorized Officer of the Guarantor to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustments and the absence of footnotes).
(iv)
Officer’s Certificates
. The Guarantor shall furnish to the Permitted Holder:
(A)
No later than ninety (90) days after the last day of each of the Guarantor’s Fiscal Years and no later than forty-five (45) days after the end of each of the first three Fiscal Quarters in each Fiscal Year of the Guarantor, a Quarterly EBITDA and Valuation Certificate executed by an Authorized Officer of the Guarantor setting forth (I) if the Transaction Date of a Significant Transaction has occurred during the four-Fiscal Quarter period ending on the last day of such Fiscal Quarter or Fiscal Year, as the case may be, the Pro Forma EBITDA of the Guarantor for such four-Fiscal Quarter period and the Pro Forma Valuation of the Guarantor as of the last day of such four-Fiscal Quarter period or (II) if the Transaction Date of a Significant Transaction did not occur during the four-Fiscal Quarter period ending on the last day of such Fiscal Quarter or Fiscal Year, as the case may be, the EBITDA of the Guarantor for such four-Fiscal Quarter period and the Valuation of the Guarantor as of the last day of such four-Fiscal Quarter period;
provided
,
however
, that the Guarantor shall not be required to furnish to the Permitted Holder a Quarterly EBITDA and Valuation Certificate under this subclause (A) if (x) the Guarantor is filing or furnishing reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, and (y)(1) if the Transaction Date of a Significant Transaction has occurred during the four-Fiscal Quarter period ending on the last day of the applicable Fiscal Quarter or Fiscal Year, the Pro Forma EBITDA of the Guarantor for such four-Fiscal Quarter period and the Pro Forma Valuation of the Guarantor as of the last day of such four-Fiscal Quarter period is readily ascertainable from such reports or (2) if the Transaction Date of a Significant Transaction did not occur during the four-Fiscal Quarter period ending on the last day of the applicable Fiscal Quarter or Fiscal Year, the EBITDA of the Guarantor for such four-Fiscal Quarter period and Valuation of the Guarantor as of the last day of such four-Fiscal Quarter period is readily ascertainable from such reports;
(B)
no later than ninety (90) days after the last day of each of the Guarantor’s Fiscal Years, a Compliance Certificate executed by an Authorized Officer of the Guarantor for such Fiscal Year; and
(C)
no later than thirty (30) days after the consummation by a Transferor of a Disposition Transaction of the type described in
clause (ii)
or
clause (iii)
of
Section 7(b)
, a Post-Transaction Certificate setting forth the Post-Transaction Pro Forma EBITDA of the Guarantor with respect to such Disposition Transaction executed and delivered by an Authorized Officer of the Guarantor.
(b)
Negative Covenant
. The Guarantor shall not, and shall cause each of its
Subsidiaries and Controlled Affiliates (the Guarantor, its Subsidiaries, and Controlled Affiliates each, a “
Transferor
”) to not, sell, assign, transfer, license, lease or otherwise dispose of (each, a “
Transfer
”) any property and/or other assets and/or enter into any transaction or obligation, whether constituting or by way of merger, consolidation, sale of assets or other disposition, reorganization, recapitalization, dividend, other distribution, or otherwise, or any related series of the foregoing (any such Transfer other than Ordinary Dividends, Bona Fide Compensation Transactions and other Transfers in the ordinary course of business, a “
Disposition Transaction
”), if the Transferor (taken together with all of its direct and indirect wholly owned Subsidiaries) would (1) receive (directly or indirectly) less than a reasonably equivalent value in such Disposition Transaction, (2) become or be rendered Insolvent as a result of such Transfer and/or such Disposition Transaction, or (3) be engaged in business and/or transactions, and/or would be about to engage in business and/or transactions, for which the Transferor’s (taken together with all of its direct and indirect wholly owned Subsidiaries) remaining property and other assets would be unreasonably small capital;
provided
,
however
, that notwithstanding the foregoing, a Transferor:
(i)
That is a direct or indirect wholly-owned Subsidiary of the Guarantor may make a Transfer to or engage in a Disposition Transaction exclusively with the Guarantor or any other direct or indirect wholly-owned Subsidiary of the Guarantor;
provided
further
, that if such Transferor is Grace or any of Grace’s Subsidiaries or Controlled Affiliates, such Disposition Transaction shall be permitted under this
clause (i)
only if it is also permitted under Section 6(b) of the Deferred Payment Agreement (PI);
(ii)
may engage in a Disposition Transaction whereby such Transferor (A) pays or makes (directly or indirectly) dividends or distributions (whether in cash, securities or other property) with respect to any of its Capital Stock (including by way of a spin-off or spinout of any of its assets), or (B) repurchases its Capital Stock, provided that, in the case of any Disposition Transaction under
subclause (A)
or
(B)
above, all of the following conditions are satisfied:
(1)
no Event of Default has occurred and is continuing at the time of, or would result from, such Disposition Transaction;
(2)
as of the Transaction Date of such Disposition Transaction, (x) the Post-Transaction Pro Forma Valuation of the Guarantor shall equal or exceed the Threshold Amount or (y) the “Post-Transaction Pro Forma Valuation” (as defined in the Deferred Payment Agreement (PI)) of Grace shall equal or exceed the Threshold Amount; and
(3)
if such Disposition Transaction exceeds $15,000,000 and is not
publicly disclosed at least 10 days prior to the consummation of such Disposition Transaction, then the Guarantor shall provide the Permitted Holder with, at least 10 days’ prior to the consummation of such Disposition Transaction, a written notice describing in reasonable detail the material terms of such Disposition Transaction and setting forth the Post-Transaction Pro Forma Valuation of the Guarantor as of the Transaction Date of such Disposition Transaction; and
(iii)
other than as set forth in
Section 7(b)(ii)
above, shall not enter into any
Disposition Transaction with a Related Party to the Transferor in which the aggregate value of the assets or other property Transferred in such Disposition Transaction to such Related Party exceeds $15,000,000 if the Transferor (taken together with all of its direct and indirect wholly owned Subsidiaries) would (1) receive (directly or indirectly) less than a reasonably equivalent value in such Disposition Transaction, as determined by a reputable investment bank or valuation firm jointly selected by the Guarantor and the Permitted Holder, (2) become or be rendered Insolvent as a result of such Transfer and/or such Disposition Transaction or (3) be engaged in business and/or transactions, and/or would be about to engage in business and/or transactions, for which the Transferor’s (taken together with all of its direct and indirect wholly owned Subsidiaries) remaining property and other assets would be unreasonably small capital;
provided
, that if the aggregate value of the assets or other property Transferred to such Related Party in such Disposition Transaction exceeds $15,000,000 and the existence of such Disposition Transaction is not publicly disclosed at least 10 days prior to the consummation of such Disposition Transaction, then the Guarantor shall provide the Permitted Holder with, at least 10 days’ prior to the consummation of such Disposition Transaction, a written notice describing in reasonable detail the material terms of such Disposition Transaction and setting forth the Post-Transaction Pro Forma Valuation of the Guarantor as of the Transaction Date of such Disposition Transaction;
provided
further
that if the Guarantor is not the surviving or succeeding Entity as a result of any Disposition Transaction (but in the case of a sale of assets, only if such sale involves a sale of all or substantially all of the assets of the Guarantor) otherwise permitted by the exceptions to this
Section 7(b)
, such Disposition Transaction shall be permitted under this
Section 7(b)
only if the Guarantor shall comply with the requirements of
Section 16(e)
.
8.
Subordination Terms
.
Any and all obligations of the Guarantor in respect of the Guaranteed Obligations (PI) shall be subordinated and otherwise junior at all times in right of payment and in all other respects, in the manner and to the extent set forth herein, to any and all present and future obligations of the Guarantor in respect of any Guarantor Senior Indebtedness.
(a)
Blockage of Payments for Guaranteed Obligations (PI)
.
(i)
If any payment default occurs and is continuing beyond any applicable grace period pursuant to the terms and conditions of any Guarantor Senior Indebtedness (a “
Guarantor Senior Payment Default
”), then subject to
Section 8(g)
, no payment or distribution of cash, securities or any other assets shall be made by the Guarantor with respect to the Guaranteed Obligations (PI) or this Guarantee (PI) for as long as such Guarantor Senior Payment Default is continuing.
(ii)
If any default other than a Guarantor Senior Payment Default occurs pursuant to the terms and conditions of any Designated Guarantor Senior Indebtedness that would allow the holders thereof to accelerate the maturity thereof (a “
Guarantor Senior Non-Payment Default
”), then subject to
Section 8(g)
, no payment or distribution of cash, securities or any other assets shall be made by the Guarantor with respect to any Guaranteed Obligations (PI) or pursuant to this Guarantee (PI) during the period (the “
Guarantee Payment Blockage Period
”) (x) beginning on the date that the Permitted Holder receives from the Entity entitled to give notice under any document evidencing such Designated Guarantor Senior Indebtedness (or from the Guarantor acting at the direction or request of such Entity) a written notice (a “
Guarantee Payment Blockage Notice
”) that such a Guarantor Senior Non-Payment Default has occurred and is continuing and (y) ending on the earliest to occur of (1) 180 days from the date the Permitted Holder shall have received the Guarantee Payment Blockage Notice, (2) the date such Guarantor Senior Non-Payment Default shall have been cured or waived or shall have ceased to exist and (3) the date such Guarantee Payment Blockage Period shall have been terminated by written notice to the Permitted Holder from the Entity initiating such Guarantee Payment Blockage Period.
(iii)
Notwithstanding the foregoing, (A) in no event will a Guarantee
Payment Blockage Period extend beyond 180 days from the date the Guarantee Payment Blockage Notice in respect thereof was received by the Permitted Holder, (B) there shall be a period of at least 180 consecutive days in each period of 360 consecutive days when no Guarantee Payment Blockage Period is in effect, and (C) no Guarantor Senior Non-Payment Default that existed or was continuing on the date of delivery of any Guarantor Payment Blockage Notice (whether or not such Guarantor Senior Non-Payment Default is with respect to the same issue of Designated Guarantor Senior Indebtedness) may be, or be made, the basis for a subsequent Guarantor Payment Blockage Notice, unless such Guarantor Senior Non-Payment Default has been cured or waived for a period of not less than 90 consecutive calendar days.
(iv)
The payment of Guaranteed Obligations (PI) shall resume, and the payment of any Guaranteed Obligations (PI) not paid due to a suspension thereof pursuant to
clause (i)
or
clause (ii)
above shall be paid, together with accrued interest thereon at the Default Rate, when such suspension is no longer in effect (either due to cure or waiver of the relevant Guarantor Senior Payment Default or the expiration or termination of the Guarantee Payment Blockage Period pursuant to
clause (i)
or
clause (ii)
of this
Section 8(a)
) unless a subsequent Guarantor Payment Blockage Notice has been delivered in accordance with clause (iii) of this
Section 8(a)
and is not prohibited from being delivered by clause (iii) of this
Section 8(a)
.
(b)
Proceedings
. Upon any payment made by the Guarantor, or any distribution of cash, securities or other assets of any kind of the Guarantor (other than securities issued in substitution for the obligation to make payments in respect of the Guaranteed Obligations (PI) that are subordinated to at least the extent described herein for the obligation to make payments in respect of the Guaranteed Obligations (PI), which Securities the Permitted Holder (or any Permitted Payee, if applicable) is specifically authorized to receive notwithstanding any other provision of this
Section 8
), to creditors in any Proceeding with respect to the Guarantor or its properties, all obligations due on all Guarantor Senior Indebtedness shall first be paid in full in cash before any payment or distribution is made on account of any Guaranteed Obligations (PI) or otherwise pursuant to this Guarantee (PI).
(c)
Improper Payments Held in Trust
. Any payments or property received by the Permitted Holder or any Permitted Payee in breach of this
Section 8
shall be held by the Permitted Holder or such Permitted Payee in trust and promptly delivered in the form received to the holder of Guarantor Senior Indebtedness entitled to receive the same (any such payment or property delivered by the Permitted Holder or such Permitted Payee to any holder of Guarantor Senior Indebtedness, a “
Guarantor Turnover Payment
”). To the maximum extent permitted under applicable Law, the Guarantor agrees that any Guarantor Turnover Payment shall be treated as a payment by the Guarantor on account of such Guarantor Senior Indebtedness and shall not satisfy the Guarantor’s obligation with respect to any amount due to the Permitted Holder or such Permitted Payee under this Guarantee (PI). If, notwithstanding the preceding sentence, it is determined (by a court of competent jurisdiction) that a Guarantor Turnover Payment is a payment by the Guarantor on account of, and satisfies any obligation of the Guarantor with respect to, any amount due to the Permitted Holder or any Permitted Payee under this Guarantee (PI), then, to the extent of the amount of such Guarantor Turnover Payment, the portion of the obligation which has been determined to be paid and satisfied by such Guarantor Turnover Payment shall be reinstated and shall continue to be in full force and effect as of the time immediately preceding the initial payment thereof by the Guarantor to the Permitted Holder or such Permitted Payee. If, notwithstanding the preceding sentence, any portion of an obligation of the Guarantor in respect of such Guarantor Turnover Payment is not reinstated and continued to the extent of the amount of the relevant Guarantor Turnover Payment, then the Permitted Holder or the applicable Permitted Payee shall, upon the payment in full in cash of all Guarantor Senior Indebtedness owed to the holder thereof to whom the Permitted Holder or such Permitted Payee delivered such Guarantor Turnover Payment, be subrogated to the rights of such holder to receive payments or distributions applicable to such Guarantor Senior Indebtedness, and for the purpose of such subrogation such Guarantor Turnover Payment shall not, as between the Guarantor and the Permitted Holder or such Permitted Payee, be deemed to be payment by the Guarantor to or on account of such Guarantor Senior Indebtedness.
(d)
Remedies Blockage
. Subject in any event to the other terms and conditions of this
Section 8
(including
Section 8(a)
and
Section 8(g)
), if an Event of Default has occurred and is continuing and any Guarantor Senior Indebtedness is then outstanding, the Permitted Holder hereby agrees for itself and any assignee that it will not (1) exercise or seek to exercise any rights or remedies against Grace or the Guarantor with respect to such Event of Default or (2) institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure, contest or protest) under any Deferred Payment Document (PI) or any agreement or document relating thereto, or under such Event of Default or otherwise or (3) attempt to do any of the foregoing (collectively, the “
Remedies
”), for a period commencing on the date that such Event of Default occurs and ending on the earliest to occur of (i) 180 days after the first date on which such Event of Default shall have occurred, (ii) the commencement of a Proceeding with respect to Grace, the Guarantor or their respective properties, (iii) the date that the holder (or any agent or trustee of the holder) of any Guarantor Senior Indebtedness commences exercising any Guarantor Senior Remedies with respect to such Guarantor Senior Indebtedness (including, without limitation, the acceleration of all or any portion of such Guarantor Senior Indebtedness) and (iv) the payment in full in cash of all Guarantor Senior Indebtedness.
(e)
Notwithstanding the foregoing, as applied to the Permitted Holder, the term “Remedies” shall not include, and the Permitted Holder shall not be impaired by this
Section 8(d)
from doing, any of the following: (A) exercising rights and remedies for specific performance or injunctive relief to compel Grace or the Guarantor to comply with any nonpayment obligations under the Deferred Payment Documents (PI) (including commencing any action contemplated by
Section 16(f)
), (B) instituting or maintaining any suit or action solely to prevent the running of any applicable statute of limitations, (C) accruing interest on the Deferred Payments (PI) at the Default Rate pursuant to the Deferred Payment Agreement (PI) and (D) giving any notice (including notice of an Event of Default) to the Guarantor under the Deferred Payment Documents (PI).
(f)
No Secured Obligation
. Except for this Guarantee (PI) and the share issuance obligation with respect to the Section 524(g) Shares as and to the extent contemplated in the Share Issuance Agreement, no credit support or security interest shall be granted by Grace, the Guarantor or any of its Subsidiaries in connection with, or otherwise support or secure any obligation set forth in, the Deferred Payment Documents (PI). Notwithstanding the foregoing, the Permitted Holder may obtain to the extent permitted under applicable Law a judgment lien on the properties of Grace and/or the Guarantor to secure the payment and performance of a judgment obtained by the Permitted Holder against Grace and/or the Guarantor.
(g)
No Impairment of Right to Receive Section 524(g) Shares or Warrant Shares
. Nothing in this
Section 8
shall impair the rights of the Trust (PI) (or its permitted successor or assigns) (i) acting through the Trusts’ Representative pursuant to the Intercreditor Agreement, to deliver to the Guarantor a Demand for Issuance of the Section 524(g) Shares and to receive the Trust (PI)’s percentage of the Section 524(g) Shares pursuant to the Share Issuance Agreement or (ii) to exercise all or any portion of the Warrant and to receive the shares of Common Stock in connection therewith.
(h)
Further Assurances
. At the reasonable request of the Guarantor, the
Permitted Holder will, at the sole expense of the Guarantor, execute such agreements, documents, certificates and/or other instruments confirming the existence and extent of the subordination terms detailed in this Section.
9.
Defaults and Remedies
.
(a)
Subject in each case to
Section 8
of this Guarantee (PI), the Permitted Holder shall have the right, power and authority to do all things deemed necessary or advisable to enforce the provisions of this Guarantee (PI) and protect its rights under the Deferred Payment Agreement (PI) and, upon the occurrence and during the continuance of an Event of Default, the Permitted Holder may institute or appear in such appropriate proceedings permitted or not prohibited under this Guarantee (PI) as the Permitted Holder shall deem most effectual to protect and enforce any of its rights hereunder, whether for the specific enforcement of any covenant or agreement in this Guarantee (PI) or in aid of the exercise of any power granted herein or in the Permitted Holder, or to enforce any other proper remedy.
(b)
Each and every Event of Default or breach by the Guarantor of this Guarantee (PI) shall give rise to a separate cause of action hereunder, and separate actions may be brought hereunder as each cause of action arises. For so long as such an Event of Default or such a breach is continuing, the Permitted Holder shall have the right to proceed first and directly against the Guarantor under this Guarantee (PI) without proceeding against any other Entity (including Grace), without exhausting any other remedies which it may have and without resorting to any other security (if any) (including the Section 524(g) Shares) held by the Permitted Holder to secure the Guaranteed Obligations (PI).
10.
Setoff
. Subject to
Section 8
of this Guarantee (PI), at any time after all or
any part of the Guaranteed Obligations (PI) have become due and payable or performable, as the case may be (by acceleration or otherwise), the Permitted Holder or any Permitted Payee may, without notice to the Guarantor and regardless of the acceptance of any security or collateral (if any) for the payment thereof, and up to the unpaid amount of the Guaranteed Obligations (PI) then due, appropriate and apply toward the payment or performance, as the case may be, of all or any part of the Guaranteed Obligations (PI) then owing to the Permitted Holder or such Permitted Payee (i) any indebtedness due or to become due from the Permitted Holder or such Permitted Payee to the Guarantor, and (ii) any moneys, credits or other property belonging to the Guarantor, at any time validly held by or coming into the possession of the Permitted Holder or such Permitted Payee.
11.
Financial Information
. The Guarantor hereby acknowledges that it has
adequate means of, and assumes sole responsibility for, keeping itself informed of the financial condition of Grace including any circumstances bearing upon the risk of nonpayment or nonperformance of the Guaranteed Obligations (PI), or any part thereof, and the Guarantor hereby agrees that no Permitted Holder shall have any duty to advise the Guarantor of information known to it regarding any such circumstances. In the event the Permitted Holder in its reasonable discretion, undertakes at any time or from time to time to provide any such information to the Guarantor, the Permitted Holder shall be under no obligation (i) to undertake any investigation not a part of its regular business routine or (ii) to disclose any information which the Permitted Holder, pursuant to accepted or reasonable practices, wishes to maintain confidential.
12.
Reinstatement
. Notwithstanding any provision herein to the contrary, the Guarantor agrees that, to the extent that any Entity makes a payment or payments to the Permitted Holder on account of the Guaranteed Obligations (PI) which payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required or agreed to be repaid or returned by the Permitted Holder under any Law or in respect of any Proceeding or other litigation to which the Guarantor, the Permitted Holder or any Permitted Payee is subject, then, to the extent of the amount of such payments, the portion of the Guaranteed Obligations (PI) which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the time immediately preceding such initial payment, reduction or satisfaction.
13.
Distribution of Grace Assets in Proceeding; Subrogation
.
(a)
Upon any distribution of assets of Grace to creditors in connection with any Proceeding relating to Grace or its property (but subject to
Section 8
), (i) the Permitted Holder and each Permitted Payee shall be entitled to receive payment in full of all Guaranteed Obligations (PI) before the Guarantor shall be entitled to receive any payment of principal of or interest on or any other amounts in respect of indebtedness of Grace in favor of the Guarantor; and (ii) until payment and performance in full of all Guaranteed Obligations (PI), any distribution of assets of any kind or character to which the Guarantor would otherwise be entitled shall be paid by Grace or by any receiver, trustee in bankruptcy, liquidating trustee, agents or other Entity making such payment or distribution to, or if received by the Guarantor, shall be held for the benefit of and shall be forthwith paid or delivered to, the Permitted Holder and each Permitted Payee on a pro rata basis according to the amount of all Guaranteed Obligations (PI) owing to the Permitted Holder and each such Permitted Payee.
(b)
The Guarantor hereby agrees that it will not assert, enforce, or otherwise exercise any rights which it may acquire against Grace or any guarantor pursuant to any other guaranties by way of subrogation pursuant to this Guarantee (PI), by any payment made hereunder or otherwise, until the Guaranteed Obligations (PI) shall have been paid in full.
14.
Amendments; Waivers
.
(a)
No provision of this Guarantee (PI) may be waived, amended, supplemented or modified except by a written instrument executed by the Permitted Holder and the Guarantor.
(b)
No delay on the part of the Permitted Holder in the exercise of any right or remedy arising under this Guarantee (PI) or the Deferred Payment Agreement (PI) or otherwise with respect to all or any part of the Guaranteed Obligations (PI), any collateral (if any) or any other guarantee of or security (if any) for all or any part of the Guaranteed Obligations (PI) shall operate as a waiver thereof, and no single or partial exercise by the Permitted Holder of any such right or remedy shall preclude any further exercise thereof. Failure by the Permitted Holder at any time or times hereafter to require strict performance by Grace, the Guarantor or any other guarantor of all or any part of the Guaranteed Obligations (PI) or of any of the provisions, warranties, terms and conditions contained in the Deferred Payment Agreement (PI) shall not waive, affect or diminish any right of the Permitted Holder at any time or times hereafter to demand strict performance thereof. No waiver of any Event of Default by the Permitted Holder shall operate as a waiver of any other Event of Default or breach of this Guarantee (PI) or the same Event of Default or breach of this Guarantee (PI) on a future occasion, and no action by the Permitted Holder permitted hereunder shall in any way affect or impair the Permitted Holder’s rights and remedies or the obligations of the Guarantor under this Guarantee (PI). The remedies herein provided are cumulative and not exclusive of any remedies provided by law or in equity or any other Deferred Payment Document (PI).
15.
Effectiveness; Termination
. This Guarantee (PI) shall become effective against the Guarantor upon its execution by the Guarantor and the occurrence of the Effective Date and shall continue in full force and effect and may not be terminated or otherwise revoked until the Guaranteed Obligations (PI) shall have been paid in full.
16.
Consolidation, Successors and Assigns
.
(a)
This Guarantee (PI) shall be binding upon the Guarantor and upon the successors and permitted assigns of the Guarantor and shall inure to the benefit of the Permitted Holder. The successors and assigns of the Guarantor and Grace shall include, without limitation, their respective receivers, trustees or debtors-in-possession.
(b)
If the Permitted Holder Transfers or grants a security interest in its rights in the Deferred Payment Agreement (PI) or any Deferred Payments (PI) upon the terms and subject to the conditions set forth in the Deferred Payment Agreement (PI), the Permitted Holder shall have the right to Transfer or grant a security interest in this Guarantee (PI) to such transferee or secured party without the consent of the Guarantor;
provided
,
however
, that in no event shall any person or Entity other than the Collateral Agent have, or have the ability to bring, or be able to enforce, any claim, right or cause of action against the Guarantor or any of its Affiliates under, in connection with or as a result of such security interest.
(c)
Subject to
Section 16(d)
, the Guarantor may not Transfer its rights, interests, duties, liabilities or obligations under this Guarantee (PI) without the prior written consent of the Permitted Holder, which consent shall not be unreasonably withheld, conditioned or delayed.
(d)
Subject to
Section 16(e)
, neither
Section 16(c)
nor anything else in this Guarantee (PI) shall prohibit or restrict the ability of the Guarantor to undertake any Disposition Transaction;
provided
that, unless the Permitted Holder otherwise consents in writing, (i) such Disposition Transaction shall not violate
Section 7(b)
, (ii) no Event of Default and, no event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, exists at the time of, or would exist immediately following the consummation of such Disposition Transaction, (iii) such Disposition Transaction does not conflict with, or result in a breach of, any of the provisions of, or constitute a default under, the Governing Documents of the Guarantor or such surviving or succeeding Entity and (iv) at least ten (10) days prior to consummation of such Disposition Transaction, the Guarantor shall, subject to reasonable confidentiality arrangements between the Permitted Holder and the Guarantor, deliver to the Permitted Holder written notice of its intention to consummate such Disposition Transaction.
(e)
If the surviving or succeeding Entity as a result of any such Disposition Transaction (but in the case of a sale of assets, only if such sale involves a sale of all or substantially all of the assets of the Guarantor) is not the Guarantor, then prior to, or concurrently with, the consummation of any such Disposition Transaction, the surviving or succeeding Entity shall by written instrument substantially in the form of
Exhibit A
signed by such Entity, the Guarantor and, at its option, the Permitted Holder expressly assume the rights and obligations of the Guarantor hereunder, whereupon such Entity shall be the successor of all rights and obligations of the Guarantor hereunder, with the same effect as if it had been originally named herein (it being expressly acknowledged and agreed by the Guarantor and the Permitted Holder that such written instrument shall, and shall expressly provide that it shall, be binding upon, and inure to the benefit of, the Permitted Holder, the Guarantor and such surviving or succeeding Entity whether or not the Permitted Holder shall have executed such written instrument);
provided
,
however
, that the Guarantor shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under this Guarantee (PI).
(f)
The Guarantor shall be responsible for, and shall pay promptly upon demand all documented and direct out-of-pocket costs and expenses incurred by the Permitted Holder (including legal fees and expenses of legal counsel) in connection with (i) enforcing its rights and/or interests under this Guarantee (PI) and (ii) challenging any Disposition Transactions proposed by the Guarantor pursuant to
Section 16(d)
;
provided
,
however
, that in the case of clause (i) above, the Guarantor shall not be responsible for any such costs and expenses (including legal fees and expenses of legal counsel) unless the Permitted Holder is successful in enforcing its rights and/or interests under this Guarantee (PI) in a judicial or other proceeding, and in the case of clause (ii) above, the Guarantor shall not be responsible for any such costs and expenses (including legal fees and expenses of legal counsel) unless the Permitted Holder challenges such Disposition Transaction in a judicial or other proceeding or otherwise as being in breach of the provisions of this Guarantee (PI) or any of the Deferred Payment Documents (PI) and the Permitted Holder is successful in such challenge.
(g)
Any assignment or transfer in breach of this
Section 16
shall be null and
void and not Transfer any interest in this Guarantee (PI) to any other Entity.
17.
Governing Law; Submission to Jurisdiction; Waiver of Jury Trial
.
(a)
This Guarantee (PI) and the rights and obligations of the parties hereto
shall be construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
(b)
With respect to claims, suits, actions, proceedings, and other disputes arising out of, in respect of or relating to this Guarantee (PI) (such claims, suits, actions, proceedings, and other disputes, the “
Claims
”) each of the parties to this Guarantee (PI) hereby irrevocably submits
to the jurisdiction of the Bankruptcy Court for the District of Delaware or the United States District Court for the District of Delaware, or, if both such Courts are not permitted under applicable Law to exercise jurisdiction with respect to the matter in question then to the jurisdiction of any other federal or state court in the state, county and city of New York, New York (the “
Courts
”) and each of the parties to this Guarantee (PI) agrees that any and all Claims may be brought, heard and determined in such Courts.
(c)
Each of the parties to this Guarantee (PI) agrees that (i) venue shall be proper in the courts referenced in
Section 17(b)
and hereby waives any objection or defense which it may now or hereafter have to the laying of venue in such Courts, including any of the foregoing based upon the doctrine of
forum non conveniens
; and (ii) all process which may be or be required to be served in respect of any such Claim (including any pleading, summons or other paper initiating any such Claim or dispute) may be served upon it, which service shall be sufficient for all purposes, in the manner for the provision of notice under
Section 19
and shall be deemed in every respect effective service of process upon such party when so given.
(d)
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTEE (PI) OR ANY OF THE DEFERRED PAYMENT DOCUMENTS (PI). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTEE (PI) AND THE OTHER DEFERRED PAYMENT DOCUMENTS (PI), AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PROVISION.
18.
Advice of Counsel
. Each of the Guarantor and the Permitted Holder represent and warrant to the other that it has analyzed this Guarantee (PI) with, and has been advised as to its legal effects by, its legal counsel.
19.
Notices
. All notices required or permitted under this Guarantee (PI) must be in writing and will be deemed to be delivered and received (i) if personally delivered or if delivered by the United States Postal Service, facsimile or courier service, when actually received by the party to whom notice is sent or (ii) with respect to parties located other than within the United States, if deposited with the United States Postal Service (whether actually received or not), at the close of business on the seventh Business Day after the day when placed in the mail, postage prepaid, certified or registered with return receipt requested, addressed to the appropriate party or parties, at the address of such party or parties set forth below (or at such other address as such party may designate by written notice to all other parties in accordance with this
Section 19
):
|
|
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|
|
|
|
If to the Guarantor:
W. R. Grace & Co.
7500 Grace Drive
Columbia, MD 21044
Attn: Corporate Secretary Facsimile: (410) 531-4545
|
With copies, which shall not constitute notice, to:
|
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attn: Adam C. Paul
Facsimile: (312) 862-2200
|
|
If to the Permitted Holder:
B. Thomas Florence
Executive Director
WRG Asbestos PI Trust
C/O ARPC
1220 19
th
Street NW, Suite 700
Washington, DC 20036
Facsimile: (202) 797-3619
t.florence@arpc.com
|
With copies, which shall not constitute notice, to:
|
James C. Melville
Kaplan, Strangis and Kaplan, P.A.
5500 Wells Fargo Center
Minneapolis, MN 55402
Facsimile: (612) 375-1143
jcm@kskpa.com
and
Edward E. Steiner
Keating Muething & Klekamp PLL
One East Fourth Street, Suite 1400
Cincinnati, OH 45202
Facsimile: (513) 579-6457
esteiner@kmklaw.com
and
Marla Rosoff Eskin
Campbell & Levine, LLC
222 Delaware Avenue, Suite 1620
Wilmington, DE 19801
Facsimile: (302) 426-9947
meskin@camlev.com
and
Philip E. Milch
Campbell & Levine, LLC
1700 Grant Building
Pittsburgh, PA 15219
Facsimile: (412) 261-5066
pem@camlev.com
|
20.
Severability
. Wherever possible, each provision of this Guarantee (PI) will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Guarantee (PI) by any party hereto is held to be invalid, void, voidable, illegal or unenforceable in any respect under any applicable Law in any jurisdiction, such event will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, or the obligations of any other party to this Guarantee (PI), and this Guarantee (PI) will be reformed, construed and enforced in such jurisdiction as if such invalid, void, voidable, illegal, unenforceable or rejected provision had never been contained herein. The parties hereto further agree to use commercially reasonable efforts to replace such invalid, void, voidable, illegal, unenforceable or rejected provision of this Guarantee (PI) with a an effective, valid and enforceable provision which will achieve, to the fullest extent possible, the economic, business and other purposes of the invalid, void, voidable, illegal, unenforceable or rejected provision.
21.
Entire Agreement
. This Guarantee (PI), together with the Deferred Payment Agreement (PI), the Share Issuance Agreement, the Plan of Reorganization and the Confirmation Order, embodies the complete agreement and understanding between the parties hereto in respect of the subject matter hereof and supersedes, preempts and terminates all other prior understandings, agreements or representations by or among the parties hereto, written or oral, to the extent relating thereto.
22.
Execution in Counterparts
. This Guarantee (PI) may be executed (including by facsimile or portable document format (.pdf)) in separate counterparts, each of which will be deemed to be an original and all of which taken together will constitute one and the same agreement.
23.
Further Assurances
. At the reasonable request of the Permitted Holder, the Guarantor will, at the sole expense of the Permitted Holder, execute such agreements, documents, certificates and/or other instruments confirming the existence of this Guarantee (PI), the obligations of the Guarantor hereunder and the rights of the Permitted Holder hereunder.
24.
Specific Performance
. Each of the parties hereto acknowledges and agrees that, in the event of any breach of, or any failure to perform, any specific provision of this Guarantee (PI), the non-breaching party would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that, subject to
Section 8
, the parties hereto (a) shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to compel specific performance of any specific provision of this Guarantee (PI) or to obtain injunctive relief to prevent breaches of any specific provision of this Guarantee (PI) exclusively in the Courts, (b) shall waive, in any action for specific performance or injunctive relief, the defense of the adequacy of a remedy at law, and (c) shall waive any requirement for the securing or posting of any bond in connection with the obtaining of any such specific performance or injunctive relief. For the avoidance of doubt, the parties agree that the Permitted Holder shall be entitled to enforce specifically the terms and provisions of this Guarantee (PI) to prevent breaches of or enforce compliance with those covenants of the Guarantor set forth in
Section 7
. Any party’s pursuit of specific performance or injunctive relief at any time will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which such party may be entitled, including the right to pursue remedies for liabilities or damages incurred or suffered by such party.
25.
Other Remedies
. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law on such party, and the exercise of any one remedy shall not preclude the exercise of any other.
[Signature page follows]
IN WITNESS WHEREOF, this Guarantee (PI) has been duly executed by the Guarantor as of the day and year first set forth above.
W. R. Grace & Co.
|
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|
|
By:
|
/s/HUDSON LA FORCE, III
|
|
Name:
|
Hudson La Force, III
|
|
Title:
|
Senior Vice President and Chief Financial Officer
|
Acknowledged and agreed to
as of the _
3
rd
day of _
February
_, 20
14
.
WRG ASBESTOS PI TRUST
By:
/s/LEWIS R. SIFFORD
Name: Lewis R. Sifford
Title: Trustee
By:
/s/HARRY HUGE
Name: Harry Huge
Title: Trustee
By:
/s/DEAN M. TRAFELET
Name: Dean M. Trafelet
Title: Trustee
EXHIBIT A
FORM OF
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT
This Assumption Agreement (the “
Assumption Agreement
”) is made and entered into as of [•], by and between [W. R. Grace & Co.-Conn., a Connecticut corporation] // [W. R. Grace & Co., a Delaware corporation] (“
Grace
”), and [•], a [•] (the “
Buyer
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the [Purchase Agreement].
BACKGROUND
WHEREAS, Grace, the Buyer and [•] are party to that certain [•] (the “[
Purchase Agreement
]”), pursuant to which Grace has agreed to [•];
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”); and
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” requiring the delivery of this Assumption Agreement under the Contracts.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
[Grace hereby assigns and transfers to the Buyer all of Grace’s right, title and interest in the Contracts,
free and clear of all [Liens except for Permitted Liens)]. The Buyer hereby accepts the assignment herein and assumes from Grace and agrees to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the Contracts remain in full force and effect and that Grace will continue to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the [corporation] surviving the [Merger] is subject to and bound by the Contracts, that the Contracts are and will remain in full force and effect and that the [corporation] surviving the [Merger] shall hold all right, title and interest in the Contracts. The Buyer hereby agrees that the [corporation] surviving the [Merger] shall be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts;
provided
,
however
, that Grace shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under the Contracts.]
Each of the parties hereto covenants and agrees, at its own expense, to execute and deliver, promptly after the reasonable request of the other party hereto, such further instruments and to take such other action as such other party may reasonably request to more effectively consummate the transactions contemplated by this Assumption Agreement.
In the event of a conflict between the terms and conditions of this Assumption Agreement and the terms and conditions of the [Purchase Agreement], the terms and conditions of this Assumption Agreement shall govern, supersede and prevail.
All questions concerning the construction, validity and interpretation of this Assumption Agreement shall be governed by and construed in accordance with the domestic laws of the State of New York, without giving effect to any choice of law or conflict of law provision (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
This Assumption Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature pages delivery by electronic transmission in portable document format (.pdf)), all of which taken together shall constitute one and the same instrument. This Assumption Agreement and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or electronic transmission in portable document format (.pdf), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
This Assumption Agreement shall be binding on the parties hereto and shall inure to the benefit of the Permitted Holder (as defined in the [Contracts]) regardless of whether such Permitted Holder executes this Assumption Agreement.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Assumption Agreement as of the date first above written.
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|
|
|
|
|
ASSIGNEE
:
[•]
By:
[•]
|
SELLER
:
[W. R. GRACE & CO.-CONN.]
By:
[•]
|
|
|
[W. R. GRACE & CO.]
By:
[•]
|
|
[Acknowledged and Agreed
:
|
|
|
WRG ASBESTOS PI TRUST
By:
]
|
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
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2.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
4.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
5.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
6.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
7.
|
Share Issuance Agreement, dated as of [], by and between W. R. Grace & Co., WRG Asbestos PD Trust, and the WRG Asbestos PI Trust.
|
EXHIBIT B
FORM OF
QUARTERLY EBITDA AND VALUATION CERTIFICATE
QUARTERLY EBITDA AND VALUATION CERTIFICATE
This Quarterly EBITDA and Valuation Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation] // [W. R. Grace & Co.-Conn., a Connecticut corporation] (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section [7(a)(iv)(A)] // [6(a)(iv)(A)] of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
A Significant Transaction [has] // [has not] occurred
during the four-Fiscal Quarter period ending on [•] (the “
Measurement Period
”).
The [Pro Forma] EBITDA of Grace for the Measurement Period was [•] and the [Pro Forma] Valuation of Grace as of [•]
was [•]. Attached hereto are worksheets showing the calculation of the foregoing amounts.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
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|
GRACE
:
[W. R. GRACE & CO.]
By:
[•]
|
|
|
[W. R. GRACE & CO.-CONN.]
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
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|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
4.
|
[Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
5.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
6.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.]
|
Worksheet 1 -- EBITDA
All amounts are for the period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
[describe]
|
|
|
Total EBITDA
|
|
Worksheet 2 – Pro Forma EBITDA
All amounts are for the four Fiscal-Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Pro Forma EBITDA
|
|
Worksheet 3 -- Valuation
All amounts are as of the last day of the relevant four-Fiscal Quarter Period period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Total EBITDA (determined based on worksheet 1)
multiplied
by 7
|
|
|
|
Minus
the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date
|
[describe any exceptions from inclusion in Senior Indebtedness based on the definition thereof and the related excepted amounts]
|
|
|
Plus
the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
|
[describe any such material restrictions and the related excluded amounts]
|
|
|
Total Valuation
|
|
Worksheet 4 – Pro Forma Valuation
All amounts are as of the last day of the relevant four-Fiscal Quarter Period period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Total Pro Forma EBITDA (determined based on worksheet 2)
multiplied
by 7
|
|
|
|
Minus
the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) may not have actually been consummated during such four-Fiscal Quarter period)
|
[describe any exceptions from inclusion in Senior Indebtedness based on the definition thereof and the related excepted amounts]
[indicate the amount of Senior Indebtedness included as a result of the Significant Transaction]
|
|
|
Plus
the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction may not have actually been consummated during such four-Fiscal Quarter period), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries
|
[describe any such material restrictions and the related excluded amounts]
[indicate any amounts included as a result of the Significant Transaction]
|
|
|
Total Pro Forma Valuation
|
|
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”).
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section 7(a)(iv)(B) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
Grace has complied with the covenants set forth in
Section 7 of each Contract.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co.-Conn., a Connecticut corporation (“
Grace
”), to [•], a [•](the “
Permitted Holder
”).
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section 6(a)(iv)(B) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
Grace has complied with the covenants set forth in
Section 6 of each Contract.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.-CONN.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
2.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
EXHIBIT D
FORM OF
POST-TRANSACTION CERTIFICATE
POST-TRANSACTION CERTIFICATE
This Post-Transaction Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, Grace and [•] are party to that certain [•] (the “[
Purchase Agreement
]”);
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” under the Contracts;
WHEREAS, Section 7(a)(iv)(C) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
As of the date of the consummation of the transactions contemplated by the Purchase Agreement, the Post-Transaction Pro Forma EBITDA of Grace was [•]. Attached hereto is a worksheet showing the calculation of such Post-Transaction Pro Forma EBITDA.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
Worksheet 1 – Post-Transaction Pro Forma EBITDA
All amounts are for the four Fiscal Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Post-Transaction Pro Forma EBITDA
|
|
POST-TRANSACTION CERTIFICATE
This Post-Transaction Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co.-Conn., a Connecticut corporation (“
Grace
”), to [•], a [•](the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, Grace and [•] are party to that certain [•] (the “[
Purchase Agreement
]”);
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” under the Contracts;
WHEREAS, Section 6(a)(iv)(C) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
As of the date of the consummation of the transactions contemplated by the Purchase Agreement, the Post-Transaction Pro Forma EBITDA of Grace was [•]. Attached hereto is a worksheet showing the calculation of such Post-Transaction Pro Forma EBITDA.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.-CONN.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
2.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
Worksheet 1 – Post-Transaction Pro Forma EBITDA
All amounts are for the four Fiscal Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Post-Transaction Pro Forma EBITDA
|
|
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
|
|
|
|
|
|
|
In re:
|
)
)
|
Chapter 11
|
|
W. R. GRACE & CO.,
et al
|
)
)
|
Case No. 01-01139 (KJC)
Jointly Administered Debtors.
|
|
|
)
|
|
|
Debtors.
|
)
|
|
|
|
)
|
|
|
|
)
|
|
|
|
)
|
|
EXHIBIT 27 TO EXHIBIT BOOK
DEFERRED PAYMENT AGREEMENT (CLASS 7A PD)
EXHIBIT 27
Attached.
DEFERRED PAYMENT AGREEMENT
(CLASS 7A PD)
THIS DEFERRED PAYMENT AGREEMENT (CLASS 7A PD) (this “
Deferred Payment Agreement (PD)
”) is made and entered into as of February 3, 2014 by and between W. R. Grace & Co.-Conn., a Connecticut corporation (together with any successor thereto pursuant to the terms and conditions of
Section 16
, “
Grace
”), and the WRG Asbestos PD Trust, on behalf of the Holders of Asbestos PD Claims (in such capacity, the “
Trust (PD)
”), a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan of Reorganization (as hereinafter defined). Unless otherwise defined herein or the context otherwise requires, all capitalized terms used herein and defined in the Plan of Reorganization shall be used herein as therein defined.
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
Definitions; Rules of Interpretation
.
(a)
The following terms are defined as follows:
“
Administrative Agent
” has the meaning set forth in
Section 16(d)(iii)
.
“
Authorized Officer
” means, with respect to any Entity, the chief executive officer, president, chief financial officer, controller, executive vice president or senior vice president of such Entity.
“
Bona Fide Compensation Transaction
” means any payment, grant or award, whether in cash, securities, options or other consideration, including without limitation salary or bonus, to or for the benefit of any director, officer or employee of any Transferor or any of its Affiliates made for legitimate, bona fide compensation and/or incentivization purposes;
provided
, that compensation paid, granted or awarded to any one such individual in any Fiscal Year of Transferor whose aggregate value at the time or times of payment, grant or award is in excess of $15,000,000 shall be a Bona Fide Compensation Transaction only (i) if the relevant Transferor is then obligated to file or furnish, or is otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, it is approved by an independent committee of the Board of Directors of the Transferor (or other similar management body of the Transferor) or (ii) if the relevant Transferor is not then obligated to file or furnish, or is not otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, a reputable independent compensation expert or consultant selected by the Transferor with the consent of the “Permitted Holder”
(as defined in the Deferred Payment Agreement (PI))
(which consent shall not be unreasonably withheld, conditioned or delayed) shall have determined, in its reasonable, good faith judgment, that such payment, grant or award is reasonable and appropriate. For purposes of the proviso in the previous sentence, (A) no payment or other value received in a given year pursuant to the terms of a grant or award in a previous year shall be taken into account for calculating the compensation in such given year; and (B) in the event of multiple payments, grants or awards in a given Fiscal Year, the independent committee approval, or independent compensation expert or consultant determination, as appropriate, shall be made with respect to each payment, grant or award beginning with the payment, grant or award that causes the compensation to be in excess of $15,000,000.
“
Business Day
” means any day other than a Saturday, Sunday, or any other day on which banks are authorized or required to close in New York, New York or Columbia, Maryland.
“
Capital Stock
” means, with respect to any Entity, any share of stock, or any depositary receipt or other certificate representing any share of stock, or any similar equity ownership interest, and any warrant, option, or any other security providing for the right to acquire any such share of stock or similar equity ownership interest.
“
Claims
” has the meaning set forth in
Section 17(b)
.
“
Collateral Agent
” has the meaning set forth in
Section 16(d)(iii)
.
“
Common Stock
” has the meaning set forth in the Share Issuance Agreement.
“
Compliance Certificate
” means a certificate in the form of
Exhibit C
.
“
Control
” means, as to any Entity, the power to direct the management and policies of such Entity directly or indirectly, whether
through
the ownership of voting securities, by contract or otherwise; and the terms “Controlling” and “Controlled” have meanings correlative to the foregoing.
“
Controlled Affiliate
” means, as to any Entity (the “
Controlling Entity
”), any Affiliate that is Controlled by such Controlling Entity.
“
Courts
” has the meaning set forth in
Section 17(b)
.
“
Default Rate
” means a floating rate equal to the Prime Rate plus 2.00% per annum.
“
Deferred Payments
” means, collectively, the Deferred Payments (PI), the Deferred Payments (PD) and the Deferred Payments (ZAI).
“
Deferred Payment Agreement (PD)
” has the meaning set forth in the introductory paragraph hereof.
“
Deferred Payment Agreement (PI)
” means the Deferred Payment Agreement (PI) dated as of even date herewith between Grace and the Trust (PI).
“
Deferred Payment Agreement (ZAI)
” means the Deferred Payment Agreement (Class 7(b) ZAI) dated as of even date herewith between Grace and the Trust (ZAI) (as defined in the Deferred Payment Agreement (ZAI)).
“
Deferred Payment Date (PD)
” means, in respect of a Deferred Payment (PD), each corresponding date set forth in
Section 2(a)
.
“
Deferred Payment Documents
” means this Deferred Payment Documents (PD), the Deferred Payment Documents (PI) (as defined in the Deferred Payment Agreement (PI)) and the Deferred Payment Documents (ZAI) (as defined in the Deferred Payment Agreement (ZAI)).
“
Deferred Payment Documents (PD)
” means this Deferred Payment Agreement (PD), the Parent Guarantee (PD) and the Share Issuance Agreement.
“
Deferred Payment (PD)
” means each payment to be made on a Deferred Payment Date (PD) as set forth in
Section 2(a)
.
“
Deferred Payment (PI)
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Deferred Payment (ZAI)
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Demand for Issuance of the Section 524(g) Shares
” has the meaning set forth in the Share Issuance Agreement.
“
Designated Senior Indebtedness
” means Senior Indebtedness issued, pursuant to a facility with an aggregate principal amount, commitments and/or other financial accommodations then outstanding and/or available (disregarding for purposes of this definition whether any conditions for draws thereunder have been satisfied), as of the relevant date of determination, of at least $25,000,000.
“
Disposition Transaction
” has the meaning set forth in
Section 6(b)
.
“
Disqualified Equity Interest
” means that portion of any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof on or prior to the final Deferred Payment Date (PD).
“
Dollars
” and “
$
” means the legal currency of the United States of America.
“
EBITDA
” means, for any Entity for any period, such Entity’s and its Subsidiaries’ consolidated net income (determined in accordance with GAAP) for such period plus, without duplication, in respect of any such item of such Entity and/or any of its Subsidiaries (i) to the extent deducted in determining such consolidated net income, the sum, without duplication, of (a) interest expense, (b) provisions for any income or similar Taxes paid or accrued, (c) all amounts treated as expenses for depreciation and amortization of any kind, (d) cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents, (e) items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period, and (f) any non-cash charges minus (ii) to the extent included in determining such consolidated net income, the sum, without duplication, of (a) gross interest income received during such period and (b) items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period, all, in the cases of clauses (i) and (ii) above, as determined on a consolidated basis in accordance with GAAP.
“
Equity Interest
” means shares of capital stock or equity, equity securities or ownership interests in any Entity or any rights (including any
(x) options, warrants or other rights to purchase or acquire any such stock, equity or interests (whether or not at the time exercisable), or (y) securities by their terms convertible into or exchangeable for any such stock, equity or interests (whether or not at the time so convertible or exchangeable) or options, warrants or rights to purchase such convertible or exchangeable securities
.
“
Event of Default
” has the meaning set forth in
Section 8
.
“
Fair Market Value
” means, with respect to each share of Common Stock:
(i)
If traded on the NYSE, NASDAQ or another stock exchange, the average sale price (as of the close of business of each relevant trading date) of the Common Stock on the NYSE, NASDAQ or such other exchange for the 30 trading days immediately prior to the date for which the value is to be determined (or if no sale took place on such trading date, the average of the closing bid and ask prices of the Common Stock on such trading date);
(ii)
If traded over-the-counter other than on NASDAQ, the average of the closing bid and ask prices (as of the close of business of each relevant trading date) of the Common Stock for the 30 trading days immediately prior to the date for which the value is to be determined; and
(iii)
If there is no public market for the Common Stock, the fair market value of the Common Stock as of the day immediately prior to the date for which the value is to be determined, as determined by a reputable investment bank or valuation firm selected jointly by Parent and the Trusts’ Representative (the “
Independent Appraiser
”). Parent and the Trusts’ Representative shall instruct the Independent Appraiser to render its decision within thirty days of its acceptance of its selection. The fees and expenses of the Independent Appraiser shall be borne by Parent.
“
Fiscal Quarter
” means, in respect of any Entity, a fiscal quarter of such Entity as determined by it.
“
Fiscal Year
” means, in respect of any Entity, a fiscal year of such Entity as determined by it.
“
GAAP
” means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis;
provided
,
however
, that as of such time, if any, when any Entity begins to provide financial information generally on the basis of IFRS, then any reference to GAAP with respect to such Entity shall be given effect as a reference to IFRS.
“
Governing Documents
” means, as to any Entity, its articles or certificate of incorporation and by-laws, its partnership agreement, its certificate of formation and operating agreement and/or the organizational or governing documents of such Entity.
“
Governmental Authority
” means the government of the United States of America or any other country, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
“
Grace
” has the meaning set forth in the introductory paragraph hereof.
“
IFRS
” means the International Financial Reporting Standards as adopted by the International Accounting Standards Board and in effect from time to time, consistently applied.
“
Insolvent
” means the financial condition of the Parent Guarantor, its Subsidiaries and Grace taken as a whole such that as of the date specified, the sum of their liabilities is greater than a fair valuation of all of their property and other assets.
“
Intercreditor Agreement
” means the Intercreditor Agreement, dated as of the date hereof, among the Trusts’ Representative, the Trust (PI) and the Trust (PD).
“
Laws
” means, collectively, all applicable international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances and codes, including the binding interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof.
“
NASDAQ
” shall mean The NASDAQ Stock Market (including any of its subdivisions such as the NASDAQ Global Select Market) or any successor market thereto.
“
NYSE
” shall mean The New York Stock Exchange or any successor stock exchange thereto.
“
NY UCC
” means the Uniform Commercial Code, as enacted and in effect in the State of New York from time to time.
“
Ordinary Dividends
” means, in respect of any Entity, ordinary cash dividends declared and paid out of surplus and/or net profits (as determined in accordance with applicable law) in accordance with the dividend policy of such Entity as in effect from time to time;
provided
,
however
, that notwithstanding the foregoing, the excess, if any, of (a) the aggregate amount of dividends declared and paid by such Entity in any Fiscal Year over (b) 50% of such Entity’s and its Subsidiaries’ consolidated net income (determined in accordance with GAAP) for the immediately preceding Fiscal Year shall not constitute “Ordinary Dividends” to the extent of such excess.
“
Parent Guarantee (PD)
” means the W. R. Grace & Co. Guarantee Agreement (Class 7(a) PD) dated as of even date herewith by the Parent Guarantor in favor of the Trust (PD).
“
Parent Guarantor
” means W. R. Grace & Co., a Delaware corporation, and any successor guarantor of the obligations of Grace (or a successor Entity) arising under this Deferred Payment Agreement (PD) pursuant to the terms and conditions of the Parent Guarantee (PD).
“
Payment Blockage Notice
” has the meaning set forth in
Section 7(a)(ii)
.
“
Payment Blockage Period
” has the meaning set forth in
Section 7(a)(ii)
.
“
Permitted Holder
” means, as of any date of determination, collectively, (a)(i) if the Trust (PD) has not, as of such date, assigned any of its rights or privileges under this Deferred Payment Agreement (PD) (other than granting a security interest in its rights and privileges under this Deferred Payment Agreement (PD)), the Trust (PD) and (ii) otherwise, the Administrative Agent and (b) the Collateral Agent.
“
Permitted Payee
” means, as of any date of determination, the Permitted Holder or any permitted assignee of all or any portion of the Deferred Payments (PD) and the rights and interests therein and thereto pursuant to the terms and conditions of
Section 16
.
“
Permitted Payor
” means any Entity (other than Grace but including the Parent Guarantor) acting on behalf of, or designated by Grace.
“
Plan of Reorganization
” means that certain First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms.
“
Post-Transaction Certificate
” means a certificate in the form of
Exhibit D
.
“
Post-Transaction Pro Forma Cash Balance
” means with respect to any Entity as of any date of determination, the aggregate amount of such Entity’s and its consolidated Subsidiaries’ cash and cash equivalents as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring on or prior to such date, notwithstanding that such Significant Transaction may not have actually been consummated as of such date), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
“
Post-Transaction Pro Forma EBITDA
” means, with respect to any Entity for any four-Fiscal Quarter period and any specified Disposition Transaction, such Entity’s Pro Forma EBITDA for such four-Fiscal Quarter period, computed assuming that such Disposition Transaction, and any other Significant Transaction the Transaction Date of which occurs on or prior to the Transaction Date of such Disposition Transaction and during the same Fiscal Quarter as the Transaction Date of such Disposition Transaction, were consummated on the same terms in effect on the respective Transaction Dates at the beginning of the four-Fiscal Quarter period most recently ended prior to the Transaction Date of such Disposition Transaction, and shall include adjustments which give effect to events that are
(i) directly attributable to such Disposition Transaction and any such Significant Transactions, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable.
“
Post-Transaction Pro Forma Senior Indebtedness
” means with respect to any Entity as of any date of determination, the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) with a Transaction Date occurring on or prior to such date, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) may not have actually been consummated as of such date).
“
Post-Transaction Pro Forma Valuation
” means, with respect to any Entity as of any date of determination, the amount resulting from (a) the product of (i) such Entity’s Post-Transaction Pro Forma EBITDA for the four-Fiscal Quarter period most recently ended,
multiplied
by
(ii)
seven (7),
minus
(b) such Entity’s Post-Transaction Pro Forma Senior Indebtedness as of such date,
plus
(c) such Entity’s Post-Transaction Pro Forma Cash Balance as of such date.
“
Prime Rate
” means as of any date of determination, the
per annum
rate publicly announced on such date as the daily “U.S. prime rate” by The Wall Street Journal (National Edition) for transactions in Dollars. Any change in the Default Rate resulting from a change in the Prime Rate shall become effective on the Business Day on which each change in the Prime Rate is publicly announced by The Wall Street Journal (National Edition).
“
Proceeding
” means, with respect to any Entity, any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, or other winding up of such Entity or all or substantially all of the properties of such Entity.
“
Pro Forma Cash Balance
” means with respect to any Entity as of the last day of any four-Fiscal Quarter period, the aggregate amount of such Entity’s and its consolidated Subsidiaries’ cash and cash equivalents as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction may not have actually been consummated during such four-Fiscal Quarter period), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
“
Pro Forma EBITDA
” means, with respect to any Entity for any four Fiscal-Quarter period, such Entity’s EBITDA for such four Fiscal-Quarter period, computed assuming that any Significant Transaction the Transaction Date of which occurred during the relevant four-Fiscal Quarter period was consummated, on the terms in effect on such Transaction Date, at the beginning of such four-Fiscal Quarter period most recently ended prior to the Transaction Date of such Significant Transaction, and shall include adjustments which give effect to events that are
(i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable.
“
Pro Forma Senior Indebtedness
” means with respect to any Entity as of the last day of any four-Fiscal Quarter period, the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) may not have actually been consummated during such four-Fiscal Quarter period).
“
Pro Forma Valuation
” means, with respect to any Entity as of the last day of any four-Fiscal Quarter period, the amount resulting from (a) the product of (i) such Entity’s Pro Forma EBITDA for such four-Fiscal Quarter period,
multiplied
by
(ii)
seven (7),
minus
(b) such Entity’s Pro Forma Senior Indebtedness as of such date,
plus
(c) such Entity’s Pro Forma Cash Balance as of such date.
“
Quarterly EBITDA and Valuation Certificate
” means a certificate in the form of
Exhibit B
.
“
Regulation S-X
” means Regulation S-X promulgated by the United States Securities and Exchange Commission as in effect on the date hereof.
“
Related Party
” means in respect of an Entity (the “
Affected Entity
”): (a) any senior key employee, officer or director of the Affected Entity or, in respect of an officer or director, any person holding a similar position in an Affected Entity that is not a corporation (any such person, an “
Insider
”); (b) any spouse, child, parent or sibling of an Insider; (c) another Entity which alone or together with other Entities under its Control directly or indirectly Controls or holds ten percent (10%) or more of the Equity Interests that (i) generally entitle the holders thereof to vote for the election of the board of directors or other governing body of the Affected Entity, or (ii) confer upon the holders thereof an interest in the capital or profits of the Affected Entity; (d) any Entity Controlled by the Affected Entity or by any Insider or in which the Affected Entity or any Insider Controls or holds ten percent (10%) or more of the stock or other Equity Interests which (i) generally entitle the holders thereof to vote for the election of the board of directors or other governing body of the Affected Entity or (ii) confer upon the holders thereof an interest in the capital or profits of such Affected Entity; or (e) any Controlled Affiliate of any Entity that is a Related Person by virtue of clause (d) of this definition;
provided
,
however
,
that any direct or indirect 100% owned Subsidiary of Grace shall not constitute a “Related Party” for purposes of this Deferred Payment Agreement (PD).
“
Section 524(g) Shares
” has the meaning set forth in the Share Issuance Agreement.
“
Senior Indebtedness
” means any and all present and/or future, direct and/or indirect, indebtedness, liabilities and other obligations of Grace and/or the Parent Guarantor owed to any Entity (whether as senior or subordinated indebtedness, as a first lien, second lien, any other position or priority, and any mezzanine, subordinated or other indebtedness), including any principal, interest and premiums, fees, investment points, reimbursement obligations, issuance discounts and/or other costs, indemnities, liabilities and/or expenses thereon or in connection therewith (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable Law), in each case, under or with respect to (i) any credit or loan facilities (whether provided by one or more banks, insurance companies, financial institutions, private equity or hedge funds, lenders, and/or other Entities) and/or (ii) any debt, bonds, debentures, notes, repurchase, discount, securitization, factoring and/or other similar facilities providing for indebtedness, including any and all obligations of any nature in respect of loans, credit agreements, indentures, and bonds, together with obligations in respect of hedging arrangements (whether in respect of interest rates, currencies, commodities, equities, indebtedness and/or otherwise), in each case, entered into with banks, insurance companies, financial institutions, private equity or hedge funds, lenders and/or other Entities who are engaged in the business of providing financing (but not customers of or suppliers to Grace and/or the Parent Guarantor to the extent constituting trade payables), notes, letters of credit, and synthetic letters of credit in connection therewith, and/or (iii) any reimbursement, payment, indemnities, fees, guarantees or other obligations in connection with any credit or loan facilities or indebtedness, liabilities and other obligations referenced in clauses (i) or (ii);
except
in each case, for indebtedness of Grace and/or the Parent Guarantor (A) that by its express terms is not Senior Indebtedness for purposes of this Deferred Payment Agreement (PD) and the Parent Guarantee (PD) and is to be treated as
pari passu
or junior and subordinated with respect thereto in accordance with its terms, (B) for the avoidance of doubt, consisting of obligations to trade creditors and other trade payables in connection with the purchase of goods, materials or services, (C) owed to, or guaranteed by Grace or the Parent Guarantor on behalf of, any director, officer or senior key employee of (1) Grace, (2) the Parent Guarantor or (3) any Subsidiary or Affiliate of Grace or the Parent Guarantor, (D) represented by Disqualified Equity Interests, (E) owed to (1) Grace, (2) the Parent Guarantor or (3) any Subsidiary or Affiliate of Grace or the Parent Guarantor and (F) resulting from the Deferred Payment Documents (PI) or the Deferred Payment Documents (ZAI).
“
Senior Non-Payment Default
” has the meaning set forth in
Section 7(a)(ii)
.
“
Senior Payment Default
” has the meaning set forth in
Section 7(a)(i)
.
“
Senior Remedies
” means, if an event of default has occurred and is continuing under the terms of any agreement or document relating to Senior Indebtedness, any of the following by the holder (or any agent or trustee of the holder) of any Senior Indebtedness: (1) exercising or seeking to exercise any rights or remedies against Grace or the Parent Guarantor with respect to such event of default or (2) instituting any action or proceeding with respect to such rights or remedies (including any action of foreclosure, contest or protest) under any agreement or document relating to Senior Indebtedness, or under such event of default or otherwise or (3) attempting to do any of the foregoing.
“
Significant Transaction
” means (a) any Disposition Transaction or (b) any transaction of the type described in Section 210.11-01(a)(1) or Section 210.11-01(a)(2) of Regulation S-X (disregarding, for purposes of clause (b) of this definition, whether the Entity entering into such transaction is at the time obligated to file or furnish, or is otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, as amended).
“
Subsidiary
” means, with respect to any Entity at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (i) the accounts of which would be consolidated with those of such Entity in such Entity’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (ii) of which more than 50% of (A) the outstanding Capital Stock having (in the absence of contingencies) ordinary voting power to elect a majority of the board of directors or other managing body of such Entity, (B) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (C) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or Controlled directly or indirectly through one or more intermediaries, by such Entity.
“
Taxes
” means any and all present or future taxes, levies, imposts, fees, assessments, levies, duties, deductions, charges,
liabilities
or withholdings (including interest, fines, penalties or additions to tax) imposed by any Governmental Authority.
“
Threshold Amount
” means, as of any date of determination, the sum of (a) $2,000,000,000
minus
(b) the aggregate amount of Deferred Payments (PD) made by Grace and any Permitted Payor under this Deferred Payment Agreement (PD) on or prior to such date
plus
(c) the aggregate amount of Deferred Payments (PD) received by the Permitted Holder or any Permitted Payee under this Deferred Payment Agreement (PD) from Grace or any relevant Permitted Payor that have subsequently been invalidated, declared to be fraudulent or preferential, set aside and/or required or agreed to be repaid or returned by the Permitted Holder or such Permitted Payee under this Deferred Payment Agreement (PD) as of such date under any Law or in respect of any Proceeding or other litigation to which Grace, the relevant Permitted Payor, the Permitted Holder or any Permitted Payee is subject
plus
, without duplication, (d) the aggregate amount of Deferred Payments (PD) received by the Permitted Holder or any Permitted Payee that the relevant Permitted Holder or such Permitted Payee has delivered to the holders of any Senior Indebtedness pursuant to
Section 7(c)
of this Deferred Payment Agreement (PD) as of such date.
“
Transaction Date
” means, with respect to any Significant Transaction, (a) the date, if any, on which final, definitive documentation providing for such Significant Transaction is executed;
provided
,
however
, that the “Transaction Date” shall no longer be deemed to have occurred with respect to any Significant Transaction if the final, definitive documentation providing for such Significant Transaction is terminated for any reason, or (b) if no such final, definitive documentation for such Significant Transaction is executed, the date on which such Significant Transaction is consummated.
“
Transfer
” has the meaning set forth in
Section 6(b)
.
“
Transferor
” has the meaning set forth in
Section 6(b)
.
“
Trust (PD)
” has the meaning set forth in the introductory paragraph hereof.
“
Trust (PI)
” means the WRG Asbestos Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan of Reorganization.
“
Trusts
” has the meaning set forth in the Share Issuance Agreement.
“
Trusts’ Representative
” has the meaning set forth in the Share Issuance Agreement.
“
Valuation
” means, with respect to any Entity as of the last day of any four-Fiscal Quarter period, the amount resulting from (a) the product of (i) such Entity’s EBITDA for such four-Fiscal Quarter period,
multiplied
by
(ii)
seven (7),
minus
(b) the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date,
plus
(c) the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
(b)
Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All references herein to Sections shall be deemed references to Sections of this Deferred Payment Agreement (PD) unless the context shall otherwise require.
(c)
Unless otherwise indicated, (i) the term “including” means “including without limitation,” except when used in the computation of time periods, and (ii) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein).
(d)
For purposes of the computation of time periods, whenever this Deferred Payment Agreement (PD) provides for an event to occur “within” a specified number of days of a preceding event, it shall mean that the latter event shall occur before the close of business on the last of the specified days, and the day on which the preceding event occurs shall not be included in the computation of days elapsed. The word “from” means “from and including”, “after” means “after and excluding”, and “to” and “until” mean “to and including”.
(e)
All terms defined in this Deferred Payment Agreement (PD) or any other Deferred Payment Documents (PD) in the singular form shall have comparable meanings when used in the plural form and vice versa.
2.
Payment of Deferred Payments (PD)
.
(a)
Subject to
Sections 2(b)
,
3(c)
,
(f)
and
(g)
and
Section 7
, Grace agrees to pay to the Permitted Holder on the first Business Day of January and the first Business Day of July of each year (each such date, a “
Deferred Payment Date (PD)
”), an amount (each such payment, a “
Deferred Payment (PD)
”) equal to the sum of:
(i)
the amount of all the Asbestos PD Claims that were Allowed against the Asbestos PD Trust during the semiannual period immediately preceding the relevant Deferred Payment Date (PD) (the “
Semiannual Accrual Period
”) (without duplication, for the avoidance of doubt, of any amounts of Asbestos PD Claims Allowed during other Semiannual Accrual Periods);
(ii)
interest accrued on each of the Asbestos PD Claims described in
Section 2(a)(i)
above from the date such Asbestos PD Claim was Allowed until the relevant Deferred Payment Date (PD), at the federal judgment rate
per annum
in effect on the date on which such Asbestos PD Claim was Allowed (as reasonably determined by Grace); and
(iii)
(without duplication of Asbestos PD Trust Expenses already paid) an amount equal to the Asbestos PD Trust Expenses accrued and paid by the Trust (PD) during the immediately preceding Semiannual Accrued Period;
provided
,
however
, that the aggregate amount of Asbestos PD Trust Expenses accrued in any fiscal year of Grace and payable hereunder shall not exceed $200,000 in any such fiscal year exclusive of any expense related to (A) Class 7B (ZAI) or the administration of the WRG Asbestos PD Trust on behalf of the Holders of US ZAI PD Claims, (B) preparation of any budget or cash flow projections for Class 7A Claims requested by Grace and/or the Parent, (C) prosecution or enforcement of any Asbestos PD Causes of Action transferred to the Asbestos PD Trust pursuant to Section 1.3(f) of the Asbestos PD Trust Agreement; (D) participation by the Class 7A Trustee including his professionals in any objection to any PD Claim, and (E) fees and expenses of the Delaware Trustee.
(b)
To the extent that the Trusts’ Representative exercises its rights on behalf of the Trust (PD) under the Share Issuance Agreement and the Section 524(g) Shares are issued and delivered to the Trust (PD) (or its permitted successors or assigns), the amount of the remaining Deferred Payments (PD) shall automatically be reduced, in the order directed by Grace, by the Fair Market Value of the portion of the Section 524(g) Shares allocated to the Trust (PD) pursuant to Section 4 of the Intercreditor Agreement (as such Section 4 of the Intercreditor Agreement, together with any defined terms used (directly or indirectly) in such Section 4 of the Intercreditor Agreement are in effect as of the date hereof, or as amended or modified from time to time with the consent (not to be unreasonably withheld) of Grace and the Parent Guarantor after the date hereof.
3.
Payments
.
(a)
All payments to be made hereunder or in respect hereof shall be made in Dollars by wire transfer of immediately available funds to the Permitted Holder in accordance with wire transfer instructions provided by the Permitted Holder in writing from time to time. Upon request by the Permitted Holder, Grace shall provide, or cause to be provided, the Federal Reserve Bank wire reference numbers and other wire information related to any payments hereunder.
(b)
Subject to
Sections 2(b)
,
3(e)
,
(f)
and
(g)
, all payments hereunder or in respect hereof shall be made in full, without any reduction, set-off or counterclaim.
(c)
Whenever any payment to be made under this Deferred Payment Agreement (PD) (including a Deferred Payment (PD) on a Deferred Payment Date (PD)) shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day.
(d)
All payments made hereunder or in respect hereof (i) during the existence of an Event of Default shall be applied,
first
to pay any fees, costs and expenses payable by Grace pursuant to
Section 16(h)
and
Section 19
,
second
, to any unpaid interest accrued on the Deferred Payments (PD) and,
third
, to the Deferred Payments (PD) in direct order of maturity, and (ii) at any other time, as directed by the Permitted Payor.
(e)
If, after giving effect to (y) any Disposition Transaction or any assignment, delegation or transfer by Grace of its rights or obligations under this Deferred Payment Agreement (PD) or (z) any election to have a Permitted Payor make any payment on behalf of Grace pursuant to
Section 4(a)
, Grace, any successor Entity to Grace or such Permitted Payor shall be required by applicable Law to withhold any Taxes from any payments of Deferred Payments (PD) or interest at the Default Rate hereunder, and if such requirement would not have been imposed by such applicable Law but for such Disposition Transaction, assignment or transfer, then (i) the sum payable on account of Deferred Payments (PD) or interest at the Default Rate shall be increased as necessary so that after making all withholdings required by applicable Law (including withholdings applicable to additional sums payable under this
Section 3(e)
) the Permitted Payee receives an amount equal to the sum it would have received on account of Deferred Payments (PD) or interest at the Default Rate had no such withholdings been made, (ii) Grace or such successor Entity, shall, or shall cause such Permitted Payor to, make such withholdings; and (iii) Grace or such successor Entity shall, or shall cause such Permitted Payor to, timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Law. This
Section 3(e)
shall survive the termination of this Deferred Payment Agreement (PD) pursuant to
Section 11
.
(f)
If, after giving effect to any permitted assignment or Transfer by the Permitted Holder of its rights or obligations under this Deferred Payment Agreement (PD), Grace or a Permitted Payor shall be required by applicable Law to withhold any Taxes from any payments of Deferred Payments (PD) or interest at the Default Rate hereunder, and if such requirement would not have been imposed by such applicable Law but for such assignment or Transfer, then the obligation of Grace or the Permitted Payor to make the relevant payment of a Deferred Payment (PD) or interest at the Default Rate hereunder shall be discharged by making such payment net of such Taxes. This
Section 3(f)
shall survive the termination of this Deferred Payment Agreement (PD) pursuant to
Section 11
.
(g)
If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case adopted after the date hereof, Grace or a Permitted Payor shall be required to withhold any Taxes from any payments of Deferred Payments (PD) or interest at the Default Rate hereunder, then the obligation of Grace or the Permitted Payor to make the relevant payment of a Deferred Payment (PD) or interest at the Default Rate hereunder shall be discharged by making such payment net of such Taxes. This
Section 3(g)
shall survive the termination of this Deferred Payment Agreement (PD) pursuant to
Section 11
.
4.
Permitted Payor; Prepayments
.
(a)
The obligation of Grace to make all or any portion of any Deferred Payment (PD) may be satisfied by direct payment of such amounts by a Permitted Payor.
(b)
To the extent any Deferred Payment (PD) is timely paid by a Permitted Payor, and except as set forth in
Section 4(d)
, the obligation of Grace in respect of the amounts paid shall be deemed satisfied in full, Grace shall have no further obligation in connection therewith and Grace shall not be considered in default in respect of such amounts so paid.
(c)
Any Permitted Payor and Grace may at any time and from time to time prepay any Deferred Payment (PD) in whole or in part without penalty, premium or discount. Any such prepayment(s) shall be applied to the Deferred Payments (PD) as directed by Grace.
(d)
To the extent that any Entity makes a payment to the Permitted Holder or any Permitted Payee on account of this Deferred Payment Agreement (PD) that (in whole or in part) is subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required or agreed to be repaid or returned by the Permitted Holder or such Permitted Payee under any Law or in respect of any Proceeding or other litigation to which Grace, the relevant Permitted Payor, the Permitted Holder or any Permitted Payee is subject, then, to the extent of the amount of such payment, the portion of the obligations under this Deferred Payment Agreement (PD) which has been paid, reduced or satisfied by such amount shall be reinstated and continue to be in full force and effect as of the time immediately preceding such initial payment, reduction or satisfaction.
5.
Representations and Warranties
. Grace hereby represents and warrants to the Trust (PD) that as of the Effective Date:
(a)
Grace is duly organized and validly existing under the laws of the State of Connecticut.
(b)
Grace has the corporate power and authority to execute and deliver each Deferred Payment Document (PD) to which it is a party. Each Deferred Payment Document (PD) to which Grace is a party has been duly authorized by all necessary corporate action of Grace and has been duly executed and delivered by Grace.
(c)
Each Deferred Payment Document (PD) to which Grace is a party is a legal, valid and binding obligation of Grace, enforceable against Grace in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally, by the discretion of the court in which enforcement is sought, and/or by general equitable principles (whether enforcement is sought by proceedings at law or in equity).
(d)
The execution, delivery and performance by Grace of each Deferred Payment Document (PD) to which it is party does not conflict with, result in a breach of any of the provisions of, or violate the Governing Documents of Grace.
6.
Covenants
. Grace covenants and agrees that, from the Effective Date until the earlier of (A) this Deferred Payment Agreement (PD) terminates in accordance with
Section 11
or (B) payment in full of the Deferred Payments (PI):
(a)
Affirmative Covenants
. Grace shall:
(i)
Maintenance of Existence and Qualifications
. Maintain and preserve in full force and effect its existence and all other rights, powers, franchises, licenses and qualifications necessary or desirable for its ownership or use of properties or the conduct of its business, except (A) as permitted by
Section 16
, and (B) where the failure to do so would not be reasonably likely to adversely affect Grace’s ability to make the Deferred Payments (PD) under this Deferred Payment Agreement (PD) or to perform its obligations under the Deferred Payment Documents (PD) to which it is a party.
(ii)
Notices of Event of Default, Senior Payment Default and Senior Non-Payment Default
. Furnish to the Permitted Holder (x) within five (5) Business Days after an Authorized Officer of Grace shall first learn of an Event of Default, and (y) on or before the earlier of (A) the fifteenth (15th) day after an Authorized Officer of Grace shall first learn of a Senior Payment Default or Senior Non-Payment Default and (B) the first Business Day following the date on which a Payment Blockage Notice is delivered
pursuant to
Section 7(a)(ii)
, the written statement of an Authorized Officer of Grace setting forth the material details of such Event of Default, Senior Payment Default or Senior Non-Payment Default, as the case may be, and the actions that Grace proposes to take with respect thereto.
(iii)
Financial Statements
. If (x) the financial statements of Grace are no longer consolidated with the financial statements of the Parent Guarantor and (y) Grace is not obligated to file or furnish, or is not otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, Grace shall furnish to the Permitted Holder:
(A)
Annual Financial Statements
. As soon as available but in no event later than ninety (90) days after the last day of each of Grace’s Fiscal Years, its annual consolidated financial statements audited by a nationally recognized registered independent public accounting firm allowed to practice before the Securities and Exchange Commission or any successor Governmental Authority, consisting of a consolidated balance sheet of Grace and its consolidated Subsidiaries as of the end of such year and consolidated statements of income, cash flows and stockholders equity for such year (all in reasonable detail and with all notes and supporting schedules); and
(B)
Quarterly Financial Statements
. As soon as available and in any event within forty-five (45) days after the end of each of the first three
Fiscal Quarter
s in each Fiscal Year of Grace, its consolidated balance sheet as of the end of such
Fiscal Quarter
, and consolidated statements of income and cash flows of Grace and its consolidated Subsidiaries for such
Fiscal Quarter
, all in reasonable detail and certified by an Authorized Officer of Grace to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustments and the absence of footnotes).
(iv)
Officer’s Certificates
. Grace shall furnish to the Permitted Holder:
(A)
If the financial results of Grace are no longer consolidated with the financial results of the Parent Guarantor, no later than ninety (90) days after the last day of each of Grace’s Fiscal Years and no later than forty-five (45) days after the end of each of the first three Fiscal Quarters in each Fiscal Year of Grace, a Quarterly EBITDA and Valuation Certificate executed by an Authorized Officer of Grace setting forth (I) if the Transaction Date of a Significant Transaction has occurred during the four-Fiscal Quarter period ending on the last day of such Fiscal Quarter or Fiscal Year, as the case may be, the Pro Forma EBITDA of Grace for such four-Fiscal Quarter period and the Pro Forma Valuation of Grace as of the last day of such four-Fiscal Quarter period or (II) if the Transaction Date of a Significant Transaction did not occur during the four-Fiscal Quarter period ending on the last day of such Fiscal Quarter or Fiscal Year, as the case may be, the EBITDA of Grace for such four-Fiscal Quarter period and the Valuation of Grace as of the last day of such four-Fiscal Quarter period; provided, however, that Grace shall not be required to furnish to the Permitted Holder a Quarterly EBITDA and Valuation Certificate under this subclause (A) if (x) Grace is filing or furnishing reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, and (y)(1) if the Transaction Date of a Significant Transaction has occurred during the four-Fiscal Quarter period ending on the last day of the applicable Fiscal Quarter or Fiscal Year, the Pro Forma EBITDA of Grace for such four-Fiscal Quarter period and the Pro Forma Valuation of Grace as of the last day of such four-Fiscal Quarter period is readily ascertainable from such reports or (2) if the Transaction Date of a Significant Transaction did not occur during the four-Fiscal Quarter period ending on the last day of the applicable Fiscal Quarter or Fiscal Year, the EBITDA of Grace for such four-Fiscal Quarter period and Valuation of Grace as of the last day of such four-Fiscal Quarter period is readily ascertainable from such reports;
(B)
no later than ninety (90) days after the last day of each of Grace’s Fiscal Years,
a Compliance Certificate executed by an Authorized Officer of Grace for such Fiscal Year; and
(C)
no later than thirty (30) days after the consummation by a Transferor of a Disposition Transaction of the type described in
clause (ii)
or
clause (iii)
of
Section 6(b)
, a Post-Transaction Certificate setting forth the Post-Transaction Pro Forma EBITDA of Grace with respect to such Disposition Transaction executed and delivered by an Authorized Officer of Grace.
(b)
Negative Covenant
. Grace shall not, and shall cause each of its Subsidiaries and Controlled Affiliates (each, a “
Transferor
”) to not, sell, assign, transfer, license, lease or otherwise dispose of (each, a “
Transfer
”) any property and/or other assets and/or enter into any transaction or obligation, whether constituting or by way of merger, consolidation, sale of assets or other disposition, reorganization, recapitalization, dividend, other distribution, or otherwise, or any related series of the foregoing (any such Transfer other than Ordinary Dividends, Bona Fide Compensation Transactions and other Transfers in the ordinary course of business, a “
Disposition Transaction
”), if the Transferor (taken together with all of its direct and indirect wholly owned Subsidiaries) would (1) receive (directly or indirectly) less than a reasonably equivalent value in such Disposition Transaction, (2) become or be rendered Insolvent as a result of such Transfer and/or such Disposition Transaction, or (3) be engaged in business and/or transactions, and/or would be about to engage in business and/or transactions, for which the Transferor’s (taken together with all of its direct and indirect wholly owned Subsidiaries) remaining property and other assets would be unreasonably small capital;
provided
,
however
, that notwithstanding the foregoing, a Transferor:
(i)
that is a direct or indirect wholly-owned Subsidiary of Grace may make a Transfer to or engage in a Disposition Transaction exclusively with Grace or any other direct or indirect wholly-owned Subsidiary of Grace;
(ii)
may engage in a Disposition Transaction whereby such Transferor (A) pays or makes (directly or indirectly) dividends or distributions (whether in cash, securities or other property) with respect to any of its Capital Stock (including by way of a spin-off or spin-out of any of its assets), or (B) repurchases its Capital Stock,
provided
, that in the case of any Disposition Transaction under
subclause (A)
or
(B)
above, all of the following conditions are satisfied:
(1)
no Event of Default has occurred and is continuing at the time of, or would result from, such Disposition Transaction;
(2)
as of the Transaction Date of such Disposition Transaction, the Post-Transaction Pro Forma Valuation of (x) the Parent Guarantor or (y) Grace shall equal or exceed the Threshold Amount; and
(3)
if such Disposition Transaction exceeds $15,000,000 and is not publicly disclosed at least 10 days prior to the consummation of such Disposition Transaction, then Grace shall provide the
Permitted Holder
with at least 10 days prior to the consummation of such Disposition Transaction, a written notice describing in reasonable detail the material terms of such Disposition Transaction and setting forth the Post-Transaction Pro Forma Valuation of Grace as of the Transaction Date of such Disposition Transaction; and
(iii)
other than as set forth in
Section 6(b)(ii)
above, shall not enter into any Disposition Transaction with a Related Party to the Transferor in which the aggregate value of the assets or other property Transferred in such Disposition Transaction to such Related Party exceeds $15,000,000 if
the Transferor (taken together with all of its direct and indirect wholly owned Subsidiaries) would (1) receive (directly or indirectly) less than a reasonably equivalent value in such Disposition Transaction, as determined by a reputable investment bank or valuation firm jointly selected by Grace and the “Permitted Holder”
(as defined in the Deferred Payment Agreement (PI))
,
(2) become or be rendered Insolvent as a result of such Transfer and/or such Disposition Transaction or (3) be engaged in business and/or transactions, and/or would be about to engage in business and/or transactions, for which the Transferor’s (taken together with all of its direct and indirect wholly owned Subsidiaries) remaining property and other assets would be unreasonably small capital;
provided
, that if the aggregate value of the assets or other property Transferred to such Related Party in such Disposition Transaction exceeds $15,000,000 and the existence of such Disposition Transaction is not publicly disclosed at least 10 days prior to the consummation of such Disposition Transaction, then Grace shall provide the
Permitted Holder
with at least 10 days’ prior to the consummation of such Disposition Transaction, a written notice describing in reasonable detail the material terms of such Disposition Transaction
and
setting forth the Post-Transaction Pro Forma Valuation of Grace as of the Transaction Date of such Disposition Transaction;
provided
further
that if Grace is not the surviving or succeeding Entity as a result of any Disposition Transaction (but in the case of a sale of assets, only if such sale involves a sale of all or substantially all of the assets of Grace) otherwise permitted by the exceptions to this
Section 6(b)
, such Disposition Transaction shall be permitted under this
Section 6(b)
only if Grace and the Parent Guarantor shall comply with the requirements of
Section 16(g)
.
7.
Subordination Terms
. Any and all obligations of Grace in respect of Deferred Payments (PD) and this Deferred Payment Agreement (PD) shall be subordinated and otherwise junior at all times in right of payment and in all other respects, in the manner and to the extent set forth herein, to any and all present and future obligations of Grace in respect of any Senior Indebtedness.
(a)
Blockage of Deferred Payments (PD)
.
(iv)
If any payment default occurs and is continuing beyond any applicable grace period pursuant to the terms and conditions of any Senior Indebtedness (a “
Senior Payment Default
”), then subject to
Section 7(g)
, no payment or distribution of cash, securities or any other assets shall be made by Grace with respect to any Deferred Payments (PD) or pursuant to the Deferred Payment Documents (PD) for as long as such Senior Payment Default is continuing.
(v)
If any default other than a Senior Payment Default occurs pursuant to the terms and conditions of any Designated Senior Indebtedness that would allow the holders thereof to accelerate the maturity thereof (a “
Senior Non-Payment Default
”), then subject to
Section 7(g)
, no payment or distribution of cash, securities or any other assets shall be made by Grace with respect to any Deferred Payments (PD) or pursuant to the Deferred Payment Documents (PD) during the period (the “
Payment Blockage Period
”) (x) beginning on the date that the
Permitted Holder
receives from the Entity entitled to give notice under any document evidencing such Designated Senior Indebtedness (or from Grace acting at the direction or request of such Entity) a written notice (a “
Payment Blockage Notice
”) that such a Senior Non-Payment Default has occurred and is continuing and (y) ending on the earliest to occur of (1) 180 days from the date the
Permitted Holder
shall have received the Payment Blockage Notice, (2) the date such Senior Non-Payment Default shall have been cured or waived or shall have ceased to exist and (3) the date such Payment Blockage Period shall have been terminated by written notice to
the
Permitted Holder
from the Entity initiating such Payment Blockage Period.
(vi)
Notwithstanding the foregoing, (A) in no event will a Payment Blockage Period extend beyond 180 days from the date the Payment Blockage Notice in respect thereof was received by the
Permitted Holder
, (B) there shall be a period of at least 180 consecutive days in each period of 360 consecutive days when no Payment Blockage Period is in effect, and (C) no Senior Non-Payment Default that existed or was continuing on the date of delivery of any Payment Blockage Notice (whether or not such Senior Non-Payment Default is with respect to the same issue of Designated Senior Indebtedness) may be, or be made, the basis for a subsequent Payment Blockage Notice, unless such Senior Non-Payment Default has been cured or waived for a period of not less than 90 consecutive calendar days.
(vii)
The making of Deferred Payments (PD) or other payments pursuant to this Deferred Payment Agreement (PD) shall resume, and any Deferred Payments (PD) or other payments pursuant to this Deferred Payment Agreement (PD) not paid due to a suspension thereof pursuant to
clause (i)
or
clause (ii)
of this
Section 7(a)
shall be paid, together with accrued interest thereon at the Default Rate, when such suspension is no longer in effect (either due to cure or waiver of the relevant Senior Payment Default or the expiration or termination of the Payment Blockage Period pursuant to
clause (i)
or
clause (ii)
of this
Section 7(a)
) unless a subsequent Payment Blockage Notice has been delivered in accordance with
clause (iii)
of this
Section 7(a)
and is not prohibited from being delivered by
clause (iii)
of this
Section 7(a)
.
(viii)
The failure of Grace to make any Deferred Payments (PD) or to pay any other amounts under this Deferred Payment Agreement (PD) by reason of the operation of this
Section 7(a)
shall not be construed as preventing the occurrence of an Event of Default or from characterizing any Deferred Payments (PD) as “past due” for purposes of
Section 9(c)
.
(b)
Proceedings
. Upon any payment made by Grace, or any distribution of cash, securities or other assets of any kind of Grace (other than securities issued in substitution for the obligation to make Deferred Payments (PD) that are subordinated to at least the extent described herein for Deferred Payments (PD), which Securities the Permitted Holder (or any Permitted Payee, if applicable) is specifically authorized to receive notwithstanding any other provision of this
Section 7
), to creditors in any Proceeding with respect to Grace or its properties, all obligations due on all Senior Indebtedness shall first be paid in full in cash before any payment or distribution is made on account of any Deferred Payments (PD) or otherwise pursuant to the Deferred Payment Documents (PD).
(c)
Improper Payments Held in Trust
. Any payments or property received by the Permitted Holder or any Permitted Payee in breach of this
Section 7
shall be held by the Permitted Holder or such Permitted Payee in trust and promptly delivered in the form received to the holder of Senior Indebtedness entitled to receive the same (any such payment or property delivered by the Permitted Holder or such Permitted Payee to any holder of Senior Indebtedness, a “
Turnover Payment
”). To the maximum extent permitted under applicable Law, Grace agrees that any Turnover Payment shall be treated as a payment by Grace on account of such Senior Indebtedness and shall not satisfy Grace’s obligation with respect to any amount due to the Permitted Holder or such Permitted Payee under this Deferred Payment Agreement (PD). If, notwithstanding the preceding sentence, it is determined (by a court of competent jurisdiction or otherwise) that a Turnover Payment is a payment by Grace on account of, and satisfies any obligation of Grace with respect to, any amount due to the Permitted Holder or any Permitted Payee under this Deferred Payment Agreement (PD), then, to the extent of the amount of such Turnover Payment, the portion of the obligation which has been determined to be paid and satisfied by such Turnover Payment shall be reinstated and shall continue to be in full force and effect as of the time immediately preceding the initial payment thereof by Grace to the Permitted Holder or such Permitted Payee. If, notwithstanding the preceding sentence, any portion of an obligation of Grace in respect of such Turnover Payment is not reinstated and continued to the extent of the amount of the relevant Turnover Payment, then the Permitted Holder or the applicable Permitted Payee shall, upon the payment in full in cash of all Senior Indebtedness owed to the holder thereof to whom the Permitted Holder or such Permitted Payee delivered such Turnover Payment, be subrogated to the rights of such holder to receive payments or distributions applicable to such Senior Indebtedness, and for the purpose of such subrogation such Turnover Payment shall not, as between Grace and the Permitted Holder or such Permitted Payee, be deemed to be payment by Grace to or on account of such Senior Indebtedness.
(d)
Remedies Blockage
. Subject
in any event to the other terms and conditions of this
Section 7
(including
Section 7(a)
and
Section 7(g)
), and not in abrogation thereof, if
an Event of Default has occurred and is continuing and any Senior Indebtedness is then outstanding, the Permitted Holder hereby agrees for itself and its assigns that it will not (1) exercise or seek to exercise any rights or remedies against Grace or the Parent Guarantor with respect to such Event of Default or (2) institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure, contest or protest) under any Deferred Payment Document (PD) or any agreement or document relating thereto, or under such Event of Default or otherwise or (3) attempt to do any of the foregoing (collectively, the “
Remedies
”), for a period commencing on the date that such Event of Default occurs and ending on the earliest to occur of (i) 180 days after the first date on which such Event of Default shall have occurred, (ii) the commencement of a Proceeding with respect to Grace, the Parent Guarantor or their respective properties, (iii) the date that the holder (or any agent or trustee of the holder) of any Senior Indebtedness commences exercising any Senior Remedies with respect to such Senior Indebtedness (including, without limitation, the acceleration of all or any portion of such Senior Indebtedness) and (iv) the payment in full in cash of all Senior Indebtedness.
(e)
Notwithstanding the foregoing, as applied to the Permitted Holder, the term “Remedies” shall not include, and the Permitted Holder shall not be impaired by this
Section 7(d)
from doing, any of the following: (A) exercising rights and remedies for specific performance or injunctive relief to compel Grace or the Parent Guarantor to comply with any non-payment obligations under the Deferred Payment Documents (PD) (including commencing any action contemplated by
Section 16(h)
), (B) instituting or maintaining any suit or action solely to prevent the running of any applicable statute of limitations, (C) accruing interest on the Deferred Payments (PD) at the Default Rate pursuant to
Section 9(c)
and (D) giving any notice (including notice of an Event of Default) to Grace under the Deferred Payment Documents (PD).
(f)
No Secured Obligation
. Except for the Parent Guarantee and the share issuance obligation with respect to the Section 524(g) Shares as and to the extent contemplated in the Share Issuance Agreement, no credit support or security interest shall be granted by Grace, the Parent Guarantor or any of its Subsidiaries in connection with, or otherwise support or secure any obligation set forth in, the Deferred Payment Documents (PD). Notwithstanding the foregoing, the Permitted Holder may obtain to the extent permitted under applicable Law a judgment lien on the properties of Grace and/or the Parent Guarantor to secure the payment and performance of a judgment obtained by the Permitted Holder against Grace and/or the Parent Guarantor.
(g)
No Impairment of Right to Receive Section 524(g) Shares
. Nothing in this
Section 7
shall impair the rights of the Trust (PD) (or its permitted successor or assigns) acting through the Trusts’ Representative pursuant to the Intercreditor Agreement, to deliver to the Parent Guarantor a Demand for Issuance of the Section 524(g) Shares and to receive the Trust (PD)’s percentage of the Section 524(g) Shares pursuant to the Share Issuance Agreement.
(h)
Further Assurances
. At the reasonable request of Grace or the Parent Guarantor, the Permitted Holder will, at the sole expense of Grace and the Parent Guarantor, execute such agreement, documents, certificates and/or other instruments confirming the existence and extent of the subordination terms detailed in this Section.
8.
Events of Default
. The occurrence of any of the following events shall constitute an “
Event of Default
” under this Deferred Payment Agreement (PD):
(a)
Neither Grace nor any Permitted Payor shall make (i) any Deferred Payment (PD) on any Deferred Payment Date (PD) and such failure shall continue for five (5) Business Days after the relevant Deferred Payment Date (PD) or (ii) any payment of interest at the Default Rate owing under this Deferred Payment Agreement (PD) within seven (7) Business Days after demand therefor by the Permitted Holder (or the Permitted Payee, if applicable) entitled thereto;
(b)
Grace or the Parent Guarantor (A) shall institute any proceeding or voluntary case seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts pursuant to any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Entity or for any substantial part of its property, (B) shall be generally not paying its debts as such debts become due or shall admit in writing its inability to pay its debts generally, or (C) shall make a general assignment for the benefit of creditors;
(c)
Any proceeding shall be instituted against Grace or the Parent Guarantor seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Entity or for any substantial part of its property, and either such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive days;
(d)
Grace shall breach any covenant set forth in
Section 6(a)(i)
, or the Parent Guarantor shall breach any covenant set forth in Section 7(a)(i) of the Parent Guarantee (PD), and in any such case such breach shall continue for thirty (30) days after the earlier of (A) any Authorized Officer of Grace obtains knowledge of such failure and (B) the Permitted Holder’s written notice to Grace and the Parent Guarantor of such failure;
(e)
Grace shall breach any covenant set forth in
Section 6(a)(iv)(A)
, or the Parent Guarantor shall breach any covenant set forth in Section 7(a)(iv)(A) of the Parent Guarantee (PD), and in any such case such breach shall continue for ten (10) days after the Permitted Holder’s written notice to Grace and the Parent Guarantor of such breach;
(f)
Grace shall breach any covenant set forth in
Section 6(b)
(other than any notice requirement set forth therein), or the Parent Guarantor shall breach any covenant set forth in Section 7(b) of the Parent Guarantee (PD) (other than any notice requirement set forth therein), and in any such case, as of the Transaction Date of the Disposition Transaction that resulted in such breach, the Post-Transaction Pro Forma Valuation of the Parent Guarantor shall not exceed the Threshold Amount and the Post-Transaction Pro Forma Valuation of Grace shall not exceed the Threshold Amount;
(g)
Grace or the Parent Guarantor shall assert in writing that any Deferred Payment Document (PD) or any material term thereof is not a legal, valid and binding obligation of Grace or the Parent Guarantor, as the case may be, enforceable in accordance with its terms in any material respect; or
(h)
A default occurs under the Deferred Payment Agreement (PI) or the Deferred Payment Agreement (ZAI) that causes any of the Deferred Payments due under either or both the Deferred Payment Agreement (PI) or the Deferred Payment Agreement (ZAI), respectively, to be accelerated and become due prior to its or their stated maturity.
9.
Remedies
.
(a)
Subject to
Section 7
, the Permitted Holder shall have the right, power and authority to do all things deemed necessary or advisable to enforce the provisions of, and protect its rights under, this Deferred Payment Agreement (PD) and upon the occurrence and during the continuance of an Event of Default the Permitted Holder may institute or appear in such appropriate proceedings permitted and not prohibited under this Deferred Payment Agreement (PD) as the Permitted Holder shall deem most effectual to protect and enforce any of its rights hereunder, whether for the specific enforcement of any covenant or agreement in this Deferred Payment Agreement (PD) or to enforce any other proper remedy.
(b)
Subject to
Section 7
, without limiting the foregoing, upon the occurrence and during the continuance of an Event of Default, the Permitted Holder may declare the unpaid Deferred Payments (PD), together with all other amounts payable hereunder, to be immediately due and payable, whereupon such Deferred Payments (PD) and other amounts shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind (except that in the case of an Event of Default of the type described in subsection
(b)
or
(c)
under
Section 8
, such acceleration shall occur without any action of the Permitted Holder or any other Entity).
(c)
In addition, upon the occurrence and during the continuance of an Event of Default, all Deferred Payments (PD) that are past due shall accrue interest at the Default Rate, which, subject to the terms of
Section 7
, shall be payable to the Permitted Holder on demand until such Event of Default shall have been cured or waived, or all remaining Deferred Payments (PD) shall have been paid in full.
10.
Waiver
. There shall be no implied waiver based upon any delay on the part of any party hereto in exercising any right or remedy such party may have pursuant to this Deferred Payment Agreement (PD).
11.
Termination
. Upon the earlier of (A) all of the Deferred Payments (PD) and other amounts payable hereunder having been paid in full or (B) the termination of the WRG Asbestos PD Trust in accordance with the terms of its trust agreement, any and all obligations under this Deferred Payment Agreement (PD) shall be discharged and this Deferred Payment Agreement (PD) shall terminate without any further action by the parties thereto or any other Entity (except to the extent all or any portion of any Deferred Payment (PD) or such other amount is reinstated pursuant to
Section 4(d)
or to the extent any provision hereof expressly survives the termination of this Deferred Payment Agreement (PD)). Promptly upon such termination, the Permitted Holder shall execute and deliver to Grace, at Grace’s sole cost and expense, such documents as are reasonably requested by Grace to fully document the payment, termination and discharge of all obligations hereunder.
12.
Severability
. Whenever possible, each provision of this Deferred Payment Agreement (PD) will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Deferred Payment Agreement (PD) by any party hereto is held to be invalid, void, voidable, illegal or unenforceable in any respect under any applicable Law in any jurisdiction, such event will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, or the obligations of any other party to this Deferred Payment Agreement (PD), and this Deferred Payment Agreement (PD) will be reformed, construed and enforced in such jurisdiction as if such invalid, void, voidable, illegal, unenforceable or rejected provision had never been contained herein. The parties hereto further agree to use commercially reasonable efforts to replace such invalid, void, voidable, illegal, unenforceable or rejected provision of this Deferred Payment Agreement (PD) with a an effective, valid and enforceable provision which will achieve, to the fullest extent possible, the economic, business and other purposes of the invalid, void, voidable, illegal, unenforceable or rejected provision.
13.
Complete Agreement
. This Deferred Payment Agreement (PD), together with the Parent Guarantee (PD), the Share Issuance Agreement, the Plan of Reorganization and the Confirmation Order, embodies the complete agreement and understanding between the parties hereto in respect of the subject matter hereof and supersedes, preempts and terminates all other prior understandings, agreements or representations by or among the parties hereto, written or oral, to the extent relating thereto.
14.
Counterparts
. This Deferred Payment Agreement (PD) may be executed (including by facsimile or portable document format (.pdf)) in separate counterparts, each of which will be deemed to be an original and all of which taken together will constitute one and the same agreement.
15.
No Third Party Beneficiaries
. Other than the Parent Guarantor, there are no third party beneficiaries of this Deferred Payment Agreement (PD) and nothing in this Deferred Payment Agreement (PD), express or implied, is intended to confer on any Entity other than the parties hereto and their respective successors, and assigns, any rights, remedies, obligations or liabilities.
16.
Assignment
.
(a)
This Deferred Payment Agreement (PD) shall be binding upon Grace and its successors and permitted assigns and shall inure to the benefit of the Permitted Holder and its successors and permitted assigns.
(b)
Except as expressly permitted by
Section 16(c)
and
Section 16(d)
with respect to this Deferred Payment Agreement (PD), as expressly set forth in Section 16(b) of the Parent Guarantee (PD) with respect to the Parent Guarantor or as expressly set forth in Section 12(b) of the Share Issuance Agreement, in no event shall (i) any Deferred Payment Document (PD) or any rights, interests, duties, obligations or liabilities of the Permitted Holder under the Deferred Payment Documents (PD) (including this Deferred Payment Agreement (PD)), the Plan of Reorganization or the Confirmation Order be Transferred to, or assumed by, any Entity or (ii) the Permitted Holder grant a security interest in any right or interest it has or may have under any Deferred Payment Document (PD) (including this Deferred Payment Agreement (PD), in each case, without the prior written consent of Grace and the Parent Guarantor.
(c)
Subject to compliance with
sub-clauses (d)(i)
and
(d)(ii)
below, upon the occurrence and during the continuance of an Event of Default, the Permitted Holder shall have the right to Transfer, in whole or in part, or grant a security interest in, this Deferred Payment Agreement
(PD)
or all or any of its rights, interests, duties, liabilities or obligations under this Deferred Payment Agreement
(PD)
without the prior written consent of Grace or
the
Parent Guarantor. Any such Transfer or grant, if made in compliance with this
Section
16(c)
, shall be effective notwithstanding any subsequent cure or waiver of any Event of Default.
(d)
Subject to compliance with
sub-clauses (d)(i)
through
(d)(v)
below, the Permitted Holder shall have the right, at any time and from time to time, to Transfer, in whole or in part, or grant a security interest in, this Deferred Payment Agreement
(PD)
or all or any of its rights, interests, duties, liabilities or obligations under this Deferred Payment Agreement
(PD)
:
(i)
The Trust (PD) shall provide notice of such Transfer to Grace and the Parent Guarantor in accordance with NY UCC § 9-406 or any successor provision.
(ii)
Unless expressly consented to in advance in writing by Grace and the Parent Guarantor, such Transfer or such grant of a security interest shall not adversely change the duty of, increase the burden, costs or risk imposed upon, or impair the chance of obtaining return performance of, either Grace or the Parent Guarantor under any of the
Deferred
Payment Documents (PD), as such terms are used, with respect to an assignment or other Transfer, in NY UCC § 2-210(2) or any successor provision, and any such Transfer or grant of a security interest shall not result in increased liabilities or costs for Grace and/or the Parent Guarantor (including on account of any Taxes).
(iii)
Unless expressly consented to in advance in writing by Grace and the Parent Guarantor, upon and following such Transfer or such grant of a security interest, no more than one Entity on behalf of the Trust (PD) and all Entities to whom Transfers have been made (the “
Administrative Agent
”) and one Entity on behalf of all recipients of grants of security interests (the “
Collateral Agent
”) shall have, or shall have the ability to bring, or be able to enforce, any claim, right or cause of action against Grace, the Parent Guarantor or any of their respective Affiliates (other than the Trust (PD)) under this
Deferred
Payment Agreement (PD) or any document or instrument effecting or evidencing such Transfer or grant of a security interest, regardless of whether any such claim, right, cause of action, or enforcement right arises out of a contract, statute, law, in equity, common law or otherwise.
(iv)
Any such Transfer or such grant of a security interest shall comply with all applicable Laws, including all applicable federal, state and foreign securities laws.
(v)
No such Transfer and no such grant of a security interest shall relieve the Trust (PD) of any of its duties or obligations under this Deferred Payment Agreement (PD), the other Deferred Payment Documents (PD), the Plan of Reorganization, the Confirmation Order or any agreements entered into by the Trust (PD) pursuant to the Plan of Reorganization or the Confirmation Order.
(e)
Subject to
Section 16(f)
, Grace may not Transfer its rights, interests, duties, liabilities or obligations under this Deferred Payment Agreement (PD) without the prior written consent of the “Permitted Holder” (as defined in the Deferred Payment Agreement (PI)), such consent not to be unreasonably withheld, conditioned or delayed.
(f)
Subject to
Section 16(g)
, neither
Section 16(e)
nor anything else in this Deferred Payment Agreement (PD) or any other Deferred Payment Document (PD) shall prohibit or restrict the ability of Grace to undertake any Disposition Transaction;
provided
that, unless the “Permitted Holder” (as defined in the Deferred Payment Agreement (PI)) otherwise consents in writing, (i) such Disposition Transaction shall not violate
Section 6(b)
, (ii) no Event of Default and, no event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, exists at the time of, or would exist immediately following, the consummation of such Disposition Transaction; (iii) such Disposition Transaction does not conflict with, or result in a breach of, any of the provisions of, or constitute a default under, the Governing Documents of Grace or the surviving or succeeding Entity that results from such Disposition Transaction; and (iv) at least ten (10) days prior to consummation of such Disposition Transaction, Grace shall, subject to reasonable confidentiality arrangements between the Permitted Holder and Grace, deliver to the Permitted Holder written notice of its intention to consummate such Disposition Transaction.
(g)
If the surviving or succeeding Entity as a result of any such Disposition Transaction (but in the case of a sale of assets, only if such sale involves a sale of all or substantially all of the assets of Grace) as applicable, is not Grace, then prior to, or concurrently with, the consummation of any such Disposition Transaction, (i) the surviving or succeeding Entity shall by written instrument substantially in the form of
Exhibit A
signed by such Entity, Grace and, at its option, the Permitted Holder expressly assume the rights and obligations of Grace hereunder, whereupon such Entity shall be the successor of all rights and obligations of Grace hereunder, with the same effect as if it had been originally named herein (it being expressly acknowledged and agreed by Grace and the Permitted Holder that such written instrument shall, and shall expressly provide that it shall, be binding upon, and inure to the benefit of, the Permitted Holder, Grace and such surviving or succeeding Entity whether or not the Permitted Holder shall have executed such written instrument) and (ii) the Parent Guarantor shall confirm in writing to such Entity, Grace and the Permitted Holder that the Parent Guarantee (PD) shall remain in full force and effect after giving effect to such Disposition Transaction and the assumption by the surviving or succeeding Entity of all of the rights and obligations hereunder;
provided
,
however
, that Grace shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under this Deferred Payment Agreement (PD).
(h)
Grace shall be responsible for, and shall pay promptly upon demand all, documented and direct out-of-pocket costs and expenses incurred by the Permitted Holder (including legal fees and expenses of legal counsel) in connection with any Disposition Transactions proposed by Grace pursuant to
Section 16(f)
if the Permitted Holder challenges such Disposition Transaction in a judicial or other proceeding or otherwise as being in breach of the provisions of the Deferred Payment Documents (PD) and the Permitted Holder is successful in such challenge.
(i)
Any Transfer in breach of this
Section 16
shall be null and void, and shall not Transfer any right, interest, duty, liability or obligation in or under this Deferred Payment Agreement (PD) to any other Entity.
17.
Governing Law; Submission to Jurisdiction; Waiver of Jury Trial
.
(a)
This Deferred Payment Agreement (PD) and the rights and obligations of the parties hereto shall be construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
(b)
With respect to claims, suits, actions, proceedings, and other disputes arising out of, in respect of or relating to this Deferred Payment Agreement (PD) (such claims, suits, actions, proceedings, and other disputes, the “
Claims
”) each of the parties to this Deferred Payment Agreement (PD) hereby irrevocably submits to the jurisdiction of the Bankruptcy Court for the District of Delaware or the United States District Court for the District of Delaware (the “
Courts
”), or, if both such Courts are not permitted under applicable Law to exercise jurisdiction with respect to the matter in question then to the jurisdiction of any other federal or state court in the state, county and city of New York, New York and each of the parties to this Deferred Payment Agreement (PD) agrees that any and all Claims may be brought, heard and determined in such courts.
(c)
Each of the parties to this Deferred Payment Agreement (PD) agrees that (i) venue shall be proper in the courts referenced in
Section 17(b)
and hereby waives any objection or defense which it may now or hereafter have to the laying of venue in such courts, including any of the foregoing based upon the doctrine of
forum non conveniens
; and (ii) all process which may be or be required to be served in respect of any such Claim (including any pleading, summons or other paper initiating any such Claim) may be served upon it, which service shall be sufficient for all purposes, in the manner for the provision of notice under this Deferred Payment Agreement (PD) and shall be deemed in every respect effective service of process upon such party when so given.
(d)
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS DEFERRED PAYMENT AGREEMENT (PD) OR ANY OF THE DEFERRED PAYMENT DOCUMENTS (PD). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS DEFERRED PAYMENT AGREEMENT (PD) AND THE OTHER DEFERRED PAYMENT DOCUMENTS (PD), AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PROVISION.
18.
Notices
. All notices required or permitted under this Deferred Payment Agreement (PD) must be in writing and will be deemed to be delivered and received (i) if personally delivered or if delivered by the United States Postal Service, facsimile or courier service, when actually received by the party to whom notice is sent or (ii) with respect to parties located other than within the United States, if deposited with the United States Postal Service (whether actually received or not), at the close of business on the seventh Business Day after the day when placed in the mail, postage prepaid, certified or registered with return receipt requested, addressed to the appropriate party or parties, at the address of such party or parties set forth below (or at such other address as such party may designate by written notice to all other parties in accordance with this
Section 18
):
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If to Grace:
W. R. Grace & Co.-Conn.
7500 Grace Drive
Columbia, MD 21044
Attn: Corporate Secretary
Facsimile: (410) 531-4545
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With copies, which shall not constitute notice, to:
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Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attn: Adam C. Paul
Facsimile: (312) 862-2200
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If to the Parent Guarantor:
W. R. Grace & Co.
7500 Grace Drive
Columbia, MD 21044
Attn: Corporate Secretary
Facsimile: (410) 531-4545
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With copies, which shall not constitute notice, to:
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Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attn: Adam C. Paul
Facsimile: (312) 862-2200
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If to the Permitted Holder:
Richard B. Schiro, Class 7A Trustee
WRG Asbestos PD Trust
c/o Wilmington Trust
Attention: Corporate Trust Administration
1100 N. Market Street
Wilmington, DE 19890-1625
Telephone: (302) 651-8742
If to the PD FCR:
Hon. Alexander M. Sanders, Jr.
19 Water Street
Charleston, South Carolina 29401
Telephone: (843) 953-5755
Facsimile: (843) 953-7570
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With copies, which shall not constitute notice, to:
With copies, which shall not constitute notice, to:
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Richard B. Schiro
WRG Asbestos PD Trust
2706 Fairmount Street
Dallas, Texas 75201-1958
Telephone: (214) 521-5994
Facsimile: (214) 521-3838
Deborah D. Williamson
Cox Smith Matthews Incorporated
112 E. Pecan Street, Suite 1800
San Antonio, Texas 78205
Telephone: (210) 554-5275
Facsimile: (210 226-8395
Alan B. Rich
Attorney and Counselor
1201 Elm Street, Suite 4244
Dallas, Texas 75270
Telephone: (214) 744-5100
Facsimile: (214) 744-5101
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19.
Costs and Expenses
. Grace agrees to reimburse the Permitted Holder promptly upon demand for all, documented and direct out-of-pocket costs and expenses, including all attorney’s fees and expenses of legal counsel, which may be incurred by the Permitted Holder in enforcing this Deferred Payment Agreement (PD) or the Parent Guarantee (PD) or protecting the rights of the Permitted Holder hereunder or thereunder, but only to the extent that the Permitted Holder succeeds in enforcing this Deferred Payment Agreement (PD) or the Parent Guarantee (PD) or protecting the rights of the Permitted Holder hereunder or thereunder.
20.
Amendments and Waivers
. No provision of this Deferred Payment Agreement (PD) may be waived, amended, supplemented or modified except by a written instrument executed by the Parent Guarantor, Grace and the Permitted Holder.
21.
Further Assurances
. At the reasonable request of the Permitted Holder, Grace will, at the sole expense of the Permitted Holder, execute such agreements, documents, certificates and/or other instruments confirming the existence of this Agreement, the obligations of Grace hereunder and the rights of the Permitted Holder hereunder.
22.
Specific Performance
. Each of the parties hereto acknowledges and agrees that, in the event of any breach of, or any failure to perform, any specific provision of this Deferred Payment Agreement (PD), the non-breaching party would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that, subject to
Section 7
, the parties hereto (a) shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to compel specific performance of any specific provision of this Deferred Payment Agreement (PD) or to obtain injunctive relief to prevent breaches of any specific provision of this Deferred Payment Agreement (PD) exclusively in the Courts, (b) shall waive, in any action for specific performance or injunctive relief, the defense of the adequacy of a remedy at law, and (c) shall waive any requirement for the securing or posting of any bond in connection with the obtaining of any such specific performance or injunctive relief. For the avoidance of doubt, the parties agree that the Permitted Holder shall be entitled to enforce specifically the terms and provisions of this Deferred Payment Agreement (PD) to prevent breaches of or enforce compliance with those covenants of Grace set forth in
Section 6
. Any party’s pursuit of specific performance or injunctive relief at any time will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which such party may be entitled, including the right to pursue remedies for liabilities or damages incurred or suffered by such party.
23.
Other Remedies
. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law on such party, and the exercise of any one remedy shall not preclude the exercise of any other.
24.
Trust (PD) Covenant
. The Trust (PD) covenants and agrees that any funds or other assets remaining in the Trust (PD) at the expiration of its existence shall be paid over in full to the Trust (PI) upon such expiration. This
Section 24
shall survive the termination of this Deferred Payment Agreement (PD).
IN WITNESS WHEREOF, the parties hereto have executed this Deferred Payment Agreement (PD) as of the date first written above.
GRACE
: W. R. GRACE & CO.-CONN.
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By:
|
/s/HUDSON LA FORCE, III
|
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Name:
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Hudson La Force, III
|
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Title:
|
Senior Vice President and Chief Financial Officer
|
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TRUST (PD)
: WRG ASBESTOS PD TRUST
By:
/s/RICHARD B. SCHIRO
Name: Richard B. Schiro
Title: Trustee
Solely for purposes of
Section 20
:
PARENT GUARANTOR
: W. R. GRACE & CO.
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By:
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/s/HUDSON LA FORCE, III
|
|
Name:
|
Hudson La Force, III
|
|
Title:
|
Senior Vice President and Chief Financial Officer
|
EXHIBIT A
FORM OF
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT
This Assumption Agreement (the “
Assumption Agreement
”) is made and entered into as of [•], by and between [W. R. Grace & Co.-Conn., a Connecticut corporation] // [W. R. Grace & Co., a Delaware corporation] (“
Grace
”), and [•], a [•] (the “
Buyer
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the [Purchase Agreement].
BACKGROUND
WHEREAS, Grace, the Buyer and [•] are party to that certain [•] (the “[
Purchase Agreement
]”), pursuant to which Grace has agreed to [•];
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”); and
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” requiring the delivery of this Assumption Agreement under the Contracts.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
[Grace hereby assigns and transfers to the Buyer all of Grace’s right, title and interest in the Contracts,
free and clear of all [Liens except for Permitted Liens)]. The Buyer hereby accepts the assignment herein and assumes from Grace and agrees to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the Contracts remain in full force and effect and that Grace will continue to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the [corporation] surviving the [Merger] is subject to and bound by the Contracts, that the Contracts are and will remain in full force and effect and that the [corporation] surviving the [Merger] shall hold all right, title and interest in the Contracts. The Buyer hereby agrees that the [corporation] surviving the [Merger] shall be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts;
provided
,
however
, that Grace shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under the Contracts.]
Each of the parties hereto covenants and agrees, at its own expense, to execute and deliver, promptly after the reasonable request of the other party hereto, such further instruments and to take such other action as such other party may reasonably request to more effectively consummate the transactions contemplated by this Assumption Agreement.
In the event of a conflict between the terms and conditions of this Assumption Agreement and the terms and conditions of the [Purchase Agreement], the terms and conditions of this Assumption Agreement shall govern, supersede and prevail.
All questions concerning the construction, validity and interpretation of this Assumption Agreement shall be governed by and construed in accordance with the domestic laws of the State of New York, without giving effect to any choice of law or conflict of law provision (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
This Assumption Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature pages delivery by electronic transmission in portable document format (.pdf)), all of which taken together shall constitute one and the same instrument. This Assumption Agreement and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or electronic transmission in portable document format (.pdf), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
This Assumption Agreement shall be binding on the parties hereto and shall inure to the benefit of the Permitted Holder (as defined in the [Contracts]) regardless of whether such Permitted Holder executes this Assumption Agreement.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Assumption Agreement as of the date first above written.
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ASSIGNEE
:
[•]
By:
[•]
|
SELLER
:
[W. R. GRACE & CO.-CONN.]
By:
[•]
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|
[W. R. GRACE & CO.]
By:
[•]
|
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[Acknowledged and Agreed
:
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WRG ASBESTOS PD TRUST
By:
[•]]
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Schedule 1
Contracts
|
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1.
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Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
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2.
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W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
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3.
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Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
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4.
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W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
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5.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
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6.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
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7.
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Share Issuance Agreement, dated as of [], by and between W. R. Grace & Co., WRG Asbestos PD Trust, and the WRG Asbestos PI Trust.
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EXHIBIT B
FORM OF
QUARTERLY EBITDA AND VALUATION CERTIFICATE
QUARTERLY EBITDA AND VALUATION CERTIFICATE
This Quarterly EBITDA and Valuation Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation] // [W. R. Grace & Co.-Conn., a Connecticut corporation] (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section [7(a)(iv)(A)] // [6(a)(iv)(A)] of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
A Significant Transaction [has] // [has not] occurred
during the four-Fiscal Quarter period ending on [•] (the “
Measurement Period
”).
The [Pro Forma] EBITDA of Grace for the Measurement Period was [•] and the [Pro Forma] Valuation of Grace as of [•]
was [•]. Attached hereto are worksheets showing the calculation of the foregoing amounts.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
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GRACE
:
[W. R. GRACE & CO.]
By:
[•]
|
|
|
[W. R. GRACE & CO.-CONN.]
By:
[•]
|
Schedule 1
Contracts
|
|
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1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
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2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
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3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
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4.
|
[Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
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5.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
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6.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.]
|
Worksheet 1 -- EBITDA
All amounts are for the period ending ____________
on a consolidated basis in accordance with GAAP
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$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
[describe]
|
|
|
Total EBITDA
|
|
Worksheet 2 – Pro Forma EBITDA
All amounts are for the four Fiscal-Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Pro Forma EBITDA
|
|
Worksheet 3 -- Valuation
All amounts are as of the last day of the relevant four-Fiscal Quarter Period period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
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$ Amount
|
Description
|
Explanations
|
|
|
Total EBITDA (determined based on worksheet 1)
multiplied
by 7
|
|
|
|
Minus
the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date
|
[describe any exceptions from inclusion in Senior Indebtedness based on the definition thereof and the related excepted amounts]
|
|
|
Plus
the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
|
[describe any such material restrictions and the related excluded amounts]
|
|
|
Total Valuation
|
|
Worksheet 4 – Pro Forma Valuation
All amounts are as of the last day of the relevant four-Fiscal Quarter Period period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Total Pro Forma EBITDA (determined based on worksheet 2)
multiplied
by 7
|
|
|
|
Minus
the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) may not have actually been consummated during such four-Fiscal Quarter period)
|
[describe any exceptions from inclusion in Senior Indebtedness based on the definition thereof and the related excepted amounts]
[indicate the amount of Senior Indebtedness included as a result of the Significant Transaction]
|
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|
Plus
the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction may not have actually been consummated during such four-Fiscal Quarter period), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries
|
[describe any such material restrictions and the related excluded amounts]
[indicate any amounts included as a result of the Significant Transaction]
|
|
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Total Pro Forma Valuation
|
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EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”).
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section 7(a)(iv)(B) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
Grace has complied with the covenants set forth in
Section 7 of each Contract.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
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|
GRACE
:
W. R. GRACE & CO.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co.-Conn., a Connecticut corporation (“
Grace
”), to [•], a [•](the “
Permitted Holder
”).
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section 6(a)(iv)(B) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
Grace has complied with the covenants set forth in
Section 6 of each Contract.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.-CONN.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
2.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
EXHIBIT D
FORM OF
POST-TRANSACTION CERTIFICATE
POST-TRANSACTION CERTIFICATE
This Post-Transaction Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, Grace and [•] are party to that certain [•] (the “[
Purchase Agreement
]”);
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” under the Contracts;
WHEREAS, Section 7(a)(iv)(C) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
As of the date of the consummation of the transactions contemplated by the Purchase Agreement, the Post-Transaction Pro Forma EBITDA of Grace was [•]. Attached hereto is a worksheet showing the calculation of such Post-Transaction Pro Forma EBITDA.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
Worksheet 1 – Post-Transaction Pro Forma EBITDA
All amounts are for the four Fiscal Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Post-Transaction Pro Forma EBITDA
|
|
POST-TRANSACTION CERTIFICATE
This Post-Transaction Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co.-Conn., a Connecticut corporation (“
Grace
”), to [•], a [•](the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, Grace and [•] are party to that certain [•] (the “[
Purchase Agreement
]”);
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” under the Contracts;
WHEREAS, Section 6(a)(iv)(C) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
As of the date of the consummation of the transactions contemplated by the Purchase Agreement, the Post-Transaction Pro Forma EBITDA of Grace was [•]. Attached hereto is a worksheet showing the calculation of such Post-Transaction Pro Forma EBITDA.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.-CONN.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
2.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
Worksheet 1 – Post-Transaction Pro Forma EBITDA
All amounts are for the four Fiscal Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Post-Transaction Pro Forma EBITDA
|
|
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
|
|
|
|
|
|
|
In re:
|
)
)
|
Chapter 11
|
|
W. R. GRACE & CO.,
et al
|
)
)
|
Case No. 01-01139 (KJC)
Jointly Administered Debtors.
|
|
|
)
|
|
|
Debtors.
|
)
|
|
|
|
)
|
|
|
|
)
|
|
|
|
)
|
|
EXHIBIT 29 TO EXHIBIT BOOK
W. R. GRACE & CO. GUARANTEE AGREEMENT (CLASS 7A PD)
EXHIBIT 29
Attached.
W. R. GRACE & CO. GUARANTEE AGREEMENT (CLASS 7A PD)
Deferred Payment Agreement (Class 7A PD)
This W. R. GRACE & CO. GUARANTEE AGREEMENT (CLASS 7(a) PD) (this “
Guarantee (PD)
”) is made and entered into as of February 3, 2014, by and between W. R. Grace & Co., a Delaware corporation (together with any successor thereto pursuant to the terms and conditions of
Section 16
, the “
Guarantor
”), and the WRG Asbestos PD Trust, on behalf of the Holders of Asbestos PD Claims (in such capacity, the “
Trust (PD)
”), a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan of Reorganization (as hereinafter defined). Unless otherwise defined herein or the context otherwise requires, capitalized terms used herein and defined in the Plan of Reorganization shall be used herein as therein defined.
This Guarantee (PD) is the “Parent Guarantee” described and defined in the Deferred Payment Agreement (PD) (as defined below) and is effective as of the Effective Date.
W
I
T
N
E
S
S
E
T
H
In consideration of the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.
Definitions; Rules of Interpretation
.
(a)
As used in this Guarantee (PD), the following terms shall have the following meanings:
“
Authorized Officer
” means, with respect to any Entity, the chief executive officer, president, chief financial officer, controller, executive vice president or senior vice president of such Entity.
“
Bona Fide Compensation Transaction
” means any payment, grant or award, whether in cash, securities, options or other consideration, including without limitation salary or bonus, to or for the benefit of any director, officer or employee of any Transferor or any of its Affiliates made for legitimate, bona fide compensation and/or incentivization purposes;
provided
that compensation paid, granted or awarded to any one such individual in any Fiscal Year of Transferor whose aggregate value at the time or times of payment, grant or award is in excess of $15,000,000 shall be a Bona Fide Compensation Transaction only (i) if the relevant Transferor is then obligated to file or furnish, or is otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, it is approved by an independent committee of the Board of Directors of the Transferor (or other similar management body of the Transferor) or (ii) if the relevant Transferor is not then obligated to file or furnish, or is not otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, a reputable independent compensation expert or consultant selected by the Transferor with the consent of the “Permitted Holder” (as defined in the Deferred Payment Agreement (PI)) (which consent shall not be unreasonably withheld, conditioned or delayed) shall have determined, in its reasonable, good faith judgment, that such payment, grant or award is reasonable and appropriate. For purposes of the proviso in the previous sentence, (A) no payment or other value received in a given year pursuant to the terms of a grant or award in a previous year shall be taken into account for calculating the compensation in such given year; and (B) in the event of multiple payments, grants or awards in a given Fiscal Year, the independent committee approval, or independent compensation expert or consultant determination, as appropriate, shall be made with respect to each payment, grant or award beginning with the payment, grant or award that causes the compensation to be in excess of $15,000,000.
“
Business Day
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Capital Stock
” means, with respect to any Entity, any share of stock, or any depositary receipt or other certificate representing any share of stock, or any similar equity ownership interest, and any warrant, option, or any other security providing for the right to acquire any such share of stock or similar equity ownership interest.
“
Claims
” has the meaning set forth in
Section 17(b)
.
“
Collateral Agent
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Compliance Certificate
” means a certificate in the form of Exhibit C.
“
Control
” means, as to any Entity, the power to direct the management and policies of such Entity directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlling” and “Controlled” have meanings correlative to the foregoing.
“
Controlled Affiliate
” means, as to any Entity (the “
Controlling Entity
”), any Affiliate that is Controlled by such Controlling Entity.
“
Default Rate
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Deferred Payment Agreement (PD)
” means that certain Deferred Payment Agreement (Class 7(a) PD), dated as of the date hereof, between Grace and the Trust (PD).
“
Deferred Payment Agreement (PI)
” means that certain Deferred Payment Agreement (PI) , dated as of the date hereof, between Grace and the Trust (PI).
“
Deferred Payment Date (PD)
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Deferred Payment Documents
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Deferred Payment Documents (PI)
” has the meaning set forth in the Deferred Payment Agreement (PD)
“
Deferred Payment Documents (PD)
” means this Guarantee (PD), the Deferred Payment Agreement (PD) and the Share Issuance Agreement.
“
Deferred Payment Documents (ZAI)
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Deferred Payment (PD)
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Deferred Payment (PI)
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Demand for Issuance of the Section 524(g) Shares
” has the meaning set forth in the Share Issuance Agreement.
“
Designated Guarantor Senior Indebtedness
” means Guarantor Senior Indebtedness issued, pursuant to a facility with an aggregate principal amount, commitments and/or other financial accommodations then outstanding and/or available (disregarding for purposes of this definition whether any conditions for draws thereunder have been satisfied), as of the relevant date of determination, of at least $25,000,000.
“
Disposition Transaction
” has the meaning set forth in
Section 7(b)
.
“
Disqualified Equity Interest
” means that portion of any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof on or prior to the final Deferred Payment Date (PD).
“
EBITDA
” means, for any Entity for any period, such Entity’s and its Subsidiaries’ consolidated net income (determined in accordance with GAAP) for such period plus, without duplication, in respect of any such item of such Entity and/or any of its Subsidiaries (i) to the extent deducted in determining such consolidated net income, the sum, without duplication, of (a) interest expense, (b) provisions for any income or similar taxes paid or accrued, (c) all amounts treated as expenses for depreciation and amortization of any kind, (d) cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents, (e) items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period, and (f) any non-cash charges minus (ii) to the extent included in determining such consolidated net income, the sum, without duplication, of (a) gross interest income received during such period and (b) items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period, all, in the cases of clauses (i) and (ii) above, as determined on a consolidated basis in accordance with GAAP.
“
Equity Interest
” means shares of Capital Stock or equity, equity securities or ownership interests in any Entity or any rights (including any (x) options, warrants or other rights to purchase or acquire any such stock, equity or interests (whether or not at the time exercisable), or (y) securities by their terms convertible into or exchangeable for any such stock, equity or interests (whether or not at the time so convertible or exchangeable) or options, warrants or rights to purchase such convertible or exchangeable securities.
“
Event of Default
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Fiscal Quarter
” means, in respect of any Entity, a fiscal quarter of such Entity as determined by it.
“
Fiscal Year
” means, in respect of any Entity, a fiscal year of such Entity as determined by it.
“
GAAP
” means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis;
provided
,
however
, that as of such time, if any, when any Entity begins to provide financial information generally on the basis of IFRS, then any reference to GAAP with respect to such Entity shall be given effect as a reference to IFRS.
“
Governing Documents
” means, as to any Entity, its articles or certificate of incorporation and by-laws, its partnership agreement, its certificate of formation and operating agreement and/or the organizational or governing documents of such Entity.
“
Governmental Authority
” means the government of the United States of America or any other country, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
“
Grace
” means W. R. Grace & Co.-Conn., a Connecticut corporation, and any successor to its obligations under the Deferred Payment Agreement (PD) pursuant to the terms and conditions of Section 16 thereof.
“
Guaranteed Obligations (PD)
” has the meaning set forth in
Section 2(a)
.
“
Guarantee Payment Blockage Notice
” has the meaning set forth in
Section 8(a)(ii)
.
“
Guarantee Payment Blockage Period
” has the meaning set forth in
Section 8(a)(ii)
.
“
Guarantor
” has the meaning set forth in the introductory paragraph hereof.
“
Guarantor Senior Indebtedness
” means any and all present and/or future, direct and/or indirect, indebtedness, liabilities and other obligations of the Guarantor owed to any Entity (whether as senior or subordinated indebtedness, as a first lien, second lien, any other position or priority, and any mezzanine, subordinated or other indebtedness) including any principal, interest and premiums, fees, investment points, reimbursement obligations, issuance discounts and/or other costs, indemnities, liabilities and/or expenses thereon or in connection therewith (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable Law), in each case, under or with respect to (i) any credit or loan facilities (whether provided by one or more banks, insurance companies, financial institutions, private equity or hedge funds, lenders, and/or other Entities) and/or (ii) any debt, bonds, debentures, notes, repurchase, discount, securitization, factoring and/or other similar facilities providing for indebtedness, including any and all obligations of any nature in respect of loans, credit agreements, indentures, and bonds, together with obligations in respect of hedging arrangements (whether in respect of interest rates, currencies, commodities, equities, indebtedness and/or otherwise), in each case, entered into with banks, insurance companies, financial institutions, private equity or hedge funds, lenders and/or other Entities who are engaged in the business of providing financing (but not customers of or suppliers to the Guarantor to the extent constituting trade payables), notes, letters of credit, and synthetic letters of credit in connection therewith, and/or (iii) any reimbursement, payment, indemnities, fees, guarantees or other obligations in connection with any credit or loan facilities or indebtedness, liabilities and other obligations referenced in
clauses (i)
or
(ii)
;
except in each case, for any indebtedness owed by the Guarantor (A) that by its express terms is not Guarantor Senior Indebtedness for purposes of the Deferred Payment Agreement (PD) and this Guarantee (PD) and is to be treated as
pari passu
or junior and subordinated with respect thereto in accordance with its terms, (B) for the avoidance of doubt, consisting of obligations to trade creditors and other trade payables in connection with the purchase of goods, materials or services, (C) owed to, or guaranteed by Grace or the Guarantor on behalf of, any director, officer or senior key employee of (1) Grace, (2) the Guarantor or (3) any Subsidiary or Affiliate of Grace or the Guarantor (D) represented by Disqualified Equity Interest, (E) owed to (1) Grace or (2) any Subsidiary or Affiliate of Grace or the Guarantor and (F) resulting from the Deferred Payment Documents (PI) or the Deferred Payment Documents (ZAI).
“
Guarantor Senior Non-Payment Default
” has the meaning set forth in
Section 8(a)(ii)
.
“
Guarantor Senior Payment Default
” has the meaning set forth in
Section 8(a)(i)
.
“
Guarantor Senior Remedies
” means, if an event of default has occurred and is continuing under the terms of any agreement or document relating to Guarantor Senior Indebtedness, any of the following by the holder (or any agent or trustee of the holder) of any Guarantor Senior Indebtedness: (1) exercising or seeking to exercise any rights or remedies against Grace or the Guarantor with respect to such event of default or (2) instituting any action or proceeding with respect to such rights or remedies (including any action of foreclosure, contest or protest) under any agreement or document relating to Guarantor Senior Indebtedness, or under such event of default or otherwise or (3) attempting to do any of the foregoing.
“
IFRS
” means the International Financial Reporting Standards as adopted by the International Accounting Standards Board and in effect from time to time, consistently applied.
“
Insolvent
” means the financial condition of the Guarantor and its Subsidiaries taken as a whole such that, as of the date specified, the sum of their liabilities is greater than a fair valuation of all of their property and assets.
“
Intercreditor Agreement
” means the Intercreditor Agreement, dated as of the date hereof, among the Trusts’ Representative, the Trust (PI) and the Trust (PD).
“
Laws
” means, collectively, all applicable international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances and codes, including the binding interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof.
“
NASDAQ
” shall mean The NASDAQ Stock Market (including any of its subdivisions such as the NASDAQ Global Select Market) or any successor market thereto.
“
NYSE
” shall mean The New York Stock Exchange or any successor stock exchange thereto.
“
Ordinary Dividends
” means, in respect of any Entity, ordinary cash dividends declared and paid out of surplus and/or net profits (as determined in accordance with applicable law) in accordance with the dividend policy of such Entity as in effect from time to time;
provided
,
however
, that notwithstanding the foregoing, the excess, if any, of (a) the aggregate amount of dividends declared and paid by such Entity in any Fiscal Year over (b) 50% of such Entity’s and its Subsidiaries’ consolidated net income (determined in accordance with GAAP) for the immediately preceding Fiscal Year shall not constitute “Ordinary Dividends” to the extent of such excess.
“
Permitted Holder
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Permitted Payee
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Permitted Payor
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Plan of Reorganization
” means that certain First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms.
“
Post-Transaction Certificate
” means a certificate in the form of Exhibit D.
“
Post-Transaction Pro Forma Cash Balance
” means with respect to any Entity as of any date of determination, the aggregate amount of such Entity’s and its consolidated Subsidiaries’ cash and cash equivalents as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring on or prior to such date, notwithstanding that such Significant Transaction may not have actually been consummated as of such date), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
“
Post-Transaction Pro Forma EBITDA
” means, with respect to any Entity for any four-Fiscal Quarter period and any specified Disposition
Transaction, such Entity’s Pro Forma EBITDA for such four-Fiscal Quarter period, computed assuming that such Disposition Transaction, and any other Significant Transaction the Transaction Date of which occurs on or prior to the Transaction Date of such Disposition Transaction and during the same Fiscal Quarter as the Transaction Date of such Disposition Transaction, were consummated on the same terms in effect on the respective Transaction Dates at the beginning of the four-Fiscal Quarter period most recently ended prior to the Transaction Date of such Disposition Transaction, and shall include adjustments which give effect to events that are (i) directly attributable to such Disposition Transaction and any such Significant Transactions, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable.
“
Post-Transaction Pro Forma Guarantor Senior Indebtedness
” means with respect to any Entity as of any date of determination, the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Guarantor Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Guarantor Senior Indebtedness) with a Transaction Date occurring on or prior to such date, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Guarantor Senior Indebtedness) may not have actually been consummated as of such date).
“
Post-Transaction Pro Forma Valuation
” means, with respect to any Entity as of any date of determination, the amount resulting from (a) the product of (i) such Entity’s Post-Transaction Pro Forma EBITDA for the four-Fiscal Quarter period most recently ended,
multiplied
by
(ii)
seven (7),
minus
(b) such Entity’s Post-Transaction Pro Forma Guarantor Senior Indebtedness as of such date,
plus
(c) such Entity’s Post-Transaction Pro Forma Cash Balance as of such date.
“
Proceeding
” means, with respect to any Entity, any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, or other winding up of such Entity or all or substantially all of the properties of such Entity.
“
Pro Forma Cash Balance
” means with respect to any Entity as of the last day of any four-Fiscal Quarter period, the aggregate amount of such Entity’s and its consolidated Subsidiaries’ cash and cash equivalents as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction may not have actually been consummated during such four-Fiscal Quarter period), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
“
Pro Forma EBITDA
” means, with respect to any Entity for any four Fiscal-Quarter period, such Entity’s EBITDA for such four Fiscal-Quarter period, computed assuming that any Significant Transaction the Transaction Date of which occurred during the relevant four-Fiscal Quarter period was consummated, on the terms in effect on such Transaction Date, at the beginning of such four-Fiscal Quarter period most recently ended prior to the Transaction Date of such Significant Transaction, and shall include adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable.
“
Pro Forma Guarantor Senior Indebtedness
” means with respect to any Entity as of the last day of any four-Fiscal Quarter period, the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Guarantor Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Guarantor Senior Indebtedness) with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Guarantor Senior Indebtedness) may not have actually been consummated during such four-Fiscal Quarter period).
“
Pro Forma Valuation
” means, with respect to any Entity as of the last day of any four-Fiscal Quarter period, the amount resulting from (a) the product of (i) such Entity’s Pro Forma EBITDA for such four-Fiscal Quarter period,
multiplied
by
(ii)
seven (7),
minus
(b) such Entity’s Pro Forma Guarantor Senior Indebtedness as of such date,
plus
(c) such Entity’s Pro Forma Cash Balance as of such date.
“
Quarterly EBITDA and Valuation Certificate
” means a certificate in the form of Exhibit B.
“
Regulation S-X
” means Regulation S-X promulgated by the United States Securities and Exchange Commission as in effect on the date hereof.
“
Related Party
” means in respect of an Entity (the “Affected Entity”): (a) any senior key employee, officer or director of the Affected Entity or, in respect of an officer or director, any person holding a similar position in an Affected Entity that is not a corporation (any such person, an “Insider”); (b) any spouse, child, parent or sibling of an Insider; (c) another Entity which alone or together with other Entities under its Control directly or indirectly Controls or holds ten percent (10%) or more of the Equity Interests that (i) generally entitle the holders thereof to vote for the election of the board of directors or other governing body of the Affected Entity, or (ii) confer upon the holders thereof an interest in the capital or profits of the Affected Entity; (d) any Entity Controlled by the Affected Entity or by any Insider or in which the Affected Entity or any Insider Controls or holds ten percent (10%) or more of the stock or other equity interests which (i) generally entitle the holders thereof to vote for the election of the board of directors or other governing body of the Affected Entity or (ii) confer upon the holders thereof an interest in the capital or profits of such Affected Entity; or (e) any Controlled Affiliate of any Entity that is a Related Person by virtue of clause (d) of this definition;
provided
,
however
,
that any direct or indirect 100% owned Subsidiary of the Guarantor shall not constitute a “Related Party” for purposes of this Guarantee (PD).
“
Section 524(g) Shares
” has the meaning set forth in the Share Issuance Agreement.
“
Significant Transaction
” means (a) any Disposition Transaction or (b) any transaction of the type described in Section 210.11-01(a)(1) or Section 210.11-01(a)(2) of Regulation S-X (disregarding, for purposes of clause (b) of this definition, whether the Entity entering into such transaction is at the time obligated to file or furnish, or is otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, as amended).
“
Subsidiary
” means, with respect to any Entity at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (i) the accounts of which would be consolidated with those of such Entity in such Entity’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (ii) of which more than 50% of (A) the outstanding Capital Stock having (in the absence of contingencies) ordinary voting power to elect a majority of the board of directors or other managing body of such Entity, (B) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (C) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or Controlled directly or indirectly through one or more intermediaries, by such Entity.
“
Taxes
” means any and all present or future taxes, levies, imposts, fees, assessments, levies, duties, deductions, charges, liabilities or withholdings (including interest, fines, penalties or additions to tax) imposed by any Governmental Authority.
“
Threshold Amount
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Transaction Date
” means, with respect to any Significant Transaction, (a) the date, if any, on which final, definitive documentation providing for such Significant Transaction is executed;
provided
,
however
, that the “Transaction Date” shall no longer be deemed to have occurred with respect to any Significant Transaction if the final, definitive documentation providing for such Significant Transaction is terminated for any reason, or (b) if no such final, definitive documentation for such Significant Transaction is executed, the date on which such Significant Transaction is consummated.
“
Transfer
” has the meaning set forth in
Section 7(b)
.
“
Transferor
” has the meaning set forth in
Section 7(b)
.
“
Trust (PD)
” has the meaning set forth in the introductory paragraph hereof.
“
Trust (PI)
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Trusts
” has the meaning set forth in the Share Issuance Agreement.
“
Trusts’ Representative
” has the meaning set forth in the Share Issuance Agreement.
“
Trust (ZAI)
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Valuation
” means, with respect to any Entity as of the last day of any four-Fiscal Quarter period, the amount resulting from (a) the product of (i) such Entity’s EBITDA for such four-Fiscal Quarter period,
multiplied
by
(ii)
seven (7),
minus
(b) the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Guarantor Senior Indebtedness as of such date,
plus
(c) the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
(b) Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All references herein to Sections shall be deemed references to Sections of this Guarantee (PD) unless the context shall otherwise require.
(c) Unless otherwise indicated, (i) the term “including” means “including without limitation”, except when used in the computation of time periods, and (ii) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein).
(d) For purposes of the computation of time periods, whenever this Guarantee (PD) provides for an event to occur “within” a specified number of days of a preceding event, it shall mean that the latter event shall occur before the close of business on the last of the specified days, and the day on which the preceding event occurs shall not be included in the computation of days elapsed. The word “from” means “from and including”, “after” means “after and excluding”, and “to” and “until” means “to and including”.
(e) All terms defined in this Guarantee (PD) in the singular form shall have comparable meanings when used in the plural form and vice versa.
2.
Guarantee (PD)
.
(a)
For value received and in consideration of the transactions set forth in the Deferred Payment Agreement (PD) and in the Plan of Reorganization, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees for the benefit of the Permitted Holder and each Permitted Payee, as a primary obligor and not merely as a surety, and pursuant to the terms and conditions of this
Guarantee (PD)
, (i) the full and prompt payment when due (whether by acceleration or otherwise) of (A) all Deferred Payments (PD) and (B) all other amounts payable under the Deferred Payment Agreement (PD) (including interest at the Default Rate) accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding and at all times thereafter, and (ii) the due performance by Grace of all of its other obligations under the Deferred Payment Agreement (PD) (the obligations described in items (i) and (ii), the “
Guaranteed Obligations (PD)
”).
(b)
The Guarantor hereby agrees that this Guarantee (PD) is an absolute, unconditional guarantee of payment and performance and is not merely a surety or guarantee of collection, and that the Guarantor and Grace are jointly and severally liable for the Guaranteed Obligations (PD), which liability is a continuing, absolute and unconditional obligation of payment or performance, as the case may be, regardless of the solvency or insolvency of Grace or the Guarantor at any time.
(c)
The obligations of the Guarantor hereunder are secured by the Guarantor’s obligation to issue and deliver to the Trusts’ Representative, for the benefit of the Trusts, the Section 524(g) Shares under the circumstances, and upon the terms and subject to the conditions, set forth in the Share Issuance Agreement.
(d)
If the acceleration of the Guaranteed Obligations (PD) is stayed in connection with any Proceeding commenced by or against Grace, all such Guaranteed Obligations (PD) shall nonetheless be payable by the Guarantor immediately upon demand by the Permitted Holder.
3.
Enforceability of Obligations
.
(a)
Subject to
Section 3(b)
, the Guarantor hereby agrees that its obligations in respect of this Guarantee (PD) shall be enforceable against the Guarantor irrespective of:
(i)
the legality, validity, enforceability, avoidance or subordination of any of the Guaranteed Obligations (PD) or the Deferred Payment Agreement (PD);
(ii)
any Law, regulation, or order of any jurisdiction, or any other event, affecting any term of the Guaranteed Obligations (PD) or the Deferred Payment Agreement (PD);
(iii)
the absence of any attempt by, or on behalf of, the Permitted Holder to collect, or to take any other action to enforce, all or any part of the
Guaranteed Obligations (PD)
whether from or against Grace or any other Entity;
(iv)
the election of any remedy available under the Deferred Payment Agreement (PD) or applicable Law or in equity by, or on behalf of, the Permitted Holder with respect to all or any part of the Guaranteed Obligations (PD);
(v)
any change in the corporate existence, structure or ownership of Grace or the Guarantor;
(vi)
any impairment of the capital of Grace or the Guarantor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting Grace, the Guarantor or their assets, or any resulting release or discharge of the Guaranteed Obligations (PD);
(vii)
any amendment, waiver, consent, extension, forbearance or granting of any indulgence by, or on behalf of, the Permitted Holder with respect to any provision of the Deferred Payment Agreement (PD), or any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Grace or the Guarantor, including any renewal or extension of the time or change of the manner or place of payment or performance, as the case may be, of the Guaranteed Obligations (PD);
(viii)
the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the claims against Grace held by the Permitted Holder for payment or performance, as the case may be, of all or any part of the Guaranteed Obligations (PD);
(ix)
the existence of any right, claim, counterclaim, or right of set-off, whether arising from or relating to the Guaranteed Obligations (PD) or Grace or otherwise, that the Guarantor may have at any time against Grace, the Permitted Holder or any other Entity, whether in connection herewith or any unrelated transactions,
provided
,
however
, that nothing herein shall prevent the assertion of a separate suit or compulsory counterclaim;
(x)
the cessation for any reason of the liability of Grace under the Deferred Payment Agreement (PD) or any other circumstance which might otherwise constitute a legal or equitable discharge of Grace or the Guarantor; or
(xi)
any other act or circumstance which might or could be deemed a discharge or modification hereunder other than payment in full of the Guaranteed Obligations (PD).
(b)
Notwithstanding
Section 3(a)
and
Section 4
, or any other provision to the contrary in this Guarantee (PD), from and after such time, if any, that the Guarantor has notified the Permitted Holder in writing that Grace is no longer a Subsidiary or a Controlled Affiliate of the Guarantor, any amendment, waiver, modification, supplement, restatement or change in respect of the terms and conditions of the Deferred Payment Agreement (PD) or any other Deferred Payment Document (PD) shall require the prior written consent of the Guarantor.
4.
Waivers
. With respect to the Guaranteed Obligations (PD), the Guarantor hereby waives (subject to
Section 3(b)
) (a) acceptance, promptness, diligence, presentment, demand of payment, filing of claims with a court in the event of receivership or bankruptcy of Grace, protest or notice, all setoffs and counterclaims and all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Guarantee (PD) or the Deferred Payment Agreement (PD) (and shall not require that the same be made on or given to Grace as a condition to the Guarantor’s obligations hereunder), (b) any defense arising by reason of any disability or other defense of Grace or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Permitted Holder or any other Entity) of the liability of Grace; (c) any right to, or to require the Permitted Holder to, proceed against Grace, proceed against or exhaust any security (including the Section 524(g) Shares) for the Guaranteed Obligations (PD), or pursue any other remedy in the power of the Permitted Holder whatsoever, (d) any benefit of and any right to participate in any security now or hereafter securing the Guaranteed Obligations (PD), (e) the benefits of all statutes of limitation, and (f) all other demands and defenses whatsoever (other than payment in full of all Guaranteed Obligations (PD)).
5.
Payments
.
(a)
All payments to be made by the Guarantor pursuant to this Guarantee (PD) shall be made in lawful currency of the United States of America by wire transfer of immediately available funds to the Permitted Holder in accordance with such wire transfer instructions as are provided by the Permitted Holder in writing from time to time. Subject to
Sections 5(b)
,
(c)
and
(d)
, all payments under this Guarantee (PD) shall be made in full, without any set-off, counterclaim or any deduction whatsoever.
(b)
If, after giving effect to any Disposition Transaction or any assignment, delegation or transfer by the Guarantor of its rights or obligations under this Guarantee (PD), the Guarantor shall be required by applicable Law to withhold any Taxes from any payments hereunder, and if such requirement would not have been imposed by such applicable Law but for such Disposition Transaction, assignment or transfer, then (i) the sum payable shall be increased as necessary so that after making all withholdings required by applicable Law (including withholdings applicable to additional sums payable under this
Section 5(b)
) the payee receives an amount equal to the sum it would have received had no such withholdings been made, (ii) the Guarantor shall make such withholdings and (iii) the Guarantor shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Law. This
Section 5(b)
shall survive the termination of this Guarantee (PD) pursuant to
Section 15
.
(c)
If, after giving effect to any permitted assignment or Transfer by the Permitted Holder of its rights or obligations under this Guarantee (PD), the Guarantor shall be required by applicable Law to withhold any Taxes from any payments hereunder, and if such requirement would not have been imposed by such applicable Law but for such assignment or Transfer, then the obligation of the Guarantor or the Permitted Payor to make the relevant payment hereunder shall be discharged by making such payment net of such Taxes. This
Section 5(c)
shall survive the termination of this Guarantee (PD) pursuant to
Section 15
.
(d)
If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case adopted after the date hereof, the Guarantor or a Permitted Payor shall be required to withhold any Taxes from any payments hereunder, then the obligation of the Guarantor or the Permitted Payor to make the relevant payment hereunder shall be discharged by making such payment net of such Taxes. This
Section 5(d)
shall survive the termination of this Guarantee (PD) pursuant to
Section 15
.
6.
Representations and Warranties
. The Guarantor represents and warrants, as of the Effective Date, that:
(a)
The Guarantor is duly organized, validly existing and in good standing under the laws of the jurisdiction of the Guarantor’s incorporation;
provided
,
however
, with respect to good standing, only to the extent the concept of good standing exists in such jurisdiction of incorporation.
(b)
The Guarantor has the corporate power and authority to execute and deliver this Guarantee (PD) and each other Deferred Payment Document (PD) to which it is a party. This Guarantee (PD) and each other Deferred Payment Document (PD) to which the Guarantor is a party has been duly authorized by all necessary corporate action of the Guarantor and has been duly executed and delivered by the Guarantor.
(c)
This Guarantee (PD) and each other Deferred Payment Document (PD) to which the Guarantor is a party is a legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally, by the discretion of the court in which enforcement is sought, and/or by general equitable principles (whether enforcement is sought by proceedings at law or in equity).
(d)
The execution, delivery and performance by the Guarantor of this Guarantee (PD) and each other Deferred Payment Document (PD) to which the Guarantor is a party does not conflict with, result in a breach of any of the provisions of, or constitute a default under, the Governing Documents of the Guarantor.
7.
Guarantor Covenants
. The Guarantor covenants and agrees that, from the Effective Date until all Guaranteed Obligations (PD) are paid and performed in full:
(a)
Affirmative Covenants
. The Guarantor shall:
(i)
Maintenance of Existence and Qualifications
. Maintain and preserve in full force and effect its existence and good standing (to the extent the concept of good standing exists in the Guarantor’s jurisdiction of incorporation) and all other rights, powers, franchises, licenses and qualifications necessary or desirable for its ownership or use of properties or the conduct of its business, except (A) as permitted by
Section 16
, and (B) where the failure to do so would not reasonably be likely to adversely affect the Guarantor’s ability to make payments in respect of the Guaranteed Obligations (PD) or to perform its obligations under the Deferred Payment Documents (PD) to which it is a party.
(ii)
Notice of Event of Default, Guarantor Senior Payment Default and Guarantor Senior Non-Payment Default
. Furnish to the Permitted Holder (x) within five (5) days after an Authorized Officer of the Guarantor shall first learn of an Event of Default, and (y) on or before the earlier of (A) the fifteenth (15th) day after an Authorized Officer of the Guarantor shall first learn of a Guarantor Senior Payment Default or Guarantor Senior Non-Payment Default and (B) the first Business Day following the date upon which a Guarantee Payment Blockage Notice is delivered pursuant to
Section 8(a)(ii)
, a written statement of an Authorized Officer of the Guarantor stating that an Event of Default, Guarantor Senior Payment Default or Guarantor Senior Non-Payment Default, as the case may be, has occurred, which written statement shall, to the extent known by the Guarantor, set forth in reasonable detail the facts giving rise to and status of such Event of Default, Guarantor Senior Payment Default or Guarantor Senior-Non Payment Default, as the case may be, and the actions, if any, the Guarantor is taking or proposes to take with respect thereto.
(iii)
Information Covenants
. If the Guarantor is not obligated to file or furnish, or is not otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, the Guarantor shall furnish to the Permitted Holder:
(A)
Annual Financial Statements
. As soon as available but in no event later than ninety (90) days after the last day of each of the Guarantor’s Fiscal Years, its annual consolidated financial statements audited by a nationally recognized registered independent public accounting firm allowed to practice before the Securities and Exchange Commission or any successor Governmental Authority, consisting of a consolidated balance sheet of the Guarantor and its consolidated Subsidiaries as of the end of such year and consolidated statements of income, cash flows and stockholders equity for such year (all in reasonable detail and with all notes and supporting schedules); and
(B)
Quarterly Financial Statements
. As soon as available and in any event within forty-five (45) days after the end of each of the first three Fiscal Quarters in each Fiscal Year of the Guarantor, its consolidated balance sheet as of the end of such Fiscal Quarter, and consolidated statements of income and cash flows of the Guarantor and its consolidated Subsidiaries for such Fiscal Quarter, all in reasonable detail and certified by an Authorized Officer of the Guarantor to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustments and the absence of footnotes).
(iv)
Officer’s Certificates
. The Guarantor shall furnish to the Permitted Holder:
(A)
No later than ninety (90) days after the last day of each of the Guarantor’s Fiscal Years and no later than forty-five (45) days after the end of each of the first three
Fiscal Quarter
s in each Fiscal Year of the Guarantor, a Quarterly EBITDA and Valuation Certificate executed by an Authorized Officer of the Guarantor setting forth (I) if the Transaction Date of a Significant Transaction has occurred during the four-Fiscal Quarter period ending on the last day of such Fiscal Quarter or Fiscal Year, as the case may be, the Pro Forma EBITDA of the Guarantor for such four-Fiscal Quarter period and the Pro Forma Valuation of the Guarantor as of the last day of such four-Fiscal Quarter period or (II) if the Transaction Date of a Significant Transaction did not occur during the four-Fiscal Quarter period ending on the last day of such Fiscal Quarter or Fiscal Year, as the case may be, the EBITDA of the Guarantor for such four-Fiscal Quarter period and the Valuation of the Guarantor as of the last day of such four-Fiscal Quarter period;
provided
,
however
, that the Guarantor shall not be required to furnish to the Permitted Holder a Quarterly EBITDA and Valuation Certificate under this subclause (A) if (x) the Guarantor is filing or furnishing reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, and (y)(1) if the Transaction Date of a Significant Transaction has occurred during the four-Fiscal Quarter period ending on the last day of the applicable Fiscal Quarter or Fiscal Year, the Pro Forma EBITDA of the Guarantor for such four-Fiscal Quarter period and the Pro Forma Valuation of the Guarantor as of the last day of such four-Fiscal Quarter period is readily ascertainable from such reports or (1) if the Transaction Date of a Significant Transaction did not occur during the four-Fiscal Quarter period ending on the last day of the applicable Fiscal Quarter or Fiscal Year, the EBITDA of the Guarantor for such four-Fiscal Quarter period and Valuation of the Guarantor as of the last day of such four-Fiscal Quarter period is readily ascertainable from such reports;
(B)
no later than ninety (90) days after the last day of each of the Guarantor’s Fiscal Years,
a Compliance Certificate executed by an Authorized Officer of the Guarantor for such Fiscal Year; and
(C)
no later than thirty (30) days after the consummation by a Transferor of a Disposition Transaction of the type described in
clause (ii)
or
clause (iii)
of
Section 7(b)
, a Post-Transaction Certificate setting forth the Post-Transaction Pro Forma EBITDA of the Guarantor with respect to such Disposition Transaction executed and delivered by an Authorized Officer of the Guarantor.
(b)
Negative Covenant
. The Guarantor shall not, and shall cause each of its Subsidiaries and Controlled Affiliates
(each, a “
Transferor
”) to not, sell, assign, transfer, license, lease or otherwise dispose of (each, a “
Transfer
”) any property and/or other assets and/or enter into any transaction or obligation, whether constituting or by way of merger, consolidation, sale of assets or other disposition, reorganization, recapitalization, dividend, other distribution, or otherwise, or any related series of the foregoing (any such Transfer other than Ordinary Dividends, Bona Fide Compensation Transactions and other Transfers in the ordinary course of business, a “
Disposition Transaction
”), if the Transferor (taken together with all of its direct and indirect wholly owned Subsidiaries) would (1) receive (directly or indirectly) less than a reasonably equivalent value in such Disposition Transaction, (2) become or be rendered Insolvent as a result of such Transfer and/or such Disposition Transaction, or (3) be engaged in business and/or transactions, and/or would be about to engage in business and/or transactions, for which the Transferor’s (taken together with all of its direct and indirect wholly owned Subsidiaries) remaining property and other assets would be unreasonably small capital;
provided
,
however
, that notwithstanding the foregoing, a Transferor:
(i)
That is a direct or indirect wholly-owned Subsidiary of the Guarantor may make a Transfer to or engage in a Disposition Transaction exclusively with the Guarantor or any other direct or indirect wholly-owned Subsidiary of the Guarantor;
provided
further
, that if such Transferor is Grace or any of Grace’s Subsidiaries or Controlled Affiliates, such Disposition Transaction shall be permitted under this
clause (i)
only if it is also permitted under Section 6(b) of the Deferred Payment Agreement (PD);
(ii)
may engage in a Disposition Transaction whereby such Transferor (A) pays or makes (directly or indirectly) dividends or distributions (whether in cash, securities or other property) with respect to any of its Capital Stock (including by way of a spin-off or spin-out of any of its assets), or (B) repurchases its Capital Stock,
provided
that, in the case of any Disposition Transaction under
subclause (A)
or
(B)
above, all of the following conditions are satisfied:
(1)
no Event of Default has occurred and is continuing at the time of, or would result from, such Disposition Transaction;
(2)
as of the Transaction Date of such Disposition Transaction, (x) the Post-Transaction Pro Forma Valuation of the Guarantor shall equal or exceed the Threshold Amount or (y) the “Post-Transaction Pro Forma Valuation” (as defined in the Deferred Payment Agreement (PD)) of Grace shall equal or exceed the Threshold Amount; and
(3)
if such Disposition Transaction exceeds $15,000,000 and is not publicly disclosed at least 10 days prior to the consummation of such Disposition Transaction, then the Guarantor shall provide the
Permitted Holder
with, at least 10 days’ prior to the consummation of such Disposition Transaction, a written notice describing in reasonable detail the material terms of such Disposition Transaction and setting forth the Post-Transaction Pro Forma Valuation of the Guarantor as of the Transaction Date of such Disposition Transaction; and
(iii)
other than as set forth in
Section 7(b)(ii)
above, shall not enter into any Disposition Transaction with a Related Party to the Transferor in which the aggregate value of the assets or other property Transferred in such Disposition Transaction to such Related Party exceeds $15,000,000 if
the Transferor (taken together with all of its direct and indirect wholly owned Subsidiaries) would (1) receive (directly or indirectly) less than a reasonably equivalent value in such Disposition Transaction, as determined by a reputable investment bank or valuation firm jointly selected by the Guarantor and the “Permitted Holder” (as defined in the Deferred Payment Agreement (PI)),
(2) become or be rendered Insolvent as a result of such Transfer and/or such
Disposition Transaction
or (3) be engaged in business and/or transactions, and/or would be about to engage in business and/or transactions, for which the Transferor’s (taken together with all of its direct and indirect wholly owned Subsidiaries) remaining property and other assets would be unreasonably small capital;
provided
, that if the aggregate value of the assets or other property Transferred to such Related Party in such
Disposition Transaction
exceeds $15,000,000 and the existence of such
Disposition Transaction
is not publicly disclosed at least 10 days prior to the consummation of such
Disposition Transaction
, then the Guarantor shall provide the
Permitted Holder
with, at least 10 days’ prior to the consummation of such
Disposition Transaction
, a written notice describing in reasonable detail the material terms of such
Disposition Transaction and
setting forth the Post-Transaction Pro Forma Valuation of the Guarantor as of the Transaction Date of such Disposition Transaction;
provided
further
that if the Guarantor is not the surviving or succeeding Entity as a result of any
Disposition Transaction
(but in the case of a sale of assets, only if such sale involves a sale of all or substantially all of the assets of the Guarantor) otherwise permitted by the exceptions to this
Section 7(b)
, such
Disposition Transaction
shall be permitted under this
Section 7(b)
only if the Guarantor shall comply with the requirements of
Section 16(e)
.
8.
Subordination Terms
. Any and all obligations of the Guarantor in respect of the Guaranteed Obligations (PD) shall be subordinated and otherwise junior at all times in right of payment and in all other respects, in the manner and to the extent set forth herein, to any and all present and future obligations of the Guarantor in respect of any Guarantor Senior Indebtedness.
(a)
Blockage of Payments for Guaranteed Obligations (PD)
.
(iv)
If any payment default occurs and is continuing beyond any applicable grace period pursuant to the terms and conditions of any Guarantor Senior Indebtedness (a “
Guarantor Senior Payment Default
”), then subject to
Section 8(g)
, no payment or distribution of cash, securities or any other assets shall be made by the Guarantor with respect to the Guaranteed Obligations (PD) or this Guarantee (PD) for as long as such Guarantor Senior Payment Default is continuing.
(v)
If any default other than a Guarantor Senior Payment Default occurs pursuant to the terms and conditions of any Designated Guarantor Senior Indebtedness that would allow the holders thereof to accelerate the maturity thereof (a “
Guarantor Senior Non-Payment Default
”), then subject to
Section 8(g)
, no payment or distribution of cash, securities or any other assets shall be made by the Guarantor with respect to any Guaranteed Obligations (PD) or pursuant to this Guarantee (PD) during the period (the “
Guarantee Payment Blockage Period
”) (x) beginning on the date that the Permitted Holder receives from the Entity entitled to give notice under any document evidencing such Designated Guarantor Senior Indebtedness (or from the Guarantor acting at the direction or request of such Entity) a written notice (a “
Guarantee Payment Blockage Notice
”) that such a Guarantor Senior Non-Payment Default has occurred and is continuing and (y) ending on the earliest to occur of (1) 180 days from the date the Permitted Holder shall have received the Guarantee Payment Blockage Notice, (2) the date such Guarantor Senior Non-Payment Default shall have been cured or waived or shall have ceased to exist and (3) the date such Guarantee Payment Blockage Period shall have been terminated by written notice to
the Permitted Holder from the Entity initiating such Guarantee Payment Blockage Period.
(vi)
Notwithstanding the foregoing, (A) in no event will a Guarantee Payment Blockage Period extend beyond 180 days from the date the Guarantee Payment Blockage Notice in respect thereof was received by the Permitted Holder, (B) there shall be a period of at least 180 consecutive days in each period of 360 consecutive days when no Guarantee Payment Blockage Period is in effect, and (C) no Guarantor Senior Non-Payment Default that existed or was continuing on the date of delivery of any Guarantor Payment Blockage Notice (whether or not such Guarantor Senior Non-Payment Default is with respect to the same issue of Designated Guarantor Senior Indebtedness) may be, or be made, the basis for a subsequent Guarantor Payment Blockage Notice, unless such Guarantor Senior Non-Payment Default has been cured or waived for a period of not less than 90 consecutive calendar days.
(vii)
The payment of Guaranteed Obligations (PD) shall resume, and the payment of any Guaranteed Obligations (PD) not paid due to a suspension thereof pursuant to
clause (i)
or
clause (ii)
above shall be paid, together with accrued interest thereon at the Default Rate, when such suspension is no longer in effect (either due to cure or waiver of the relevant Guarantor Senior Payment Default or the expiration or termination of the Guarantee Payment Blockage Period pursuant to
clause (i
) or
clause (ii)
of this
Section 8(a)
) unless a subsequent Guarantor Payment Blockage Notice has been delivered in accordance with clause (iii) of this
Section 8(a)
and is not prohibited from being delivered by clause (iii) of this
Section 8(a)
.
(b)
Proceedings
. Upon any payment made by the Guarantor, or any distribution of cash, securities or other assets of any kind of the Guarantor (other than securities issued in substitution for the obligation to make payments in respect of the Guaranteed Obligations (PD) that are subordinated to at least the extent described herein for the obligation to make payments in respect of the Guaranteed Obligations (PD), which Securities the Permitted Holder (or any Permitted Payee, if applicable) is specifically authorized to receive notwithstanding any other provision of this
Section 8
), to creditors in any Proceeding with respect to the Guarantor or its properties, all obligations due on all Guarantor Senior Indebtedness shall first be paid in full in cash before any payment or distribution is made on account of any Guaranteed Obligations (PD) or otherwise pursuant to this Guarantee (PD).
(c)
Improper Payments Held in Trust
. Any payments or property received by the Permitted Holder or any Permitted Payee in breach of this
Section 8
shall be held by the Permitted Holder or such Permitted Payee in trust and promptly delivered in the form received to the holder of Guarantor Senior Indebtedness entitled to receive the same (any such payment or property delivered by the Permitted Holder or such Permitted Payee to any holder of Guarantor Senior Indebtedness, a “
Guarantor Turnover Payment
”). To the maximum extent permitted under applicable Law, the Guarantor agrees that any Guarantor Turnover Payment shall be treated as a payment by the Guarantor on account of such Guarantor Senior Indebtedness and shall not satisfy the Guarantor’s obligation with respect to any amount due to the Permitted Holder or such Permitted Payee under this Guarantee (PD). If, notwithstanding the preceding sentence, it is determined (by a court of competent jurisdiction or otherwise) that a Guarantor Turnover Payment is a payment by the Guarantor on account of, and satisfies any obligation of the Guarantor with respect to, any amount due to the Permitted Holder or any Permitted Payee under this Guarantee (PD), then, to the extent of the amount of such Guarantor Turnover Payment, the portion of the obligation which has been determined to be paid and satisfied by such Guarantor Turnover Payment shall be reinstated and shall continue to be in full force and effect as of the time immediately preceding the initial payment thereof by the Guarantor to the Permitted Holder or such Permitted Payee. If, notwithstanding the preceding sentence, any portion of an obligation of the Guarantor in respect of such Guarantor Turnover Payment is not reinstated and continued to the extent of the amount of the relevant Guarantor Turnover Payment, then the Permitted Holder or the applicable Permitted Payee shall, upon the payment in full in cash of all Guarantor Senior Indebtedness owed to the holder thereof to whom the Permitted Holder or such Permitted Payee delivered such Guarantor Turnover Payment, be subrogated to the rights of such holder to receive payments or distributions applicable to such Guarantor Senior Indebtedness, and for the purpose of such subrogation such Guarantor Turnover Payment shall not, as between the Guarantor and the Permitted Holder or such Permitted Payee, be deemed to be payment by the Guarantor to or on account of such Guarantor Senior Indebtedness.
(d)
Remedies Blockage
. Subject in any event to the other terms and conditions of this
Section 8
(including
Section 8(a)
and
Section 8(g)
), if an Event of Default has occurred and is continuing and any Guarantor Senior Indebtedness is then outstanding, the Permitted Holder hereby agrees for itself and any assignee that it will not (1) exercise or seek to exercise any rights or remedies against Grace or the Guarantor with respect to such Event of Default or (2) institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure, contest or protest) under any Deferred Payment Document (PD) or any agreement or document relating thereto, or under such Event of Default or otherwise or (3) attempt to do any of the foregoing (collectively, the “
Remedies
”), for a period commencing on the date that such Event of Default occurs and ending on the earliest to occur of (i) 180 days after the first date on which such Event of Default shall have occurred, (ii) the commencement of a Proceeding with respect to Grace, the Guarantor or their respective properties, (iii) the date that the holder (or any agent or trustee of the holder) of any Guarantor Senior Indebtedness commences exercising any Guarantor Senior Remedies with respect to such Guarantor Senior Indebtedness (including, without limitation, the acceleration of all or any portion of such Guarantor Senior Indebtedness) and (iv) the payment in full in cash of all Guarantor Senior Indebtedness.
(e)
Notwithstanding the foregoing, as applied to the Permitted Holder, the term “Remedies” shall not include, and the Permitted Holder shall not be impaired by this
Section 8(e)
from doing, any of the following: (A) exercising rights and remedies for specific performance or injunctive relief to compel Grace or the Guarantor to comply with any non-payment obligations under the Deferred Payment Documents (PD) (including commencing any action contemplated by
Section 16(f)
), (B) instituting or maintaining any suit or action solely to prevent the running of any applicable statute of limitations, (C) accruing interest on the Deferred Payments (PD) at the Default Rate pursuant to the Deferred Payment Agreement (PD) and (D) giving any notice (including notice of an Event of Default) to the Guarantor under the Deferred Payment Documents (PD).
(f)
No Secured Obligation
. Except for this Guarantee (PD) and the share issuance obligation with respect to the Section 524(g) Shares as and to the extent contemplated in the Share Issuance Agreement, no credit support or security interest shall be granted by Grace, the Guarantor or any of its Subsidiaries in connection with, or otherwise support or secure any obligation set forth in, the Deferred Payment Documents (PD). Notwithstanding the foregoing, the Permitted Holder may obtain to the extent permitted under applicable Law a judgment lien on the properties of Grace and/or the Guarantor to secure the payment and performance of a judgment obtained by the Permitted Holder against Grace and/or the Guarantor.
(g)
No Impairment of Right to Receive Section 524(g) Shares or Warrant Shares
. Nothing in this
Section 8
shall impair the rights of the Trust (PD) (or its permitted successor or assigns) (i) acting through the Trusts’ Representative pursuant to the Intercreditor Agreement, to deliver to the Guarantor a Demand for Issuance of the Section 524(g) Shares and to receive the Trust (PD)’s percentage of the Section 524(g) Shares pursuant to the Share Issuance Agreement or (ii) to exercise all or any portion of the Warrant and to receive the shares of Common Stock in connection therewith.
(h)
Further Assurances
. At the reasonable request of the Guarantor, the Permitted Holder will, at the sole expense of the Guarantor, execute such agreement, documents, certificates and/or other instruments confirming the existence and extent of the subordination terms detailed in this Section.
9.
Defaults and Remedies
.
(a)
Subject in each case to
Section 8
of this Guarantee (PD), the Permitted Holder shall have the right, power and authority to do all things deemed necessary or advisable to enforce the provisions of this Guarantee (PD) and protect its rights under the Deferred Payment Agreement (PD) and, upon the occurrence and during the continuance of an Event of Default, the Permitted Holder may institute or appear in such appropriate proceedings permitted or not prohibited under this Guarantee (PD) as the Permitted Holder shall deem most effectual to protect and enforce any of its rights hereunder, whether for the specific enforcement of any covenant or agreement in this Guarantee (PD) or in aid of the exercise of any power granted herein or in the Permitted Holder, or to enforce any other proper remedy.
(b)
Each and every Event of Default or breach by the Guarantor of this Guarantee (PD) shall give rise to a separate cause of action hereunder, and separate actions may be brought hereunder as each cause of action arises. For so long as such an Event of Default or such a breach is continuing, the Permitted Holder shall have the right to proceed first and directly against the Guarantor under this Guarantee (PD) without proceeding against any other Entity (including Grace), without exhausting any other remedies which it may have and without resorting to any other security (if any) (including the Section 524(g) Shares) held by the Permitted Holder to secure the Guaranteed Obligations (PD).
10.
Setoff
. Subject to
Section 8
of this
Guarantee (PD)
, at any time after all or any part of the
Guaranteed Obligations (PD)
have become due and payable or performable, as the case may be (by acceleration or otherwise), the Permitted Holder or any Permitted Payee may, without notice to the Guarantor and regardless of the acceptance of any security or collateral (if any) for the payment thereof, and up to the unpaid amount of the Guaranteed Obligations (PD) then due, appropriate and apply toward the payment or performance, as the case may be, of all or any part of the Guaranteed Obligations (PD) then owing to the Permitted Holder or such Permitted Payee (i) any indebtedness due or to become due from the Permitted Holder or such Permitted Payee to the Guarantor, and (ii) any moneys, credits or other property belonging to the Guarantor, at any time validly held by or coming into the possession of the Permitted Holder or such Permitted Payee.
11.
Financial Information
. The Guarantor hereby acknowledges that it has adequate means of, and assumes sole responsibility for, keeping itself informed of the financial condition of Grace including any circumstances bearing upon the risk of nonpayment or nonperformance of the Guaranteed Obligations (PD), or any part thereof, and the Guarantor hereby agrees that no Permitted Holder shall have any duty to advise the Guarantor of information known to it regarding any such circumstances. In the event the Permitted Holder in its reasonable discretion, undertakes at any time or from time to time to provide any such information to the Guarantor, the Permitted Holder shall be under no obligation (i) to undertake any investigation not a part of its regular business routine or (ii) to disclose any information which the Permitted Holder, pursuant to accepted or reasonable practices, wishes to maintain confidential.
12.
Reinstatement
. Notwithstanding any provision herein to the contrary, the Guarantor agrees that, to the extent that any Entity makes a payment or payments to the Permitted Holder on account of the Guaranteed Obligations (PD) which payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required or agreed to be repaid or returned by the Permitted Holder under any Law or in respect of any Proceeding or other litigation to which the Guarantor, the Permitted Holder or any Permitted Payee is subject, then, to the extent of the amount of such payments, the portion of the
Guaranteed Obligations (PD)
which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the time immediately preceding such initial payment, reduction or satisfaction.
13.
Distribution of Grace Assets in Proceeding; Subrogation
.
(a)
Upon any distribution of assets of Grace to creditors in connection with any Proceeding relating to Grace or its property (but subject to
Section 8
), (i) the Permitted Holder and each Permitted Payee shall be entitled to receive payment in full of all Guaranteed Obligations (PD) before the Guarantor shall be entitled to receive any payment of principal of or interest on or any other amounts in respect of indebtedness of Grace in favor of the Guarantor; and (ii) until payment and performance in full of all Guaranteed Obligations (PD), any distribution of assets of any kind or character to which the Guarantor would otherwise be entitled shall be paid by Grace or by any receiver, trustee in bankruptcy, liquidating trustee, agents or other Entity making such payment or distribution to, or if received by the Guarantor, shall be held for the benefit of and shall be forthwith paid or delivered to, the Permitted Holder and each Permitted Payee on a pro rata basis according to the amount of all Guaranteed Obligations (PD) owing to the Permitted Holder and each such Permitted Payee.
(b)
The Guarantor hereby agrees that it will not assert, enforce, or otherwise exercise any rights which it may acquire against Grace or any guarantor pursuant to any other guaranties by way of subrogation pursuant to this Guarantee (PD), by any payment made hereunder or otherwise, until the Guaranteed Obligations (PD) shall have been paid in full.
14.
Amendments; Waivers
.
(a)
No provision of this Guarantee (PD) may be waived, amended, supplemented or modified except by a written instrument executed by the Permitted Holder and the Guarantor.
(b)
No delay on the part of the Permitted Holder in the exercise of any right or remedy arising under this Guarantee (PD) or the Deferred Payment Agreement (PD) or otherwise with respect to all or any part of the Guaranteed Obligations (PD), any collateral (if any) or any other guarantee of or security (if any) for all or any part of the Guaranteed Obligations (PD) shall operate as a waiver thereof, and no single or partial exercise by the Permitted Holder of any such right or remedy shall preclude any further exercise thereof. Failure by the Permitted Holder at any time or times hereafter to require strict performance by Grace, the Guarantor or any other guarantor of all or any part of the Guaranteed Obligations (PD) or of any of the provisions, warranties, terms and conditions contained in the Deferred Payment Agreement (PD) shall not waive, affect or diminish any right of the Permitted Holder at any time or times hereafter to demand strict performance thereof. No waiver of any Event of Default by the Permitted Holder shall operate as a waiver of any other Event of Default or breach of this Guarantee (PD) or the same Event of Default or breach of this Guarantee (PD) on a future occasion, and no action by the Permitted Holder permitted hereunder shall in any way affect or impair the Permitted Holder’s rights and remedies or the obligations of the Guarantor under this
Guarantee (PD)
. The remedies herein provided are cumulative and not exclusive of any remedies provided by law or in equity or any other Deferred Payment Document (PD).
15.
Effectiveness; Termination
. This Guarantee (PD) shall become effective against the Guarantor upon its execution by the Guarantor and the occurrence of the Effective Date and shall continue in full force and effect and may not be terminated or otherwise revoked until the Guaranteed Obligations (PD) shall have been paid in full.
16.
Consolidation, Successors and Assigns
.
(a)
This Guarantee (PD) shall be binding upon the Guarantor and upon the successors and permitted assigns of the Guarantor and shall inure to the benefit of the Permitted Holder. The successors and assigns of the Guarantor and Grace shall include, without limitation, their respective receivers, trustees or debtors-in-possession.
(b)
If the Permitted Holder Transfers or grants a security interest in its rights in the Deferred Payment Agreement (PD) or any Deferred Payments (PD) upon the terms and subject to the conditions set forth in the Deferred Payment Agreement (PD), the Permitted Holder shall have the right to Transfer or grant a security interest in this Guarantee (PD) to such transferee or secured party without the consent of the Guarantor;
provided
,
however
, that in no event shall any person or Entity other than the Collateral Agent have, or have the ability to bring, or be able to enforce, any claim, right or cause of action against the Guarantor or any of is affiliates under, in connection with or as a result of such security interest.
(c)
Subject to
Section 16(d)
, the Guarantor may not Transfer its rights, interests, duties, liabilities or obligations under this Guarantee (PD) without the prior written consent of the Permitted Holder, which consent shall not be unreasonably withheld, conditioned or delayed.
(d)
Subject to
Section 16(e)
, neither
Section 16(c)
nor anything else in this
Guarantee (PD)
shall prohibit or restrict the ability of the Guarantor to undertake any Disposition Transaction;
provided
that, unless the Permitted Holder otherwise consents in writing, (i) such Disposition Transaction shall not violate
Section 7(b)
, (ii) no Event of Default and, no event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, exists at the time of, or would exist immediately following the consummation of such Disposition Transaction, (iii) such Disposition Transaction does not conflict with, or result in a breach of, any of the provisions of, or constitute a default under, the Governing Documents of the Guarantor or such surviving or succeeding Entity and (iv) at least ten (10) days prior to consummation of such Disposition Transaction, the Guarantor shall, subject to reasonable confidentiality arrangements between the Permitted Holder and the Guarantor, deliver to the Permitted Holder written notice of its intention to consummate such Disposition Transaction.
(e)
If the surviving or succeeding Entity as a result of any such Disposition Transaction (but in the case of a sale of assets, only if such sale involves a sale of all or substantially all of the assets of the Guarantor) is not the Guarantor, then prior to, or concurrently with, the consummation of any such Disposition Transaction, the surviving or succeeding Entity shall by written instrument substantially in the form of
Exhibit A
signed by such Entity, the Guarantor and, at its option, the Permitted Holder expressly assume the rights and obligations of the Guarantor hereunder, whereupon such Entity shall be the successor of all rights and obligations of the Guarantor hereunder, with the same effect as if it had been originally named herein (it being expressly acknowledged and agreed by the Guarantor and the Permitted Holder that such written instrument shall, and shall expressly provide that it shall, be binding upon, and inure to the benefit of, the Permitted Holder, the Guarantor and such surviving or succeeding Entity whether or not the Permitted Holder shall have executed such written instrument);
provided
,
however
, that the Guarantor shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under this Guarantee (PD).
(f)
The Guarantor shall be responsible for, and shall pay promptly upon demand all documented and direct out-of-pocket costs and expenses incurred by the Permitted Holder (including legal fees and expenses of legal counsel) in connection with (i) enforcing its rights and/or interests under this Guarantee (PD) and (ii) challenging any Disposition Transactions proposed by the Guarantor pursuant to
Section 16(d)
;
provided
,
however
, that in the case of clause (i) above, the Guarantor shall not be responsible for any such costs and expenses (including legal fees and expenses of legal counsel) unless the Permitted Holder is successful in enforcing its rights and/or interests under this Guarantee (PD) in a judicial or other proceeding, and in the case of clause (ii) above, the Guarantor shall not be responsible for any such costs and expenses (including legal fees and expenses of legal counsel) unless the Permitted Holder challenges such Disposition Transaction in a judicial or other proceeding or otherwise as being in breach of the provisions of this Guarantee (PD) or any of the Deferred Payment Documents (PD) and the Permitted Holder is successful in such challenge.
(g)
Any assignment or transfer in breach of this
Section 16
shall be null and void and not Transfer any interest in this Guarantee (PD) to any other Entity.
17.
Governing Law; Submission to Jurisdiction; Waiver of Jury Trial
.
(a)
This Guarantee (PD) and the rights and obligations of the parties hereto shall be construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
(b)
With respect to claims, suits, actions, proceedings, and other disputes arising out of, in respect of or relating to this Guarantee (PD) (such claims, suits, actions, proceedings, and other disputes, the “
Claims
”) each of the parties to this Guarantee (PD) hereby irrevocably submits to the jurisdiction of the Bankruptcy Court for the District of Delaware or the United States District Court for the District of Delaware (the “
Courts
”), or, if both such Courts are not permitted under applicable Law to exercise jurisdiction with respect to the matter in question then to the jurisdiction of any other federal or state court in the state, county and city of New York, New York and each of the parties to this Guarantee (PD) agrees that any and all Claims may be brought, heard and determined in such courts.
(c)
Each of the parties to this Guarantee (PD) agrees that (i) venue shall be proper in the courts referenced in
Section 17(b)
and hereby waives any objection or defense which it may now or hereafter have to the laying of venue in such Courts, including any of the foregoing based upon the doctrine of
forum non conveniens
; and (ii) all process which may be or be required to be served in respect of any such Claim (including any pleading, summons or other paper initiating any such Claim or dispute) may be served upon it, which service shall be sufficient for all purposes, in the manner for the provision of notice under
Section 19
hereof and shall be deemed in every respect effective service of process upon such party when so given.
(d)
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE DEFERRED PAYMENT DOCUMENTS (PD). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER DEFERRED PAYMENT DOCUMENTS (PD), AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PROVISION.
18.
Advice of Counsel
. Each of the Guarantor and the Permitted Holder represent and warrant to the other that it has analyzed this Guarantee (PD) with, and has been advised as to its legal effects by, its legal counsel.
19.
Notices
. All notices required or permitted under this Guarantee (PD) must be in writing and will be deemed to be delivered and received (i) if personally delivered or if delivered by the United States Postal Service, facsimile or courier service, when actually received by the party to whom notice is sent or (ii) with respect to parties located other than within the United States, if deposited with the United States Postal Service (whether actually received or not), at the close of business on the seventh Business Day after the day when placed in the mail, postage prepaid, certified or registered with return receipt requested, addressed to the appropriate party or parties, at the address of such party or parties set forth below (or at such other address as such party may designate by written notice to all other parties in accordance with this
Section 19
):
|
|
|
|
|
|
|
If to the Guarantor:
W. R. Grace & Co.
7500 Grace Drive
Columbia, MD 21044
Attn: Corporate Secretary
Facsimile: (410) 531-4545
|
With copies, which shall
not constitute notice, to:
|
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attn: Adam C. Paul
Facsimile: (312) 862-2200
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If to the Permitted Holder:
Richard B. Schiro, Class 7A Trustee
WRG Asbestos PD Trust
c/o Wilmington Trust
Attention: Corporate Trust Administration
1100 N. Market Street
Wilmington, DE 19890-1625
Telephone: (302) 651-8742
If to the PD FCR:
Hon. Alexander M. Sanders, Jr.
19 Water Street
Charleston, South Carolina 29401
Telephone: (843) 953-5755
Facsimile: (843) 953-7570
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With copies, which shall
not constitute notice, to:
With copies, which shall not constitute notice, to:
|
Richard B. Schiro
WRG Asbestos PD Trust
2706 Fairmount Street
Dallas, Texas 75201-1958
Telephone: (214) 521-5994
Facsimile: (214) 521-3838
Deborah D. Williamson
Cox Smith Matthews Incorporated
112 E. Pecan Street, Suite 1800
San Antonio, Texas 78205
Telephone: (210) 554-5275
Facsimile: (210 226-8395
Alan B. Rich
Attorney and Counselor
1201 Elm Street, Suite 4244
Dallas, Texas 75270
Telephone: (214) 744-5100
Facsimile: (214) 744-5101
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20.
Severability
. Wherever possible, each provision of this Guarantee (PD) will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Guarantee (PD) by any party hereto is held to be invalid, void, voidable, illegal or unenforceable in any respect under any applicable Law in any jurisdiction, such event will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, or the obligations of any other party to this Guarantee (PD), and this Guarantee (PD) will be reformed, construed and enforced in such jurisdiction as if such invalid, void, voidable, illegal, unenforceable or rejected provision had never been contained herein. The parties hereto further agree to use commercially reasonable efforts to replace such invalid, void, voidable, illegal, unenforceable or rejected provision of this Guarantee (PD) with a an effective, valid and enforceable provision which will achieve, to the fullest extent possible, the economic, business and other purposes of the invalid, void, voidable, illegal, unenforceable or rejected provision.
21.
Entire Agreement
. This Guarantee (PD), together with the Deferred Payment Agreement (PD), the Share Issuance Agreement, the Plan of Reorganization and the Confirmation Order,
embodies the complete agreement and understanding between the parties hereto in respect of the subject matter hereof and supersedes, preempts and terminates all other prior understandings, agreements or representations by or among the parties hereto, written or oral, to the extent relating thereto
.
22.
Execution in Counterparts
. This Guarantee (PD) may be executed (including by facsimile or portable document format (.pdf)) in separate counterparts, each of which will be deemed to be an original and all of which taken together will constitute one and the same agreement.
23.
Further Assurances
. At the reasonable request of the Permitted Holder, the Guarantor will, at the sole expense of the Permitted Holder, execute such agreements, documents, certificates and/or other instruments confirming the existence of this Guarantee (PD), the obligations of the Guarantor hereunder and the rights of the Permitted Holder hereunder.
24.
Specific Performance
. Each of the parties hereto acknowledges and agrees that, in the event of any breach of, or any failure to perform, any specific provision of this Guarantee (PD), the non-breaching party would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that, subject to
Section 8
hereof, the parties hereto (a) shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to compel specific performance of any specific provision of this Guarantee (PD) or to obtain injunctive relief to prevent breaches of any specific provision of this Guarantee (PD) exclusively in the Courts, (b) shall waive, in any action for specific performance or injunctive relief, the defense of the adequacy of a remedy at law, and (c) shall waive any requirement for the securing or posting of any bond in connection with the obtaining of any such specific performance or injunctive relief. For the avoidance of doubt, the parties agree that the Permitted Holder shall be entitled to enforce specifically the terms and provisions of this Guarantee (PD) to prevent breaches of or enforce compliance with those covenants of the Guarantor set forth in
Section 7
. Any party’s pursuit of specific performance or injunctive relief at any time will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which such party may be entitled, including the right to pursue remedies for liabilities or damages incurred or suffered by such party.
25.
Other Remedies
. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law on such party, and the exercise of any one remedy shall not preclude the exercise of any other.
[Signature page follows]
IN WITNESS WHEREOF, this Guarantee (PD) has been duly executed by the Guarantor as of the day and year first set forth above.
W. R. Grace & Co.
|
|
|
|
|
|
By:
|
/s/HUDSON LA FORCE, III
|
|
Name:
|
Hudson La Force, III
|
|
Title:
|
Senior Vice President and Chief Financial Officer
|
Acknowledged and agreed to
as of the
3
rd
day of
February
, 20
14
.
WRG ASBESTOS PD TRUST
By:
/s/RICHARD B. SCHIRO
Name: Richard B. Schiro
Title:
EXHIBIT A
FORM OF
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT
This Assumption Agreement (the “
Assumption Agreement
”) is made and entered into as of [•], by and between [W. R. Grace & Co.-Conn., a Connecticut corporation] // [W. R. Grace & Co., a Delaware corporation] (“
Grace
”), and [•], a [•] (the “
Buyer
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the [Purchase Agreement].
BACKGROUND
WHEREAS, Grace, the Buyer and [•] are party to that certain [•] (the “[
Purchase Agreement
]”), pursuant to which Grace has agreed to [•];
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”); and
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” requiring the delivery of this Assumption Agreement under the Contracts.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
[Grace hereby assigns and transfers to the Buyer all of Grace’s right, title and interest in the Contracts,
free and clear of all [Liens except for Permitted Liens)]. The Buyer hereby accepts the assignment herein and assumes from Grace and agrees to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the Contracts remain in full force and effect and that Grace will continue to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the [corporation] surviving the [Merger] is subject to and bound by the Contracts, that the Contracts are and will remain in full force and effect and that the [corporation] surviving the [Merger] shall hold all right, title and interest in the Contracts. The Buyer hereby agrees that the [corporation] surviving the [Merger] shall be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts;
provided
,
however
, that Grace shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under the Contracts.]
Each of the parties hereto covenants and agrees, at its own expense, to execute and deliver, promptly after the reasonable request of the other party hereto, such further instruments and to take such other action as such other party may reasonably request to more effectively consummate the transactions contemplated by this Assumption Agreement.
In the event of a conflict between the terms and conditions of this Assumption Agreement and the terms and conditions of the [Purchase Agreement], the terms and conditions of this Assumption Agreement shall govern, supersede and prevail.
All questions concerning the construction, validity and interpretation of this Assumption Agreement shall be governed by and construed in accordance with the domestic laws of the State of New York, without giving effect to any choice of law or conflict of law provision (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
This Assumption Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature pages delivery by electronic transmission in portable document format (.pdf)), all of which taken together shall constitute one and the same instrument. This Assumption Agreement and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or electronic transmission in portable document format (.pdf), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
This Assumption Agreement shall be binding on the parties hereto and shall inure to the benefit of the Permitted Holder (as defined in the [Contracts]) regardless of whether such Permitted Holder executes this Assumption Agreement.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Assumption Agreement as of the date first above written.
|
|
|
|
|
|
ASSIGNEE
:
[•]
By:
[•]
|
SELLER
:
[W. R. GRACE & CO.-CONN.]
By:
[•]
|
|
|
[W. R. GRACE & CO.]
By:
[•]
|
|
[Acknowledged and Agreed
:
|
|
|
WRG ASBESTOS PD TRUST
By:
[•]]
|
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
4.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
5.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
6.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
7.
|
Share Issuance Agreement, dated as of [], by and between W. R. Grace & Co., WRG Asbestos PD Trust, and the WRG Asbestos PI Trust.
|
EXHIBIT B
FORM OF
QUARTERLY EBITDA AND VALUATION CERTIFICATE
QUARTERLY EBITDA AND VALUATION CERTIFICATE
This Quarterly EBITDA and Valuation Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation] // [W. R. Grace & Co.-Conn., a Connecticut corporation] (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section [7(a)(iv)(A)] // [6(a)(iv)(A)] of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
A Significant Transaction [has] // [has not] occurred
during the four-Fiscal Quarter period ending on [•] (the “
Measurement Period
”).
The [Pro Forma] EBITDA of Grace for the Measurement Period was [•] and the [Pro Forma] Valuation of Grace as of [•]
was [•]. Attached hereto are worksheets showing the calculation of the foregoing amounts.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
[W. R. GRACE & CO.]
By:
[•]
|
|
|
[W. R. GRACE & CO.-CONN.]
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
4.
|
[Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
5.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
6.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.]
|
Worksheet 1 -- EBITDA
All amounts are for the period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
[describe]
|
|
|
Total EBITDA
|
|
Worksheet 2 – Pro Forma EBITDA
All amounts are for the four Fiscal-Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Pro Forma EBITDA
|
|
Worksheet 3 -- Valuation
All amounts are as of the last day of the relevant four-Fiscal Quarter Period period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Total EBITDA (determined based on worksheet 1)
multiplied
by 7
|
|
|
|
Minus
the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date
|
[describe any exceptions from inclusion in Senior Indebtedness based on the definition thereof and the related excepted amounts]
|
|
|
Plus
the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
|
[describe any such material restrictions and the related excluded amounts]
|
|
|
Total Valuation
|
|
Worksheet 4 – Pro Forma Valuation
All amounts are as of the last day of the relevant four-Fiscal Quarter Period period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Total Pro Forma EBITDA (determined based on worksheet 2)
multiplied
by 7
|
|
|
|
Minus
the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) may not have actually been consummated during such four-Fiscal Quarter period)
|
[describe any exceptions from inclusion in Senior Indebtedness based on the definition thereof and the related excepted amounts]
[indicate the amount of Senior Indebtedness included as a result of the Significant Transaction]
|
|
|
Plus
the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction may not have actually been consummated during such four-Fiscal Quarter period), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries
|
[describe any such material restrictions and the related excluded amounts]
[indicate any amounts included as a result of the Significant Transaction]
|
|
|
Total Pro Forma Valuation
|
|
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”).
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section 7(a)(iv)(B) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
Grace has complied with the covenants set forth in
Section 7 of each Contract.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co.-Conn., a Connecticut corporation (“
Grace
”), to [•], a [•](the “
Permitted Holder
”).
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section 6(a)(iv)(B) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
Grace has complied with the covenants set forth in
Section 6 of each Contract.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.-CONN.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
2.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
EXHIBIT D
FORM OF
POST-TRANSACTION CERTIFICATE
POST-TRANSACTION CERTIFICATE
This Post-Transaction Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, Grace and [•] are party to that certain [•] (the “[
Purchase Agreement
]”);
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” under the Contracts;
WHEREAS, Section 7(a)(iv)(C) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
As of the date of the consummation of the transactions contemplated by the Purchase Agreement, the Post-Transaction Pro Forma EBITDA of Grace was [•]. Attached hereto is a worksheet showing the calculation of such Post-Transaction Pro Forma EBITDA.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
Worksheet 1 – Post-Transaction Pro Forma EBITDA
All amounts are for the four Fiscal Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Post-Transaction Pro Forma EBITDA
|
|
POST-TRANSACTION CERTIFICATE
This Post-Transaction Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co.-Conn., a Connecticut corporation (“
Grace
”), to [•], a [•](the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, Grace and [•] are party to that certain [•] (the “[
Purchase Agreement
]”);
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” under the Contracts;
WHEREAS, Section 6(a)(iv)(C) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
As of the date of the consummation of the transactions contemplated by the Purchase Agreement, the Post-Transaction Pro Forma EBITDA of Grace was [•]. Attached hereto is a worksheet showing the calculation of such Post-Transaction Pro Forma EBITDA.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
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GRACE
:
W. R. GRACE & CO.-CONN.
By:
[•]
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Schedule 1
Contracts
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1.
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Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
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2.
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Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
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3.
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Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
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Worksheet 1 – Post-Transaction Pro Forma EBITDA
All amounts are for the four Fiscal Quarter period ending ____________
on a consolidated basis in accordance with GAAP
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$ Amount
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Description
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Explanations
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Consolidated Net Income
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Plus
interest expense
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Plus
provisions for any income or similar Taxes paid or accrued
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Plus
all amounts treated as expenses for depreciation and amortization of any kind
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Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
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[describe]
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Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
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[describe]
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Plus
any non-cash charges
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[describe]
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Minus
gross interest income received during such period
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Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
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Total EBITDA
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For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
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Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
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[Describe adjustments and factual support]
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Total Post-Transaction Pro Forma EBITDA
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re:
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)
)
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Chapter 11
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W. R. GRACE & CO.,
et al
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)
)
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Case No. 01-01139 (KJC)
Jointly Administered
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)
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Debtors.
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)
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)
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)
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)
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EXHIBIT 28 TO EXHIBIT BOOK
DEFERRED PAYMENT AGREEMENT (CLASS 7B ZAI)
EXHIBIT 28
Attached.
DEFERRED PAYMENT AGREEMENT
(CLASS 7B ZAI)
THIS DEFERRED PAYMENT AGREEMENT (CLASS 7B ZAI) (this “
Deferred Payment Agreement (ZAI)
”) is made and entered into as of February 3, 2014 by and between W. R. Grace & Co.-Conn., a Connecticut corporation (together with any successor thereto pursuant to the terms and conditions of
Section 16
, “
Grace
”), and the WRG Asbestos PD Trust, on behalf of the Holders of US ZAI PD Claims (in such capacity, the “
Trust (ZAI)
”), a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan of Reorganization (as hereinafter defined). Unless otherwise defined herein or the context otherwise requires, all capitalized terms used herein and defined in the Plan of Reorganization shall be used herein as therein defined.
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
Definitions; Rules of Interpretation
.
(a)
The following terms are defined as follows:
“
Administrative Agent
” has the meaning set forth in
Section 16(d)(3)
.
“
Aggregate Excess Expense Credit
” means, for purposes of calculating any Contingent Deferred Payment (ZAI), the total aggregate amount (if any) by which the sum of Trust’s Expenses (ZAI) for each Contingent Payment Reference Period since the last Contingent Deferred Payment (ZAI) exceeds the corresponding amount set forth below for each such Contingent Payment Reference Period:
(A) for the Contingent Payment Reference Period between the first Effective Day Anniversary and the second Effective Day Anniversary, $1,500,000; plus
(B) for the Contingent Payment Reference Period between the second Effective Day Anniversary and the third Effective Day Anniversary, $1,250,000; plus
(C) for the Contingent Payment Reference Period between the third Effective Day Anniversary and the fourth Effective Day Anniversary, and for each Contingent Payment Reference Period thereafter, $1,000,000;
provided
,
however
, that on and after any Contingent Payment Reference Period occurring on or after the fifth Effective Date Anniversary, such $1,000,000 amount shall be annually adjusted to reflect the inflation rate in respect of the relevant Contingent Payment Reference Period (as determined by the U.S. Department of Bureau of Labor Statistics in the Consumer Price Index provided by it in respect of the relevant Contingent Payment Reference Period); and
provided
,
further
, that if Grace is required to make a Contingent Deferred Payment (ZAI) and as to such Contingent Deferred Payment (ZAI) is permitted to apply an Aggregate Excess Expense Credit, then the calculation of Grace's Aggregate Excess Expense Credit from and after the last day of the Contingent Payment Reference Period in respect of such Contingent Deferred Payment (ZAI) has accrued shall be calculated only with respect to the applicable caps and Trust’s Expenses for such succeeding Contingent Payment Reference Periods.
“
Authorized Officer
” means, with respect to any Entity, the chief executive officer, president, chief financial officer, controller, executive vice president or senior vice president of such Entity.
“
Bona Fide Compensation Transaction
” means any payment, grant or award, whether in cash, securities, options or other consideration, including without limitation salary or bonus, to or for the benefit of any director, officer or employee of any Transferor or any of its Affiliates made for legitimate, bona fide compensation and/or incentivization purposes;
provided
that compensation paid, granted or awarded to any one such individual in any Fiscal Year of Transferor whose aggregate value at the time or times of payment, grant or award is in excess of $15,000,000 shall be a Bona Fide Compensation Transaction only (i) if the relevant Transferor is then obligated to file or furnish, or is otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, it is approved by an independent committee of the Board of Directors of the Transferor (or other similar management body of the Transferor) or (ii) if the relevant Transferor is not then obligated to file or furnish, or is not otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, a reputable independent compensation expert or consultant selected by the Transferor with the consent of the “Permitted Holder” (as defined in the Deferred Payment Agreement (PI)) (which consent shall not be unreasonably withheld, conditioned or delayed) shall have determined, in its reasonable, good faith judgment, that such payment, grant or award is reasonable and appropriate. For purposes of the proviso in the previous sentence, (A) no payment or other value received in a given year pursuant to the terms of a grant or award in a previous year shall be taken into account for calculating the compensation in such given year; and (B) in the event of multiple payments, grants or awards in a given Fiscal Year, the independent committee approval, or independent compensation expert or consultant determination, as appropriate, shall be made with respect to each payment, grant or award beginning with the payment, grant or award that causes the compensation to be in excess of $15,000,000.
“
Business Day
” means any day other than a Saturday, Sunday, or any other day on which banks are authorized or required to close in New York, New York or Columbia, Maryland.
“
Capital Stock
” means, with respect to any Entity, any share of stock, or any depositary receipt or other certificate representing any share of stock, or any similar equity ownership interest, and any warrant, option, or any other security providing for the right to acquire any such share of stock or similar equity ownership interest.
“
Claims
” has the meaning set forth in
Section 17(b)
.
“
Collateral Agent
” has the meaning set forth in
Section 16(d)(3)
.
“
Common Stock
” has the meaning set forth in the Share Issuance Agreement.
“
Compliance Certificate
” means a certificate in the form of
Exhibit C
.
“
Contingent Deferred Payment Date
”
means
the later of:
(i) the anniversary date of the Effective Date (the “
Effective Date Anniversary
”) immediately following the receipt of the relevant Trust’s Certificate
, or
(ii) the sixtieth (60th) day after receipt of the relevant Trust’s Certificate;
provided
,
however
, that if an Effective Date Anniversary occurs between the date the Trust’s Certificate is received by Grace and Parent Guarantor and the 60th day thereafter, then such Contingent Deferred Payment (ZAI) shall be due and payable, and the Contingent Deferred Payment Date shall be deemed to occur, on such 60th day.
“
Contingent Deferred Payment (ZAI)
” means
an amount equal to $8,000,000 minus the amount, if any, of the Aggregate Excess Expense Credit as determined in accordance with
Section 2(b)
.
“
Contingent Payment Reference Period
” has the meaning set forth in
Section 2(a)(ii)
.
“
Control
” means, as to any Entity, the power to direct the management and policies of such Entity directly or indirectly, whether
through
the ownership of voting securities, by contract or otherwise; and the terms “Controlling” and “Controlled” have meanings correlative to the foregoing.
“
Controlled Affiliate
” means, as to any Entity (the “
Controlling Entity
”), any Affiliate that is Controlled by such Controlling Entity.
“
Courts
” has the meaning set forth in
Section 17(b)
.
“
Default Rate
” means a floating rate equal to the Prime Rate plus 2.00% per annum.
“
Deferred Payments
” means, collectively, the Deferred Payments (PI), the Deferred Payments (PD) and the Deferred Payments (ZAI).
“
Deferred Payment Agreement (PD)
” means the Deferred Payment Agreement (Class 7(a) PD) dated as of even date herewith between Grace and the Trust (PD) (as defined in the Deferred Payment Agreement (PD)).
“
Deferred Payment Agreement (PI)
” means the Deferred Payment Agreement (PI) dated as of even date herewith between Grace and the Trust (PI).
“
Deferred Payment Agreement (ZAI)
” has the meaning set forth in the introductory paragraph hereof.
“
Deferred Payment Date (ZAI)
” means, in respect of a Deferred Payment (ZAI), each corresponding date set forth in
Section 2
.
“
Deferred Payment Documents
” means this Deferred Payment Documents (ZAI), the Deferred Payment Documents (PD) (as defined in the Deferred Payment Agreement (PD)) and the Deferred Payment Documents (PI) (as defined in the Deferred Payment Agreement (PI)).
“
Deferred Payment Documents (ZAI)
” means this Deferred Payment Agreement (ZAI), the Parent Guarantee (ZAI) and the Share Issuance Agreement.
“
Deferred Payment (PD)
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Deferred Payment (PI)
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Deferred Payment (ZAI)
” means
(i) a Contingent Deferred Payment (ZAI) or a
Fixed Deferred Payment (ZAI) and (ii) all Contingent Deferred Payments (ZAI) and all Fixed Deferred Payments (ZAI), collectively.
“
Demand for Issuance of the Section 524(g) Shares
” has the meaning set forth in the Share Issuance Agreement.
“
Designated Senior Indebtedness
” means Senior Indebtedness issued, pursuant to a facility with an aggregate principal amount, commitments and/or other financial accommodations then outstanding and/or available (disregarding for purposes of this definition whether any conditions for draws thereunder have been satisfied), as of the relevant date of determination, of at least $25,000,000.
“
Disposition Transaction
” has the meaning set forth in
Section 6(b)
.
“
Disqualified Equity Interest
” means that portion of any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof on or prior to the final Deferred Payment Date (ZAI).
“
Dollars
” and “
$
” means the legal currency of the United States of America.
“
EBITDA
” means, for any Entity for any period, such Entity’s and its Subsidiaries’ consolidated net income (determined in accordance with GAAP) for such period plus, without duplication, in respect of any such item of such Entity and/or any of its Subsidiaries (i) to the extent deducted in determining such consolidated net income, the sum, without duplication, of (a) interest expense, (b) provisions for any income or similar Taxes paid or accrued, (c) all amounts treated as expenses for depreciation and amortization of any kind, (d) cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents, (e) items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period, and (f) any non-cash charges minus (ii) to the extent included in determining such consolidated net income, the sum, without duplication, of (a) gross interest income received during such period and (b) items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period, all, in the cases of clauses (i) and (ii) above, as determined on a consolidated basis in accordance with GAAP.
“
Effective Date Anniversary
” has the meaning set forth in the definition of “Contingent Deferred Payment Date.”
“
Equity Interest
” means shares of capital stock or equity, equity securities or ownership interests in any Entity or any rights (including any
(x) options, warrants or other rights to purchase or acquire any such stock, equity or interests (whether or not at the time exercisable), or (y) securities by their terms convertible into or exchangeable for any such stock, equity or interests (whether or not at the time so convertible or exchangeable) or options, warrants or rights to purchase such convertible or exchangeable securities
.
“
Event of Default
” has the meaning set forth in
Section 8
.
“
Fair Market Value
” means, with respect to each share of Common Stock:
(i)
If traded on the NYSE, NASDAQ or another stock exchange, the average sale price (as of the close of business of each relevant trading date) of the Common Stock on the NYSE, NASDAQ or such other exchange for the 30 trading days immediately prior to the date for which the value is to be determined (or if no sale took place on such trading date, the average of the closing bid and ask prices of the Common Stock on such trading date);
(ii)
If traded over-the-counter other than on NASDAQ, the average of the closing bid and ask prices (as of the close of business of each relevant trading date) of the Common Stock for the 30 trading days immediately prior to the date for which the value is to be determined; and
(iii)
If there is no public market for the Common Stock, the fair market value of the Common Stock as of the day immediately prior to the date for which the value is to be determined, as determined by a reputable investment bank or valuation firm selected jointly by Parent and the Trusts’ Representative (the “
Independent Appraiser
”). Parent and the Trusts’ Representative shall instruct the Independent Appraiser to render its decision within thirty days of its acceptance of its selection. The fees and expenses of the Independent Appraiser shall be borne by Parent.
“
Fiscal Quarter
” means, in respect of any Entity, a fiscal quarter of such Entity as determined by it.
“
Fiscal Year
” means, in respect of any Entity, a fiscal year of such Entity as determined by it.
“
Fixed Deferred Payment Date (ZAI)
” has the meaning set forth in
Section 2(a)
.
“
Fixed Deferred Payment (ZAI)
” has the meaning set forth in
Section 2(a)
.
“
GAAP
” means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis; provided, however, that as of such time, if any, when any Entity begins to provide financial information generally on the basis of IFRS, then any reference to GAAP with respect to such Entity shall be given effect as a reference to IFRS.
“
Governing Documents
” means, as to any Entity, its articles or certificate of incorporation and by-laws, its partnership agreement, its certificate of formation and operating agreement and/or the organizational or governing documents of such Entity.
“
Governmental Authority
” means the government of the United States of America or any other country, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
“
Grace
” has the meaning set forth in the introductory paragraph hereof.
“
IFRS
” means the International Financial Reporting Standards as adopted by the International Accounting Standards Board and in effect from time to time, consistently applied.
“
Insolvent
” means the financial condition of the Parent Guarantor, its Subsidiaries and Grace taken as a whole such that as of the date specified, the sum of their liabilities is greater than a fair valuation of all of their property and other assets.
“
Intercreditor Agreement
” means the Intercreditor Agreement, dated as of the date hereof, among the Trusts’ Representative, the Trust (PI) and the Trust (PD).
“
Laws
” means, collectively, all applicable international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances and codes, including the binding interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof.
“
NASDAQ
” shall mean The NASDAQ Stock Market (including any of its subdivisions such as the NASDAQ Global Select Market) or any successor market thereto.
“
NYSE
” shall mean The New York Stock Exchange or any successor stock exchange thereto.
“
NY UCC
” means the Uniform Commercial Code, as enacted and in effect in the State of New York from time to time.
“
Ordinary Dividends
” means, in respect of any Entity, ordinary cash dividends declared and paid out of surplus and/or net profits (as determined in accordance with applicable law) in accordance with the dividend policy of such Entity as in effect from time to time; provided, however, that notwithstanding the foregoing, the excess, if any of (a) the aggregate amount of dividends declared and paid by such Entity in any Fiscal Year over (b) 50% of such Entity’s and its Subsidiaries’ consolidated net income (determined in accordance with GAAP) for the immediately preceding Fiscal Year shall not constitute “Ordinary Dividends” to the extent of such excess.
“
Parent Guarantee (ZAI)
” means the W. R. Grace & Co. Guarantee Agreement (Class 7(b) ZAI) dated as of even date herewith by the Parent Guarantor in favor of the Trust (ZAI).
“
Parent Guarantor
” means W. R. Grace & Co., a Delaware corporation, and any successor guarantor of the obligations of Grace (or a successor Entity) arising under this Deferred Payment Agreement (ZAI) pursuant to the terms and conditions of the Parent Guarantee (ZAI).
“
Payment Blockage Notice
” has the meaning set forth in
Section 7(a)(ii)
.
“
Payment Blockage Period
” has the meaning set forth in
Section 7(a)(ii)
.
“
Permitted Holder
” means, as of any date of determination, collectively, (a)(i) if the Trust (ZAI) has not, as of such date, assigned any of its rights or privileges under this Deferred Payment Agreement (ZAI) (other than granting a security interest in its rights and privileges under this Deferred Payment Agreement (ZAI)), the Trust (PI) and (ii) otherwise, the Administrative Agent and (b) the Collateral Agent.
“
Permitted Payee
” means, as of any date of determination, the Permitted Holder or any permitted assignee of all or any portion of the Deferred Payments (ZAI) and the rights and interests therein and thereto pursuant to the terms and conditions of
Section 16
.
“
Permitted Payor
” means any Entity (other than Grace but including the Parent Guarantor) acting on behalf of, or designated by Grace.
“
Plan of Reorganization
” means that certain First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms.
“
Post-Transaction Certificate
” means a certificate in the form of
Exhibit D
.
“
Post-Transaction Pro Forma Cash Balance
” means with respect to any Entity as of any date of determination, the aggregate amount of such Entity’s and its consolidated Subsidiaries’ cash and cash equivalents as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring on or prior to such date, notwithstanding that such Significant Transaction may not have actually been consummated as of such date), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
“
Post-Transaction Pro Forma EBITDA
” means, with respect to any Entity for any four-Fiscal Quarter period and any specified Disposition Transaction, such Entity’s Pro Forma EBITDA for such four-Fiscal Quarter period, computed assuming that such Disposition Transaction, and any other Significant Transaction the Transaction Date of which occurs on or prior to the Transaction Date of such Disposition Transaction and during the same Fiscal Quarter as the Transaction Date of such Disposition Transaction, were consummated on the same terms in effect on the respective Transaction Dates at the beginning of the four-Fiscal Quarter period most recently ended prior to the Transaction Date of such Disposition Transaction, and shall include adjustments which give effect to events that are
(i) directly attributable to such Disposition Transaction and any such Significant Transactions, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable.
“
Post-Transaction Pro Forma Senior Indebtedness
” means with respect to any Entity as of any date of determination, the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) with a Transaction Date occurring on or prior to such date, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) may not have actually been consummated as of such date).
“
Post-Transaction Pro Forma Valuation
” means, with respect to any Entity as of any date of determination, the amount resulting from (a) the product of (i) such Entity’s Post-Transaction Pro Forma EBITDA for the four-Fiscal Quarter period most recently ended,
multiplied
by
(ii)
seven (7),
minus
(b) such Entity’s Post-Transaction Pro Forma Senior Indebtedness as of such date,
plus
(c) such Entity’s Post-Transaction Pro Forma Cash Balance as of such date.
“
Prime Rate
” means as of any date of determination, the
per annum
rate publicly announced on such date as the daily “U.S. prime rate” by The Wall Street Journal (National Edition) for transactions in Dollars. Any change in the Default Rate resulting from a change in the Prime Rate shall become effective on the Business Day on which each change in the Prime Rate is publicly announced by The Wall Street Journal (National Edition).
“
Proceeding
” means, with respect to any Entity, any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, or other winding up of such Entity or all or substantially all of the properties of such Entity.
“
Pro Forma Cash Balance
” means with respect to any Entity as of the last day of any four-Fiscal Quarter period, the aggregate amount of such Entity’s and its consolidated Subsidiaries’ cash and cash equivalents as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction may not have actually been consummated during such four-Fiscal Quarter period), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
“
Pro Forma EBITDA
” means, with respect to any Entity for any four Fiscal-Quarter period, such Entity’s EBITDA for such four Fiscal-Quarter period, computed assuming that any Significant Transaction the Transaction Date of which occurred during the relevant four-Fiscal Quarter period was consummated, on the terms in effect on such Transaction Date, at the beginning of such four-Fiscal Quarter period most recently ended prior to the Transaction Date of such Significant Transaction, and shall include adjustments which give effect to events that are
(i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable.
“
Pro Forma Senior Indebtedness
” means with respect to any Entity as of the last day of any four-Fiscal Quarter period, the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) may not have actually been consummated during such four-Fiscal Quarter period).
“
Pro Forma Valuation
” means, with respect to any Entity as of the last day of any four-Fiscal Quarter period, the amount resulting from (a) the product of (i) such Entity’s Pro Forma EBITDA for such four-Fiscal Quarter period,
multiplied
by
(ii)
seven (7),
minus
(b) such Entity’s Pro Forma Senior Indebtedness as of such date,
plus
(c) such Entity’s Pro Forma Cash Balance as of such date.
“
Quarterly EBITDA and Valuation Certificate
” means a certificate in the form of Exhibit B.
“
Regulation S-X
” means Regulation S-X promulgated by the United States Securities and Exchange Commission as in effect on the date hereof.
“
Related Party
” means in respect of an Entity (the “
Affected Entity
”): (a) any senior key employee, officer or director of the Affected Entity or, in respect of an officer or director, any person holding a similar position in an Affected Entity that is not a corporation (any such person, an “
Insider
”); (b) any spouse, child, parent or sibling of an Insider; (c) another Entity which alone or together with other Entities under its Control directly or indirectly Controls or holds ten percent (10%) or more of the Equity Interests that (i) generally entitle the holders thereof to vote for the election of the board of directors or other governing body of the Affected Entity, or (ii) confer upon the holders thereof an interest in the capital or profits of the Affected Entity; (d) any Entity Controlled by the Affected Entity or by any Insider or in which the Affected Entity or any Insider Controls or holds ten percent (10%) or more of the stock or other Equity Interests which (i) generally entitle the holders thereof to vote for the election of the board of directors or other governing body of the Affected Entity or (ii) confer upon the holders thereof an interest in the capital or profits of such Affected Entity; or (e) any Controlled Affiliate of any Entity that is a Related Person by virtue of clause (d) of this definition;
provided
,
however
,
that any direct or indirect 100% owned Subsidiary of Grace shall not constitute a “Related Party” for purposes of this Deferred Payment Agreement (ZAI).
“
Section 524(g) Shares
” has the meaning set forth in the Share Issuance Agreement.
“
Senior Indebtedness
” means any and all present and/or future, direct and/or indirect, indebtedness, liabilities and other obligations of Grace and/or the Parent Guarantor owed to any Entity (whether as senior or subordinated indebtedness, as a first lien, second lien, any other position or priority, and any mezzanine, subordinated or other indebtedness), including any principal, interest and premiums, fees, investment points, reimbursement obligations, issuance discounts and/or other costs, indemnities, liabilities and/or expenses thereon or in connection therewith (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable Law), in each case, under or with respect to (i) any credit or loan facilities (whether provided by one or more banks, insurance companies, financial institutions, private equity or hedge funds, lenders, and/or other Entities) and/or (ii) any debt, bonds, debentures, notes, repurchase, discount, securitization, factoring and/or other similar facilities providing for indebtedness, including any and all obligations of any nature in respect of loans, credit agreements, indentures, and bonds, together with obligations in respect of hedging arrangements (whether in respect of interest rates, currencies, commodities, equities, indebtedness and/or otherwise), in each case, entered into with banks, insurance companies, financial institutions, private equity or hedge funds, lenders and/or other Entities who are engaged in the business of providing financing (but not customers of or suppliers to Grace and/or the Parent Guarantor to the extent constituting trade payables), notes, letters of credit, and synthetic letters of credit in connection therewith, and/or (iii) any reimbursement, payment, indemnities, fees, guarantees or other obligations in connection with any credit or loan facilities or indebtedness, liabilities and other obligations referenced in clauses (i) or (ii);
except
in each case, for indebtedness of Grace and/or the Parent Guarantor (A) that by its express terms is not Senior Indebtedness for purposes of this Deferred Payment Agreement (ZAI) and the Parent Guarantee (ZAI) and is to be treated as
pari passu
or junior and subordinated with respect thereto in accordance with its terms, (B) for the avoidance of doubt, consisting of obligations to trade creditors and other trade payables in connection with the purchase of goods, materials or services, (C) owed to, or guaranteed by Grace or the Parent Guarantor on behalf of, any director, officer or senior key employee of (1) Grace, (2) the Parent Guarantor or (3) any Subsidiary or Affiliate of Grace or the Parent Guarantor, (D) represented by Disqualified Equity Interests, (E) owed to (1) Grace, (2) the Parent Guarantor or (3) any Subsidiary or Affiliate of Grace or the Parent Guarantor and (F) resulting from the Deferred Payment Documents (PD) or the Deferred Payment Documents (PI).
“
Senior Non-Payment Default
” has the meaning set forth in
Section 7(a)(ii)
.
“
Senior Payment Default
” has the meaning set forth in
Section 7(a)(i)
.
“
Senior Remedies
” means, if an event of default has occurred and is continuing under the terms of any agreement or document relating to Senior Indebtedness, any of the following by the holder (or any agent or trustee of the holder) of any Senior Indebtedness: (1) exercising or seeking to exercise any rights or remedies against Grace or the Parent Guarantor with respect to such event of default or (2) instituting any action or proceeding with respect to such rights or remedies (including any action of foreclosure, contest or protest) under any agreement or document relating to Senior Indebtedness, or under such event of default or otherwise or (3) attempting to do any of the foregoing.
“
Significant Transaction
” means (a) any Disposition Transaction or (b) any transaction of the type described in Section 210.11-01(a)(1) or Section 210.11-01(a)(2) of Regulation S-X (disregarding, for purposes of clause (b) of this definition, whether the Entity entering into such transaction is at the time obligated to file or furnish, or is otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, as amended).
“
Subsidiary
” means, with respect to any Entity at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (i) the accounts of which would be consolidated with those of such Entity in such Entity’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (ii) of which more than 50% of (A) the outstanding Capital Stock having (in the absence of contingencies) ordinary voting power to elect a majority of the board of directors or other managing body of such Entity, (B) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (C) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or Controlled directly or indirectly through one or more intermediaries, by such Entity.
“
Taxes
” means any and all present or future taxes, levies, imposts, fees, assessments, levies, duties, deductions, charges, liabilities or withholdings (including interest, fines, penalties or additions to tax) imposed by any Governmental Authority.
“
Threshold Amount
” means, as of any date of determination, the sum of (a) $2,000,000,000
minus
(b) the aggregate amount of Deferred Payments (ZAI) made by Grace and any Permitted Payor under this Deferred Payment Agreement (ZAI) on or prior to such date
plus
(c) the aggregate amount of Deferred Payments (ZAI) received by the Permitted Holder or any Permitted Payee under this Deferred Payment Agreement (ZAI) from Grace or any relevant Permitted Payor that have subsequently been invalidated, declared to be fraudulent or preferential, set aside and/or required or agreed to be repaid or returned by the Permitted Holder or such Permitted Payee under this Deferred Payment Agreement (ZAI) as of such date under any Law or in respect of any Proceeding or other litigation to which Grace, the relevant Permitted Payor, the Permitted Holder or any Permitted Payee is subject
plus
, without duplication, (d) the aggregate amount of Deferred Payments (ZAI) received by the Permitted Holder or any Permitted Payee that the relevant Permitted Holder or such Permitted Payee has delivered to the holders of any Senior Indebtedness pursuant to
Section 7(c)
of this Deferred Payment Agreement (ZAI) as of such date.
“
Total Assets
” means, as of any date of determination, the value of the Trust (ZAI)’s total assets as reflected on the “Asset” column of its balance sheet and as determined in accordance with GAAP;
provided
,
however
, that such amount of total assets shall be increased (without duplication) on a dollar-for-dollar basis by an amount equal to the aggregate amount of any payments made in breach of the Plan of Reorganization and/or the ZAI Trust Distribution Procedures (as determined either by the Trust (ZAI) and Grace or through an independent alternative dispute resolution procedure in accordance with the Plan of Reorganization and/or the ZAI Trust Distribution Procedures, as applicable) prior to the date of determination.
“
Transaction Date
” means, with respect to any Significant Transaction, (a) the date, if any, on which final, definitive documentation providing for such Significant Transaction is executed;
provided
,
however
, that the “Transaction Date” shall no longer be deemed to have occurred with respect to any Significant Transaction if the final, definitive documentation providing for such Significant Transaction is terminated for any reason, or (b) if no such final, definitive documentation for such Significant Transaction is executed, the date on which such Significant Transaction is consummated.
“
Transfer
” has the meaning set forth in
Section 6(b)
.
“
Transferor
” has the meaning set forth in
Section 6(b)
.
“
Trust (PD)
” has the meaning set forth in the Deferred Payment Agreement (PD).
“
Trust (PI)
” means the WRG Asbestos Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan of Reorganization.
“
Trusts
” has the meaning set forth in the Share Issuance Agreement.
“
Trust’s Certificate
” means a certificate duly executed and delivered by an officer of the Trust (ZAI) to Grace and Parent Guarantor setting forth:
(i) the balance sheet of the Trust (ZAI) as of the relevant date and a certification that such balance sheet is true and correct in all material respects and fairly represents the assets and liabilities of the Trust (ZAI) as of such date as determined in accordance with GAAP consistently applied,
(ii) an itemized list, and the aggregate amount of, the Trust’s Expenses incurred during the most recently completed Contingent Payment Reference Period (or, in respect of the first Trust’s Certificate, the Trust’s Expenses incurred since (and including) the Effective Date),
(iii) the aggregate amount, if any, of any Aggregate Excess Expense Credit as of the end of such Contingent Payment Reference Period, and
(iv) a certification by the Trust (ZAI) that all the information set forth in the certificate is true and correct in all material respects.
“
Trust’s Expenses (ZAI)
” means any and all costs, fees, disbursements and expenses of any nature, whether administrative, accounting, operational, legal, financial, agency, advisory, on account of compensation, or otherwise, of the Trust (ZAI) incurred by or for the account of the Trust (ZAI) in connection with bona fide purposes of the Trust (ZAI) as such purposes existed as of the Effective Date;
provided
,
however
, that the following shall not constitute Trust’s Expenses (ZAI):
(A) costs, fees, disbursement and expenses on account of Allowed Class 7(b) Claims,
(B) costs, fees, disbursements and expenses that may be ordered by the U.S. Bankruptcy Court or U.S. District Court in connection with any US ZAI Class Action Common Fund fee petitions,
(C) costs, fees, disbursements and expenses in respect of the “ZAI educational program” described in Section 5.3 of the ZAI Trust Distribution Procedures),
(D) costs, fees, disbursements and expenses in respect of any vermiculite testing procedure set forth in Section 5.4.2 of the ZAI Trust Distribution Procedures, and
(E) costs, fees, disbursements and expenses of the PD FCR (other than legal fees and related disbursements).
(F) costs, fees, disbursements and expenses in respect of any extraordinary and unforeseen costs, fees, disbursements and expenses that (x) Grace shall agree from time to time shall not constitute Trust’s Expenses or (y) are determined to be extraordinary and unforeseen pursuant to a final decision obtained pursuant to the alternative dispute resolution procedures set forth in the ZAI Trust Distribution Procedures.
“
Trusts’ Representative
” has the meaning set forth in the Share Issuance Agreement.
“
Trust (ZAI)
” has the meaning set forth in the introductory paragraph hereof.
“
Valuation
” means, with respect to any Entity as of the last day of any four-Fiscal Quarter period, the amount resulting from (a) the product of (i) such Entity’s EBITDA for such four-Fiscal Quarter period,
multiplied
by
(ii)
seven (7),
minus
(b) the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date,
plus
(c) the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
(a) Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All references herein to Sections shall be deemed references to Sections of this Deferred Payment Agreement (ZAI) unless the context shall otherwise require.
(b) Unless otherwise indicated, (i) the term “including” means “including without limitation,” except when used in the computation of time periods, and (ii) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein).
(c) For purposes of the computation of time periods, whenever this Deferred Payment Agreement (ZAI) provides for an event to occur “within” a specified number of days of a preceding event, it shall mean that the latter event shall occur before the close of business on the last of the specified days, and the day on which the preceding event occurs shall not be included in the computation of days elapsed. The word “from” means “from and including”, “after” means “after and excluding”, and “to” and “until” mean “to and including”.
(d) All terms defined in this Deferred Payment Agreement (ZAI) or any other Deferred Payment Documents (ZAI) in the singular form shall have comparable meanings when used in the plural form and vice versa.
2.
Payment of Deferred Payments (ZAI)
.
(a)
Subject to
Sections 2(c)
,
3(c)
,
(f)
and
(g)
and
Section 7
, Grace shall make the following payments:
(i)
$30,000,000 (the “
Fixed Deferred Payment (ZAI)
”) on the third anniversary of the Effective Date (the “
Fixed Deferred Payment Date (ZAI)
”).
(ii)
Subject to
Sections 2(c)
,
3(c)
,
(f)
and
(g)
and
Section 7
, if and only if, on any date after the fourth anniversary of the Effective Date (x) the Total Assets of the Trust (ZAI) are less than $10,000,000 and (y) the Trust (ZAI) shall deliver to Grace and Parent Guarantor a Trust’s Certificate, then Grace shall, no later than the Contingent Deferred Payment Date, pay the Contingent Deferred Payment (ZAI) to the Trust (ZAI); provided, however, that
the payment obligation set forth in this
Section 2(b)
shall be subject to the following conditions: (A) no more than one Trust’s Certificate may be delivered by the Trust (ZAI) in any twelve-month period after the Effective Date (each such period, a “
Contingent Payment Reference Period
”), (B) no more than one Contingent Deferred Payment (ZAI) shall accrue and be payable during any Contingent Payment Reference Period, (C) no Contingent Deferred Payment (ZAI) shall be payable prior to the fifth Effective Date Anniversary, (D) no more than ten (10) Contingent Deferred Payments (ZAI) shall be payable in the aggregate and the total aggregate amount of all Contingent Deferred Payments (ZAI) shall in no event exceed $80 million and (E) no Contingent Deferred Payment (ZAI) shall be due and payable after the twenty-fifth (25
th
) Effective Date Anniversary.
(b)
In determining the amount of the Aggregate Excess Expense Credit and offsetting it against a Contingent Deferred Payment (ZAI), the terms and conditions set forth in
Annex A
hereto (“
Credit to Grace for Administrative Expenses Exceeding a Presumptively Reasonable Expense Amount
”) shall be given effect for purposes of interpreting, to the extent necessary or appropriate, the provisions of this Deferred Payment Agreement (ZAI) relevant to such determination and offset.
(c)
To the extent that the Trusts’ Representative exercises its rights on behalf of the Trust (ZAI) under the Share Issuance Agreement and the Section 524(g) Shares are issued and delivered to the Trust (ZAI) (or its permitted successors or assigns), the amount of the remaining Deferred Payments (ZAI) shall automatically be reduced, in the order directed by Grace, by the Fair Market Value of the portion of the Section 524(g) Shares allocated to the Trust (ZAI) pursuant to Section 4 of the Intercreditor Agreement (as such Section 4 of the Intercreditor Agreement, together with any defined terms used (directly or indirectly) in such Section 4 of the Intercreditor Agreement are in effect as of the date hereof, or as amended or modified from time to time with the consent (not to be unreasonably withheld) of Grace and the Parent Guarantor after the date hereof.
3.
Payments
.
(a)
All payments to be made hereunder or in respect hereof shall be made in Dollars by wire transfer of immediately available funds to the Permitted Holder in accordance with wire transfer instructions provided by the Permitted Holder in writing from time to time. Upon request by the Permitted Holder, Grace shall provide, or cause to be provided, the Federal Reserve Bank wire reference numbers and other wire information related to any payments hereunder.
(b)
Subject to
Sections 2(c)
,
3(e)
,
3(f)
and
3(g)
, all payments hereunder or in respect hereof shall be made in full, without any reduction, set-off or counterclaim.
(c)
Whenever any payment to be made under this Deferred Payment Agreement (ZAI) (including a Deferred Payment (ZAI) on a Deferred Payment Date (ZAI)) shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day.
(d)
All payments made hereunder or in respect hereof (i) during the existence of an Event of Default shall be applied,
first
to pay any fees, costs and expenses payable by Grace pursuant to
Section 16(h)
and
Section 19
,
second
, to any unpaid interest accrued on the Deferred Payments (ZAI) and,
third
, to the Deferred Payments (ZAI) in direct order of maturity, and (ii) at any other time, as directed by the Permitted Payor.
(e)
If, after giving effect to (y) any Disposition Transaction or any assignment, delegation or transfer by Grace of its rights or obligations under this Deferred Payment Agreement (ZAI) or (z) any election to have a Permitted Payor make any payment on behalf of Grace pursuant to
Section 4(a)
, Grace, any successor Entity to Grace or such Permitted Payor shall be required by applicable Law to withhold any Taxes from any payments of Deferred Payments (ZAI) or interest at the Default Rate hereunder, and if such requirement would not have been imposed by such applicable Law but for such Disposition Transaction, assignment or transfer, then (i) the sum payable on account of Deferred Payments (ZAI) or interest at the Default Rate shall be increased as necessary so that after making all withholdings required by applicable Law (including withholdings applicable to additional sums payable under this
Section 3(e)
) the Permitted Payee receives an amount equal to the sum it would have received on account of Deferred Payments (ZAI) or interest at the Default Rate had no such withholdings been made, (ii) Grace or such successor Entity, shall, or shall cause such Permitted Payor to, make such withholdings; and (iii) Grace or such successor Entity shall, or shall cause such Permitted Payor to, timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Law. This
Section 3(e)
shall survive the termination of this Deferred Payment Agreement (ZAI) pursuant to
Section 11
.
(f)
If, after giving effect to any permitted assignment or Transfer by the Permitted Holder of its rights or obligations under this Deferred Payment Agreement (ZAI), Grace or a Permitted Payor shall be required by applicable Law to withhold any Taxes from any payments of Deferred Payments (ZAI) or interest at the Default Rate hereunder, and if such requirement would not have been imposed by such applicable Law but for such assignment or Transfer, then the obligation of Grace or the Permitted Payor to make the relevant payment of a Deferred Payment (ZAI) or interest at the Default Rate hereunder shall be discharged by making such payment net of such Taxes. This
Section 3(f)
shall survive the termination of this Deferred Payment Agreement (ZAI) pursuant to
Section 11
.
(g)
If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case adopted after the date hereof, Grace or a Permitted Payor shall be required to withhold any Taxes from any payments of Deferred Payments (ZAI) or interest at the Default Rate hereunder, then the obligation of Grace or the Permitted Payor to make the relevant payment of a Deferred Payment (ZAI) or interest at the Default Rate hereunder shall be discharged by making such payment net of such Taxes. This
Section 3(g)
shall survive the termination of this Deferred Payment Agreement (ZAI) pursuant to
Section 11
.
4.
Permitted Payor; Prepayments
.
(a)
The obligation of Grace to make all or any portion of any Deferred Payment (ZAI) may be satisfied by direct payment of such amounts by a Permitted Payor.
(b)
To the extent any Deferred Payment (ZAI) is timely paid by a Permitted Payor, and except as set forth in
Section 4(d)
, the obligation of Grace in respect of the amounts paid shall be deemed satisfied in full, Grace shall have no further obligation in connection therewith and Grace shall not be considered in default in respect of such amounts so paid.
(c)
Any Permitted Payor and Grace may at any time and from time to time prepay any Deferred Payment (ZAI) in whole or in part without penalty, premium or discount. Any such prepayment(s) shall be applied to the Deferred Payments (ZAI) as directed by Grace.
(d)
To the extent that any Entity makes a payment to the Permitted Holder or any Permitted Payee on account of this Deferred Payment Agreement (ZAI) that (in whole or in part) is subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required or agreed to be repaid or returned by the Permitted Holder or such Permitted Payee under any Law or in respect of any Proceeding or other litigation to which Grace, the relevant Permitted Payor, the Permitted Holder or any Permitted Payee is subject, then, to the extent of the amount of such payment, the portion of the obligations under this Deferred Payment Agreement (ZAI) which has been paid, reduced or satisfied by such amount shall be reinstated and continue to be in full force and effect as of the time immediately preceding such initial payment, reduction or satisfaction.
5.
Representations and Warranties
. Grace hereby represents and warrants to the Trust (ZAI) that as of the Effective Date:
(a)
Grace is duly organized and validly existing under the laws of the State of Connecticut.
(b)
Grace has the corporate power and authority to execute and deliver each Deferred Payment Document (ZAI) to which it is a party. Each Deferred Payment Document (ZAI) to which Grace is a party has been duly authorized by all necessary corporate action of Grace and has been duly executed and delivered by Grace.
(c)
Each Deferred Payment Document (ZAI) to which Grace is a party is a legal, valid and binding obligation of Grace, enforceable against Grace in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally, by the discretion of the court in which enforcement is sought, and/or by general equitable principles (whether enforcement is sought by proceedings at law or in equity).
(d)
The execution, delivery and performance by Grace of each Deferred Payment Document (ZAI) to which it is party does not conflict with, result in a breach of any of the provisions of, or violate the Governing Documents of Grace.
6.
Covenants
.
Grace covenants and agrees that, from the Effective Date until the earlier of (A) this Deferred Payment Agreement (ZAI) terminates in accordance with Section 11 or (B) payment in full of the Deferred Payments (PI):
(a)
Affirmative Covenants
. Grace shall:
(i)
Maintenance of Existence and Qualifications
. Maintain and preserve in full force and effect its existence and all other rights, powers, franchises, licenses and qualifications necessary or desirable for its ownership or use of properties or the conduct of its business, except (A) as permitted by
Section 16
, and (B) where the failure to do so would not be reasonably likely to adversely affect Grace’s ability to make the Deferred Payments (ZAI) under this Deferred Payment Agreement (ZAI) or to perform its obligations under the Deferred Payment Documents (ZAI) to which it is a party.
(ii)
Notices of Event of Default, Senior Payment Default and Senior Non-Payment Default
. Furnish to the Permitted Holder (x) within five (5) Business Days after an Authorized Officer of Grace shall first learn of an Event of Default, and (y) on or before the earlier of (A) the fifteenth (15th) day after an Authorized Officer of Grace shall first learn of a Senior Payment Default or Senior Non-Payment Default and (B) the first Business Day following the date on which a Payment Blockage Notice is delivered
pursuant to
Section
7(a)(ii)
, the written statement of an Authorized Officer of Grace setting forth the material details of such Event of Default, Senior Payment Default or Senior Non-Payment Default, as the case may be, and the actions that Grace proposes to take with respect thereto.
(iii)
Financial Statements
. If (x) the financial statements of Grace are no longer consolidated with the financial statements of the Parent Guarantor and (y) Grace is not obligated to file or furnish, or is not otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, Grace shall furnish to the Permitted Holder:
(A)
Annual Financial Statements
. As soon as available but in no event later than ninety (90) days after the last day of each of Grace’s Fiscal Years, its annual consolidated financial statements audited by a nationally recognized registered independent public accounting firm allowed to practice before the Securities and Exchange Commission or any successor Governmental Authority, consisting of a consolidated balance sheet of Grace and its consolidated Subsidiaries as of the end of such year and consolidated statements of income, cash flows and stockholders equity for such year (all in reasonable detail and with all notes and supporting schedules); and
(B)
Quarterly Financial Statements
. As soon as available and in any event within forty-five (45) days after the end of each of the first three
Fiscal Quarter
s in each Fiscal Year of Grace, its consolidated balance sheet as of the end of such
Fiscal Quarter
, and consolidated statements of income and cash flows of Grace and its consolidated Subsidiaries for such
Fiscal Quarter
, all in reasonable detail and certified by an Authorized Officer of Grace to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustments and the absence of footnotes).
(iv)
Officer’s Certificates
. Grace shall furnish to the Permitted Holder:
(A)
If the financial results of Grace are no longer consolidated with the financial results of the Parent Guarantor, no later than ninety (90) days after the last day of each of Grace’s Fiscal Years and no later than forty-five (45) days after the end of each of the first three Fiscal Quarters in each Fiscal Year of Grace, a Quarterly EBITDA and Valuation Certificate executed by an Authorized Officer of Grace setting forth (I) if the Transaction Date of a Significant Transaction has occurred during the four-Fiscal Quarter period ending on the last day of such Fiscal Quarter or Fiscal Year, as the case may be, the Pro Forma EBITDA of Grace for such four-Fiscal Quarter period and the Pro Forma Valuation of Grace as of the last day of such four-Fiscal Quarter period or (II) if the Transaction Date of a Significant Transaction did not occur during the four-Fiscal Quarter period ending on the last day of such Fiscal Quarter or Fiscal Year, as the case may be, the EBITDA of Grace for such four-Fiscal Quarter period and the Valuation of Grace as of the last day of such four-Fiscal Quarter period; provided, however, that Grace shall not be required to furnish to the Permitted Holder a Quarterly EBITDA and Valuation Certificate under this subclause (A) if (x) Grace is filing or furnishing reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, and (y)(1) if the Transaction Date of a Significant Transaction has occurred during the four-Fiscal Quarter period ending on the last day of the applicable Fiscal Quarter or Fiscal Year, the Pro Forma EBITDA of Grace for such four-Fiscal Quarter period and the Pro Forma Valuation of Grace as of the last day of such four-Fiscal Quarter period are readily ascertainable from such reports or (2) if the Transaction Date of a Significant Transaction did not occur during the four-Fiscal Quarter period ending on the last day of the applicable Fiscal Quarter or Fiscal Year, the EBITDA of Grace for such four-Fiscal Quarter period and Valuation of Grace as of the last day of such four-Fiscal Quarter period is readily ascertainable from such reports;
(B)
no later than ninety (90) days after the last day of each of Grace’s Fiscal Years,
a Compliance Certificate executed by an Authorized Officer of Grace for such Fiscal Year; and
(C)
no later than thirty (30) days after the consummation by a Transferor of a Disposition Transaction of the type described in
clause (ii)
or
clause (iii)
of
Section 6(b)
, a Post-Transaction Certificate setting forth the Post-Transaction Pro Forma EBITDA of Grace with respect to such Disposition Transaction executed and delivered by an Authorized Officer of Grace.
(b)
Negative Covenant
. Grace shall not, and shall cause each of its Subsidiaries and Controlled Affiliates (each, a “
Transferor
”) to not, sell, assign, transfer, license, lease or otherwise dispose of (each, a “
Transfer
”) any property and/or other assets and/or enter into any transaction or obligation, whether constituting or by way of merger, consolidation, sale of assets or other disposition, reorganization, recapitalization, dividend, other distribution, or otherwise, or any related series of the foregoing (any such Transfer other than Ordinary Dividends, Bona Fide Compensation Transactions and other Transfers in the ordinary course of business, a “
Disposition Transaction
”), if the Transferor (taken together with all of its direct and indirect wholly owned Subsidiaries) would (1) receive (directly or indirectly) less than a reasonably equivalent value in such Disposition Transaction, (2) become or be rendered Insolvent as a result of such Transfer and/or such Disposition Transaction, or (3) be engaged in business and/or transactions, and/or would be about to engage in business and/or transactions, for which the Transferor’s (taken together with all of its direct and indirect wholly owned Subsidiaries) remaining property and other assets would be unreasonably small capital;
provided
,
however
, that notwithstanding the foregoing, a Transferor:
(i)
That is a direct or indirect wholly-owned Subsidiary of Grace may make a Transfer to or engage in a Disposition Transaction exclusively with Grace or any other direct or indirect wholly-owned Subsidiary of Grace;
(ii)
may engage in a Disposition Transaction whereby such Transferor (A) pays or makes (directly or indirectly) dividends or distributions (whether in cash, securities or other property) with respect to any of its Capital Stock (including by way of a spin-off or spin-out of any of its assets), or (B) repurchases its Capital Stock, provided that, in the case of any Disposition Transaction under
subclause (A)
or
(B)
above, all of the following conditions are satisfied:
(1)
no Event of Default has occurred and is continuing at the time of, or would result from, such Disposition Transaction;
(2)
as of the Transaction Date of such Disposition Transaction, the Post-Transaction Pro Forma Valuation of (x) the Parent Guarantor or (y) Grace shall equal or exceed the Threshold Amount; and
(3)
if such Disposition Transaction exceeds $15,000,000 and is not publicly disclosed at least 10 days prior to the consummation of such Disposition Transaction, then Grace shall provide the
Permitted Holder
with at least 10 days’ prior to the consummation of such Disposition Transaction, a written notice describing in reasonable detail the material terms of such Disposition Transaction and setting forth the Post-Transaction Pro Forma Valuation of Grace as of the Transaction Date of such Disposition Transaction; and
(iii)
other than as set forth in
Section 6(b)(ii)
above, shall not enter into any Disposition Transaction with a Related Party to the Transferor in which the aggregate value of the assets or other property Transferred in such Disposition Transaction to such Related Party exceeds $15,000,000 if
the Transferor (taken together with all of its direct and indirect wholly owned Subsidiaries) would (1) receive (directly or indirectly) less than a reasonably equivalent value in such Disposition Transaction, as determined by a reputable investment bank or valuation firm jointly selected by Grace and the “Permitted Holder” (as defined in the Deferred Payment Agreement (PI)),
(2) become or be rendered Insolvent as a result of such Transfer and/or such
Disposition Transaction
or (3) be engaged in business and/or transactions, and/or would be about to engage in business and/or transactions, for which the Transferor’s (taken together with all of its direct and indirect wholly owned Subsidiaries) remaining property and other assets would be unreasonably small capital;
provided
, that if the aggregate value of the assets or other property Transferred to such Related Party in such
Disposition Transaction
exceeds $15,000,000 and the existence of such
Disposition Transaction
is not publicly disclosed at least 10 days prior to the consummation of such
Disposition Transaction
, then Grace shall provide the
Permitted Holder
with at least 10 days’ prior to the consummation of such
Disposition Transaction
, a written notice describing in reasonable detail the material terms of such
Disposition Transaction and
setting forth the Post-Transaction Pro Forma Valuation of Grace as of the Transaction Date of such Disposition Transaction;
provided
further
that if Grace is not the surviving or succeeding Entity as a result of any
Disposition Transaction
(but in the case of a sale of assets, only if such sale involves a sale of all or substantially all of the assets of Grace) otherwise permitted by the exceptions to this
Section 6(b)
, such
Disposition Transaction
shall be permitted under this
Section 6(b)
only if Grace and the Parent Guarantor shall comply with the requirements of
Section 16(g)
.
7.
Subordination Terms
. Any and all obligations of Grace in respect of Deferred Payments (ZAI) and this Deferred Payment Agreement (ZAI) shall be subordinated and otherwise junior at all times in right of payment and in all other respects, in the manner and to the extent set forth herein, to any and all present and future obligations of Grace in respect of any Senior Indebtedness.
(a)
Blockage of Deferred Payments (ZAI)
.
(iv)
If any payment default occurs and is continuing beyond any applicable grace period pursuant to the terms and conditions of any Senior Indebtedness (a “
Senior Payment Default
”), then subject to
Section 7(g)
, no payment or distribution of cash, securities or any other assets shall be made by Grace with respect to any Deferred Payments (ZAI) or pursuant to the Deferred Payment Documents (ZAI) for as long as such Senior Payment Default is continuing.
(v)
If any default other than a Senior Payment Default occurs pursuant to the terms and conditions of any Designated Senior Indebtedness that would allow the holders thereof to accelerate the maturity thereof (a “
Senior Non-Payment Default
”), then subject to
Section 7(g)
, no payment or distribution of cash, securities or any other assets shall be made by Grace with respect to any Deferred Payments (ZAI) or pursuant to the Deferred Payment Documents (ZAI) during the period (the “
Payment Blockage Period
”) (x) beginning on the date that the Permitted Holder receives from the Entity entitled to give notice under any document evidencing such Designated Senior Indebtedness (or from Grace acting at the direction or request of such Entity) a written notice (a “
Payment Blockage Notice
”) that such a Senior Non-Payment Default has occurred and is continuing and (y) ending on the earliest to occur of (1) 180 days from the date the Permitted Holder shall have received the Payment Blockage Notice, (2) the date such Senior Non-Payment Default shall have been cured or waived or shall have ceased to exist and (3) the date such Payment Blockage Period shall have been terminated by written notice to
the Permitted Holder from the Entity initiating such Payment Blockage Period.
(vi)
Notwithstanding the foregoing, (A) in no event will a Payment Blockage Period extend beyond 180 days from the date the Payment Blockage Notice in respect thereof was received by the Permitted Holder, (B) there shall be a period of at least 180 consecutive days in each period of 360 consecutive days when no Payment Blockage Period is in effect, and (C) no Senior Non-Payment Default that existed or was continuing on the date of delivery of any Payment Blockage Notice (whether or not such Senior Non-Payment Default is with respect to the same issue of Designated Senior Indebtedness) may be, or be made, the basis for a subsequent Payment Blockage Notice, unless such Senior Non-Payment Default has been cured or waived for a period of not less than 90 consecutive calendar days.
(vii)
The making of Deferred Payments (ZAI) or other payments pursuant to this Deferred Payment Agreement (ZAI) shall resume, and any Deferred Payments (ZAI) or other payments pursuant to this Deferred Payment Agreement (ZAI) not paid due to a suspension thereof pursuant to clause (i) or
clause (ii) above shall be paid, together with accrued interest thereon at the Default Rate, when such suspension is no longer in effect (either due to cure or waiver of the relevant Senior Payment Default or the expiration or termination of the Payment Blockage Period pursuant to clause (i) or
clause (ii) of this
Section 7(a)
) unless a subsequent Payment Blockage Notice has been delivered in accordance with clause (iii) of this
Section 7(a)
and is not prohibited from being delivered by clause (iii) of this
Section 7(a)
.
(viii)
The failure of Grace to make any Deferred Payments (ZAI) or to pay any other amounts under this Deferred Payment Agreement (ZAI) by reason of the operation of this
Section 7(a)
shall not be construed as preventing the occurrence of an Event of Default or from characterizing any Deferred Payments (ZAI) as “past due” for purposes of
Section 9(c)
.
(b)
Proceedings
. Upon any payment made by Grace, or any distribution of cash, securities or other assets of any kind of Grace (other than securities issued in substitution for the obligation to make Deferred Payments (ZAI) that are subordinated to at least the extent described herein for Deferred Payments (ZAI), which Securities the Permitted Holder (or any Permitted Payee, if applicable) is specifically authorized to receive notwithstanding any other provision of this
Section 7
), to creditors in any Proceeding with respect to Grace or its properties, all obligations due on all Senior Indebtedness shall first be paid in full in cash before any payment or distribution is made on account of any Deferred Payments (ZAI) or otherwise pursuant to the Deferred Payment Documents (ZAI).
(c)
Improper Payments Held in Trust
. Any payments or property received by the Permitted Holder or any Permitted Payee in breach of this
Section 7
shall be held by the Permitted Holder or such Permitted Payee in trust and promptly delivered in the form received to the holder of Senior Indebtedness entitled to receive the same (any such payment or property delivered by the Permitted Holder or such Permitted Payee to any holder of Senior Indebtedness, a “
Turnover Payment
”). To the maximum extent permitted under applicable Law, Grace agrees that any Turnover Payment shall be treated as a payment by Grace on account of such Senior Indebtedness and shall not satisfy Grace’s obligation with respect to any amount due to the Permitted Holder or such Permitted Payee under this Deferred Payment Agreement (ZAI). If, notwithstanding the preceding sentence, it is determined (by a court of competent jurisdiction or otherwise) that a Turnover Payment is a payment by Grace on account of, and satisfies any obligation of Grace with respect to, any amount due to the Permitted Holder or any Permitted Payee under this Deferred Payment Agreement (ZAI), then, to the extent of the amount of such Turnover Payment, the portion of the obligation which has been determined to be paid and satisfied by such Turnover Payment shall be reinstated and shall continue to be in full force and effect as of the time immediately preceding the initial payment thereof by Grace to the Permitted Holder or such Permitted Payee. If, notwithstanding the preceding sentence, any portion of an obligation of Grace in respect of such Turnover Payment is not reinstated and continued to the extent of the amount of the relevant Turnover Payment, then the Permitted Holder or the applicable Permitted Payee shall, upon the payment in full in cash of all Senior Indebtedness owed to the holder thereof to whom the Permitted Holder or such Permitted Payee delivered such Turnover Payment, be subrogated to the rights of such holder to receive payments or distributions applicable to such Senior Indebtedness, and for the purpose of such subrogation such Turnover Payment shall not, as between Grace and the Permitted Holder or such Permitted Payee, be deemed to be payment by Grace to or on account of such Senior Indebtedness.
(d)
Remedies Blockage
. Subject
in any event to the other terms and conditions of this
Section 7
(including
Section 7(a)
and
Section 7(g)
), and not in abrogation thereof, if
an Event of Default has occurred and is continuing and any Senior Indebtedness is then outstanding, the Permitted Holder hereby agrees for itself and its assigns that it will not (1) exercise or seek to exercise any rights or remedies against Grace or the Parent Guarantor with respect to such Event of Default or (2) institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure, contest or protest) under any Deferred Payment Document (ZAI) or any agreement or document relating thereto, or under such Event of Default or otherwise or (3) attempt to do any of the foregoing (collectively, the “
Remedies
”), for a period commencing on the date that such Event of Default occurs and ending on the earliest to occur of (i) 180 days after the first date on which such Event of Default shall have occurred, (ii) the commencement of a Proceeding with respect to Grace, the Parent Guarantor or their respective properties, (iii) the date that the holder (or any agent or trustee of the holder) of any Senior Indebtedness commences exercising any Senior Remedies with respect to such Senior Indebtedness (including, without limitation, the acceleration of all or any portion of such Senior Indebtedness) and (iv) the payment in full in cash of all Senior Indebtedness.
(e)
Notwithstanding the foregoing, as applied to the Permitted Holder, the term “Remedies” shall not include, and the Permitted Holder shall not be impaired by this
Section 7(d)
from doing, any of the following: (A) exercising rights and remedies for specific performance or injunctive relief to compel Grace or the Parent Guarantor to comply with any non-payment obligations under the Deferred Payment Documents (ZAI) (including commencing any action contemplated by
Section 16(h)
), (B) instituting or maintaining any suit or action solely to prevent the running of any applicable statute of limitations, (C) accruing interest on the Deferred Payments (ZAI) at the Default Rate pursuant to
Section 9(c)
and (D) giving any notice (including notice of an Event of Default) to Grace under the Deferred Payment Documents (ZAI).
(f)
No Secured Obligation
. Except for the Parent Guarantee and the share issuance obligation with respect to the Section 524(g) Shares as and to the extent contemplated in the Share Issuance Agreement, no credit support or security interest shall be granted by Grace, the Parent Guarantor or any of its Subsidiaries in connection with, or otherwise support or secure any obligation set forth in, the Deferred Payment Documents (ZAI). Notwithstanding the foregoing, the Permitted Holder may obtain to the extent permitted under applicable Law a judgment lien on the properties of Grace and/or the Parent Guarantor to secure the payment and performance of a judgment obtained by the Permitted Holder against Grace and/or the Parent Guarantor.
(g)
No Impairment of Right to Receive Section 524(g) Shares
. Nothing in this
Section 7
shall impair the rights of the Trust (ZAI) (or its permitted successor or assigns) acting through the Trusts’ Representative pursuant to the Intercreditor Agreement, to deliver to the Parent Guarantor a Demand for Issuance of the Section 524(g) Shares and to receive the Trust (ZAI)’s percentage of the Section 524(g) Shares pursuant to the Share Issuance Agreement.
(h)
Further Assurances
. At the reasonable request of Grace or the Parent Guarantor, the Permitted Holder will, at the sole expense of Grace and the Parent Guarantor, execute such agreements, documents, certificates and/or other instruments confirming the existence and extent of the subordination terms detailed in this Section.
8.
Events of Default
. The occurrence of any of the following events shall constitute an “Event of Default” under this Deferred Payment Agreement (ZAI):
(a)
Neither Grace nor any Permitted Payor shall make (i) any Deferred Payment (ZAI) on any Deferred Payment Date (ZAI) and such failure shall continue for five (5) Business Days after the relevant Deferred Payment Date (ZAI) or (ii) any payment of interest at the Default Rate owing under this Deferred Payment Agreement (ZAI) within seven (7) Business Days after demand therefor by the Permitted Holder (or the Permitted Payee, if applicable) entitled thereto;
(b)
Grace or the Parent Guarantor (A) shall institute any proceeding or voluntary case seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts pursuant to any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Entity or for any substantial part of its property, (B) shall be generally not paying its debts as such debts become due or shall admit in writing its inability to pay its debts generally, or (C) shall make a general assignment for the benefit of creditors;
(c)
Any proceeding shall be instituted against Grace or the Parent Guarantor seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Entity or for any substantial part of its property, and either such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive days;
(d)
Grace shall breach any covenant set forth in
Section 6(a)(i)
, or the Parent Guarantor shall breach any covenant set forth in Section 7(a)(i) of the Parent Guarantee (ZAI), and in any such case such breach shall continue for thirty (30) days after the earlier of (A) any Authorized Officer of Grace obtains knowledge of such failure and (B) the Permitted Holder’s written notice to Grace and the Parent Guarantor of such failure;
(e)
Grace shall breach any covenant set forth in
Section 6(a)(iv)(A)
, or the Parent Guarantor shall breach any covenant set forth in Section 7(a)(iv)(A) of the Parent Guarantee (ZAI), and in any such case such breach shall continue for ten (10) days after the Permitted Holder’s written notice to Grace and the Parent Guarantor of such breach;
(f)
Grace shall breach any covenant set forth in
Section 6(b)
(other than any notice requirement set forth therein), or the Parent Guarantor shall breach any covenant set forth in Section 7(b) of the Parent Guarantee (ZAI) (other than any notice requirement set forth therein), and in any such case, as of the Transaction Date of the Disposition Transaction that resulted in such breach, the Post-Transaction Pro Forma Valuation of the Parent Guarantor shall not exceed the Threshold Amount and the Post-Transaction Pro Forma Valuation of Grace shall not exceed the Threshold Amount;
(g)
Grace or the Parent Guarantor shall assert in writing that any Deferred Payment Document (ZAI) or any material term thereof is not a legal, valid and binding obligation of Grace or the Parent Guarantor, as the case may be, enforceable in accordance with its terms in any material respect; or
(h)
A default occurs under the Deferred Payment Agreement (PI) or the Deferred Payment Agreement (PD) that causes any of the Deferred Payments due under either or both the Deferred Payment Agreement (PI) or the Deferred Payment Agreement (PD), respectively, to be accelerated and become due prior to its or their stated maturity.
9.
Remedies
.
(a)
Subject to
Section 7
, the Permitted Holder shall have the right, power and authority to do all things deemed necessary or advisable to enforce the provisions of, and protect its rights under, this Deferred Payment Agreement (ZAI) and upon the occurrence and during the continuance of an Event of Default the Permitted Holder may institute or appear in such appropriate proceedings permitted and not prohibited under this Deferred Payment Agreement (ZAI) as the Permitted Holder shall deem most effectual to protect and enforce any of its rights hereunder, whether for the specific enforcement of any covenant or agreement in this Deferred Payment Agreement (ZAI) or to enforce any other proper remedy.
(b)
Subject to
Section 7
, without limiting the foregoing, upon the occurrence and during the continuance of an Event of Default, the Permitted Holder may declare the unpaid Deferred Payments (ZAI), together with all other amounts payable hereunder, to be immediately due and payable, whereupon such Deferred Payments (ZAI) and other amounts shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind (except that in the case of an Event of Default of the type described in subsection
(b)
or
(c)
under
Section 8
, such acceleration shall occur without any action of the Permitted Holder or any other Entity).
(c)
In addition, upon the occurrence and during the continuance of an Event of Default, all Deferred Payments (ZAI) that are past due shall accrue interest at the Default Rate, which, subject to the terms of
Section 7
, shall be payable to the Permitted Holder on demand until such Event of Default shall have been cured or waived, or all remaining Deferred Payments (ZAI) shall have been paid in full.
10.
Waiver
. There shall be no implied waiver based upon any delay on the part of any party hereto in exercising any right or remedy such party may have pursuant to this Deferred Payment Agreement (ZAI).
11.
Termination
. Upon the earlier of (A) all of the Deferred Payments (ZAI) and other amounts payable hereunder having been paid in full or (B) the termination of the WRG Asbestos PD Trust in accordance with the terms of its trust agreement, any and all obligations under this Deferred Payment Agreement (ZAI) shall be discharged and this Deferred Payment Agreement (ZAI) shall terminate without any further action by the parties thereto or any other Entity (except to the extent all or any portion of any Deferred Payment (ZAI) or such other amount is reinstated pursuant to Section 4(d) or to the extent any provision hereof expressly survives the termination of this Deferred Payment Agreement (ZAI)). Promptly upon such termination, the Permitted Holder shall execute and deliver to Grace, at Grace’s sole cost and expense, such documents as are reasonably requested by Grace to fully document the payment, termination and discharge of all obligations hereunder.
12.
Severability
. Whenever possible, each provision of this Deferred Payment Agreement (ZAI) will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Deferred Payment Agreement (ZAI) by any party hereto is held to be invalid, void, voidable, illegal or unenforceable in any respect under any applicable Law in any jurisdiction, such event will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, or the obligations of any other party to this Deferred Payment Agreement (ZAI), and this Deferred Payment Agreement (ZAI) will be reformed, construed and enforced in such jurisdiction as if such invalid, void, voidable, illegal, unenforceable or rejected provision had never been contained herein. The parties hereto further agree to use commercially reasonable efforts to replace such invalid, void, voidable, illegal, unenforceable or rejected provision of this Deferred Payment Agreement (ZAI) with a an effective, valid and enforceable provision which will achieve, to the fullest extent possible, the economic, business and other purposes of the invalid, void, voidable, illegal, unenforceable or rejected provision.
13.
Complete Agreement
. This Deferred Payment Agreement (ZAI), together with the Parent Guarantee (ZAI), the Share Issuance Agreement, the Plan of Reorganization and the Confirmation Order, embodies the complete agreement and understanding between the parties hereto in respect of the subject matter hereof and supersedes, preempts and terminates all other prior understandings, agreements or representations by or among the parties hereto, written or oral, to the extent relating thereto.
14.
Counterparts
. This Deferred Payment Agreement (ZAI) may be executed (including by facsimile or portable document format (.pdf)) in separate counterparts, each of which will be deemed to be an original and all of which taken together will constitute one and the same agreement.
15.
No Third Party Beneficiaries
. Other than the Parent Guarantor, there are no third party beneficiaries of this Deferred Payment Agreement (ZAI) and nothing in this Deferred Payment Agreement (ZAI), express or implied, is intended to confer on any Entity other than the parties hereto and their respective successors, and assigns, any rights, remedies, obligations or liabilities.
16.
Assignment
.
(a)
This Deferred Payment Agreement (ZAI) shall be binding upon Grace and its successors and permitted assigns and shall inure to the benefit of the Permitted Holder and its successors and permitted assigns.
(b)
Except as expressly permitted by
Section 16(c)
and
Section 16(d)
with respect to this Deferred Payment Agreement (ZAI), as expressly set forth in Section 16(b) of the Parent Guarantee (ZAI) with respect to the Parent Guarantor or as expressly set forth in Section 12(b) of the Share Issuance Agreement, in no event shall (i) any Deferred Payment Document (ZAI) or any rights, interests, duties, obligations or liabilities of the Permitted Holder under the Deferred Payment Documents (ZAI) (including this Deferred Payment Agreement (ZAI)), the Plan of Reorganization or the Confirmation Order be Transferred to, or assumed by, any Entity or (ii) the Permitted Holder grant a security interest in any right or interest it has or may have under any Deferred Payment Document (ZAI) (including this Deferred Payment Agreement (ZAI)), in each case, without the prior written consent of Grace and the Parent Guarantor.
(c)
Subject to compliance with
sub-clauses (d)(1)
and
(d)(2)
below, upon the occurrence and during the continuance of an Event of Default, the Permitted Holder shall have the right to Transfer, in whole or in part, or grant a security interest in, this Deferred Payment Agreement
(ZAI)
or all or any of its rights, interests, duties, liabilities or obligations under this Deferred Payment Agreement
(ZAI)
without the prior written consent of Grace or
the
Parent Guarantor. Any such Transfer or grant, if made in compliance with this
Section 16(c)
, shall be effective notwithstanding any subsequent cure or waiver of any Event of Default.
(d)
Subject to compliance with
sub-clauses (d)(1)
through
(d)(5)
below, the Permitted Holder shall have the right, at any time and from time to time, to Transfer, in whole or in part, or grant a security interest in, this Deferred Payment Agreement
(ZAI)
or all or any of its rights, interests, duties, liabilities or obligations under this Deferred Payment Agreement
(ZAI)
:
(1)
The Trust (ZAI) shall provide notice of such Transfer to Grace and the Parent Guarantor in accordance with NY UCC § 9-406 or any successor provision.
(2)
Unless expressly consented to in advance in writing by Grace and the Parent Guarantor, such Transfer or such grant of a security interest shall not adversely change the duty of, increase the burden, costs or risk imposed upon, or impair the chance of obtaining return performance of, either Grace or the Parent Guarantor under any of the
Deferred
Payment Documents (ZAI), as such terms are used, with respect to an assignment or other Transfer, in NY UCC § 2-210(2) or any successor provision, and any such Transfer or grant of a security interest shall not result in increased liabilities or costs for Grace and/or the Parent Guarantor (including on account of any Taxes).
(3)
Unless expressly consented to in advance in writing by Grace and the Parent Guarantor, upon and following such Transfer or such grant of a security interest, no more than one Entity on behalf of the Trust (ZAI) and all Entities to whom Transfers have been made (the “
Administrative Agent
”) and one Entity on behalf of all recipients of grants of security interests (the “
Collateral Agent
”) shall have, or shall have the ability to bring, or be able to enforce, any claim, right or cause of action against Grace, the Parent Guarantor or any of their respective Affiliates (other than the Trust (ZAI)) under this
Deferred
Payment Agreement (ZAI) or any document or instrument effecting or evidencing such Transfer or grant of a security interest, regardless of whether any such claim, right, cause of action, or enforcement right arises out of a contract, statute, law, in equity, common law or otherwise.
(4)
Any such Transfer or such grant of a security interest shall comply with all applicable Laws, including all applicable federal, state and foreign securities laws.
(5)
No such Transfer and no such grant of a security interest shall relieve the Trust (ZAI) of any of its duties or obligations under this Deferred Payment Agreement (ZAI), the other Deferred Payment Documents (ZAI), the Plan of Reorganization, the Confirmation Order or any agreements entered into by the Trust (ZAI) pursuant to the Plan of Reorganization or the Confirmation Order.
(e)
Subject to
Section 16(f)
, Grace may not Transfer its rights, interests, duties, liabilities or obligations under this Deferred Payment Agreement (ZAI) without the prior written consent of the “Permitted Holder” (as defined in the Deferred Payment Agreement (PI)), such consent not to be unreasonably withheld, conditioned or delayed.
(f)
Subject to
Section 16(g)
, neither
Section 16(e)
nor anything else in this Deferred Payment Agreement (ZAI) or any other Deferred Payment Document (ZAI) shall prohibit or restrict the ability of Grace to undertake any
Disposition Transaction
;
provided
that, unless the “Permitted Holder” (as defined in the Deferred Payment Agreement (PI)) otherwise consents in writing, (i) such
Disposition Transaction
shall not violate
Section 6(b)
, (ii) no Event of Default and, no event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, exists at the time of, or would exist immediately following, the consummation of such
Disposition Transaction
; (iii) such
Disposition Transaction
does not conflict with, or result in a breach of, any of the provisions of, or constitute a default under, the Governing Documents of Grace or the surviving or succeeding Entity that results from such
Disposition Transaction
; and (iv) at least ten (10) days prior to consummation of such
Disposition Transaction
, Grace shall, subject to reasonable confidentiality arrangements between the Permitted Holder and Grace, deliver to the Permitted Holder written notice of its intention to consummate such
Disposition Transaction
.
(g)
If the surviving or succeeding Entity as a result of any such
Disposition Transaction
(but in the case of a sale of assets, only if such sale involves a sale of all or substantially all of the assets of Grace) as applicable, is not Grace, then prior to, or concurrently with, the consummation of any such
Disposition Transaction
, (i) the surviving or succeeding Entity shall by written instrument substantially in the form of
Exhibit A
signed by such Entity, Grace and, at its option, the Permitted Holder expressly assume the rights and obligations of Grace hereunder, whereupon such Entity shall be the successor of all rights and obligations of Grace hereunder, with the same effect as if it had been originally named herein (it being expressly acknowledged and agreed by Grace and the Permitted Holder that such written instrument shall, and shall expressly provide that it shall, be binding upon, and inure to the benefit of, the Permitted Holder, Grace and such surviving or succeeding Entity whether or not the Permitted Holder shall have executed such written instrument) and (ii) the Parent Guarantor shall confirm in writing to such Entity, Grace and the Permitted Holder that the Parent Guarantee (ZAI) shall remain in full force and effect after giving effect to such
Disposition Transaction
and the assumption by the surviving or succeeding Entity of all of the rights and obligations hereunder;
provided
,
however
, that Grace shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under this Deferred Payment Agreement (ZAI).
(h)
Grace shall be responsible for, and shall pay promptly upon demand all, documented and direct out-of-pocket costs and expenses incurred by the Permitted Holder (including legal fees and expenses of legal counsel) in connection with any
Disposition Transaction
s proposed by Grace pursuant to
Section 16(f)
if the Permitted Holder challenges such
Disposition Transaction
in a judicial or other proceeding or otherwise as being in breach of the provisions of the Deferred Payment Documents (ZAI) and the Permitted Holder is successful in such challenge.
(i)
Any Transfer in breach of this
Section 16
shall be null and void, and shall not Transfer any right, interest, duty, liability or obligation in or under this Deferred Payment Agreement (ZAI) to any other Entity.
17.
Governing Law; Submission to Jurisdiction; Waiver of Jury Trial
.
(a)
This Deferred Payment Agreement (ZAI) and the rights and obligations of the parties hereto shall be construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
(b)
With respect to claims, suits, actions, proceedings, and other disputes arising out of, in respect of or relating to this Deferred Payment Agreement (ZAI) (such claims, suits, actions, proceedings, and other disputes, the “
Claims
”) each of the parties to this Deferred Payment Agreement (ZAI) hereby irrevocably submits to the jurisdiction of the Bankruptcy Court for the District of Delaware or the United States District Court for the District of Delaware (the “
Courts
”), or, if both such Courts are not permitted under applicable Law to exercise jurisdiction with respect to the matter in question then to the jurisdiction of any other federal or state court in the state, county and city of New York, New York and each of the parties to this Deferred Payment Agreement (ZAI) agrees that any and all Claims may be brought, heard and determined in such courts.
(c)
Each of the parties to this Deferred Payment Agreement (ZAI) agrees that (i) venue shall be proper in the courts referenced in
Section 17(b)
and hereby waives any objection or defense which it may now or hereafter have to the laying of venue in such courts, including any of the foregoing based upon the doctrine of
forum non conveniens
; and (ii) all process which may be or be required to be served in respect of any such Claim (including any pleading, summons or other paper initiating any such Claim) may be served upon it, which service shall be sufficient for all purposes, in the manner for the provision of notice under this Deferred Payment Agreement (ZAI) and shall be deemed in every respect effective service of process upon such party when so given.
(d)
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS DEFERRED PAYMENT AGREEMENT (ZAI) OR ANY OF THE DEFERRED PAYMENT DOCUMENTS (ZAI). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS DEFERRED PAYMENT AGREEMENT (ZAI) AND THE OTHER DEFERRED PAYMENT DOCUMENTS (ZAI), AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PROVISION.
18.
Notices
. All notices required or permitted under this Deferred Payment Agreement (ZAI) must be in writing and will be deemed to be delivered and received (i) if personally delivered or if delivered by the United States Postal Service, facsimile or courier service, when actually received by the party to whom notice is sent or (ii) with respect to parties located other than within the United States, if deposited with the United States Postal Service (whether actually received or not), at the close of business on the seventh Business Day after the day when placed in the mail, postage prepaid, certified or registered with return receipt requested, addressed to the appropriate party or parties, at the address of such party or parties set forth below (or at such other address as such party may designate by written notice to all other parties in accordance with this Section 18):
|
|
|
|
|
|
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If to Grace:
W. R. Grace & Co.-Conn.
7500 Grace Drive
Columbia, MD 21044
Attn: Corporate Secretary
Facsimile: (410) 531-4545
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With copies, which shall not constitute notice, to:
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Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attn: Adam C. Paul
Facsimile: (312) 862-2200
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If to the Parent Guarantor:
W. R. Grace & Co.
7500 Grace Drive
Columbia, MD 21044
Attn: Corporate Secretary
Facsimile: (410) 531-4545
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With copies, which shall
not constitute notice, to:
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Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attn: Adam C. Paul
Facsimile: (312) 862-2200
|
|
If to the Permitted Holder:
Edward B. Cottingham, Jr., Class 7B Trustee
The Cottingham Law Firm
317 Wingo Way, Suite 303
P.O. Box 810
Mt. Pleasant, SC 29465
Telephone: (843) 849-1384
If to the PD FCR:
Hon. Alexander M. Sanders, Jr.
19 Water Street
Charleston, South Carolina 29401
Telephone: (843) 953-5755
Facsimile: (843) 953-7570
|
With copies, which shall
not constitute notice, to:
With copies, which shall not constitute notice, to:
|
M. Dawes Cooke
Barnwell Whaley Patterson & Helms LLC
P.O. Drawer H
Charleston, SC 29402
Telephone: (843) 577-7700
Facsimile: (843) 577-7708
Alan B. Rich
Attorney and Counselor
1201 Elm Street, Suite 4244
Dallas, Texas 75270
Telephone: (214) 744-5100
Facsimile: (214) 744-5101
|
19.
Costs and Expenses
. Grace agrees to reimburse the Permitted Holder promptly upon demand for all, documented and direct out-of-pocket costs and expenses, including all attorney’s fees and expenses of legal counsel, which may be incurred by the Permitted Holder in enforcing this Deferred Payment Agreement (ZAI) or the Parent Guarantee (ZAI) or protecting the rights of the Permitted Holder hereunder or thereunder, but only to the extent that the Permitted Holder succeeds in enforcing this Deferred Payment Agreement (ZAI) or the Parent Guarantee (ZAI) or protecting the rights of the Permitted Holder hereunder or thereunder.
20.
Amendments and Waivers
. No provision of this Deferred Payment Agreement (ZAI) may be waived, amended, supplemented or modified except by a written instrument executed by the Parent Guarantor, Grace and the Permitted Holder.
21.
Further Assurances
. At the reasonable request of the Permitted Holder, Grace will, at the sole expense of the Permitted Holder, execute such agreements, documents, certificates and/or other instruments confirming the existence of this Agreement, the obligations of Grace hereunder and the rights of the Permitted Holder hereunder.
22.
Specific Performance
. Each of the parties hereto acknowledges and agrees that, in the event of any breach of, or any failure to perform, any specific provision of this Deferred Payment Agreement (ZAI), the non-breaching party would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that, subject to Section 7, the parties hereto (a) shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to compel specific performance of any specific provision of this Deferred Payment Agreement (ZAI) or to obtain injunctive relief to prevent breaches of any specific provision of this Deferred Payment Agreement (ZAI) exclusively in the Courts, (b) shall waive, in any action for specific performance or injunctive relief, the defense of the adequacy of a remedy at law, and (c) shall waive any requirement for the securing or posting of any bond in connection with the obtaining of any such specific performance or injunctive relief. For the avoidance of doubt, the parties agree that the Permitted Holder shall be entitled to enforce specifically the terms and provisions of this Deferred Payment Agreement (ZAI) to prevent breaches of or enforce compliance with those covenants of Grace set forth in Section 6. Any party’s pursuit of specific performance or injunctive relief at any time will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which such party may be entitled, including the right to pursue remedies for liabilities or damages incurred or suffered by such party.
23.
Other Remedies
. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law on such party, and the exercise of any one remedy shall not preclude the exercise of any other.
(a)
IN WITNESS WHEREOF, the parties hereto have executed this Deferred Payment Agreement (ZAI) as of the date first written above.
GRACE
: W. R. GRACE & CO.-CONN.
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By:
|
/s/HUDSON LA FORCE, III
|
Name: Hudson La Force, III
Title: Vice President and Chief Financial Officer
TRUST (ZAI)
: WRG ASBESTOS PD TRUST
By:
/s/EDWARD B. COTTINGHAM, JR.
Name: Edward B. Cottingham, Jr.
Title: Trustee
Solely for purposes of
Section 20
:
PARENT GUARANTOR
: W. R. GRACE & CO.
|
|
|
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|
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By:
|
/s/HUDSON LA FORCE, III
|
Name: Hudson La Force, III
Title: Vice President and Chief Financial Officer
EXHIBIT A
FORM OF
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT
This Assumption Agreement (the “
Assumption Agreement
”) is made and entered into as of [•], by and between [W. R. Grace & Co.-Conn., a Connecticut corporation] // [W. R. Grace & Co., a Delaware corporation] (“
Grace
”), and [•], a [•] (the “
Buyer
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the [Purchase Agreement].
BACKGROUND
WHEREAS, Grace, the Buyer and [•] are party to that certain [•] (the “[
Purchase Agreement
]”), pursuant to which Grace has agreed to [•];
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”); and
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” requiring the delivery of this Assumption Agreement under the Contracts.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
[Grace hereby assigns and transfers to the Buyer all of Grace’s right, title and interest in the Contracts,
free and clear of all [Liens except for Permitted Liens)]. The Buyer hereby accepts the assignment herein and assumes from Grace and agrees to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the Contracts remain in full force and effect and that Grace will continue to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the [corporation] surviving the [Merger] is subject to and bound by the Contracts, that the Contracts are and will remain in full force and effect and that the [corporation] surviving the [Merger] shall hold all right, title and interest in the Contracts. The Buyer hereby agrees that the [corporation] surviving the [Merger] shall be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts;
provided
,
however
, that Grace shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under the Contracts.]
Each of the parties hereto covenants and agrees, at its own expense, to execute and deliver, promptly after the reasonable request of the other party hereto, such further instruments and to take such other action as such other party may reasonably request to more effectively consummate the transactions contemplated by this Assumption Agreement.
In the event of a conflict between the terms and conditions of this Assumption Agreement and the terms and conditions of the [Purchase Agreement], the terms and conditions of this Assumption Agreement shall govern, supersede and prevail.
All questions concerning the construction, validity and interpretation of this Assumption Agreement shall be governed by and construed in accordance with the domestic laws of the State of New York, without giving effect to any choice of law or conflict of law provision (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
This Assumption Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature pages delivery by electronic transmission in portable document format (.pdf)), all of which taken together shall constitute one and the same instrument. This Assumption Agreement and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or electronic transmission in portable document format (.pdf), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
This Assumption Agreement shall be binding on the parties hereto and shall inure to the benefit of the Permitted Holder (as defined in the [Contracts]) regardless of whether such Permitted Holder executes this Assumption Agreement.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Assumption Agreement as of the date first above written.
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ASSIGNEE
:
[•]
By:
[•]
|
SELLER
:
[W. R. GRACE & CO.-CONN.]
By:
[•]
|
|
|
[W. R. GRACE & CO.]
By:
[•]
|
|
[Acknowledged and Agreed
:
|
|
|
WRG ASBESTOS PD TRUST
By:
[•]]
|
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Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
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2.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
4.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
5.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
6.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
7.
|
Share Issuance Agreement, dated as of [], by and between W. R. Grace & Co., WRG Asbestos PD Trust, and the WRG Asbestos PI Trust.
|
EXHIBIT B
FORM OF
QUARTERLY EBITDA AND VALUATION CERTIFICATE
QUARTERLY EBITDA AND VALUATION CERTIFICATE
This Quarterly EBITDA and Valuation Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation] // [W. R. Grace & Co.-Conn., a Connecticut corporation] (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section [7(a)(iv)(A)] // [6(a)(iv)(A)] of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
A Significant Transaction [has] // [has not] occurred
during the four-Fiscal Quarter period ending on [•] (the “
Measurement Period
”).
The [Pro Forma] EBITDA of Grace for the Measurement Period was [•] and the [Pro Forma] Valuation of Grace as of [•]
was [•]. Attached hereto are worksheets showing the calculation of the foregoing amounts.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
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GRACE
:
[W. R. GRACE & CO.]
By:
[•]
|
|
|
[W. R. GRACE & CO.-CONN.]
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
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|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
4.
|
[Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
5.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
6.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.]
|
Worksheet 1 -- EBITDA
All amounts are for the period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
[describe]
|
|
|
Total EBITDA
|
|
Worksheet 2 – Pro Forma EBITDA
All amounts are for the four Fiscal-Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Pro Forma EBITDA
|
|
Worksheet 3 -- Valuation
All amounts are as of the last day of the relevant four-Fiscal Quarter Period period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Total EBITDA (determined based on worksheet 1)
multiplied
by 7
|
|
|
|
Minus
the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date
|
[describe any exceptions from inclusion in Senior Indebtedness based on the definition thereof and the related excepted amounts]
|
|
|
Plus
the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
|
[describe any such material restrictions and the related excluded amounts]
|
|
|
Total Valuation
|
|
Worksheet 4 – Pro Forma Valuation
All amounts are as of the last day of the relevant four-Fiscal Quarter Period period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Total Pro Forma EBITDA (determined based on worksheet 2)
multiplied
by 7
|
|
|
|
Minus
the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) may not have actually been consummated during such four-Fiscal Quarter period)
|
[describe any exceptions from inclusion in Senior Indebtedness based on the definition thereof and the related excepted amounts]
[indicate the amount of Senior Indebtedness included as a result of the Significant Transaction]
|
|
|
Plus
the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction may not have actually been consummated during such four-Fiscal Quarter period), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries
|
[describe any such material restrictions and the related excluded amounts]
[indicate any amounts included as a result of the Significant Transaction]
|
|
|
Total Pro Forma Valuation
|
|
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”).
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section 7(a)(iv)(B) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
Grace has complied with the covenants set forth in
Section 7 of each Contract.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co.-Conn., a Connecticut corporation (“
Grace
”), to [•], a [•](the “
Permitted Holder
”).
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section 6(a)(iv)(B) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
Grace has complied with the covenants set forth in
Section 6 of each Contract.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.-CONN.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
2.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
EXHIBIT D
FORM OF
POST-TRANSACTION CERTIFICATE
POST-TRANSACTION CERTIFICATE
This Post-Transaction Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, Grace and [•] are party to that certain [•] (the “[
Purchase Agreement
]”);
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” under the Contracts;
WHEREAS, Section 7(a)(iv)(C) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
As of the date of the consummation of the transactions contemplated by the Purchase Agreement, the Post-Transaction Pro Forma EBITDA of Grace was [•]. Attached hereto is a worksheet showing the calculation of such Post-Transaction Pro Forma EBITDA.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
Worksheet 1 – Post-Transaction Pro Forma EBITDA
All amounts are for the four Fiscal Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Post-Transaction Pro Forma EBITDA
|
|
POST-TRANSACTION CERTIFICATE
This Post-Transaction Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co.-Conn., a Connecticut corporation (“
Grace
”), to [•], a [•](the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, Grace and [•] are party to that certain [•] (the “[
Purchase Agreement
]”);
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” under the Contracts;
WHEREAS, Section 6(a)(iv)(C) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
As of the date of the consummation of the transactions contemplated by the Purchase Agreement, the Post-Transaction Pro Forma EBITDA of Grace was [•]. Attached hereto is a worksheet showing the calculation of such Post-Transaction Pro Forma EBITDA.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
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|
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|
GRACE
:
W. R. GRACE & CO.-CONN.
By:
[•]
|
Schedule 1
Contracts
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|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
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2.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
Worksheet 1 – Post-Transaction Pro Forma EBITDA
All amounts are for the four Fiscal Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Post-Transaction Pro Forma EBITDA
|
|
ANNEX A
CREDIT TO GRACE FOR ADMINISTRATIVE EXPENSES EXCEEDING A PRESUMPTIVELY REASONABLE EXPENSE AMOUNT
Beginning after the first year anniversary of the effective date (
i.e.
the second year of Trust operation), there shall be established a Presumptively Reasonable Expense Amount (“PREA”) for each year’s operations thereafter with respect to ZAI. The PREA for each of these years is as follows: Year 2 - $1.5 million, Year 3 - $1.25 million, Year 4 and each succeeding year thereafter - $1 million. Beginning with the fifth anniversary of the effective date, the $1 million PREA shall be adjusted annually for inflation. There is no PREA for the first year of Trust operations and first year expenses will not be included in any calculations concerning the PREA or any credit to Grace. The PREA shall be used for the purpose of determining whether Grace will receive a credit on its Contingent Deferred Payments (ZAI), and for no other purpose. The potential credit to Grace shall be calculated as follows: On the anniversary of an effective date when a Contingent Deferred Payment (ZAI) of $8 million would otherwise be due, the parties shall add up the administrative expenses for the years since the last Contingent Deferred Payment (ZAI), if any, and preceding the current anniversary date, and subtract from those total expenses the cumulative PREAs for the same years. If the result of that subtraction is a positive number,
i.e.
if the total expenses for the period preceding the anniversary date on which a Contingent Deferred Payment (ZAI) is due exceed the cumulative PREAs for the same period, then and only then Grace will receive a dollar for dollar credit on its $8 million payment for the amounts by which the total expenses exceed the total PREAs. Once Grace has received such a credit, the amount by which the cumulative expenses exceeded the cumulative PREAs shall be disregarded in any future credit calculations and be of no effect. However, if the cumulative expenses for the years preceding an anniversary date on which a Contingent Deferred Payment (ZAI) is due are below the cumulative PREAs for the same corresponding years, the ZAI Trust Assets will receive an expense credit in the amount that the cumulative PREAs for the years preceding the anniversary date exceed the cumulative ZAI expenses. That credit will be carried forward for the ZAI Trust Assets’ benefit for the purposes of determining any subsequent credit that Grace may receive on any subsequent Contingent Deferred Payment (ZAI).
The administrative expenses that will be included in calculating whether the ZAI Trustee has exceeded the PREA limit for any year do not include: (1) any payments to ZAI Claimants; (2) any common fund counsel fees that may be awarded by the Court for the creation of the common fund per the ZAI Term Sheet and Class Settlement Agreement; (3) the costs of the ZAI educational program (ZAI TDP Section 5.3); (4) the costs of any vermiculite testing procedure set up under Section 5.4.2 of the ZAI TDP; and (5) the costs of the PD FCR (other than expenses incurred in connection with legal fees).
Should the ZAI Trustee, in consultation with the ZTAC, determine that an extraordinary circumstance exists that justifies having an expense or expense amount not be included in calculation of the PREA, the Trustee shall consult with Grace in an attempt to receive Grace’s agreement. If the parties are unable to agree on whether the expense should or should not be considered as part of the PREA, the parties will utilize the alternate dispute resolution procedures set forth in the ZAI TDP.
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re:
|
)
)
|
Chapter 11
|
|
W. R. GRACE & CO.,
et al
.
|
)
)
|
Case No. 01-01139 (KJC)
Jointly Administered
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|
)
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Debtors.
|
)
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|
)
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)
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EXHIBIT 30 TO EXHIBIT BOOK
W. R. GRACE & CO. GUARANTEE AGREEMENT (CLASS 7B ZAI)
EXHIBIT 30
Attached.
W. R. GRACE & CO. GUARANTEE AGREEMENT (CLASS 7B ZAI)
Deferred Payment Agreement (CLASS 7B ZAI)
This W. R. GRACE & CO. GUARANTEE AGREEMENT (CLASS 7(b) ZAI) (this “
Guarantee (ZAI)
”) is made and entered into as of February 3, 2014, by and between W. R. Grace & Co., a Delaware corporation (together with any successor thereto pursuant to the terms and conditions of
Section 16
, the “
Guarantor
”), and the WRG Asbestos PD Trust, on behalf of the Holders of US ZAI PD Claims (in such capacity, the “
Trust (ZAI)
”), a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan of Reorganization (as hereinafter defined). Unless otherwise defined herein or the context otherwise requires, capitalized terms used herein and defined in the Plan of Reorganization shall be used herein as therein defined.
This Guarantee (ZAI) is the “Parent Guarantee” described and defined in the Deferred Payment Agreement (ZAI) (as defined below) and is effective as of the Effective Date.
W
I
T
N
E
S
S
E
T
H
In consideration of the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.
Definitions; Rules of Interpretation
.
(a)
As used in this Guarantee (ZAI), the following terms shall have the following meanings:
“
Authorized Officer
” means, with respect to any Entity, the chief executive officer, president, chief financial officer, controller, executive vice president or senior vice president of such Entity.
“
Bona Fide Compensation Transaction
” means any payment, grant or award, whether in cash, securities, options or other consideration, including without limitation salary or bonus, to or for the benefit of any director, officer or employee of any Transferor or any of its Affiliates made for legitimate, bona fide compensation and/or incentivization purposes; provided that compensation paid, granted or awarded to any one such individual in any Fiscal Year of Transferor whose aggregate value at the time or times of payment, grant or award is in excess of $15,000,000 shall be a Bona Fide Compensation Transaction only (i) if the relevant Transferor is then obligated to file or furnish, or is otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, it is approved by an independent committee of the Board of Directors of the Transferor (or other similar management body of the Transferor) or (ii) if the relevant Transferor is not then obligated to file or furnish, or is not otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, a reputable independent compensation expert or consultant selected by the Transferor with the consent of the “Permitted Holder” (as defined in the Deferred Payment Agreement (PI)) (which consent shall not be unreasonably withheld, conditioned or delayed) shall have determined, in its reasonable, good faith judgment, that such payment, grant or award is reasonable and appropriate. For purposes of the proviso in the previous sentence, (A) no payment or other value received in a given year pursuant to the terms of a grant or award in a previous year shall be taken into account for calculating the compensation in such given year; and (B) in the event of multiple payments, grants or awards in a given Fiscal Year, the independent committee approval, or independent compensation expert or consultant determination, as appropriate, shall be made with respect to each payment, grant or award beginning with the payment, grant or award that causes the compensation to be in excess of $15,000,000.
“
Business Day
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Capital Stock
” means, with respect to any Entity, any share of stock, or any depositary receipt or other certificate representing any share of stock, or any similar equity ownership interest, and any warrant, option, or any other security providing for the right to acquire any such share of stock or similar equity ownership interest.
“
Claims
” has the meaning set forth in
Section 17(b)
.
“
Collateral Agent
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Compliance Certificate
” means a certificate in the form of Exhibit C.
“
Control
” means, as to any Entity, the power to direct the management and policies of such Entity directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlling” and “Controlled” have meanings correlative to the foregoing.
“
Controlled Affiliate
” means, as to any Entity (the “Controlling Entity”), any Affiliate that is Controlled by such Controlling Entity.
“
Default Rate
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Deferred Payment Agreement (PI)
” means that certain Deferred Payment Agreement (PI), dated as of the date hereof, between Grace and the Trust (PI).
“
Deferred Payment Agreement (ZAI)
” means that certain Deferred Payment Agreement (Class 7(b) ZAI), dated as of the date hereof, between Grace and the Trust (ZAI).
“
Deferred Payment Date (ZAI)
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Deferred Payment Documents
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Deferred Payment Documents (PI)
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Deferred Payment Documents (PD)
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Deferred Payment Documents (ZAI)
” means this Guarantee (ZAI), the Deferred Payment Agreement (ZAI) and the Share Issuance Agreement.
“
Deferred Payment (PI)
” has the meaning set forth in the Deferred Payment Agreement (PI).
“
Deferred Payment (ZAI)
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Demand for Issuance of the Section 524(g) Shares
” has the meaning set forth in the Share Issuance Agreement.
“
Designated Guarantor Senior Indebtedness
” means Guarantor Senior Indebtedness issued, pursuant to a facility with an aggregate principal amount, commitments and/or other financial accommodations then outstanding and/or available (disregarding for purposes of this definition whether any conditions for draws thereunder have been satisfied), as of the relevant date of determination, of at least $25,000,000.
“
Disposition Transaction
” has the meaning set forth in
Section 7(b)
.
“
Disqualified Equity Interest
” means that portion of any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof on or prior to the final Deferred Payment Date (ZAI).
“
EBITDA
” means, for any Entity for any period, such Entity’s and its Subsidiaries’ consolidated net income (determined in accordance with GAAP) for such period plus, without duplication, in respect of any such item of such Entity and/or any of its Subsidiaries (i) to the extent deducted in determining such consolidated net income, the sum, without duplication, of (a) interest expense, (b) provisions for any income or similar taxes paid or accrued, (c) all amounts treated as expenses for depreciation and amortization of any kind, (d) cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents, (e) items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period, and (f) any non-cash charges minus (ii) to the extent included in determining such consolidated net income, the sum, without duplication, of (a) gross interest income received during such period and (b) items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period, all, in the cases of clauses (i) and (ii) above, as determined on a consolidated basis in accordance with GAAP.
“
Equity Interest
” means shares of Capital Stock or equity, equity securities or ownership interests in any Entity or any rights (including any (x) options, warrants or other rights to purchase or acquire any such stock, equity or interests (whether or not at the time exercisable), or (y) securities by their terms convertible into or exchangeable for any such stock, equity or interests (whether or not at the time so convertible or exchangeable) or options, warrants or rights to purchase such convertible or exchangeable securities.
“
Event of Default
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Fiscal Quarter
” means, in respect of any Entity, a fiscal quarter of such Entity as determined by it.
“
Fiscal Year
” means, in respect of any Entity, a fiscal year of such Entity as determined by it.
“
GAAP
” means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis; provided, however, that as of such time, if any, when any Entity begins to provide financial information generally on the basis of IFRS, then any reference to GAAP with respect to such Entity shall be given effect as a reference to IFRS.
“
Governing Documents
” means, as to any Entity, its articles or certificate of incorporation and by-laws, its partnership agreement, its certificate of formation and operating agreement and/or the organizational or governing documents of such Entity.
“
Governmental Authority
” means the government of the United States of America or any other country, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
“
Grace
” means W. R. Grace & Co.-Conn., a Connecticut corporation, and any successor to its obligations under the Deferred Payment Agreement (ZAI) pursuant to the terms and conditions of Section 16 thereof.
“
Guaranteed Obligations (ZAI)
” has the meaning set forth in
Section 2(a)
.
“
Guarantee Payment Blockage Notice
” has the meaning set forth in
Section 8(a)(ii)
.
“
Guarantee Payment Blockage Period
” has the meaning set forth in
Section 8(a)(ii)
.
“
Guarantor
” has the meaning set forth in the introductory paragraph hereof.
“
Guarantor Senior Indebtedness
” means any and all present and/or future, direct and/or indirect, indebtedness, liabilities and other obligations of the Guarantor owed to any Entity (whether as senior or subordinated indebtedness, as a first lien, second lien, any other position or priority, and any mezzanine, subordinated or other indebtedness) including any principal, interest and premiums, fees, investment points, reimbursement obligations, issuance discounts and/or other costs, indemnities, liabilities and/or expenses thereon or in connection therewith (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable Law), in each case, under or with respect to (i) any credit or loan facilities (whether provided by one or more banks, insurance companies, financial institutions, private equity or hedge funds, lenders, and/or other Entities) and/or (ii) any debt, bonds, debentures, notes, repurchase, discount, securitization, factoring and/or other similar facilities providing for indebtedness, including any and all obligations of any nature in respect of loans, credit agreements, indentures, and bonds, together with obligations in respect of hedging arrangements (whether in respect of interest rates, currencies, commodities, equities, indebtedness and/or otherwise), in each case, entered into with banks, insurance companies, financial institutions, private equity or hedge funds, lenders and/or other Entities who are engaged in the business of providing financing (but not customers of or suppliers to the Guarantor to the extent constituting trade payables), notes, letters of credit, and synthetic letters of credit in connection therewith, and/or (iii) any reimbursement, payment, indemnities, fees, guarantees or other obligations in connection with any credit or loan facilities or indebtedness, liabilities and other obligations referenced in clauses (i) or (ii);
except in each case, for any indebtedness owed by the Guarantor (A) that by its express terms is not Guarantor Senior Indebtedness for purposes of the Deferred Payment Agreement (ZAI) and this Guarantee (ZAI) and is to be treated as
pari passu
or junior and subordinated with respect thereto in accordance with its terms, (B) for the avoidance of doubt, consisting of obligations to trade creditors and other trade payables in connection with the purchase of goods, materials or services, (C) owed to, or guaranteed by Grace or the Guarantor on behalf of, any director, officer or senior key employee of (1) Grace, (2) the Guarantor or (3) any Subsidiary or Affiliate of Grace or the Guarantor (D) represented by Disqualified Equity Interest, (E) owed to (1) Grace or (2) any Subsidiary or Affiliate of Grace or the Guarantor and (F) resulting from the Deferred Payment Documents (PD) or the Deferred Payment Documents (PI).
“
Guarantor Senior Non-Payment Default
” has the meaning set forth in
Section 8(a)(ii)
.
“
Guarantor Senior Payment Default
” has the meaning set forth in
Section 8(a)(i)
.
“
Guarantor Senior Remedies
” means, if an event of default has occurred and is continuing under the terms of any agreement or document relating to Guarantor Senior Indebtedness, any of the following by the holder (or any agent or trustee of the holder) of any Guarantor Senior Indebtedness: (1) exercising or seeking to exercise any rights or remedies against Grace or the Guarantor with respect to such event of default or (2) instituting any action or proceeding with respect to such rights or remedies (including any action of foreclosure, contest or protest) under any agreement or document relating to Guarantor Senior Indebtedness, or under such event of default or otherwise or (3) attempting to do any of the foregoing.
“
IFRS
” means the International Financial Reporting Standards as adopted by the International Accounting Standards Board and in effect from time to time, consistently applied.
“
Insolvent
” means the financial condition of the Guarantor and its Subsidiaries taken as a whole such that, as of the date specified, the sum of their liabilities is greater than a fair valuation of all of their property and assets.
“
Intercreditor Agreement
” means the Intercreditor Agreement, dated as of the date hereof, among the Trusts’ Representative, the Trust (PI) and the Trust (PD).
“
Laws
” means, collectively, all applicable international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances and codes, including the binding interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof.
“
NASDAQ
” shall mean The NASDAQ Stock Market (including any of its subdivisions such as the NASDAQ Global Select Market) or any successor market thereto.
“
NYSE
” shall mean The New York Stock Exchange or any successor stock exchange thereto.
“
Ordinary Dividends
” means, in respect of any Entity, ordinary cash dividends declared and paid out of surplus and/or net profits (as determined in accordance with applicable law) in accordance with the dividend policy of such Entity as in effect from time to time; provided, however, that notwithstanding the foregoing, the excess, if any, of (a) the aggregate amount of dividends declared and paid by such Entity in any Fiscal Year over (b) 50% of such Entity’s and its Subsidiaries’ consolidated net income (determined in accordance with GAAP) for the immediately preceding Fiscal Year shall not constitute “Ordinary Dividends” to the extent of such excess.
“
Permitted Holder
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Permitted Payee
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Permitted Payor
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Plan of Reorganization
” means that certain First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms.
“
Post-Transaction Certificate
” means a certificate in the form of Exhibit D.
“
Post-Transaction Pro Forma Cash Balance
” means with respect to any Entity as of any date of determination, the aggregate amount of such Entity’s and its consolidated Subsidiaries’ cash and cash equivalents as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring on or prior to such date, notwithstanding that such Significant Transaction may not have actually been consummated as of such date), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
“
Post-Transaction Pro Forma EBITDA
” means, with respect to any Entity for any four-Fiscal Quarter period and any specified Disposition
Transaction, such Entity’s Pro Forma EBITDA for such four-Fiscal Quarter period, computed assuming that such Disposition Transaction, and any other Significant Transaction the Transaction Date of which occurs on or prior to the Transaction Date of such Disposition Transaction and during the same Fiscal Quarter as the Transaction Date of such Disposition Transaction, were consummated on the same terms in effect on the respective Transaction Dates at the beginning of the four-Fiscal Quarter period most recently ended prior to the Transaction Date of such Disposition Transaction, and shall include adjustments which give effect to events that are (i) directly attributable to such Disposition Transaction and any such Significant Transactions, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable.
“
Post-Transaction Pro Forma Guarantor Senior Indebtedness
” means with respect to any Entity as of any date of determination, the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Guarantor Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Guarantor Senior Indebtedness) with a Transaction Date occurring on or prior to such date, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Guarantor Senior Indebtedness) may not have actually been consummated as of such date).
“
Post-Transaction Pro Forma Valuation
” means, with respect to any Entity as of any date of determination, the amount resulting from (a) the product of (i) such Entity’s Post-Transaction Pro Forma EBITDA for the four-Fiscal Quarter period most recently ended,
multiplied
by
(ii)
seven (7),
minus
(b) such Entity’s Post-Transaction Pro Forma Guarantor Senior Indebtedness as of such date,
plus
(c) such Entity’s Post-Transaction Pro Forma Cash Balance as of such date.
“
Proceeding
” means, with respect to any Entity, any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, or other winding up of such Entity or all or substantially all of the properties of such Entity.
“
Pro Forma Cash Balance
” means with respect to any Entity as of the last day of any four-Fiscal Quarter period, the aggregate amount of such Entity’s and its consolidated Subsidiaries’ cash and cash equivalents as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction may not have actually been consummated during such four-Fiscal Quarter period), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
“
Pro Forma EBITDA
” means, with respect to any Entity for any four Fiscal-Quarter period, such Entity’s EBITDA for such four Fiscal-Quarter period, computed assuming that any Significant Transaction the Transaction Date of which occurred during the relevant four-Fiscal Quarter period was consummated, on the terms in effect on such Transaction Date, at the beginning of such four-Fiscal Quarter period most recently ended prior to the Transaction Date of such Significant Transaction, and shall include adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable.
“
Pro Forma Guarantor Senior Indebtedness
” means with respect to any Entity as of the last day of any four-Fiscal Quarter period, the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Guarantor Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Guarantor Senior Indebtedness) with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Guarantor Senior Indebtedness) may not have actually been consummated during such four-Fiscal Quarter period).
“
Pro Forma Valuation
” means, with respect to any Entity as of the last day of any four-Fiscal Quarter period, the amount resulting from (a) the product of (i) such Entity’s Pro Forma EBITDA for such four-Fiscal Quarter period,
multiplied
by
(ii)
seven (7),
minus
(b) such Entity’s Pro Forma Guarantor Senior Indebtedness as of such date,
plus
(c) such Entity’s Pro Forma Cash Balance as of such date.
“
Quarterly EBITDA and Valuation Certificate
” means a certificate in the form of Exhibit B.
“
Regulation S-X
” means Regulation S-X promulgated by the United States Securities and Exchange Commission as in effect on the date hereof.
“
Related Party
” means in respect of an Entity (the “Affected Entity”): (a) any senior key employee, officer or director of the Affected Entity or, in respect of an officer or director, any person holding a similar position in an Affected Entity that is not a corporation (any such person, an “Insider”); (b) any spouse, child, parent or sibling of an Insider; (c) another Entity which alone or together with other Entities under its Control directly or indirectly Controls or holds ten percent (10%) or more of the Equity Interests that (i) generally entitle the holders thereof to vote for the election of the board of directors or other governing body of the Affected Entity, or (ii) confer upon the holders thereof an interest in the capital or profits of the Affected Entity; (d) any Entity Controlled by the Affected Entity or by any Insider or in which the Affected Entity or any Insider Controls or holds ten percent (10%) or more of the stock or other equity interests which (i) generally entitle the holders thereof to vote for the election of the board of directors or other governing body of the Affected Entity or (ii) confer upon the holders thereof an interest in the capital or profits of such Affected Entity; or (e) any Controlled Affiliate of any Entity that is a Related Person by virtue of clause (d) of this definition; provided, however
,
that any direct or indirect 100% owned Subsidiary of the Guarantor shall not constitute a “Related Party” for purposes of this Guarantee (ZAI).
“
Section 524(g) Shares
” has the meaning set forth in the Share Issuance Agreement.
“
Significant Transaction
” means (a) any Disposition Transaction or (b) any transaction of the type described in Section 210.11-01(a)(1) or Section 210.11-01(a)(2) of Regulation S-X (disregarding, for purposes of clause (b) of this definition, whether the Entity entering into such transaction is at the time obligated to file or furnish, or is otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, as amended).
“
Subsidiary
” means, with respect to any Entity at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (i) the accounts of which would be consolidated with those of such Entity in such Entity’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (ii) of which more than 50% of (A) the outstanding Capital Stock having (in the absence of contingencies) ordinary voting power to elect a majority of the board of directors or other managing body of such Entity, (B) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (C) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or Controlled directly or indirectly through one or more intermediaries, by such Entity.
“
Taxes
” means any and all present or future taxes, levies, imposts, fees, assessments, levies, duties, deductions, charges, liabilities or withholdings (including interest, fines, penalties or additions to tax) imposed by any Governmental Authority.
“
Threshold Amount
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Transaction Date
” means, with respect to any Significant Transaction, (a) the date, if any, on which final, definitive documentation providing for such Significant Transaction is executed;
provided
,
however
, that the “Transaction Date” shall no longer be deemed to have occurred with respect to any Significant Transaction if the final, definitive documentation providing for such Significant Transaction is terminated for any reason, or (b) if no such final, definitive documentation for such Significant Transaction is executed, the date on which such Significant Transaction is consummated.
“
Transfer
” has the meaning set forth in
Section 7(b)
.
“
Transferor
” has the meaning set forth in
Section 7(b)
.
“
Trust (PD)
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Trust (PI)
” has the meaning set forth in the Deferred Payment Agreement (ZAI).
“
Trusts
” has the meaning set forth in the Share Issuance Agreement.
“
Trusts’ Representative
” has the meaning set forth in the Share Issuance Agreement.
“
Trust (ZAI)
” has the meaning set forth in the introductory paragraph hereof.
“
Valuation
” means, with respect to any Entity as of the last day of any four-Fiscal Quarter period, the amount resulting from (a) the product of (i) such Entity’s EBITDA for such four-Fiscal Quarter period,
multiplied
by
(ii)
seven (7),
minus
(b) the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Guarantor Senior Indebtedness as of such date,
plus
(c) the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
(b)
Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All references herein to Sections shall be deemed references to Sections of this Guarantee (ZAI) unless the context shall otherwise require.
(c)
Unless otherwise indicated, (i) the term “including” means “including without limitation”, except when used in the computation of time periods, and (ii) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein).
(d)
For purposes of the computation of time periods, whenever this Guarantee (ZAI) provides for an event to occur “within” a specified number of days of a preceding event, it shall mean that the latter event shall occur before the close of business on the last of the specified days, and the day on which the preceding event occurs shall not be included in the computation of days elapsed. The word “from” means “from and including”, “after” means “after and excluding”, and “to” and “until” means “to and including”.
(e)
All terms defined in this Guarantee (ZAI) in the singular form shall have comparable meanings when used in the plural form and vice versa.
2.
Guarantee (ZAI)
.
(a)
For value received and in consideration of the transactions set forth in the Deferred Payment Agreement (ZAI) and in the Plan of Reorganization, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees for the benefit of the Permitted Holder and each Permitted Payee, as a primary obligor and not merely as a surety, and pursuant to the terms and conditions of this Guarantee (ZAI), (i) the full and prompt payment when due (whether by acceleration or otherwise) of (A) all Deferred Payments (ZAI) and (B) all other amounts payable under the Deferred Payment Agreement (ZAI) (including interest at the Default Rate) accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding and at all times thereafter, and (ii) the due performance by Grace of all of its other obligations under the Deferred Payment Agreement (ZAI) (the obligations described in items (i) and (ii), the “
Guaranteed Obligations (ZAI)
”).
(b)
The Guarantor hereby agrees that this Guarantee (ZAI) is an absolute, unconditional guarantee of payment and performance and is not merely a surety or guarantee of collection, and that the Guarantor and Grace are jointly and severally liable for the Guaranteed Obligations (ZAI), which liability is a continuing, absolute and unconditional obligation of payment or performance, as the case may be, regardless of the solvency or insolvency of Grace or the Guarantor at any time.
(c)
The obligations of the Guarantor hereunder are secured by the Guarantor’s obligation to issue and deliver to the Trusts’ Representative, for the benefit of the Trusts, the Section 524(g) Shares under the circumstances, and upon the terms and subject to the conditions, set forth in the Share Issuance Agreement.
(d)
If the acceleration of the Guaranteed Obligations (ZAI) is stayed in connection with any Proceeding commenced by or against Grace, all such Guaranteed Obligations (ZAI) shall nonetheless be payable by the Guarantor immediately upon demand by the Permitted Holder.
3.
Enforceability of Obligations
.
(a)
Subject to
Section 3(b)
, the Guarantor hereby agrees that its obligations in respect of this Guarantee (ZAI) shall be enforceable against the Guarantor irrespective of:
(i)
the legality, validity, enforceability, avoidance or subordination of any of the Guaranteed Obligations (ZAI) or the Deferred Payment Agreement (ZAI);
(ii)
any Law, regulation, or order of any jurisdiction, or any other event, affecting any term of the Guaranteed Obligations (ZAI) or the Deferred Payment Agreement (ZAI);
(iii)
the absence of any attempt by, or on behalf of, the Permitted Holder to collect, or to take any other action to enforce, all or any part of the Guaranteed Obligations (ZAI) whether from or against Grace or any other Entity;
(iv)
the election of any remedy available under the Deferred Payment Agreement (ZAI) or applicable Law or in equity by, or on behalf of, the Permitted Holder with respect to all or any part of the Guaranteed Obligations (ZAI);
(v)
any change in the corporate existence, structure or ownership of Grace or the Guarantor;
(vi)
any impairment of the capital of Grace or the Guarantor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting Grace, the Guarantor or their assets, or any resulting release or discharge of the Guaranteed Obligations (ZAI);
(vii)
any amendment, waiver, consent, extension, forbearance or granting of any indulgence by, or on behalf of, the Permitted Holder with respect to any provision of the Deferred Payment Agreement (ZAI), or any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Grace or the Guarantor, including any renewal or extension of the time or change of the manner or place of payment or performance, as the case may be, of the Guaranteed Obligations (ZAI);
(viii)
the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the claims against Grace held by the Permitted Holder for payment or performance, as the case may be, of all or any part of the Guaranteed Obligations (ZAI);
(ix)
the existence of any right, claim, counterclaim, or right of set-off, whether arising from or relating to the Guaranteed Obligations (ZAI) or Grace or otherwise, that the Guarantor may have at any time against Grace, the Permitted Holder or any other Entity, whether in connection herewith or any unrelated transactions,
provided
,
however
, that nothing herein shall prevent the assertion of a separate suit or compulsory counterclaim;
(x)
the cessation for any reason of the liability of Grace under the Deferred Payment Agreement (ZAI) or any other circumstance which might otherwise constitute a legal or equitable discharge of Grace or the Guarantor; or
(xi)
any other act or circumstance which might or could be deemed a discharge or modification hereunder other than payment in full of the Guaranteed Obligations (ZAI).
(b)
Notwithstanding
Section 3(a)
and
Section 4
or any other provision to the contrary in this Guarantee (ZAI), from and after such time, if any, that the Guarantor has notified the Permitted Holder in writing that Grace is no longer a Subsidiary or a Controlled Affiliate of the Guarantor, any amendment, waiver, modification, supplement, restatement or change in respect of the terms and conditions of the Deferred Payment Agreement (ZAI) or any other Deferred Payment Document (ZAI) shall require the prior written consent of the Guarantor.
4.
Waivers
. With respect to the Guaranteed Obligations (ZAI), the Guarantor hereby waives (subject to Section 3(b)) (a) acceptance, promptness, diligence, presentment, demand of payment, filing of claims with a court in the event of receivership or bankruptcy of Grace, protest or notice, all setoffs and counterclaims and all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Guarantee (ZAI) or the Deferred Payment Agreement (ZAI) (and shall not require that the same be made on or given to Grace as a condition to the Guarantor’s obligations hereunder), (b) any defense arising by reason of any disability or other defense of Grace or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Permitted Holder or any other Entity) of the liability of Grace; (c) any right to, or to require the Permitted Holder to, proceed against Grace, proceed against or exhaust any security (including the Section 524(g) Shares) for the Guaranteed Obligations (ZAI), or pursue any other remedy in the power of the Permitted Holder whatsoever, (d) any benefit of and any right to participate in any security now or hereafter securing the Guaranteed Obligations (ZAI), (e) the benefits of all statutes of limitation, and (f) all other demands and defenses whatsoever (other than payment in full of all Guaranteed Obligations (ZAI)).
5.
Payments
.
(a)
All payments to be made by the Guarantor pursuant to this Guarantee (ZAI) shall be made in lawful currency of the United States of America by wire transfer of immediately available funds to the Permitted Holder in accordance with such wire transfer instructions as are provided by the Permitted Holder in writing from time to time. Subject to
Sections 5(b)
,
(c)
and
(d)
, all payments under this Guarantee (ZAI) shall be made in full, without any set-off, counterclaim or any deduction whatsoever.
(b)
If, after giving effect to any Disposition Transaction or any assignment, delegation or transfer by the Guarantor of its rights or obligations under this Guarantee (ZAI), the Guarantor shall be required by applicable Law to withhold any Taxes from any payments hereunder, and if such requirement would not have been imposed by such applicable Law but for such Disposition Transaction, assignment or transfer, then (i) the sum payable shall be increased as necessary so that after making all withholdings required by applicable Law (including withholdings applicable to additional sums payable under this
Section 5(b)
) the payee receives an amount equal to the sum it would have received had no such withholdings been made, (ii) the Guarantor shall make such withholdings and (iii) the Guarantor shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Law. This
Section 5(b)
shall survive the termination of this Guarantee (ZAI) pursuant to
Section 15
.
(c)
If, after giving effect to any permitted assignment or Transfer by the Permitted Holder of its rights or obligations under this Guarantee (ZAI), the Guarantor shall be required by applicable Law to withhold any Taxes from any payments hereunder, and if such requirement would not have been imposed by such applicable Law but for such assignment or Transfer, then the obligation of the Guarantor or the Permitted Payor to make the relevant payment hereunder shall be discharged by making such payment net of such Taxes. This
Section 5(c)
shall survive the termination of this Guarantee (ZAI) pursuant to
Section 15
.
(d)
If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case adopted after the date hereof, the Guarantor or a Permitted Payor shall be required to withhold any Taxes from any payments hereunder, then the obligation of the Guarantor or the Permitted Payor to make the relevant payment hereunder shall be discharged by making such payment net of such Taxes. This
Section 5(d)
shall survive the termination of this Guarantee (ZAI) pursuant to
Section 15
.
6.
Representations and Warranties
. The Guarantor represents and warrants, as of the Effective Date, that:
(a)
The Guarantor is duly organized, validly existing and in good standing under the laws of the jurisdiction of the Guarantor’s incorporation;
provided, however
, with respect to good standing, only to the extent the concept of good standing exists in such jurisdiction of incorporation.
(b)
The Guarantor has the corporate power and authority to execute and deliver this Guarantee (ZAI) and each other Deferred Payment Document (ZAI) to which it is a party. This Guarantee (ZAI) and each other Deferred Payment Document (ZAI) to which the Guarantor is a party has been duly authorized by all necessary corporate action of the Guarantor and has been duly executed and delivered by the Guarantor.
(c)
This Guarantee (ZAI) and each other Deferred Payment Document (ZAI) to which the Guarantor is a party is a legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally, by the discretion of the court in which enforcement is sought, and/or by general equitable principles (whether enforcement is sought by proceedings at law or in equity).
(d)
The execution, delivery and performance by the Guarantor of this Guarantee (ZAI) and each other Deferred Payment Document (ZAI) to which the Guarantor is a party does not conflict with, result in a breach of any of the provisions of, or constitute a default under, the Governing Documents of the Guarantor.
7.
Guarantor Covenants
. The Guarantor covenants and agrees that, from the Effective Date until all Guaranteed Obligations (ZAI) are paid and performed in full:
(a)
Affirmative Covenants
. The Guarantor shall:
(i)
Maintenance of Existence and Qualifications
. Maintain and preserve in full force and effect its existence and good standing (to the extent the concept of good standing exists in the Guarantor’s jurisdiction of incorporation) and all other rights, powers, franchises, licenses and qualifications necessary or desirable for its ownership or use of properties or the conduct of its business, except (A) as permitted by
Section 16
, and (B) where the failure to do so would not reasonably be likely to adversely affect the Guarantor’s ability to make payments in respect of the Guaranteed Obligations (ZAI) or to perform its obligations under the Deferred Payment Documents (ZAI) to which it is a party.
(ii)
Notice of Event of Default, Guarantor Senior Payment Default and Guarantor Senior Non-Payment Default
. Furnish to the Permitted Holder (x) within five (5) days after an Authorized Officer of the Guarantor shall first learn of an Event of Default, and (y) on or before the earlier of (A) the fifteenth (15th) day after an Authorized Officer of the Guarantor shall first learn of a Guarantor Senior Payment Default or Guarantor Senior Non-Payment Default and (B) the first Business Day following the date upon which a Guarantee Payment Blockage Notice is delivered pursuant to
Section 8(a)(ii)
, a written statement of an Authorized Officer of the Guarantor stating that an Event of Default, Guarantor Senior Payment Default or Guarantor Senior Non-Payment Default, as the case may be, has occurred, which written statement shall, to the extent known by the Guarantor, set forth in reasonable detail the facts giving rise to and status of such Event of Default, Guarantor Senior Payment Default or Guarantor Senior-Non Payment Default, as the case may be, and the actions, if any, the Guarantor is taking or proposes to take with respect thereto.
(iii)
Information Covenants
. If the Guarantor is not obligated to file or furnish, or is not otherwise filing or furnishing, reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, the Guarantor shall furnish to the Permitted Holder:
(A)
Annual Financial Statements
. As soon as available but in no event later than ninety (90) days after the last day of each of the Guarantor’s Fiscal Years, its annual consolidated financial statements audited by a nationally recognized registered independent public accounting firm allowed to practice before the Securities and Exchange Commission or any successor Governmental Authority, consisting of a consolidated balance sheet of the Guarantor and its consolidated Subsidiaries as of the end of such year and consolidated statements of income, cash flows and stockholders equity for such year (all in reasonable detail and with all notes and supporting schedules); and
(B)
Quarterly Financial Statements
. As soon as available and in any event within forty-five (45) days after the end of each of the first three Fiscal Quarters in each Fiscal Year of the Guarantor, its consolidated balance sheet as of the end of such Fiscal Quarter, and consolidated statements of income and cash flows of the Guarantor and its consolidated Subsidiaries for such Fiscal Quarter, all in reasonable detail and certified by an Authorized Officer of the Guarantor to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustments and the absence of footnotes).
(iv)
Officer’s Certificates
. The Guarantor shall furnish to the Permitted Holder:
(A)
No later than ninety (90) days after the last day of each of the Guarantor’s Fiscal Years and no later than forty-five (45) days after the end of each of the first three
Fiscal Quarter
s in each Fiscal Year of the Guarantor, a Quarterly EBITDA and Valuation Certificate executed by an Authorized Officer of the Guarantor setting forth (I) if the Transaction Date of a Significant Transaction has occurred during the four-Fiscal Quarter period ending on the last day of such Fiscal Quarter or Fiscal Year, as the case may be, the Pro Forma EBITDA of the Guarantor for such four-Fiscal Quarter period and the Pro Forma Valuation of the Guarantor as of the last day of such four-Fiscal Quarter period or (II) if the Transaction Date of a Significant Transaction did not occur during the four-Fiscal Quarter period ending on the last day of such Fiscal Quarter or Fiscal Year, as the case may be, the EBITDA of the Guarantor for such four-Fiscal Quarter period and the Valuation of the Guarantor as of the last day of such four-Fiscal Quarter period;
provided
,
however
, that the Guarantor shall not be required to furnish to the Permitted Holder a Quarterly EBITDA and Valuation Certificate under this subclause (A) if (x) the Guarantor is filing or furnishing reports with the United States Securities and Exchange Commission pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, and (y)(1) if the Transaction Date of a Significant Transaction has occurred during the four-Fiscal Quarter period ending on the last day of the applicable Fiscal Quarter or Fiscal Year, the Pro Forma EBITDA of the Guarantor for such four-Fiscal Quarter period and the Pro Forma Valuation of the Guarantor as of the last day of such four-Fiscal Quarter period is readily ascertainable from such reports or (1) if the Transaction Date of a Significant Transaction did not occur during the four-Fiscal Quarter period ending on the last day of the applicable Fiscal Quarter or Fiscal Year, the EBITDA of the Guarantor for such four-Fiscal Quarter period and Valuation of the Guarantor as of the last day of such four-Fiscal Quarter period is readily ascertainable from such reports;
(B)
no later than ninety (90) days after the last day of each of the Guarantor’s Fiscal Years,
a Compliance Certificate executed by an Authorized Officer of the Guarantor for such Fiscal Year; and
(C)
no later than thirty (30) days after the consummation by a Transferor of a Disposition Transaction of the type described in
clause (ii)
or
clause (iii)
of
Section 7(b)
, a Post-Transaction Certificate setting forth the Post-Transaction Pro Forma EBITDA of the Guarantor with respect to such Disposition Transaction executed and delivered by an Authorized Officer of the Guarantor.
(b)
Negative Covenant
. The Guarantor shall not, and shall cause each of its Subsidiaries and Controlled Affiliates
(each, a “
Transferor
”) to not, sell, assign, transfer, license, lease or otherwise dispose of (each, a “
Transfer
”) any property and/or other assets and/or enter into any transaction or obligation, whether constituting or by way of merger, consolidation, sale of assets or other disposition, reorganization, recapitalization, dividend, other distribution, or otherwise, or any related series of the foregoing (any such Transfer other than Ordinary Dividends, Bona Fide Compensation Transactions and other Transfers in the ordinary course of business, a “
Disposition Transaction
”), if the Transferor (taken together with all of its direct and indirect wholly owned Subsidiaries) would (1) receive (directly or indirectly) less than a reasonably equivalent value in such Disposition Transaction, (2) become or be rendered Insolvent as a result of such Transfer and/or such Disposition Transaction, or (3) be engaged in business and/or transactions, and/or would be about to engage in business and/or transactions, for which the Transferor’s (taken together with all of its direct and indirect wholly owned Subsidiaries) remaining property and other assets would be unreasonably small capital;
provided
,
however
, that notwithstanding the foregoing, a Transferor:
(i)
That is a direct or indirect wholly-owned Subsidiary of the Guarantor may make a Transfer to or engage in a Disposition Transaction exclusively with the Guarantor or any other direct or indirect wholly-owned Subsidiary of the Guarantor;
provided
further
, that if such Transferor is Grace or any of Grace’s Subsidiaries or Controlled Affiliates, such Disposition Transaction shall be permitted under this
clause (i)
only if it is also permitted under Section 6(b) of the Deferred Payment Agreement (ZAI);
(ii)
may engage in a Disposition Transaction whereby such Transferor (A) pays or makes (directly or indirectly) dividends or distributions (whether in cash, securities or other property) with respect to any of its Capital Stock (including by way of a spin-off or spin-out of any of its assets), or (B) repurchases its Capital Stock, provided that, in the case of any Disposition Transaction under
subclause (A)
or
(B)
above, all of the following conditions are satisfied:
(1)
no Event of Default has occurred and is continuing at the time of, or would result from, such Disposition Transaction;
(2)
as of the Transaction Date of such Disposition Transaction, (x) the Post-Transaction Pro Forma Valuation of the Guarantor shall equal or exceed the Threshold Amount or (y) the “Post-Transaction Pro Forma Valuation” (as defined in the Deferred Payment Agreement (ZAI)) of Grace shall equal or exceed the Threshold Amount; and
(3)
if such Disposition Transaction exceeds $15,000,000 and is not publicly disclosed at least 10 days prior to the consummation of such Disposition Transaction, then the Guarantor shall provide the
Permitted Holder
with, at least 10 days’ prior to the consummation of such Disposition Transaction, a written notice describing in reasonable detail the material terms of such Disposition Transaction and setting forth the Post-Transaction Pro Forma Valuation of the Guarantor as of the Transaction Date of such Disposition Transaction; and
(iii)
other than as set forth in
Section 7(b)(ii)
above, shall not enter into any Disposition Transaction with a Related Party to the Transferor in which the aggregate value of the assets or other property Transferred in such Disposition Transaction to such Related Party exceeds $15,000,000 if
the Transferor (taken together with all of its direct and indirect
wholly
owned Subsidiaries) would (1) receive (directly or indirectly) less than a reasonably equivalent value in such Disposition Transaction, as determined by a reputable investment bank or valuation firm jointly selected by the Guarantor and the “Permitted Holder” (as defined in the Deferred Payment Agreement (PI)),
(2) become or be rendered Insolvent as a result of such Transfer and/or such
Disposition Transaction
or (3) be engaged in business and/or transactions, and/or would be about to engage in business and/or transactions, for which the Transferor’s (taken together with all of its direct and indirect wholly owned Subsidiaries) remaining property and other assets would be unreasonably small capital;
provided
, that if the aggregate value of the assets or other property Transferred to such Related Party in such
Disposition Transaction
exceeds $15,000,000 and the existence of such
Disposition Transaction
is not publicly disclosed at least 10 days prior to the consummation of such
Disposition Transaction
, then the Guarantor shall provide the
Permitted Holder
with, at least 10 days’ prior to the consummation of such
Disposition Transaction
, a written notice describing in reasonable detail the material terms of such
Disposition Transaction and
setting forth the Post-Transaction Pro Forma Valuation of the Guarantor as of the Transaction Date of such Disposition Transaction;
provided
further
that if the Guarantor is not the surviving or succeeding Entity as a result of any
Disposition Transaction
(but in the case of a sale of assets, only if such sale involves a sale of all or substantially all of the assets of the Guarantor) otherwise permitted by the exceptions to this
Section 7(b)
, such
Disposition Transaction
shall be permitted under this
Section 7(b)
only if the Guarantor shall comply with the requirements of
Section 16(e)
.
8.
Subordination Terms
. Any and all obligations of the Guarantor in respect of the Guaranteed Obligations (ZAI) shall be subordinated and otherwise junior at all times in right of payment and in all other respects, in the manner and to the extent set forth herein, to any and all present and future obligations of the Guarantor in respect of any Guarantor Senior Indebtedness.
(a)
Blockage of Payments for Guaranteed Obligations (ZAI)
.
(iv)
If any payment default occurs and is continuing beyond any applicable grace period pursuant to the terms and conditions of any Guarantor Senior Indebtedness (a “
Guarantor Senior Payment Default
”), then subject to
Section 8(g)
, no payment or distribution of cash, securities or any other assets shall be made by the Guarantor with respect to the Guaranteed Obligations (ZAI) or this Guarantee (ZAI) for as long as such Guarantor Senior Payment Default is continuing.
(v)
If any default other than a Guarantor Senior Payment Default occurs pursuant to the terms and conditions of any Designated Guarantor Senior Indebtedness that would allow the holders thereof to accelerate the maturity thereof (a “
Guarantor Senior Non-Payment Default
”), then subject to
Section 8(g
), no payment or distribution of cash, securities or any other assets shall be made by the Guarantor with respect to any Guaranteed Obligations (ZAI) or pursuant to this Guarantee (ZAI) during the period (the “
Guarantee Payment Blockage Period
”) (x) beginning on the date that the Permitted Holder receives from the Entity entitled to give notice under any document evidencing such Designated Guarantor Senior Indebtedness (or from the Guarantor acting at the direction or request of such Entity) a written notice (a “
Guarantee Payment Blockage Notice
”) that such a Guarantor Senior Non-Payment Default has occurred and is continuing and (y) ending on the earliest to occur of (1) 180 days from the date the Permitted Holder shall have received the Guarantee Payment Blockage Notice, (2) the date such Guarantor Senior Non-Payment Default shall have been cured or waived or shall have ceased to exist and (3) the date such Guarantee Payment Blockage Period shall have been terminated by written notice to
the Permitted Holder from the Entity initiating such Guarantee Payment Blockage Period.
(vi)
Notwithstanding the foregoing, (A) in no event will a Guarantee Payment Blockage Period extend beyond 180 days from the date the Guarantee Payment Blockage Notice in respect thereof was received by the Permitted Holder, (B) there shall be a period of at least 180 consecutive days in each period of 360 consecutive days when no Guarantee Payment Blockage Period is in effect, and (C) no Guarantor Senior Non-Payment Default that existed or was continuing on the date of delivery of any Guarantor Payment Blockage Notice (whether or not such Guarantor Senior Non-Payment Default is with respect to the same issue of Designated Guarantor Senior Indebtedness) may be, or be made, the basis for a subsequent Guarantor Payment Blockage Notice, unless such Guarantor Senior Non-Payment Default has been cured or waived for a period of not less than 90 consecutive calendar days.
(vii)
The payment of Guaranteed Obligations (ZAI) shall resume, and the payment of any Guaranteed Obligations (ZAI) not paid due to a suspension thereof pursuant to
clause (i)
or
clause (ii)
above shall be paid, together with accrued interest thereon at the Default Rate, when such suspension is no longer in effect (either due to cure or waiver of the relevant Guarantor Senior Payment Default or the expiration or termination of the Guarantee Payment Blockage Period pursuant to
clause (i
) or
clause (ii)
of this
Section 8(a)
) unless a subsequent Guarantor Payment Blockage Notice has been delivered in accordance with clause (iii) of this
Section 8(a)
and is not prohibited from being delivered by clause (iii) of this
Section 8(a)
.
(b)
Proceedings
. Upon any payment made by the Guarantor, or any distribution of cash, securities or other assets of any kind of the Guarantor (other than securities issued in substitution for the obligation to make payments in respect of the Guaranteed Obligations (ZAI) that are subordinated to at least the extent described herein for the obligation to make payments in respect of the Guaranteed Obligations (ZAI), which Securities the Permitted Holder (or any Permitted Payee, if applicable) is specifically authorized to receive notwithstanding any other provision of this
Section 8
), to creditors in any Proceeding with respect to the Guarantor or its properties, all obligations due on all Guarantor Senior Indebtedness shall first be paid in full in cash before any payment or distribution is made on account of any Guaranteed Obligations (ZAI) or otherwise pursuant to this Guarantee (ZAI).
(c)
Improper Payments Held in Trust
. Any payments or property received by the Permitted Holder or any Permitted Payee in breach of this
Section 8
shall be held by the Permitted Holder or such Permitted Payee in trust and promptly delivered in the form received to the holder of Guarantor Senior Indebtedness entitled to receive the same (any such payment or property delivered by the Permitted Holder or such Permitted Payee to any holder of Guarantor Senior Indebtedness, a “
Guarantor Turnover Payment
”). To the maximum extent permitted under applicable Law, the Guarantor agrees that any Guarantor Turnover Payment shall be treated as a payment by the Guarantor on account of such Guarantor Senior Indebtedness and shall not satisfy the Guarantor’s obligation with respect to any amount due to the Permitted Holder or such Permitted Payee under this Guarantee (ZAI). If, notwithstanding the preceding sentence, it is determined (by a court of competent jurisdiction or otherwise) that a Guarantor Turnover Payment is a payment by the Guarantor on account of, and satisfies any obligation of the Guarantor with respect to, any amount due to the Permitted Holder or any Permitted Payee under this Guarantee (ZAI), then, to the extent of the amount of such Guarantor Turnover Payment, the portion of the obligation which has been determined to be paid and satisfied by such Guarantor Turnover Payment shall be reinstated and shall continue to be in full force and effect as of the time immediately preceding the initial payment thereof by the Guarantor to the Permitted Holder or such Permitted Payee. If, notwithstanding the preceding sentence, any portion of an obligation of the Guarantor in respect of such Guarantor Turnover Payment is not reinstated and continued to the extent of the amount of the relevant Guarantor Turnover Payment, then the Permitted Holder or the applicable Permitted Payee shall, upon the payment in full in cash of all Guarantor Senior Indebtedness owed to the holder thereof to whom the Permitted Holder or such Permitted Payee delivered such Guarantor Turnover Payment, be subrogated to the rights of such holder to receive payments or distributions applicable to such Guarantor Senior Indebtedness, and for the purpose of such subrogation such Guarantor Turnover Payment shall not, as between the Guarantor and the Permitted Holder or such Permitted Payee, be deemed to be payment by the Guarantor to or on account of such Guarantor Senior Indebtedness.
(d)
Remedies Blockage
. Subject in any event to the other terms and conditions of this
Section 8
(including
Section 8(a)
and
Section 8(g)
), if an Event of Default has occurred and is continuing and any Guarantor Senior Indebtedness is then outstanding, the Permitted Holder hereby agrees for itself and any assignee that it will not (1) exercise or seek to exercise any rights or remedies against Grace or the Guarantor with respect to such Event of Default or (2) institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure, contest or protest) under any Deferred Payment Document (ZAI) or any agreement or document relating thereto, or under such Event of Default or otherwise or (3) attempt to do any of the foregoing (collectively, the “
Remedies
”), for a period commencing on the date that such Event of Default occurs and ending on the earliest to occur of (i) 180 days after the first date on which such Event of Default shall have occurred, (ii) the commencement of a Proceeding with respect to Grace, the Guarantor or their respective properties, (iii) the date that the holder (or any agent or trustee of the holder) of any Guarantor Senior Indebtedness commences exercising any Guarantor Senior Remedies with respect to such Guarantor Senior Indebtedness (including, without limitation, the acceleration of all or any portion of such Guarantor Senior Indebtedness) and (iv) the payment in full in cash of all Guarantor Senior Indebtedness.
(e)
Notwithstanding the foregoing, as applied to the Permitted Holder, the term “Remedies” shall not include, and the Permitted Holder shall not be impaired by this
Section 8(d)
from doing, any of the following: (A) exercising rights and remedies for specific performance or injunctive relief to compel Grace or the Guarantor to comply with any non-payment obligations under the Deferred Payment Documents (ZAI) (including commencing any action contemplated by
Section 16(f)
), (B) instituting or maintaining any suit or action solely to prevent the running of any applicable statute of limitations, (C) accruing interest on the Deferred Payments (ZAI) at the Default Rate pursuant to the Deferred Payment Agreement (ZAI) and (D) giving any notice (including notice of an Event of Default) to the Guarantor under the Deferred Payment Documents (ZAI).
(f)
No Secured Obligation
. Except for this Guarantee (ZAI) and the share issuance obligation with respect to the Section 524(g) Shares as and to the extent contemplated in the Share Issuance Agreement, no credit support or security interest shall be granted by Grace, the Guarantor or any of its Subsidiaries in connection with, or otherwise support or secure any obligation set forth in, the Deferred Payment Documents (ZAI). Notwithstanding the foregoing, the Permitted Holder may obtain to the extent permitted under applicable Law a judgment lien on the properties of Grace and/or the Guarantor to secure the payment and performance of a judgment obtained by the Permitted Holder against Grace and/or the Guarantor.
(g)
No Impairment of Right to Receive Section 524(g) Shares or Warrant Shares
. Nothing in this
Section 8
shall impair the rights of the Trust (ZAI) (or its permitted successor or assigns) (i) acting through the Trusts’ Representative pursuant to the Intercreditor Agreement, to deliver to the Guarantor a Demand for Issuance of the Section 524(g) Shares and to receive the Trust (ZAI)’s percentage of the Section 524(g) Shares pursuant to the Share Issuance Agreement or (ii) to exercise all or any portion of the Warrant and to receive the shares of Common Stock in connection therewith.
(h)
Further Assurances
. At the reasonable request of the Guarantor, the Permitted Holder will, at the sole expense of the Guarantor, execute such agreements, documents, certificates and/or other instruments confirming the existence and extent of the subordination terms detailed in this Section.
9.
Defaults and Remedies
.
(a)
Subject in each case to
Section 8
of this Guarantee (ZAI), the Permitted Holder shall have the right, power and authority to do all things deemed necessary or advisable to enforce the provisions of this Guarantee (ZAI) and protect its rights under the Deferred Payment Agreement (ZAI) and, upon the occurrence and during the continuance of an Event of Default, the Permitted Holder may institute or appear in such appropriate proceedings permitted or not prohibited under this Guarantee (ZAI) as the Permitted Holder shall deem most effectual to protect and enforce any of its rights hereunder, whether for the specific enforcement of any covenant or agreement in this Guarantee (ZAI) or in aid of the exercise of any power granted herein or in the Permitted Holder, or to enforce any other proper remedy.
(b)
Each and every Event of Default or breach by the Guarantor of this Guarantee (ZAI) shall give rise to a separate cause of action hereunder, and separate actions may be brought hereunder as each cause of action arises. For so long as such an Event of Default or such a breach is continuing, the Permitted Holder shall have the right to proceed first and directly against the Guarantor under this Guarantee (ZAI) without proceeding against any other Entity (including Grace), without exhausting any other remedies which it may have and without resorting to any other security (if any) (including the Section 524(g) Shares) held by the Permitted Holder to secure the Guaranteed Obligations (ZAI).
10.
Setoff
. Subject to Section 8 of this Guarantee (ZAI), at any time after all or any part of the Guaranteed Obligations (ZAI) have become due and payable or performable, as the case may be (by acceleration or otherwise), the Permitted Holder or any Permitted Payee may, without notice to the Guarantor and regardless of the acceptance of any security or collateral (if any) for the payment thereof, and up to the unpaid amount of the Guaranteed Obligations (ZAI) then due, appropriate and apply toward the payment or performance, as the case may be, of all or any part of the Guaranteed Obligations (ZAI) then owing to the Permitted Holder or such Permitted Payee (i) any indebtedness due or to become due from the Permitted Holder or such Permitted Payee to the Guarantor, and (ii) any moneys, credits or other property belonging to the Guarantor, at any time validly held by or coming into the possession of the Permitted Holder or such Permitted Payee.
11.
Financial Information
. The Guarantor hereby acknowledges that it has adequate means of, and assumes sole responsibility for, keeping itself informed of the financial condition of Grace including any circumstances bearing upon the risk of nonpayment or nonperformance of the Guaranteed Obligations (ZAI), or any part thereof, and the Guarantor hereby agrees that no Permitted Holder shall have any duty to advise the Guarantor of information known to it regarding any such circumstances. In the event the Permitted Holder in its reasonable discretion, undertakes at any time or from time to time to provide any such information to the Guarantor, the Permitted Holder shall be under no obligation (i) to undertake any investigation not a part of its regular business routine or (ii) to disclose any information which the Permitted Holder, pursuant to accepted or reasonable practices, wishes to maintain confidential.
12.
Reinstatement
. Notwithstanding any provision herein to the contrary, the Guarantor agrees that, to the extent that any Entity makes a payment or payments to the Permitted Holder on account of the Guaranteed Obligations (ZAI) which payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required or agreed to be repaid or returned by the Permitted Holder under any Law or in respect of any Proceeding or other litigation to which the Guarantor, the Permitted Holder or any Permitted Payee is subject, then, to the extent of the amount of such payments, the portion of the Guaranteed Obligations (ZAI) which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the time immediately preceding such initial payment, reduction or satisfaction.
13.
Distribution of Grace Assets in Proceeding; Subrogation
.
(a)
Upon any distribution of assets of Grace to creditors in connection with any Proceeding relating to Grace or its property (but subject to
Section 8
), (i) the Permitted Holder and each Permitted Payee shall be entitled to receive payment in full of all Guaranteed Obligations (ZAI) before the Guarantor shall be entitled to receive any payment of principal of or interest on or any other amounts in respect of indebtedness of Grace in favor of the Guarantor; and (ii) until payment and performance in full of all Guaranteed Obligations (ZAI), any distribution of assets of any kind or character to which the Guarantor would otherwise be entitled shall be paid by Grace or by any receiver, trustee in bankruptcy, liquidating trustee, agents or other Entity making such payment or distribution to, or if received by the Guarantor, shall be held for the benefit of and shall be forthwith paid or delivered to, the Permitted Holder and each Permitted Payee on a pro rata basis according to the amount of all Guaranteed Obligations (ZAI) owing to the Permitted Holder and each such Permitted Payee.
(b)
The Guarantor hereby agrees that it will not assert, enforce, or otherwise exercise any rights which it may acquire against Grace or any guarantor pursuant to any other guaranties by way of subrogation pursuant to this Guarantee (ZAI), by any payment made hereunder or otherwise, until the Guaranteed Obligations (ZAI) shall have been paid in full.
14.
Amendments; Waivers
.
(a)
No provision of this Guarantee (ZAI) may be waived, amended, supplemented or modified except by a written instrument executed by the Permitted Holder and the Guarantor.
(b)
No delay on the part of the Permitted Holder in the exercise of any right or remedy arising under this Guarantee (ZAI) or the Deferred Payment Agreement (ZAI) or otherwise with respect to all or any part of the Guaranteed Obligations (ZAI), any collateral (if any) or any other guarantee of or security (if any) for all or any part of the Guaranteed Obligations (ZAI) shall operate as a waiver thereof, and no single or partial exercise by the Permitted Holder of any such right or remedy shall preclude any further exercise thereof. Failure by the Permitted Holder at any time or times hereafter to require strict performance by Grace, the Guarantor or any other guarantor of all or any part of the Guaranteed Obligations (ZAI) or of any of the provisions, warranties, terms and conditions contained in the Deferred Payment Agreement (ZAI) shall not waive, affect or diminish any right of the Permitted Holder at any time or times hereafter to demand strict performance thereof. No waiver of any Event of Default by the Permitted Holder shall operate as a waiver of any other Event of Default or breach of this Guarantee (ZAI) or the same Event of Default or breach of this Guarantee (ZAI) on a future occasion, and no action by the Permitted Holder permitted hereunder shall in any way affect or impair the Permitted Holder’s rights and remedies or the obligations of the Guarantor under this Guarantee (ZAI). The remedies herein provided are cumulative and not exclusive of any remedies provided by law or in equity or any other Deferred Payment Document (ZAI).
15.
Effectiveness; Termination
. This Guarantee (ZAI) shall become effective against the Guarantor upon its execution by the Guarantor and the occurrence of the Effective Date and shall continue in full force and effect and may not be terminated or otherwise revoked until the Guaranteed Obligations (ZAI) shall have been paid in full.
16.
Consolidation, Successors and Assigns
.
(a)
This Guarantee (ZAI) shall be binding upon the Guarantor and upon the successors and permitted assigns of the Guarantor and shall inure to the benefit of the Permitted Holder. The successors and assigns of the Guarantor and Grace shall include, without limitation, their respective receivers, trustees or debtors-in-possession.
(b)
If the Permitted Holder Transfers or grants a security interest in its rights in the Deferred Payment Agreement (ZAI) or any Deferred Payments (ZAI) upon the terms and subject to the conditions set forth in the Deferred Payment Agreement (ZAI), the Permitted Holder shall have the right to Transfer or grant a security interest in this Guarantee (ZAI) to such transferee or secured party without the consent of the Guarantor;
provided
,
however
, that in no event shall any person or Entity other than the Collateral Agent have, or have the ability to bring, or be able to enforce, any claim, right or cause of action against the Guarantor or any of is affiliates under, in connection with or as a result of such security interest.
(c)
Subject to
Section 16(d)
, the Guarantor may not Transfer its rights, interests, duties, liabilities or obligations under this Guarantee (ZAI) without the prior written consent of the Permitted Holder, which consent shall not be unreasonably withheld, conditioned or delayed.
(d)
Subject to
Section 16(e)
, neither
Section 16(c)
nor anything else in this Guarantee (ZAI) shall prohibit or restrict the ability of the Guarantor to undertake any
Disposition Transaction
;
provided
that, unless the Permitted Holder otherwise consents in writing, (i) such
Disposition Transaction
shall not violate
Section 7(b)
, (ii) no Event of Default and, no event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, exists at the time of, or would exist immediately following the consummation of such
Disposition Transaction
, (iii) such
Disposition Transaction
does not conflict with, or result in a breach of, any of the provisions of, or constitute a default under, the Governing Documents of the Guarantor or such surviving or succeeding Entity and (iv) at least ten (10) days prior to consummation of such
Disposition Transaction
, the Guarantor shall, subject to reasonable confidentiality arrangements between the Permitted Holder and the Guarantor, deliver to the Permitted Holder written notice of its intention to consummate such
Disposition Transaction
.
(e)
If the surviving or succeeding Entity as a result of any such
Disposition Transaction
(but in the case of a sale of assets, only if such sale involves a sale of all or substantially all of the assets of the Guarantor) is not the Guarantor, then prior to, or concurrently with, the consummation of any such
Disposition Transaction
, the surviving or succeeding Entity shall by written instrument substantially in the form of
Exhibit A
signed by such Entity, the Guarantor and, at its option, the Permitted Holder expressly assume the rights and obligations of the Guarantor hereunder, whereupon such Entity shall be the successor of all rights and obligations of the Guarantor hereunder, with the same effect as if it had been originally named herein (it being expressly acknowledged and agreed by the Guarantor and the Permitted Holder that such written instrument shall, and shall expressly provide that it shall, be binding upon, and inure to the benefit of, the Permitted Holder, the Guarantor and such surviving or succeeding Entity whether or not the Permitted Holder shall have executed such written instrument);
provided
,
however
, that the Guarantor shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under this Guarantee (ZAI).
(f)
The Guarantor shall be responsible for, and shall pay promptly upon demand all documented and direct out-of-pocket costs and expenses incurred by the Permitted Holder (including legal fees and expenses of legal counsel) in connection with (i) enforcing its rights and/or interests under this Guarantee (ZAI) and (ii) challenging any
Disposition Transaction
s proposed by the Guarantor pursuant to
Section 16(d)
;
provided
,
however
, that in the case of clause (i) above, the Guarantor shall not be responsible for any such costs and expenses (including legal fees and expenses of legal counsel) unless the Permitted Holder is successful in enforcing its rights and/or interests under this Guarantee (ZAI) in a judicial or other proceeding, and in the case of clause (ii) above, the Guarantor shall not be responsible for any such costs and expenses (including legal fees and expenses of legal counsel) unless the Permitted Holder challenges such
Disposition Transaction
in a judicial or other proceeding or otherwise as being in breach of the provisions of this Guarantee (ZAI) or any of the Deferred Payment Documents (ZAI) and the Permitted Holder is successful in such challenge.
(g)
Any assignment or transfer in breach of this
Section 16
shall be null and void and not Transfer any interest in this Guarantee (ZAI) to any other Entity.
17.
Governing Law; Submission to Jurisdiction; Waiver of Jury Trial
.
(a)
This Guarantee (ZAI) and the rights and obligations of the parties hereto shall be construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
(b)
With respect to claims, suits, actions, proceedings, and other disputes arising out of, in respect of or relating to this Guarantee (ZAI) (such claims, suits, actions, proceedings, and other disputes, the “
Claims
”) each of the parties to this Guarantee (ZAI) hereby irrevocably submits to the jurisdiction of the Bankruptcy Court for the District of Delaware or the United States District Court for the District of Delaware (the “
Courts
”), or, if both such Courts are not permitted under applicable Law to exercise jurisdiction with respect to the matter in question then to the jurisdiction of any other federal or state court in the state, county and city of New York, New York and each of the parties to this Guarantee (ZAI) agrees that any and all Claims may be brought, heard and determined in such courts.
(c)
Each of the parties to this Guarantee (ZAI) agrees that (i) venue shall be proper in the courts referenced in
Section 17(b)
and hereby waives any objection or defense which it may now or hereafter have to the laying of venue in such Courts, including any of the foregoing based upon the doctrine of
forum non conveniens
; and (ii) all process which may be or be required to be served in respect of any such Claim (including any pleading, summons or other paper initiating any such Claim or dispute) may be served upon it, which service shall be sufficient for all purposes, in the manner for the provision of notice under
Section 19
hereof and shall be deemed in every respect effective service of process upon such party when so given.
(d)
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE DEFERRED PAYMENT DOCUMENTS (ZAI). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER DEFERRED PAYMENT DOCUMENTS (ZAI), AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PROVISION.
18.
Advice of Counsel
. Each of the Guarantor and the Permitted Holder represent and warrant to the other that it has analyzed this Guarantee (ZAI) with, and has been advised as to its legal effects by, its legal counsel.
19.
Notices
. All notices required or permitted under this Guarantee (ZAI) must be in writing and will be deemed to be delivered and received (i) if personally delivered or if delivered by the United States Postal Service, facsimile or courier service, when actually received by the party to whom notice is sent or (ii) with respect to parties located other than within the United States, if deposited with the United States Postal Service (whether actually received or not), at the close of business on the seventh Business Day after the day when placed in the mail, postage prepaid, certified or registered with return receipt requested, addressed to the appropriate party or parties, at the address of such party or parties set forth below (or at such other address as such party may designate by written notice to all other parties in accordance with this Section 19):
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If to the Guarantor:
W. R. Grace & Co.
7500 Grace Drive
Columbia, MD 21044
Attn: Corporate Secretary
Facsimile: (410) 531-4545
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With copies, which shall
not constitute notice, to:
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Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attn: Adam C. Paul
Facsimile: (312) 862-2200
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If to the Permitted Holder:
Edward B. Cottingham, Jr., Class 7B Trustee
The Cottingham Law Firm
317 Wingo Way, Suite 303
P.O. Box 810
Mt. Pleasant, SC 29465
Telephone: (843) 849-1384
If to the PD FCR:
Hon. Alexander M. Sanders, Jr.
19 Water Street
Charleston, South Carolina 29401
Telephone: (843) 953-5755
Facsimile: (843) 953-7570
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With copies, which shall
not constitute notice, to:
With copies, which shall not constitute notice, to:
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M. Dawes Cooke
Barnwell Whaley Patterson & Helms LLC
P.O. Drawer H
Charleston, SC 29402
Telephone: (843) 577-7700
Facsimile: (843) 577-7708
Alan B. Rich
Attorney and Counselor
1201 Elm Street, Suite 4244
Dallas, Texas 75270
Telephone: (214) 744-5100
Facsimile: (214) 744-5101
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20.
Severability
. Wherever possible, each provision of this Guarantee (ZAI) will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Guarantee (ZAI) by any party hereto is held to be invalid, void, voidable, illegal or unenforceable in any respect under any applicable Law in any jurisdiction, such event will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, or the obligations of any other party to this Guarantee (ZAI), and this Guarantee (ZAI) will be reformed, construed and enforced in such jurisdiction as if such invalid, void, voidable, illegal, unenforceable or rejected provision had never been contained herein. The parties hereto further agree to use commercially reasonable efforts to replace such invalid, void, voidable, illegal, unenforceable or rejected provision of this Guarantee (ZAI) with a an effective, valid and enforceable provision which will achieve, to the fullest extent possible, the economic, business and other purposes of the invalid, void, voidable, illegal, unenforceable or rejected provision.
21.
Entire Agreement
. This Guarantee (ZAI), together with the Deferred Payment Agreement (ZAI), the Share Issuance Agreement, the Plan of Reorganization and the Confirmation Order,
embodies the complete agreement and understanding between the parties hereto in respect of the subject matter hereof and supersedes, preempts and terminates all other prior understandings, agreements or representations by or among the parties hereto, written or oral, to the extent relating thereto
.
22.
Execution in Counterparts
. This Guarantee (ZAI) may be executed (including by facsimile or portable document format (.pdf)) in separate counterparts, each of which will be deemed to be an original and all of which taken together will constitute one and the same agreement.
23.
Further Assurances
. At the reasonable request of the Permitted Holder, the Guarantor will, at the sole expense of the Permitted Holder, execute such agreements, documents, certificates and/or other instruments confirming the existence of this Guarantee (ZAI), the obligations of the Guarantor hereunder and the rights of the Permitted Holder hereunder.
24.
Specific Performance
. Each of the parties hereto acknowledges and agrees that, in the event of any breach of, or any failure to perform, any specific provision of this Guarantee (ZAI), the non-breaching party would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that, subject to Section 8, the parties hereto (a) shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to compel specific performance of any specific provision of this Guarantee (ZAI) or to obtain injunctive relief to prevent breaches of any specific provision of this Guarantee (ZAI) exclusively in the Courts, (b) shall waive, in any action for specific performance or injunctive relief, the defense of the adequacy of a remedy at law, and (c) shall waive any requirement for the securing or posting of any bond in connection with the obtaining of any such specific performance or injunctive relief. For the avoidance of doubt, the parties agree that the Permitted Holder shall be entitled to enforce specifically the terms and provisions of this Guarantee (ZAI) to prevent breaches of or enforce compliance with those covenants of the Guarantor set forth in Section 7. Any party’s pursuit of specific performance or injunctive relief at any time will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which such party may be entitled, including the right to pursue remedies for liabilities or damages incurred or suffered by such party.
25.
Other Remedies
. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law on such party, and the exercise of any one remedy shall not preclude the exercise of any other.
[Signature page follows]
IN WITNESS WHEREOF, this Guarantee (ZAI) has been duly executed by the Guarantor as of the day and year first set forth above.
W. R. Grace & Co.
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By:
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/s/HUDSON LA FORCE, III
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Name:
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Hudson La Force, III
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Title:
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Senior Vice President and Chief Financial Officer
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Acknowledged and agreed to
as of the _
29
th
day of
January
, 20
14
.
WRG ASBESTOS PD TRUST
By:
/s/EDWARD B. COTTINGHAM, JR.
Name: Edward B. Cottingham, Jr.
Title: Trustee
EXHIBIT A
FORM OF
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT
This Assumption Agreement (the “
Assumption Agreement
”) is made and entered into as of [•], by and between [W. R. Grace & Co.-Conn., a Connecticut corporation] // [W. R. Grace & Co., a Delaware corporation] (“
Grace
”), and [•], a [•] (the “
Buyer
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the [Purchase Agreement].
BACKGROUND
WHEREAS, Grace, the Buyer and [•] are party to that certain [•] (the “[
Purchase Agreement
]”), pursuant to which Grace has agreed to [•];
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”); and
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” requiring the delivery of this Assumption Agreement under the Contracts.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
[Grace hereby assigns and transfers to the Buyer all of Grace’s right, title and interest in the Contracts,
free and clear of all [Liens except for Permitted Liens)]. The Buyer hereby accepts the assignment herein and assumes from Grace and agrees to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the Contracts remain in full force and effect and that Grace will continue to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the [corporation] surviving the [Merger] is subject to and bound by the Contracts, that the Contracts are and will remain in full force and effect and that the [corporation] surviving the [Merger] shall hold all right, title and interest in the Contracts. The Buyer hereby agrees that the [corporation] surviving the [Merger] shall be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts;
provided
,
however
, that Grace shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under the Contracts.]
Each of the parties hereto covenants and agrees, at its own expense, to execute and deliver, promptly after the reasonable request of the other party hereto, such further instruments and to take such other action as such other party may reasonably request to more effectively consummate the transactions contemplated by this Assumption Agreement.
In the event of a conflict between the terms and conditions of this Assumption Agreement and the terms and conditions of the [Purchase Agreement], the terms and conditions of this Assumption Agreement shall govern, supersede and prevail.
All questions concerning the construction, validity and interpretation of this Assumption Agreement shall be governed by and construed in accordance with the domestic laws of the State of New York, without giving effect to any choice of law or conflict of law provision (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
This Assumption Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature pages delivery by electronic transmission in portable document format (.pdf)), all of which taken together shall constitute one and the same instrument. This Assumption Agreement and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or electronic transmission in portable document format (.pdf), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
This Assumption Agreement shall be binding on the parties hereto and shall inure to the benefit of the Permitted Holder (as defined in the [Contracts]) regardless of whether such Permitted Holder executes this Assumption Agreement.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Assumption Agreement as of the date first above written.
|
|
|
|
|
|
ASSIGNEE
:
[•]
By:
[•]
|
SELLER
:
[W. R. GRACE & CO.-CONN.]
By:
[•]
|
|
|
[W. R. GRACE & CO.]
By:
[•]
|
|
[Acknowledged and Agreed
:
|
|
|
WRG ASBESTOS PD TRUST
By:
[•]]
|
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
4.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
5.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
6.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
7.
|
Share Issuance Agreement, dated as of [], by and between W. R. Grace & Co., WRG Asbestos PD Trust, and the WRG Asbestos PI Trust.
|
EXHIBIT B
FORM OF
QUARTERLY EBITDA AND VALUATION CERTIFICATE
QUARTERLY EBITDA AND VALUATION CERTIFICATE
This Quarterly EBITDA and Valuation Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation] // [W. R. Grace & Co.-Conn., a Connecticut corporation] (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section [7(a)(iv)(A)] // [6(a)(iv)(A)] of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
A Significant Transaction [has] // [has not] occurred
during the four-Fiscal Quarter period ending on [•] (the “
Measurement Period
”).
The [Pro Forma] EBITDA of Grace for the Measurement Period was [•] and the [Pro Forma] Valuation of Grace as of [•]
was [•]. Attached hereto are worksheets showing the calculation of the foregoing amounts.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
[W. R. GRACE & CO.]
By:
[•]
|
|
|
[W. R. GRACE & CO.-CONN.]
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
4.
|
[Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
5.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
6.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.]
|
Worksheet 1 -- EBITDA
All amounts are for the period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
[describe]
|
|
|
Total EBITDA
|
|
Worksheet 2 – Pro Forma EBITDA
All amounts are for the four Fiscal-Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Pro Forma EBITDA
|
|
Worksheet 3 -- Valuation
All amounts are as of the last day of the relevant four-Fiscal Quarter Period period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Total EBITDA (determined based on worksheet 1)
multiplied
by 7
|
|
|
|
Minus
the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date
|
[describe any exceptions from inclusion in Senior Indebtedness based on the definition thereof and the related excepted amounts]
|
|
|
Plus
the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries.
|
[describe any such material restrictions and the related excluded amounts]
|
|
|
Total Valuation
|
|
Worksheet 4 – Pro Forma Valuation
All amounts are as of the last day of the relevant four-Fiscal Quarter Period period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Total Pro Forma EBITDA (determined based on worksheet 2)
multiplied
by 7
|
|
|
|
Minus
the aggregate outstanding principal amount of such Entity’s and its consolidated Subsidiaries’ Senior Indebtedness as of such date (after giving effect to and assuming the consummation of any Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction (and any related incurrence, reduction or repayment of Senior Indebtedness) may not have actually been consummated during such four-Fiscal Quarter period)
|
[describe any exceptions from inclusion in Senior Indebtedness based on the definition thereof and the related excepted amounts]
[indicate the amount of Senior Indebtedness included as a result of the Significant Transaction]
|
|
|
Plus
the amount of cash and cash equivalents of such Entity and its consolidated Subsidiaries as of such date (after giving effect to and assuming the consummation of any Significant Transaction with a Transaction Date occurring during such four-Fiscal Quarter period, notwithstanding that such Significant Transaction may not have actually been consummated during such four-Fiscal Quarter period), other than cash and cash equivalents the disposition of which is subject to a material restriction for the benefit of Entities other than such Entity and its consolidated Subsidiaries
|
[describe any such material restrictions and the related excluded amounts]
[indicate any amounts included as a result of the Significant Transaction]
|
|
|
Total Pro Forma Valuation
|
|
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”).
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section 7(a)(iv)(B) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
Grace has complied with the covenants set forth in
Section 7 of each Contract.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co.-Conn., a Connecticut corporation (“
Grace
”), to [•], a [•](the “
Permitted Holder
”).
BACKGROUND
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, Section 6(a)(iv)(B) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
Grace has complied with the covenants set forth in
Section 6 of each Contract.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.-CONN.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
2.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
EXHIBIT D
FORM OF
POST-TRANSACTION CERTIFICATE
POST-TRANSACTION CERTIFICATE
This Post-Transaction Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co., a Delaware corporation (“
Grace
”), to [•], a [•] (the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, Grace and [•] are party to that certain [•] (the “[
Purchase Agreement
]”);
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” under the Contracts;
WHEREAS, Section 7(a)(iv)(C) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
As of the date of the consummation of the transactions contemplated by the Purchase Agreement, the Post-Transaction Pro Forma EBITDA of Grace was [•]. Attached hereto is a worksheet showing the calculation of such Post-Transaction Pro Forma EBITDA.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
|
|
|
|
|
2.
|
W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
|
Worksheet 1 – Post-Transaction Pro Forma EBITDA
All amounts are for the four Fiscal Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Post-Transaction Pro Forma EBITDA
|
|
POST-TRANSACTION CERTIFICATE
This Post-Transaction Certificate (this “
Certificate
”) is dated as of [•], and delivered by W. R. Grace & Co.-Conn., a Connecticut corporation (“
Grace
”), to [•], a [•](the “
Permitted Holder
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Contracts.
BACKGROUND
WHEREAS, Grace and [•] are party to that certain [•] (the “[
Purchase Agreement
]”);
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”);
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” under the Contracts;
WHEREAS, Section 6(a)(iv)(C) of each Contract requires that Grace deliver this Certificate.
NOW, THEREFORE, the undersigned, [Chief Financial Officer] of Grace, hereby delivers this Certificate and does hereby certify, solely on behalf of Grace and not in any individual capacity, to the Permitted Holder that:
As of the date of the consummation of the transactions contemplated by the Purchase Agreement, the Post-Transaction Pro Forma EBITDA of Grace was [•]. Attached hereto is a worksheet showing the calculation of such Post-Transaction Pro Forma EBITDA.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Certificate as of the date first above written.
|
|
|
|
|
|
|
GRACE
:
W. R. GRACE & CO.-CONN.
By:
[•]
|
Schedule 1
Contracts
|
|
|
|
1.
|
Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
|
|
|
|
|
2.
|
Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
|
|
|
|
3.
|
Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
|
Worksheet 1 – Post-Transaction Pro Forma EBITDA
All amounts are for the four Fiscal Quarter period ending ____________
on a consolidated basis in accordance with GAAP
|
|
|
|
|
|
|
$ Amount
|
Description
|
Explanations
|
|
|
Consolidated Net Income
|
|
|
|
Plus
interest expense
|
|
|
|
Plus
provisions for any income or similar Taxes paid or accrued
|
|
|
|
Plus
all amounts treated as expenses for depreciation and amortization of any kind
|
|
|
|
Plus
cash and non-cash restructuring and reorganization, and other similar fees, costs, charges and expenses, including without limitation, as a result of, or in connection with, the Chapter 11 Cases and the Deferred Payment Documents
|
[describe]
|
|
|
Plus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) incurred during such period
|
[describe]
|
|
|
Plus
any non-cash charges
|
[describe]
|
|
|
Minus
gross interest income received during such period
|
|
|
|
Minus
items classified as extraordinary under Accounting Principles Board Opinion No. 30 (as amended, restated, supplemented, replaced or otherwise modified from time to time) realized during such period
|
|
|
|
Total EBITDA
|
For each item included to determine total EBITDA compute amounts assuming the Significant Transaction occurred at the beginning of the four-Fiscal Quarter period for which such amounts are calculated
|
|
|
Plus
or
Minus
adjustments which give effect to events that are (i) directly attributable to any Significant Transactions the Transaction Date of which occurs during such four-Fiscal Quarter period, (ii) expected to have a continuing impact on the Entity, and (iii) factually supportable
|
[Describe adjustments and factual support]
|
|
|
Total Post-Transaction Pro Forma EBITDA
|
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SHARE ISSUANCE AGREEMENT
THIS SHARE ISSUANCE AGREEMENT (this “
Share Issuance Agreement
”) is made and entered into as of February 3, 2014 by and between (i) W. R. Grace & Co., a Delaware corporation (together with any successor thereto pursuant to the terms and conditions of
Section 12
, “
Parent
” or the “
Obligor
”), (ii) WRG Asbestos PD Trust acting on behalf of the Holders of the US ZAI PD Claims and the Holders of Asbestos PD Claims (in such capacity the ‘‘
Trust (PD/ZAI)
”), a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan of Reorganization (as hereinafter defined), (iii) WRG Asbestos PI Trust (the ‘‘
Trust (PI)
” and collectively with the Trust (PD/ZAI), the “
Trusts
” and each a “
Trust
”), a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan of Reorganization, and (iv) the Trust (PI), as the initial representative for the Trusts pursuant to the terms of the Intercreditor Agreement (in such capacity, and together with its permitted successors pursuant to Section 2 of the Intercreditor Agreement, the ‘‘
Trusts’ Representative
”). Unless otherwise defined herein or the context otherwise requires, all capitalized terms used herein and defined in the Plan of Reorganization shall be used herein as therein defined.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1.
For purposes of this Share Issuance Agreement, the following terms shall have the meanings set forth below:
“
Common Stock
” means the common stock of the Obligor, par value $0.01 per share, and the common stock of any successor corporation thereto pursuant to the terms and conditions of
Section 12
or any similar equity ownership interest in any other successor Entity thereto pursuant to the terms and conditions of
Section 12
.
“
Control
” means, as to any Entity, the power to direct the management and policies of such Entity directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlling” and “Controlled” have meanings correlative to the foregoing.
“
Controlled Affiliate
” means, as to any Entity (the “
Controlling Entity
”), any Affiliate that is Controlled by such Controlling Entity.
“
Deferred Payment
” means each of (i) the Deferred Payments (PI) under the Deferred Payment Agreement (PI), (ii) the Deferred Payments (PD) under the Deferred Payment Agreement (PD) and (iii) the Deferred Payments (ZAI) under the Deferred Payment Agreement (ZAI).
“
Deferred Payment Agreement
” means any of the following agreements, each dated as of the date hereof: (i) the Deferred Payment Agreement between Grace and the Trust (PI), (ii) the Deferred Payment Agreement (Class 7(a) PD) between Grace and the Trust (PD/ZAI) and (iii) the Deferred Payment Agreement (Class 7(b) ZAI) between Grace and the Trust (PD/ZAI).
“
Deferred Payment Documents
” means, collectively, the Deferred Payment Documents (PD), the Deferred Payment Documents (PI) and the Deferred Payment Documents (ZAI), each as defined in the respective Deferred Payment Agreements.
“
Demand for Issuance of the Section 524(g) Shares
” means a written notice by the Trusts’ Representative delivered to the Obligor in accordance with
Section 2
of this Share Issuance Agreement stating that an Event of Default has occurred and is continuing and demanding issuance, transfer and delivery to the Trusts’ Representative, on behalf of the Trusts, of the Section 524(g) Shares.
“
Equity Interest
” means shares of capital, stock or equity, equity securities or ownership interests in any Entity or any rights (including any (x) options, warrants or other rights to purchase or acquire any such stock, equity or interests (whether or not at the time exercisable), or (y) securities by their terms convertible into or exchangeable for any such stock, equity or interests (whether or not at the time so convertible or exchangeable) or options, warrants or rights to purchase such convertible or exchangeable securities.
“
Event of Default
” means any Event of Default as defined in Section 8 of any Deferred Payment Agreement.
“
Fair Market Value
” means, with respect to each share of Common Stock:
(i) If traded on the NYSE, NASDAQ or another stock exchange, the average sale price (as of the close of business of each relevant trading date) of the Common Stock on the NYSE, NASDAQ or such other exchange for the 30 trading days immediately prior to the date for which the value is to be determined (or if no sale took place on such trading date, the average of the closing bid and ask prices of the Common Stock on such trading date);
(ii) If traded over-the-counter other than on NASDAQ, the average of the closing bid and ask prices (as of the close of business of each relevant trading date) of the Common Stock for the 30 trading days immediately prior to the date for which the value is to be determined; and
(iii) If there is no public market for the Common Stock, the fair market value of the Common Stock as of the day immediately prior to the date for which the value is to be determined, as determined by a reputable investment bank or valuation firm selected jointly by the Obligor and the Trusts’ Representative (the “
Independent Appraiser
”). The Obligor and the Trusts’ Representative shall instruct the Independent Appraiser to render its decision within thirty days of its acceptance of its selection. The fees and expenses of the Independent Appraiser shall be borne by the Obligor.
“
Governing Documents
” means, as to any Entity, its articles or certificate of incorporation and by-laws, its partnership agreement, its certificate of formation and operating agreement and/or the organizational or governing documents of such Entity.
“
Governmental Authority
” means the government of the United States of America or any other country, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, a government (including any supra-national bodies such as the European Union or the European Central Bank).
“
Intercreditor Agreement
” means the Intercreditor Agreement dated as of even date herewith among the Trust (PI), the Trust (PD/ZAI), and the Trust (PI), in its capacity as representative of the Trusts, upon the terms and conditions set forth in such Intercreditor Agreement.
“
Laws
” means, collectively, all applicable international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances and codes, including the binding interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof.
“
Lien
” means any encumbrance, mortgage, pledge, hypothecation, charge or security interest of any kind.
“
NASDAQ
” shall mean The NASDAQ Stock Market (including any of its subdivisions such as the NASDAQ Global Select Market) or any successor market thereto.
‘‘
NYSE
” shall mean The New York Stock Exchange or any successor stock exchange thereto.
“
Parent Guarantee
” means any of the following agreements, each dated as of the date hereof: (i) the W. R. Grace & Co. Guarantee Agreement between Parent and the Trust (PI), (ii) the W. R. Grace & Co. Guarantee Agreement (Class 7(a) PD) between Parent and the Trust (PD/ZAI) and (iii) the W. R. Grace & Co. Guarantee Agreement (Class 7(b) ZAI) between Parent and the Trust (PD/ZAI).
“
Plan of Reorganization
” means that certain First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms.
“
Section 524(g) Shares
” means 77,372,257 shares of Common Stock, equal to fifty and one tenth (50.1) percent of the total number of shares of Common Stock issued and outstanding as of the Effective Date (deeming, for purposes of this calculation only, the shares of Common Stock issuable under this Share Issuance Agreement as issued and outstanding as of the Effective Date), and all securities issuable in replacement of or in connection with such shares pursuant to an Adjustment Event (as defined in Section 6(b)), or otherwise in accordance with the terms and conditions of this Share Issuance Agreement.
‘‘
Taxes
” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including without limitation any interest, additions to tax, penalties and any similar liabilities with respect thereto.
“
Transaction
” means, in respect of a specified Entity, any transaction or series of transactions consisting of or effected by means of merger, consolidation, Transfer of all or substantially all assets of such Entity, business combination, share exchange, reclassification, reorganization or recapitalization.
“
Transfer
” and “
Transferred
” means any sale, assignment, transfer, pledge, grant of a security interest, lease, license or other disposition of any property or assets.
“
Trusts
” has the meaning set forth in the introductory paragraph of this Share Issuance Agreement.
“
Trusts’ Representative
” has the meaning set forth in the introductory paragraph of this Share Issuance Agreement.
All terms defined in this Share Issuance Agreement in the singular form shall have comparable meanings when used in the plural form and vice versa.
Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.
All references herein to Sections shall be deemed references to Sections of this Share Issuance Agreement unless the context shall otherwise require.
Unless otherwise indicated, (i) the term “including” means “including without limitation,” except when used in the computation of time periods, and (ii) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein).
For purposes of the computation of time periods, whenever this Share Issuance Agreement provides for an event to occur “within” a specified number of days of a preceding event, it shall mean that the latter event shall occur before the close of business on the last of the specified days, and the day on which the preceding event occurs shall not be included in the computation of days elapsed. The word “from” means “from and including”, “after’’ means “after and excluding”, and ‘‘to” and “until” mean ‘‘to and including”.
Section 2.
Share Issuance Obligation
. At any time upon the occurrence and during the continuance of an Event of Default, the Trusts’ Representative may (but shall not be obligated to) provide the Obligor with a Demand for Issuance of the Section 524(g) Shares. Promptly upon the receipt by the Obligor of such Demand for Issuance of the Section 524(g) Shares, the Obligor shall issue the Section 524(g) Shares in consideration of a reduction (on a pro rata basis based upon the then outstanding Deferred Payments) of the amount of Deferred Payments as defined in each of the Deferred Payment Agreements, and shall transfer and deliver to the Trusts’ Representative such Section 524(g) Shares by issuing, transferring and delivering to the Trusts’ Representative one duly issued stock certificate registered in the name of the Trusts’ Representative representing the Section 524(g) Shares or, if the shares of Common Stock of the Obligor are at the time of the issuance hereunder permitted to be uncertificated and the Trusts’ Representative so requests, the Obligor shall cause the Section 524(g) Shares to be credited to the name and account of the Trusts’ Representative on the stock transfer books and records of the Obligor as maintained by the Obligor or its transfer agent.
Section 3.
Deferred Payment Obligations
.
(a)
The obligation to issue the Section 524(g) Shares shall secure and serve as support and credit enhancement for the prompt and complete payment when due (whether by acceleration or otherwise) of each Deferred Payment (including interest thereon, if any) to the Trusts under and pursuant to the Deferred Payment Agreements, each as the same may from time to time be amended, modified, supplemented, extended, renewed, deferred, refinanced, replaced, refunded or restated, in whole or in part, in accordance with the terms and conditions thereof, by operation of Law or otherwise, in each case, with the consent of Parent and the applicable Trust (collectively, the “
Deferred Payment Obligations
”).
(b)
To the extent that the Trusts’ Representative exercises its rights on behalf of the Trust (PI) under this Share Issuance Agreement and the Section 524(g) Shares are issued and delivered to it on behalf of the Trusts, the amount of the remaining Deferred Payments shall be reduced by the Fair Market Value of the Section 524(g) Shares allocated to the Trusts in the manner set forth in Section 4 of the Intercreditor Agreement (as such Section 4 of the Intercreditor Agreement, together with any defined terms used (directly or indirectly) in such Section 4 are in effect as of the date hereof, or as amended or modified from time to time with the consent (not to be unreasonably withheld) of Grace and Parent Guarantor after the date hereof.
Section 4.
Representations and Warranties
. The Obligor hereby represents and warrants to each of the Trusts and to the Trusts’ Representative that, as of the Effective Date and as of the time of issuance of the Section 524(g) Shares, the following are true and correct:
(a)
The issuance of the Section 524(g) Shares has been duly and validly authorized as of the Effective Date and as of the time of such issuance.
(b)
As of the Effective Date, the number of Section 524(g) Shares is equal to fifty and one tenth (50.1) percent of the total number shares of Common Stock issued and outstanding as of the Effective Date (after giving effect to any issuance of shares of Common Stock on the Effective Date).
(c)
The rights granted hereunder to the Trusts’ Representative for the benefit of each Trust to be issued the Section 524(g) Shares do not and will not conflict in any material respect with the rights granted to other holders of the Obligor’s securities under any other agreements.
(d)
As of the Effective Date, the Obligor’s Board of Directors has approved this Share Issuance Agreement and the transactions contemplated hereby, including the issuance, upon the terms and subject to the conditions set forth in this Share Issuance Agreement, of the Section 524(g) Shares to the Trusts’ Representative for the benefit of each Trust, and has taken all actions within its control to ensure that such issuance shall not be subject to the provisions or restrictions of Section 203 of Delaware General Corporation Law or any other business combination, interested stockholder, fair price, control share acquisition, or other Law regulating mergers, acquisitions, change of control transactions, voting rights or share acquisitions which is in effect as of the Effective Date and applicable to such issuance.
Section 5.
Covenants
. The Obligor hereby covenants and agrees, with respect to each Deferred Payment Agreement until such time as the corresponding Deferred Payment Obligations thereunder have been paid in full, as follows:
(a)
Upon issuance (if any) of the Section 524(g) Shares pursuant to a Demand for Issuance of Section 524(g) Shares, and assuming compliance by each of the Trusts and the Trusts’ Representative with its obligations under the Plan of Reorganization, the Confirmation Order and
Section 2
of this Share Issuance Agreement, the Section 524(g) Shares shall be duly authorized, duly and validly issued, fully paid and non-assessable, and free and clear of any Liens and any preemptive or similar rights. In addition, to the extent permitted by applicable Law and listing requirements and regulations of any Governmental Authority and/or relevant securities exchanges, concurrently with the issuance of Section 524(g) Shares, such shares shall be listed for trading on the NYSE (or any successor thereto) and all other securities exchanges upon which the Common Stock is listed or traded.
(b)
The Obligor shall reserve and keep available, free from preemptive or similar rights (other than rights created pursuant to this Share Issuance Agreement, the other Deferred Payment Documents or the Plan of Reorganization), for issuance shares of Common Stock in an amount at least equal to the Section 524(g) Shares. The Obligor shall promptly pay all Taxes, expenses and charges attributable to the issuance or delivery of the Section 524(g) Shares, but any Taxes, expenses or charges in connection with the issuance of such shares in any name other than that of the Trusts’ Representative shall be paid by the Trusts’ Representative on behalf of the Trusts.
(c)
Neither the Obligor nor Grace shall create (other than pursuant to this Share Issuance Agreement, the other Deferred Payment Documents or the Plan of Reorganization) any Liens or any preemptive or similar rights on the Section 524(g) Shares.
(d)
The Obligor shall take, or cause to be taken, all actions necessary to (i) comply with all applicable requirements of any material Law which may be imposed on the Obligor or any of its Controlled Affiliates with respect to the issuance of the Section 524(g) Shares to the Trusts’ Representative; (ii) obtain any material consent, authorization, order or approval of, or any exemption by or from, and shall register or qualify with or provide any notice to, any Governmental Authority or Entity which is required or necessary pursuant to any material Law to be obtained, performed or made by the Obligor or any of its Controlled Affiliates in order to consummate the issuance of the Section 524(g) Shares to the Trusts’ Representative on behalf of the Trusts; (iii) to the extent within the control of the Obligor and its Controlled Affiliates (through its or their boards of directors, stockholders, other governing bodies, managements or otherwise), cause the issuance of the Section 524(g) Shares to the Trusts’ Representative on behalf of the Trusts not to be subject to and/or not to trigger, as the case may be, any (A) “poison pill,” shareholder or stockholder rights plan, other anti-takeover or takeover defense provision contained in the Governing Documents of the Obligor or its Controlled Affiliates, (B) change of control or severance or “golden parachute” agreement, plan or provision of or to which the Obligor or any of its Controlled Affiliates is a party, (C) business combination, interested stockholder, fair price, control share acquisition, or other Law regulating mergers, acquisitions, change of control transactions, voting rights or share acquisitions, and (iv) to the extent within the control of the Obligor and its Controlled Affiliates (through its or their boards of directors, stockholders, other governing bodies, managements or otherwise), cause the Trusts’ Representative (acting for the benefit of each of the Trusts) ownership or voting rights with respect to the Section 524(g) Shares not to be limited, qualified, diluted or restricted by any plan, provision, agreement or Law referred to in clauses (iii)(A) through (iii)(C).
(e)
The Obligor shall not enter into any agreement with respect to its securities which conflicts with the rights granted to the Trusts’ Representative for the benefit of the Trusts pursuant to this Share Issuance Agreement or the provisions hereof. The Obligor will not, by amendment of its Governing Documents or through any Transaction or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Obligor.
(f)
Concurrently with the issuance of Section 524(g) Shares, the Obligor shall deliver to the Trusts’ Representative an opinion of the Obligor’s outside counsel on such customary and appropriate matters concerning due authorization, receipt of approvals, issuance and compliance with the securities laws as the Trusts’ Representative may reasonably request.
Section 6.
Adjustment Events
.
(a)
If at any time after the date hereof the Obligor shall (a) issue a stock dividend in respect of shares of Common Stock, (b) effect a stock split or reverse stock split in respect of shares of Common Stock, (c) otherwise subdivide or combine shares of Common Stock and/or (d) amend its Governing Documents, or otherwise change or recapitalize its capital structure, in any manner that results in one share of Common Stock being converted into more or less than one share of Common Stock (each a “
Mechanical Adjustment Event
”), the number of Section 524(g) Shares issuable under this Share Issuance Agreement shall automatically be adjusted such that, upon issuance (if any), the Trusts’ Representative shall be entitled to receive a number of Section 524(g) Shares equal to (a) in the case of a stock dividend, the sum of (i) the number of Section 524(g) Shares the Trusts’ Representative would have been entitled to receive if the Section 524(g) Shares had been issued immediately prior to the consummation of such Mechanical Adjustment Event (the “
Pre-Adjustment Number
”)
plus
(ii) the product obtained by multiplying (x) the Pre-Adjustment Number by (y) the number of shares of Common Stock to be issued as a stock dividend in respect of each outstanding share of Common Stock and (b) in the case of any other Mechanical Adjustment Event, the product obtained by multiplying (i) the Pre-Adjustment Number by (ii) the number of shares of Common Stock into which each share of Common Stock shall be converted in such Mechanical Adjustment Event.
(b)
In addition, if at any time after the date hereof the Obligor shall issue or sell any shares of Common Stock, other than Excluded Stock, or any rights (including any (x) options (other than Excluded Options), warrants or other rights to purchase or acquire Common Stock, other than Excluded Stock (whether or not at the time exercisable), or (y) securities by their terms convertible into or exchangeable for Common Stock, other than Excluded Stock (whether or not at the time so convertible or exchangeable) or options, warrants or rights to purchase such convertible or exchangeable securities), for no consideration or for a consideration per share that is less than the Fair Market Value of the Common Stock (a “
Dilution Adjustment Event
’’ and collectively with Mechanical Adjustment Events, “
Adjustment Events
”), the number of Section 524(g) Shares issuable under this Share Issuance Agreement shall automatically be adjusted such that, upon issuance (if any), the Trusts’ Representative shall receive the greater of (i) a number of Section 524(g) Shares having a Fair Market Value equal to the number of Section 524(g) Shares the Trust would have received had the Dilution Adjustment Event not occurred or (ii) a number of Section 524(g) Shares equal to the percentage of the total number of issued and outstanding shares of Common Stock the Trusts’ Representative, on behalf of the Trusts, would have received had the Dilution Adjustment Event not occurred. For purposes of this
Section 6(b)
, (i) “
Excluded Stock
” means shares of Common Stock issued and sold in a registered firm commitment underwritten public offering pursuant to a registration statement declared effective in accordance with the Securities Act of 1933, as amended, or any successor statute thereto, (ii) “
Excluded Options
” means options to purchase shares of Common Stock issued to directors, officers, employees and consultants of Obligor or any of its Controlled Affiliates (x) pursuant to an option plan or arrangement approved by either the stockholders of Obligor or the Bankruptcy Court before which the chapter 11 proceedings of Obligor and certain of its affiliates were heard and (y) with an exercise price equal to the average of the high and low trading prices of Common Stock on the NYSE (or if the Common Stock is not traded on the NYSE, on the principal stock exchange on which it trades) on the date of grant of the option and (iii) Fair Market Value shall be determined as the of the last trading date immediately prior to the date of consummation of the issuance or sale constituting the Dilution Adjustment Event.
(c)
For the avoidance of doubt, and notwithstanding anything to the contrary in
Section 6(a)
or
6(b)
, in no event shall any issuance of any shares of Common Stock or other equity securities of the Obligor in any circumstance other than as specified in such immediately preceding two Sections constitute or result in an Adjustment Event, including (i) any sale or other issuance of Common Stock or other equity securities other than pursuant to a Dilution Adjustment Event, (ii) in connection with any purchase or other acquisition by the Obligor of, and/or as consideration for, the equity or debt securities or assets of any other Entity or (iii) in connection with any merger or consolidation of the Obligor or any of its subsidiaries with or into any other Entity.
Section 7.
Registration Rights
. Prior to or concurrently with the issuance of the Section 524(g) Shares, the Obligor shall (i) file a registration statement on the appropriate form to register the Section 524(g) Shares under the Securities Act of 1933 and shall use its reasonable best efforts to have such registration statement declared effective on or as soon as practicable following the date of issuance and (ii) make all necessary filings under and/or obtain all necessary exemptions pursuant to· all other applicable United States and all state and foreign securities or blue sky Laws. In connection with the filing of any such registration statement and the sale of the Section 524(g) Shares pursuant thereto, the Trusts’ Representative shall pay for and bear on behalf of the Trusts (and be reimbursed by the Trusts pursuant to Section 8(b) of the Intercreditor Agreement) all (i) registration, filing and stock exchange listing fees, and reasonable fees and disbursements of printers and accountants for the Obligor; (ii) all legal fees and disbursements and other expenses of the Obligor complying with state securities or blue sky laws of any jurisdictions in which the securities to be offered are to be registered or qualified; and (iii) the reasonable fees and expenses of one counsel for the Obligor in connection therewith.
Section 8.
Waiver of Demand, etc.
The Obligor hereby waives demand, payment, notice of dishonor or protest and all other notices of any kind in connection with the Deferred Payment Obligations except the Demand for Issuance of the Section 524(g) Shares and any other notices required by law or by this Share Issuance Agreement or any other agreement between the Obligor and the Trusts’ Representative or either Trust.
Section 9.
Expenses
. The Obligor shall reimburse the Trusts’ Representative promptly upon demand for all documented out-of-pocket costs and expenses, including all attorney’s fees and expenses of legal counsel, arising out of or incurred by the Trusts’ Representative in connection with the enforcement of any rights or actions of the Trusts’ Representative under this Share Issuance Agreement, but only to the extent that the Trusts’ Representative succeeds in enforcing this Share Issuance Agreement.
Section 10.
Modification
. No provision of this Share Issuance Agreement may be amended, supplemented or modified except by a written instrument executed by each of the Trusts’ Representative, the Trusts, Parent and Grace. The Trusts’ Representative and the Trusts agree not to amend, supplement or modify Section 2(f) and Section 12 of the Intercreditor Agreement, including any defined terms used therein or underlying defined terms, without the prior written consent of Parent and any amendment in breach of this Section 10 shall be null and void and have no force or effect.
Section 11.
Notices
. Except as otherwise expressly provided herein, all notices and other communications made or required to be given pursuant to this Share Issuance Agreement shall be made in accordance with the provisions of Section 18 of the Deferred Payment Agreements.
Section 12.
Assignment
.
(a)
This Share Issuance Agreement shall be binding upon the Obligor and upon the successors and permitted assigns of the Obligor and shall inure to the benefit of the Trusts’ Representative and the Trusts. The successors and assigns of the Obligor shall include their respective receivers, trustees or debtors-in-possession.
(b)
Neither the Trusts’ Representative nor any of the Trusts may Transfer this Share Issuance Agreement or any of its rights, interests, duties, liabilities or obligations under this Share Issuance Agreement without the prior written consent of the Obligor.
(c)
Subject to
Section 12(d)
hereof, the Obligor shall not Transfer this Share Issuance Agreement or any of its rights, interests, duties, liabilities or obligations under this Share Issuance Agreement without the prior written consent of the Trusts’ Representative and the Trusts.
(d)
Subject to
Section 12(e)
, neither
Section 12(c)
nor anything else in this Share Issuance Agreement shall prohibit or restrict the ability of the Obligor to undertake any Transaction;
provided
that, unless the Trusts’ Representative otherwise consents in writing, (i) such Transaction shall not violate Section 6(b) of any Deferred Payment Agreement or Section 7(b) of any Parent Guarantee; (ii) no Event of Default and, no event which, with the giving of notice or the passage of time, would constitute an Event of Default, exists at the time of, or would exist immediately following, the consummation of such Transaction; (iii) such Transaction shall not conflict with, or result in a breach of, any of the provisions of, or constitute a default under, the Governing Documents of the Obligor or the surviving or succeeding Entity that results from such Transaction; and (iv) at least ten (10) business days prior to consummation of such Transaction, the Obligor shall, subject to reasonable confidentiality arrangements between the Trusts’ Representative and the Obligor, deliver to the Trusts’ Representative written notice of its intention to consummate such Transaction.
(e)
If the surviving or succeeding Entity as a result of any such Transaction is not the Obligor, then prior to, or concurrently with, the consummation of any such Transaction, the surviving or succeeding Entity shall, by written instrument substantially in the form of
Exhibit A
, expressly assume the rights and obligations of the Obligor hereunder (it being expressly acknowledged and agreed by the Obligor, the Trusts and the Trusts’ Representative that such written instrument shall, and shall expressly provide that it shall, be binding upon, and inure to the benefit of, the Trusts, the Trusts’ Representative, the Obligor and such surviving or succeeding Entity whether or not the Trusts’ Representative shall have executed such written instrument);
provided
,
however
, that the Obligor shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under this Share Issuance Agreement. The provisions of
Section 12(d)
and
Section 12(e)
hereof shall apply to successive events constituting a Transaction.
(f)
The Obligor shall be responsible for, and shall pay promptly upon demand all documented and direct out-of-pocket costs and expenses incurred by the Trusts’ Representative (including legal fees and expenses of one legal counsel) in connection with any Transaction proposed by the Obligor if the Trusts’ Representative challenges such Transaction in a judicial or other proceeding or otherwise as being in breach of the provisions of the Deferred Payment Documents and the Trusts’ Representative is successful in such challenge.
(g)
Any assignment or Transfer in breach of this
Section 12
shall be null and void and shall not Transfer any right, interest, duty, liability or obligation in or under this Share Issuance Agreement to any Entity.
Section 13.
Authorization to Disclose Information to Trusts
. The Obligor hereby authorizes the Trusts’ Representative to disclose and furnish to the Trusts any information or documentation that the Trusts’ Representative receives from the Obligor or any of its Subsidiaries or Affiliates in connection with or related to the Section 524(g) Shares, this Share Issuance Agreement and the other Deferred Payment Documents.
Section 14.
Severability
. Whenever possible, each provision of this Share Issuance Agreement will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Share Issuance Agreement by any party hereto is held to be invalid, void, voidable, illegal or unenforceable in any respect under any applicable Law in any jurisdiction, such event will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, or the obligations of any other party to this Share Issuance Agreement, and this Share Issuance Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, void, voidable, illegal, unenforceable or rejected provision had never been contained herein. The parties hereto further agree to use commercially reasonable efforts to replace such invalid, void, voidable, illegal, unenforceable or rejected provision of this Share Issuance Agreement with an effective, valid and enforceable provision which will achieve, to the fullest extent possible, the economic, business and other purposes of the invalid, void, voidable, illegal, unenforceable or rejected provision.
Section 15.
Further Assurances
. The Obligor at its sole cost and expense shall execute, acknowledge and deliver all such instruments and take all such action as the Trusts’ Representative from time to time may reasonably request in order to further effectuate the purposes of this Share Issuance Agreement and to carry out the terms hereof.
Section 16.
Survival of Representations and Warranties
. All representations and warranties contained in this Share Issuance Agreement shall survive the execution and delivery of this Share Issuance Agreement, the Deferred Payment Agreements and the other Deferred Payment Documents.
Section 17.
Not a Security Agreement
. The parties hereto acknowledge and agree that this Share Issuance Agreement does not constitute a security agreement, including without limitation a “security agreement” as defined in the Uniform Commercial Code of any relevant jurisdiction, and nothing herein or in any other Deferred Payment Document constitutes an authorization for the Trusts’ Representative or any other Entity (including any Trust) to file a financing statement under the UCC or otherwise seek to perfect a purported security interest against Grace, the Obligor or any other Entity.
Section 18.
Captions
. Captions and headings in this Share Issuance Agreement are for convenience only and in no way define, limit or describe the scope or intent of the provisions hereof.
Section 19.
Termination
. Upon payment in full of the Deferred Payment Obligations (other than indemnities), this Share Issuance Agreement shall automatically terminate and shall become null and void and of no further force and effect, except for such provisions expressly stated to survive such termination;
provided
, that, the foregoing shall not limit any claims for breach of
Section 5(a)
or
Section 7
in connection with the performance of the parties’ obligations hereunder.
Section 20.
Conflict
. In the event that there is a conflict between any provision of this Share Issuance Agreement and the Deferred Payment Agreement, the provisions of the Deferred Payment Agreement shall control.
Section 21.
Governing Law; Jurisdiction
.
(a)
This Share Issuance Agreement and the rights and obligations of the parties hereto shall be construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
(b)
With respect to all claims, suits, actions, proceedings and other disputes arising out of, in respect of or relating to this Share Issuance Agreement (such claims, suits, actions, proceedings, and other disputes, the “
Claims
”) each of the parties to this Share Issuance Agreement hereby irrevocably submits to the jurisdiction of the Bankruptcy Court for the District of Delaware or the United States District Court for the District of Delaware, or, if both such Courts are not permitted under applicable Law to exercise jurisdiction with respect to the matter in question then, at the sole election of the Trusts’ Representative, to the jurisdiction of any other federal or state court in the state, county and city of New York, New York (the “
Courts
”), and each of the parties to this Share Issuance Agreement agrees that any and all Claims may be brought, heard and determined in such Courts.
(c)
Each of the parties to this Share Issuance Agreement agrees that (i) venue shall be proper in such Courts and hereby waives any objection or defense which it may now or hereafter have to the laying of venue in such courts, including any of the foregoing based upon the doctrine of
forum non conveniens
; and (ii) all process which may be or be required to be served in respect of any such Claim (including any pleading, summons or other paper initiating any such Claim) may be served upon it, which service shall be sufficient for all purposes, in the manner for the provision of notice under Section 18 of the Deferred Payment Agreement and shall be deemed in every respect effective service of process upon such party when so given.
(d)
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SHARE ISSUANCE AGREEMENT OR ANY OF THE DEFERRED PAYMENT DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS SHARE ISSUANCE AGREEMENT AND THE OTHER DEFERRED PAYMENT DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PROVISION.
Section 22.
Specific Performance
. Each of the parties hereto acknowledges and agrees that, in the event of any breach of, or any failure to perform, any specific provision of this Share Issuance Agreement, the non-breaching party would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that, subject to Section 7 of each Deferred Payment Agreement, the parties hereto (a) shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to compel specific performance of any specific provision of this Share Issuance Agreement or to obtain injunctive relief to prevent breaches of any specific provision of this Share Issuance Agreement exclusively in the Courts, (b) shall waive, in any action for specific performance or injunctive relief, the defense of the adequacy of a remedy at law, and (z) shall waive any requirement for the securing or posting of any bond in connection with the obtaining of any such specific performance or injunctive relief. For the avoidance of doubt, the parties agree that the Trusts’ Representative on behalf of each Trust shall be entitled to enforce specifically the terms and provisions of this Share Issuance Agreement to prevent breaches of or enforce compliance with (i) those covenants of the Obligor that require the Obligor to issue the Section 524(g) Shares if the conditions to the Obligor’s obligations to issue such shares as set forth in Section 2 have been satisfied or waived and (ii) the covenants and agreements of the Obligor set forth in Section 5. The Trusts’ Representative’s pursuit of specific performance or injunctive relief at any time will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which the Trusts’ Representative or either Trust may be entitled, including without limitation the right to pursue remedies for liabilities or damages incurred or suffered by the Trusts’ Representative or either Trust.
Section 23.
Complete Agreement
. This Share Issuance Agreement, together with the Deferred Payment Agreements, the Parent Guarantees, the Intercreditor Agreement, the Plan of Reorganization and the Confirmation Order, embodies the complete agreement and understanding between the parties hereto in respect of the subject matter hereof and supersedes, preempts and terminates all other prior understandings, agreements or representations by or among the parties hereto, written or oral, to the extent relating thereto.
Section 24.
Waivers
. Any of the terms, covenants, representations, warranties or conditions hereof may be waived, only by a written instrument executed by the party waiving compliance. Any waiver by any party of any condition, or of the breach of any provision, term, covenant, representation or warranty contained in this Share Issuance Agreement, in any one or more instances, shall not be deemed to be nor construed as a further or continuing waiver of any such condition, or of the breach of any other provision, term, covenant, representation or warranty of this Share Issuance Agreement. No action taken pursuant to this Share Issuance Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, condition or agreement contained herein.
Section 25.
Execution in Counterparts
. This Share Issuance Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts (including, without limitation, by facsimile or portable document format (.pdf)), each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
Section 26.
No Third Party Beneficiaries
. There are no third party beneficiaries of this Share Issuance Agreement and nothing in this Share Issuance Agreement, express or implied, is intended to confer on any Entity other than the parties hereto and their respective successors, and assigns, any rights, remedies, obligations or liabilities.
Section 27.
Other Remedies
. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law on such party, and the exercise of any one remedy shall not preclude the exercise of any other.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have duly executed this Share Issuance Agreement as of the date first above written.
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OBLIGOR:
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W. R. GRACE & CO.
By:
/s/MARK A. SHELNITZ
Name: Mark A. Shelnitz
Title: Vice President, General Counsel and Secretary
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TRUST (PI)
:
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WRG ASBESTOS PI TRUST
By:
/s/LEWIS R. SIFFORD
Lewis R. Sifford
Title: Trustee
By:
/s/HARRY HUGE
Harry Huge
Title: Trustee
By:
/s/DEAN M. TRAFELET
Dean M. Trafelet
Title: Trustee
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TRUST (PD/ZAI)
:
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WRG ASBESTOS PD TRUST,
on behalf of the Holders of the US ZAI PD Claims and the Holders of Asbestos PD Claims
By:
/s/EDWARD COTTINGHAM
Name: Edward Cottingham
Class Trustee
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TRUSTS’ REPRESENTATIVE
:
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WRG ASBESTOS PI TRUST,
as representative for the Trusts pursuant to the terms of the Intercreditor Agreement
By:
/s/LEWIS R. SIFFORD
Lewis R. Sifford
Trustee
By:
/s/HARRY HUGE
Harry Huge
Trustee
By:
/s/DEAN M. TRAFELET
Dean M. Trafelet
Trustee
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EXHIBIT A
FORM OF ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT
This Assumption Agreement (the “
Assumption Agreement
”) is made and entered into as of [•], by and between [W. R. Grace & Co.-Conn., a Connecticut corporation] // [W. R. Grace & Co., a Delaware corporation] (“
Grace
”), and [•], a [•] (the “
Buyer
”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the [Purchase Agreement].
BACKGROUND
WHEREAS, Grace, the Buyer and [•] are party to that certain [•] (the “[
Purchase Agreement
]”), pursuant to which Grace has agreed to [•];
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms (the “
Plan
”), Grace is party to the contracts listed on
Schedule 1
(collectively, the “
Contracts
”); and
WHEREAS, the transactions contemplated by the Purchase Agreement constitute a “Disposition Transaction” requiring the delivery of this Assumption Agreement under the Contracts.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
[Grace hereby assigns and transfers to the Buyer all of Grace’s right, title and interest in the Contracts,
free and clear of all [Liens except for Permitted Liens)]. The Buyer hereby accepts the assignment herein and assumes from Grace and agrees to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the Contracts remain in full force and effect and that Grace will continue to be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts.] // [The Buyer hereby acknowledges and agrees that the [corporation] surviving the [Merger] is subject to and bound by the Contracts, that the Contracts are and will remain in full force and effect and that the [corporation] surviving the [Merger] shall hold all right, title and interest in the Contracts. The Buyer hereby agrees that the [corporation] surviving the [Merger] shall be responsible for the payment, performance and discharge of all liabilities and obligations under or relating to the Contracts;
provided
,
however
, that Grace shall not be discharged from, and shall remain liable for, any and all of its duties, liabilities and obligations under the Contracts.]
Each of the parties hereto covenants and agrees, at its own expense, to execute and deliver, promptly after the reasonable request of the other party hereto, such further instruments and to take such other action as such other party may reasonably request to more effectively consummate the transactions contemplated by this Assumption Agreement.
In the event of a conflict between the terms and conditions of this Assumption Agreement and the terms and conditions of the [Purchase Agreement], the terms and conditions of this Assumption Agreement shall govern, supersede and prevail.
All questions concerning the construction, validity and interpretation of this Assumption Agreement shall be governed by and construed in accordance with the domestic laws of the State of New York, without giving effect to any choice of law or conflict of law provision (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
This Assumption Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature pages delivery by electronic transmission in portable document format (.pdf)), all of which taken together shall constitute one and the same instrument. This Assumption Agreement and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or electronic transmission in portable document format (.pdf), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
This Assumption Agreement shall be binding on the parties hereto and shall inure to the benefit of the Permitted Holder (as defined in the [Contracts]) regardless of whether such Permitted Holder executes this Assumption Agreement.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties have executed this Assumption Agreement as of the date first above written.
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ASSIGNEE
:
[•]
By:
[•]
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SELLER
:
[W. R. GRACE & CO.-CONN.]
By:
[•]
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[W. R. GRACE & CO.]
By:
[•]
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[Acknowledged and Agreed
:
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WRG ASBESTOS PI TRUST
By:
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WRG ASBESTOS PD TRUST
By:
]
Schedule 1
Contracts
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1.
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Asbestos PI Deferred Payment Agreement, dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of the Bankruptcy Code in accordance with the Plan, as amended or modified from time to time.
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2.
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W. R. Grace & Co. Guarantee Agreement (PI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PI Trust.
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3.
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Deferred Payment Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
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4.
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W. R. Grace & Co. Guarantee Agreement (Class 7A PD), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
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5.
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Deferred Payment Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co.-Conn. and the WRG Asbestos PD Trust.
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6.
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W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI), dated as of [•], by and between W. R. Grace & Co. and the WRG Asbestos PD Trust.
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7.
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Share Issuance Agreement, dated as of [], by and between W. R. Grace & Co., WRG Asbestos PD Trust, and the WRG Asbestos PI Trust.
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re:
W. R. GRACE & CO.,
et al.
Debtors.
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) ) ) ) ) ) ) ) ) ) )
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Chapter 11
Case No. 01-01139 (KJC)
(Jointly Administered)
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EXHIBIT 24 TO EXHIBIT BOOK
WARRANT AGREEMENT
EXHIBIT 24
Attached.
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this “
Warrant Agreement
”) is made and entered into as of February 3, 2014 by and among W. R. Grace & Co., a Delaware corporation (together with any successor thereto pursuant to the terms and conditions of
Section 5.3
, the “
Company
”), the WRG Asbestos PI Trust (the “
Trust
”), a Delaware statutory trust established pursuant to §524(g) the Bankruptcy Code in accordance with the Plan of Reorganization (as hereinafter defined), and Computershare Inc., a Delaware corporation (“
Computershare
”), and its wholly-owned subsidiary, Computershare Trust Company, N.A., a federally chartered trust company (collectively, the “
Warrant Agent
”). Unless otherwise defined herein or the context otherwise requires, all capitalized terms used herein and defined in the Plan of Reorganization shall be used herein as therein defined.
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Article I
DEFINITIONS
Section 1.1
Definition of Terms
. As used in this Warrant Agreement, the following capitalized terms shall have the following respective meanings:
(a)
“
Appropriate Officer
” shall mean, with respect to the Company, the Chief Executive Officer, Chief Financial Officer, President, any Senior Vice President, or Treasurer.
(b)
“
Business Day
” shall mean any day other than a Saturday, Sunday, or other day on which banks in the State of New York are authorized by Law to remain closed.
(c)
“
Common Stock
” shall mean common stock, $.01 par value per share, of the Company and the common stock or similar common equity of any successor thereto pursuant to the terms and conditions of
Section 5.3
. For purposes of
Article V
hereof, references to “shares of Common Stock” shall be deemed to include shares of any other class of stock resulting from successive changes or reclassifications of the Common Stock consisting solely of changes in par value or from no par value to par value and vice versa.
(d)
“
Common Stock Equivalents
” shall mean securities that are convertible into or exercisable for shares of Common Stock.
(e)
“
Depositary
” shall mean the Cede & Co., as the nominee of The Depository Trust Company.
(f)
“
Exchange Act
” shall mean the Securities Exchange Act of 1934, as amended from time to time, and any successor statutes thereto.
(g)
“
Excluded Options
” shall mean options to purchase shares of Common Stock issued to directors, officers, employees and consultants of any Reorganized Debtor (i) pursuant to an option plan or arrangement approved by either the stockholders of the Company or the Bankruptcy Court and (ii) with an exercise price equal to the average of the high and the low trading prices of Common Stock on the NYSE (or if Common Stock is not traded on the NYSE, on the principal stock exchange on which it trades) on the date of grant of the option.
(h)
“
Excluded Stock
” shall mean shares of Common Stock issued and sold in a registered firm commitment underwritten public offering pursuant to a registration statement declared effective in accordance with the Securities Act. Excluded Stock shall not include a private placement of shares, including one which is followed by a public offering thereof.
(i)
“
Expiration Date
” shall mean 5:00 p.m., New York City time, on February 2, 2015, or if such day is not a Business Day, the next succeeding day which is a Business Day;
provided
,
however
, that the Expiration Date shall be extended as and to the extent required by
Section 4.2(b)
.
(j)
“
Governmental Authority
” the government of the United States of America or any other country, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
(k)
“
Governing Documents
” means, as to any Person which is an entity, its articles or certificate of incorporation and by-laws, its partnership agreement, its certificate of formation and operating agreement and/or the organizational or governing documents of such Person.
(l)
“
Law
” means, collectively, all applicable international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances and codes, including the binding interpretations or administration thereof.
(m)
“
NYSE
” shall mean the New York Stock Exchange or any successor stock exchange thereto.
(n)
“
Plan of Reorganization
” means that certain First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms.
(o)
“
Person
” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated association or organization, any other entity and any Governmental Authority.
(p)
“
SEC
” shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act or the Exchange Act.
(q)
“
Securities Act
” shall mean the Securities Act of 1933, as amended from time to time, and any successor statutes thereto.
(r)
“
Warrants
” shall mean the warrants to purchase, in the aggregate, 10,000,000 shares of Common Stock at an exercise price of $17.00 per share, subject to adjustment in accordance with
Article V
hereof.
(s)
“
Warrant Shares
” shall mean Common Stock, Common Stock Equivalents and any other securities (including any securities of any Successor Person) purchased or purchasable upon exercise of the Warrant (and, if the context requires, securities which may thereafter be issued by the Company in respect of any such securities so purchased, by means of any stock splits, stock dividend
s, recapitalizations, reclassifications or the like).
All terms defined in this Warrant Agreement in the singular form shall have comparable meanings when used in the plural form and vice versa.
Section 1.2
Table of Defined Terms
.
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Term
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Section Number
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Book-Entry Warrants
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Section 3.1
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Claims
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Section 9.9(b)
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Company
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Preamble
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Courts
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Section 9.9(b)
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Exercise Amount
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Section 4.5
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Exercise Form
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Section 4.3(a)
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Exercise Price
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Section 4.1
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Global Warrant Certificate
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Section 3.1(a)
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Holder
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Section 4.1
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Independent Auditor
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Section 5.1(c)
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Issue Date
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Section 3.1
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Organic Change
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Section 5.3(a)
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Organic Change Date
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Section 5.3(c)
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Registered Holder
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Section 3.4(d)
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Special Dividend
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Section 5.1(b)
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Successor Person
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Section 5.3(a)
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Trust
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Preamble
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Warrant Agreement
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Preamble
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Warrant Register
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Section 3.4(c)
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Warrant Statements
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Section 3.1
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Article II
APPOINTMENT OF WARRANT AGENT
Section 2.1
Appointment
. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants in accordance with the express instructions hereinafter set forth in this Warrant Agreement, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the express terms and conditions set forth in this Warrant Agreement.
Article III
WARRANTS
Section 3.1
Issuance of Warrants.
(a)
Upon the terms and subject to the conditions set forth in this Warrant Agreement and in accordance with the terms of the Plan of Reorganization, on the Effective Date or a date that is as soon as reasonably practicable after the Effective Date, but in any event no later than five (5) Business Days after the Effective Date (such date, the “
Issue Date
”), the Company shall issue the Warrants to the Trust. Subject to
Section 6.1
of this Warrant Agreement, the Warrants shall be issued by the Company to the Trust (i) via book-entry registration on the books and records of the Warrant Agent (the “
Book-Entry Warrants
”) and evidenced by statements issued by the Warrant Agent from time to time to the Registered Holders of the Book-Entry Warrants reflecting such book-entry position (the “
Warrant Statements
”), in substantially the form set forth in
Exhibit A-1
attached hereto, and/or (ii) in the form of one or more global certificates (the “
Global Warrant Certificates
”), with the forms of election to exercise and of assignment printed on the reverse thereof, in substantially the form set forth in
Exhibit A-2
attached hereto. Not later than five (5) Business Days prior to the Issue Date, the Trust shall notify the Company in writing of (i) the number of Warrants that shall be issued in the form of Book-Entry Warrants, (ii) the number of Warrants that shall be issued in the form of Global Warrant Certificates and (iii) if there shall be more than one Global Warrant Certificate, the number of Warrants to be issued in the form of each such Global Warrant Certificate.
(b)
The number of shares of Common Stock issuable pursuant to the Warrant shall be 10,000,000 shares, as such amount may be adjusted from time to time pursuant to this Warrant Agreement.
Section 3.2
Completion and Deposit of Warrant Instruments
.
(a)
The Warrant Statements and Global Warrant Certificates may bear such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Warrant Agreement, and may have such letters, numbers, or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any Law or with any rules made pursuant thereto or with any rules of any securities exchange or as may, consistently herewith, or, be determined by (i) in the case of Global Warrant Certificates, the Appropriate Officers executing such Global Warrant Certificates, as evidenced by their execution of the Global Warrant Certificates, or (ii) in the case of a Warrant Statement, any Appropriate Officer, and all of which shall be reasonably acceptable to the Warrant Agent.
(b)
The Global Warrant Certificates shall be deposited on or after the Issue Date with the Warrant Agent and registered in the name of the Depositary. Each Global Warrant Certificate shall represent such number of the outstanding Warrants as specified therein, and each shall provide that it shall represent the aggregate amount of outstanding Warrants from time to time endorsed thereon and that the aggregate amount of outstanding Warrants represented thereby may from time to time be reduced or increased, as appropriate, in accordance with the terms of this Warrant Agreement.
Section 3.3
Execution of Global Warrant Certificates
.
(a)
The Global Warrant Certificates shall be signed on behalf of the Company by an Appropriate Officer. Each such signature upon the Global Warrant Certificates may be in the form of a facsimile signature of any such Appropriate Officer and may be imprinted or otherwise reproduced on the Global Warrant Certificates and for that purpose the Company may adopt and use the facsimile signature of any Appropriate Officer.
(b)
If any Appropriate Officer who shall have signed any of the Global Warrant Certificates shall cease to be such Appropriate Officer before the Global Warrant Certificates so signed shall have been countersigned by the Warrant Agent or disposed of by the Company, such Global Warrant Certificates nevertheless may be countersigned and delivered or disposed of as though such Appropriate Officer had not ceased to be such Appropriate Officer of the Company; and any Global Warrant Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Global Warrant Certificate, shall be a proper Appropriate Officer of the Company to sign such Global Warrant Certificate, although at the date of the execution of this Warrant Agreement any such person was not such Appropriate Officer.
Section 3.4
Registration and Countersignature
.
(a)
Upon written order of the Company, the Warrant Agent shall (i) register in the Warrant Register the Book-Entry Warrants and (ii) upon receipt of the Global Warrant Certificates duly executed on behalf of the Company, countersign one or more Global Warrant Certificates evidencing Warrants. Such written order of the Company shall specifically state the number of Warrants that are to be issued as Book-Entry Warrants and the number of Warrants that are to be issued as a Global Warrant Certificate. A Global Warrant Certificate shall be, and shall remain, subject to the provisions of this Warrant Agreement until such time as all of the Warrants evidenced thereby shall have been duly exercised or shall have expired or been canceled in accordance with the terms hereof.
(b)
No Global Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Global Warrant Certificate has been countersigned by the signature of the Warrant Agent. Such signature by the Warrant Agent upon any Global Warrant Certificate executed by the Company shall be conclusive evidence that such Global Warrant Certificate so countersigned has been duly issued hereunder.
(c)
The Warrant Agent shall keep, at an office designated for such purpose, books (the “
Warrant Register
”) in which, subject to such reasonable regulations as it may prescribe, it shall register the Book-Entry Warrants as well as any Global Warrant Certificates and exchanges and transfers of outstanding Warrants in accordance with the procedures set forth in
Section 6.1
of this Warrant Agreement, all in form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange or registration of transfer of the Warrants, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed on the Registered Holder in connection with any such exchange or registration of transfer. The Warrant Agent shall have no obligation to effect an exchange or register a transfer unless and until any payments required by the immediately preceding sentence have been made.
(d)
Prior to due presentment for registration of transfer or exchange of any Warrant in accordance with the procedures set forth in this Warrant Agreement, the Company and the Warrant Agent may deem and treat the Person in whose name any Warrant is registered upon the Warrant Register (the “
Registered Holder
” of such Warrant) as the absolute owner of such Warrant (notwithstanding any notation of ownership or other writing on a Global Warrant Certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, any distribution to the Holder thereof and for all other purposes, and neither the Warrant Agent nor the Company shall be affected by notice to the contrary.
Section 3.5
Takeover Defenses
.
(a)
The Company represents and warrants to the Trust that its Board of Directors has approved this Warrant Agreement and the transactions contemplated hereby, including the issuance of the Warrants and the Warrant Shares to the Holders, such that none of this Warrant Agreement, such transactions or such issuance shall be subject to the provisions or restrictions of Section 203 of the Delaware General Corporation Law or any other business combination, interested stockholder, fair price, control share acquisition, or other Law regulating mergers, acquisitions, change of control transactions, voting rights or share acquisitions.
(b)
The Company represents and warrants to the Trust that the Trust is not an “Acquiring Person” within the meaning of the Amended and Restated Rights Agreement, dated as of March 25, 2008, by and between the Company and Mellon Investor Services, LLC, as rights agent (as amended from time to time, the “
Rights Agreement
”). The Company shall not lower the Beneficial Ownership percentage in the Rights Agreement’s definition of “Acquiring Person” until such time as the Trust no longer owns any Warrants or Warrant Shares. The Company shall take all action within its control (through its Board of Directors, stockholders, other governing bodies, management or otherwise) so that no “poison pill”, shareholder or stockholder rights plan or other anti-takeover or takeover defense plan, contract, agreement, instrument or provision adopted or implemented by the Company shall apply to or be triggered by the issuance of the Warrants to the Trust, or the issuance and sale by the Company, and the purchase by the Trust, of the Warrant Shares upon exercise of the Warrants by the Trust.
Article IV
TERMS AND EXERCISE OF WARRANTS
Section 4.1
Exercise Price
. On the Issue Date, each Warrant shall entitle (i) in the case of the Book-Entry Warrants, the Registered Holder thereof and (ii) in the case of Warrants held through the book-entry facilities of the Depositary or by or through Persons that are direct participants in the Depositary, any Person who has a beneficial interest in such Warrants (a “Beneficial Holder”) ((i) and (ii) collectively, the “
Holders
”), subject to the provisions of such Warrant and of this Warrant Agreement, to purchase from the Company the number of Warrant Shares, at the price of $17.00 per whole share (as the same may be hereafter adjusted pursuant to Article V, the “
Exercise Price
”) specified in such Warrant.
Section 4.2
Duration of Warrants
.
(c)
Warrants may be exercised by the Holder thereof at any time and from time to time during the period commencing on the Issue Date and terminating at 5:00 p.m., New York City time, on the Expiration Date. Any Warrant not exercised prior to 5:00 p.m., New York City time, on the Expiration Date, shall become permanently and irrevocably null and void at 5:00 p.m., New York City time, on the Expiration Date, and all rights thereunder and all rights in respect thereof under this Warrant Agreement shall cease at such time.
(d)
Notwithstanding any other provision of this Warrant Agreement or the Warrants, if the Company fails to cause any registration statement to be declared effective when required by the Registration Rights Agreement, dated as of date hereof (the “
Registration Rights Agreement
”), between the Company and the Trust, to maintain the effectiveness of such registration statement, or if a Suspension Period (as defined in the Registration Rights Agreement) occurs, then the Expiration Date shall be extended by one day for each day that such registration statement is not effective, each day that constitutes a Suspension Period or each day that a Holder is unable to sell Warrants or Warrant Shares due to the lack of an effective or legally compliant registration statement or prospectus.
Section 4.3
Method of Exercise
.
(e)
Subject to the provisions of the Warrants and this Warrant Agreement, the Holder of a Warrant may exercise such Holder’s right to purchase the Warrant Shares, in whole or in part;
provided
, that if it is exercised in part by the Trust it shall be exercised for a minimum of 100,000 Warrant Shares and if it is exercised by any other Holder it shall be exercised for a minimum of 500 Warrant Shares. A Holder shall exercise such Holder’s right to purchase Warrant Shares by: (x) in the case of Persons who hold Book-Entry Warrants, providing an exercise form for the election to exercise such Warrant (“
Exercise Form
”) substantially in the form of
Exhibit B
hereto, properly completed and executed by the Registered Holder thereof, together with payment of the Exercise Amount in accordance with
Section 4.5
to the Warrant Agent, and (y) in the case of Warrants held through the book-entry facilities of the Depositary or by or through Persons that are direct participants in the Depositary, providing an Exercise Form (as provided by such Holder’s broker) to its broker, properly completed and executed by the Beneficial Holder thereof, together with payment of the Exercise Amount in accordance with
Section 4.5
.
(f)
Any exercise of Warrants pursuant to the terms of this Warrant Agreement shall be irrevocable and shall constitute a binding agreement between the Holder and the Company, enforceable in accordance with its terms.
(g)
The Warrant Agent shall:
(i)
examine all Exercise Forms and all other documents delivered to it by or on behalf of Holders as contemplated hereunder to ascertain whether or not, on their face, such Exercise Forms and any such other documents have been executed and completed in accordance with their terms and the terms hereof;
(ii)
where an Exercise Form or other document appears on its face to have been improperly completed or executed or some other irregularity in connection with the exercise of the Warrant exists, endeavor to inform the appropriate parties (including the person submitting such instrument) of the need for fulfillment of all requirements, specifying those requirements which appear to be unfulfilled;
(iii)
inform the Company of and cooperate with and assist the Company in resolving any reconciliation problems between Exercise Forms received and the delivery of Warrants to the Warrant Agent’s account;
(iv)
advise the Company no later than three (3) Business Days after receipt of an Exercise Form, of (A) the receipt of such Exercise Form and the number of Warrants exercised in accordance with the terms and conditions of this Warrant Agreement, (B) the instructions with respect to delivery of the Warrant Shares deliverable upon such exercise, subject to timely receipt from the Depositary of the necessary information, and (C) such other information as the Company shall reasonably require; and
(v)
subject to Warrant Shares being made available to the Warrant Agent by or on behalf of the Company for delivery to the Depositary, liaise with the Depositary and endeavor to effect such delivery to the relevant accounts at the Depositary in accordance with its customary requirements.
(h)
The Company reserves the right to reasonably reject any and all Exercise Forms not in proper form or if acceptance thereof would, in the opinion of the Company, be unlawful. Such determination by the Company shall be final and binding on the Holders of the Warrants, absent manifest error,
provided
,
however
, in connection with any such rejection the Company shall promptly communicate the same to the Trust and concurrently deliver to the Trust a reasonably detailed written explanation of the facts and the Law which supports such rejection. Moreover, the Company reserves the absolute right to waive any of the conditions to the exercise of Warrants or defects in Exercise Forms with regard to any particular exercise of the Warrants. The Company shall provide prompt written notice to the Warrant Agent of the exercise of any Warrant. Neither the Company nor the Warrant Agent shall be under any duty to give notice to the Holders of the Warrants of any irregularities in any exercise of Warrants, nor shall it incur any liability for the failure to give such notice.
Section 4.4
Issuance of Warrant Shares
. Upon exercise of any Warrants pursuant to Section 4.3 and clearance of the funds in payment of the Exercise Price, the Company shall promptly at its expense, and in no event later than three (3) Business Days thereafter, cause to be issued to the Holder of such Warrants the total number of whole Warrant Shares for which such Warrants are being exercised (as the same may be hereafter adjusted pursuant to Article V) in such denominations as are requested by the Holder as set forth below:
(i)
in the case of a Beneficial Holder who holds the Warrants being exercised through the Depositary’s book-entry transfer facilities, by same-day or next-day credit to the Depositary for the account of such Beneficial Holder or for the account of a participant in the Depositary the number of Warrant Shares to which such person is entitled, in each case registered in such name and delivered to such account as directed in the Exercise Form by such Beneficial Holder or by the direct participant in the Depositary through which such Beneficial Holder is acting, or
(ii)
in the case of a Registered Holder who holds the Warrants being exercised in the form of Book-Entry Warrants, a book-entry interest in the Warrant Shares registered on the books of the Company’s transfer agent.
Section 4.5
Exercise of Warrant
. Warrants may be exercised by the Holder thereof by delivery of payment to the Warrant Agent, for the account of the Company, by certified or bank cashier’s check payable to the order of the Company or by wire transfer of immediately available funds to an account designated by the Company (or as otherwise agreed to by the Company), in lawful money of the United States of America, of the full Exercise Price for the number of Warrant Shares specified in the Exercise Form (which shall be equal to the Exercise Price multiplied by the number of Warrant Shares in respect of which any Warrants are being exercised) and, only to the extent provided in Section 8.1, any and all applicable taxes and governmental charges due in connection with the exercise of Warrants and the exchange of Warrants for Warrant Shares (the “
Exercise Amount
”).
Section 4.6
Reservation of Shares
. The Company hereby agrees that at all times there shall be reserved and kept available, free from preemptive or similar rights, for issuance and delivery upon exercise of Warrants such number of Warrant Shares as may be from time to time issuable upon exercise in full of the Warrants. All Warrant Shares shall be duly authorized, and when issued upon such exercise, shall be validly issued, fully paid and non-assessable, free and clear of any preemptive or similar rights and all liens, security interests, charges and other encumbrances or restrictions on sale and free and clear of all preemptive rights, and the Company shall take all such action as may be necessary or appropriate in order that the Company may validly and legally issue all Warrant Shares in compliance with this sentence and applicable Law. If at any time prior to the Expiration Date the number and kind of authorized but unissued shares of the Company’s capital stock shall not be sufficient to permit exercise in full of the Warrants, the Company will promptly take such corporate action as may be necessary to increase its authorized but unissued shares to such number of shares as shall be sufficient for such purposes. The Company agrees that its issuance of Warrants shall constitute full authority to its officers who are charged with the issuance of Warrant Shares to issue shares of Common Stock upon the exercise of Warrants. Without limiting the generality of the foregoing, the Company will not increase the stated or par value per share, if any, of the Common Stock above the Exercise Price in effect immediately prior to such increase in stated or par value.
Section 4.7
Fractional Shares
. Notwithstanding any provision to the contrary contained in this Warrant Agreement, the Company shall not be required to issue any fraction of a share of its capital stock in connection with the exercise of Warrants, and in any case where the Registered Holder would, except for the provisions of this Section 4.7, be entitled under the terms of Warrants to receive a fraction of a share upon the exercise of such Warrants, the Company shall, upon the exercise of such Holder’s Warrants, issue or cause to be issued only the largest whole number of Warrant Shares issuable on such exercise (and such fraction of a share will be disregarded); provided, that if more than one Warrant is presented for exercise at the same time by the same Holder, the number of whole Warrant Shares which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of Warrant Shares issuable on exercise of all such Warrants.
Section 4.8
Listing
. Prior to the issuance of any Warrant Shares upon exercise of Warrants, the Company shall secure the listing of such shares of Common Stock or other Warrant Shares upon the NYSE (or any other principal securities exchange, quotation system and market within the United States, if any, on which securities of the same class and type as the securities to be issued upon exercise of the Warrants are then listed or quoted) and shall maintain, so long as any other shares of Common Stock (or, as applicable, other securities) shall be so listed, such listing of all Warrant Shares from time to time issuable upon the exercise of Warrants.
Article V
ADJUSTMENT OF SHARES OF COMMON STOCK PURCHASABLE AND OF EXERCISE PRICE
The Exercise Price and the number and kind of Warrant Shares shall be subject to adjustment from time to time upon the happening of certain events as provided in this
Article V
.
Section 5.1
Mechanical Adjustments
.
(e)
Subject to the provisions of
Section 4.7
, if at any time prior to the exercise in full of the Warrants, the Company shall (i) declare a dividend or make a distribution on the Common Stock payable in shares of its capital stock (whether shares of Common Stock or of capital stock of any other class or series), (ii) subdivide, reclassify or recapitalize its outstanding Common Stock into a greater number of shares, (iii) combine, reclassify or recapitalize its outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock by reclassification of its Common Stock (including any such reclassification in connection with a consolidation or a merger in which the Company is the Successor Person), the number of Warrant Shares issuable upon exercise of Warrants and/or the Exercise Price in effect at the time of the record date of such dividend, distribution, subdivision, combination, reclassification or recapitalization shall be adjusted so that the Holders shall be entitled to receive the aggregate number and kind of shares which, if their Warrants had been exercised in full immediately prior to such event, the Holders would have owned upon such exercise and been entitled to receive by virtue of such dividend, distribution, subdivision, combination, reclassification or recapitalization. If the Company declares a dividend payable in cash on its Common Stock and shall at substantially the same time offer to its stockholders a right to purchase new shares of Common Stock from the proceeds of such dividend or for an amount substantially equal to the dividend, all new shares so issued shall, for the purposes of this
Section 5.1(a)
, be deemed to have been issued as a share dividend subject to this
Section 5.1(a)
. Any adjustment required by this
Section 5.1(a)
shall be made successively immediately after the record date, in the case of a dividend or distribution, or the effective date, in the case of a subdivision, combination, reclassification or recapitalization, to allow the purchase of such aggregate number and kind of shares.
(f)
If at any time prior to the exercise in full of the Warrants, the Company shall fix a record date for the issuance or making of a distribution to all holders of the Common Stock or any other Warrant Shares for which Warrants are exercisable (including any such distribution to be made in connection with a consolidation or merger in which the Company is to be the Successor Person) of evidences of its indebtedness, any other securities of the Company or any cash, property or other assets (excluding a combination, reclassification or recapitalization referred to in
Section 5.1(a)
and regular quarterly cash dividends) or of subscription rights, options or warrants to purchase or acquire Common Stock or Common Stock Equivalents (excluding those referred to in
Section 5.1(a)
) (any such event being herein called a “
Special Dividend
”), the Exercise Price shall be decreased immediately after the record date for such Special Dividend to a price determined by multiplying the Exercise Price then in effect by a fraction, the numerator of which shall be the then current market price of the Common Stock (as defined in
Section 5.1(c)
) on such record date less the fair market value (as determined by the Independent Auditor) of the evidences of indebtedness, securities or property, or other assets issued or distributed in such Special Dividend applicable to one share of Common Stock or of such subscription rights or warrants applicable to one share of Common Stock and the denominator of which shall be such then current market price per share of Common Stock (as so determined). Any adjustment required by this
Section 5.1(b)
shall be made successively whenever such a record date is fixed and in the event that such distribution is not so made, the Exercise Price shall again be adjusted to be the Exercise Price that was in effect immediately prior to such record date.
(g)
For the purpose of any computation under this
Section 5.1
, the current market price per share of Common Stock at any date shall be deemed to be the average of the daily closing prices for thirty (30) consecutive trading days immediately prior to, but not including, such date. The closing price for each day shall be the last sale price regular way or, in case no such reported sales take place on such day, the average of the last reported bid and asked prices regular way, in either case on the principal national securities exchange or stock market on which the Common Stock is admitted to trading or listed. If there is no public market for the Common Stock, then a reputable investment bank or valuation firm shall be selected jointly by the Company and the Trust (such bank or firm, the “
Independent Auditor
”) to determine the fair market value of the Common Stock. The Company and the Trust shall instruct the Independent Auditor to render its valuation within 30 days of being retained as the Independent Auditor. All fees and expenses of the Independent Auditor shall be borne by the Company.
(h)
From the date hereof through and including the Expiration Date, the Company shall not issue or sell any shares of Common Stock, other than Excluded Stock, or any rights (including without limitation any
(x) options (other than Excluded Options), warrants or other rights (whether or not at the time exercisable) to purchase or acquire Common Stock, other than Excluded Stock, (y) securities by their terms convertible into or exchangeable (whether at the time so convertible or exchangeable) for Common Stock, other than Excluded Stock or (z) options (other than Excluded Options), warrants or rights to purchase such convertible or exchangeable securities),
for no consideration or for a consideration per share that is less than the current market price per share of the Common Stock determined pursuant to
Section 5.1(c)
as of the last trading day immediately prior to the time of such issue or sale (with such last trading day being included in the determination of the thirty (30) trading days average closing price referred to in (and notwithstanding) such
Section 5.1(c)
).
(i)
No adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least five cents ($0.05) in such price;
provided
,
however
, that any adjustments which by reason of this paragraph
Section 5.1(e)
are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this
Section 5.1
shall be made to the nearest cent ($.01) or to the nearest one-hundredth of a share, as the case may be. Notwithstanding anything in this
Section 5.1
to the contrary, the Exercise Price shall not be reduced to less than the then existing par value of the Common Stock as a result of any adjustment made hereunder.
(j)
In the event that at any time, as a result of any adjustment made pursuant to
Section 5.1(a)
or
Section 5.3
, the Holders thereafter shall become entitled to receive any shares of the Company (or, as applicable, the Successor Person) other than Common Stock, thereafter the number of such other shares so receivable upon exercise of any Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in this
Section 5.1
.
Section 5.2
Notices of Adjustment
. Whenever the number and/or kind of Warrant Shares or the Exercise Price is adjusted as herein provided, the Company shall (i) prepare and deliver, or cause to be prepared and delivered, forthwith to the Warrant Agent a written statement signed by an Appropriate Officer setting forth the adjusted number and/or kind of shares purchasable upon the exercise of Warrants and/or the Exercise Price of such shares after such adjustment, a reasonably detailed statement of the facts, computations and methodology accounting for such adjustment, including a calculation of the revised, if any Exercise Price and number of issuable Warrant Shares, and (ii) cause the Warrant Agent to give written notice to each Holder in the manner provided in Section 9.2, of the record date or the effective date of the event. Such notice shall be given not less than ten (10) Business Days before the earlier of such record date or effective date. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event. The Warrant Agent may rely upon any such written notice delivered in accordance with this Section 5.2 (without any obligation to investigate the same), and on any adjustment (and calculations thereof) therein contained, and shall not be deemed to have knowledge of any such adjustment (or any need therefor) unless and until such written notice has been delivered to the Warrant Agent. The Company shall also, at least ten (10) days prior to (x) the record date on which the Company closes its books or takes a record (1) with respect to any dividend or distribution upon the Common Stock, (2) with respect to any pro rata subscription offer to holders of Common Stock or (3) for determining rights to vote with respect to any Organic Change, dissolution or liquidation, or (y) the record date on which any Organic Change, dissolution or liquidation shall take place, issue a press release or give written notice thereof to the Warrant Agent. The Warrant Agent shall (at the Company’s direction) give written notice to each Holder in the manner provided in Section 9.2 below. The form of the Global Warrant Certificate need not be changed because of any adjustments, however, the Company may at any time in its sole discretion make any change in the form of Global Warrant Certificate that it may deem appropriate to give effect to such adjustments and that does not affect the substance of the Global Warrant Certificate (including the rights, duties, liabilities or obligations of the Warrant Agent), and any Global Warrant Certificate thereafter issued, whether in exchange or substitution for an outstanding Global Warrant Certificate, may be in the form so changed.
Section 5.3
Organic Changes
.
(c)
Adjustments for Organic Change
. If the Company reorganizes its capital stock, reclassifies its capital stock or consolidates or merges with or into another person or enters into a business combination with another person (in the case of a reorganization, reclassification, consolidation, merger or business combination where the Company is not the surviving Person (such successor or acquiring Person being referred to as the “
Successor Person
”)), or sells, leases, transfers or otherwise disposes of all or substantially all of its property, assets or business to another Person (each, an “
Organic Change
”), then as a condition of such Organic Change, lawful and adequate provision shall be made whereby the Holder shall have the right to acquire and receive upon exercise of Warrants such shares of stock, securities, cash or other property issuable or payable (as part of the Organic Change) with respect to or in exchange for such number of outstanding shares of Common Stock as such Holder would have been entitled to receive upon exercise of Warrants had it been exercised immediately before such Organic Change, subject to applicable adjustments (as determined in good faith by the Board of Directors).
(d)
Assumption by Successor Person
. In the event of any Organic Change contemplated by
Section 5.3(a)
, effective provisions shall be made in the Governing Documents of the Successor Person, or in any contract of sale, merger, conveyance, lease, transfer or otherwise, so that the provisions set forth herein for the protection of the rights of the Holders of Warrants shall thereafter continue to be applicable; and any such Successor Person shall expressly assume, by supplemental agreement signed by such Successor Person and the Trust, this Warrant Agreement, including all of the obligations set forth under
Section 5.3(a)
and the due and punctual performance, and observation of all of the obligations of the Company hereunder and in the Registration Rights Agreement. The provisions of this
Section 5.3
shall apply similarly to all successive events constituting Organic Changes.
(e)
Notices
. The Company shall promptly notify the Warrant Agent, which in turn shall promptly notify or cause to be notified all Holders at the last address set forth for such Holders in the Warrant Register, in the manner provided in
Section 9.2
, of the Organic Change whenever an Organic Change is consummated (the “
Organic Change Date
”). After the Organic Change Date, the Company shall (a) prepare a written certificate setting forth the adjustments made under
Section 5.3(a)
, and a brief, reasonably detailed statement of facts, computations and methodology accounting for such adjustment and (b) provide copies of such certificate to each Holder or record as of the Organic Change Date. No failure of the Warrant Agent to give or cause to be given the foregoing notices or defect therein shall affect the validity of the proceedings for the purchase of Warrants, or limit any Holder’s rights hereunder. The Warrant Agent may rely upon any such written notice delivered in accordance with this Section 5.3 (without any obligation to investigate the same), and on any adjustment (and calculations thereof), and shall not be deemed to have knowledge of any such adjustment (or any need therefor) unless and until such written notice has been delivered to the Warrant Agent.
(f)
Sale of Warrants
. In any Organic Change in which holders of capital stock of the Company sell or otherwise assign, transfer or dispose of their shares, the Company shall cause the transaction to be structured to permit the Holders of Warrants to deliver Warrants in connection with any such Organic Change without requirement for exercise thereof as a condition to participation and for consideration not less than the consideration such Holders would have received had such Holders exercised their Warrants immediately prior thereto, less any applicable Exercise Price.
Article VI
TRANSFER AND EXCHANGE OF WARRANTS AND WARRANT SHARES
Section 6.1
Registration of Transfers and Exchanges
.
(i)
Transfer and Exchange of Global Warrant Certificates or Beneficial Interests Therein.
The transfer and exchange of Global Warrant Certificates or beneficial interests therein shall be effected through the Depositary, in accordance with this Warrant Agreement and the procedures of the Depositary therefor.
(j)
Exchange of a Beneficial Interest in a Global Warrant Certificate for a Book-Entry Warrant.
(i)
Any Holder of a beneficial interest in a Global Warrant Certificate may, upon request, exchange such beneficial interest for a Book-Entry Warrant. Upon receipt by the Warrant Agent from the Depositary or its nominee of written instructions or such other form of instructions as is customary for the Depositary on behalf of any person having a beneficial interest in a Global Warrant Certificate, the Warrant Agent shall cause, in accordance with the standing instructions and procedures existing between the Depositary and Warrant Agent, the number of Warrants represented by the Global Warrant Certificate to be reduced by the number of Warrants to be represented by the Book-Entry Warrants to be issued in exchange for the beneficial interest of such person in the Global Warrant Certificate and, following such reduction, the Warrant Agent shall register in the name of the Holder a Book-Entry Warrant and deliver to said Holder a Warrant Statement.
(ii)
Book-Entry Warrants issued in exchange for a beneficial interest in a Global Warrant Certificate pursuant to this
Section 6.1(b)
shall be registered in such names as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Warrant Agent. The Warrant Agent shall deliver such Warrant Statements to the Persons in whose names such Warrants are so registered.
(k)
Transfer and Exchange of Book-Entry Warrants
. When Book-Entry Warrants are presented to the Warrant Agent with a written request:
(i)
to register the transfer of the Book-Entry Warrants; or
(ii)
to exchange such Book-Entry Warrants for an equal number of Book-Entry Warrants of other authorized denominations, the Warrant Agent shall register the transfer or make the exchange as requested if its customary requirements for such transactions are met;
provided
,
however
, that the Warrant Agent has received a written instruction of transfer in form satisfactory to the Warrant Agent, duly executed by the Registered Holder thereof or by his attorney, duly authorized in writing.
(l)
Restrictions on Exchange or Transfer of a Book-Entry Warrant for a Beneficial Interest in a Global Warrant Certificate
. A Book-Entry Warrant may not be exchanged for a beneficial interest in a Global Warrant Certificate except upon satisfaction of the requirements set forth below. Upon receipt by the Warrant Agent of appropriate written instruments of transfer with respect to a Book-Entry Warrant, in form satisfactory to the Warrant Agent, together with written instructions directing the Warrant Agent to make, or to direct the Depositary to make, an endorsement on the Global Warrant Certificate to reflect an increase in the number of Warrants represented by the Global Warrant Certificate equal to the number of Warrants represented by such Book-Entry Warrant, then the Warrant Agent shall cancel such Book-Entry Warrant on the Warrant Register and cause, or direct the Depositary to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Warrant Agent, the number of Warrants represented by the Global Warrant Certificate to be increased accordingly. If no Global Warrant Certificates are then outstanding, the Company shall issue and the Warrant Agent shall countersign a new Global Warrant Certificate representing the appropriate number of Warrants.
(m)
Restrictions on Exchange or Transfer of Global Warrant Certificates
. Notwithstanding any other provisions of this Warrant Agreement (other than the provisions set forth in
Section 6.1(f)
), unless and until it is exchanged in whole for a Book-Entry Warrant, a Global Warrant Certificate may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
(n)
Book-Entry Warrants
. If at any time:
(i)
the Depositary for the Global Warrant Certificates notifies the Company that the Depositary is unwilling or unable to continue as Depositary for the Global Warrant Certificates and a successor Depositary for the Global Warrant Certificates is not appointed by the Company within 90 days after delivery of such notice; or
(ii)
the Company, in its sole discretion, notifies the Warrant Agent in writing that it elects to exclusively cause the issuance of Book-Entry Warrants under this Warrant Agreement,
then the Warrant Agent, upon written instructions signed by an Appropriate Officer of the Company, shall register Book-Entry Warrants, in an aggregate number equal to the number of Warrants represented by the Global Warrant Certificates, in exchange for such Global Warrant Certificates.
(o)
Restrictions on Transfer
. No Warrants or Warrant Shares shall be sold, exchanged or otherwise transferred in violation of the Securities Act or state securities Laws.
(p)
Cancellation of Global Warrant Certificate
. At such time as all beneficial interests in Global Warrant Certificates have either been exchanged for Book-Entry Warrants, redeemed, repurchased or cancelled, all Global Warrant Certificates shall be returned to, or retained and cancelled by the Warrant Agent, upon written instructions from the Company satisfactory to the Warrant Agent.
Section 6.2
Obligations with Respect to Transfers and Exchanges of Warrants
.
(g)
To permit registrations of transfers and exchanges, the Company shall execute Global Warrant Certificates, if applicable, and the Warrant Agent is hereby authorized, in accordance with the provisions of
Section 3.4
and this
Article VI
, to countersign such Global Warrant Certificates, if applicable, or register Book-Entry Warrants, if applicable, as required pursuant to the provisions of this
Article VI
and for the purpose of any distribution of new Global Warrant Certificates contemplated by
Section 7.2
or additional Global Warrant Certificates contemplated by
Article V
.
(h)
All Book-Entry Warrants and Global Warrant Certificates issued upon any registration of transfer or exchange of Book-Entry Warrants or Global Warrant Certificates shall be the valid obligations of the Company, entitled to the same benefits under this Warrant Agreement as the Book-Entry Warrants or Global Warrant Certificates surrendered upon such registration of transfer or exchange.
(i)
No service charge shall be made to a Holder for any registration, transfer or exchange but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed on the Holder in connection with any such exchange or registration of transfer. The Warrant Agent shall forward any such sum collected by it to the Company or to such persons as the Company shall specify by written notice.
(j)
So long as the Depositary, or its nominee, is the registered owner of a Global Warrant Certificate, the Depositary or such nominee, as the case may be, will be considered the sole owner or holder of the Warrants represented by such Global Warrant Certificate for all purposes under this Warrant Agreement. Except as provided in
Section 6.1(b)
and
Section 6.1(f)
upon the exchange of a beneficial interest in a Global Warrant Certificate for Book-Entry Warrants, Beneficial Holders will not be entitled to have any Warrants registered in their names, and will under no circumstances be entitled to receive physical delivery of any such Warrants and will not be considered the Registered Holder thereof under the Warrants or this Warrant Agreement. Neither the Company nor the Warrant Agent, in its capacity as registrar for such Warrants, will have any responsibility or liability for any aspect of the records relating to beneficial interests in a Global Warrant Certificate or for maintaining, supervising or reviewing any records relating to such beneficial interests.
(k)
Subject to
Section 6.1(b)
,
Section 6.1(c)
and
Section 6.1(d)
, and this
Section 6.2
, the Warrant Agent shall, upon receipt of all information required to be delivered hereunder, from time to time register the transfer of any outstanding Warrants in the Warrant Register upon surrender of Global Warrant Certificates, if applicable, representing such Warrants at the Warrant Agent’s office as set forth in
Section 9.2
, duly endorsed, and accompanied by a completed form of assignment substantially in the form of
Exhibit C
hereto (or with respect to a Book-Entry Warrant, only such completed form of assignment substantially in the form of
Exhibit C
hereto), properly completed and duly signed by the Registered Holder thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, such signature to be guaranteed by a participant in the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program. Upon any such registration of transfer, a new Global Warrant Certificate or a Warrant Statement, as the case may be, shall be issued to the transferee.
Section 6.3
Fractional Warrants
. The Warrant Agent shall not be required to effect any registration of transfer or exchange which will result in the issuance of a warrant certificate for a fraction of a Warrant.
Section 6.4
Obligations with Respect to Transfers of the Warrant
.
(a)
The Warrant issued upon any registration of transfer shall be the valid obligation of the Company, entitled to the same benefits under this Warrant Agreement as the Warrant surrendered upon such registration of transfer.
(b)
No service charge shall be made to a Holder for any registration or transfer but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed on the Holder in connection with any such registration of transfer. The Warrant Agent shall forward any such sum collected by it to the Company or to such persons as the Company shall specify by written notice.
Article VII
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS
Section 7.1
No Rights or Liability as Stockholder; Notice to Registered Holders
. Nothing contained in the Warrants shall be construed as conferring upon the Holder or his, her or its transferees the right to vote or to receive, as a stockholder, dividends or to consent or to receive notice as a stockholder in respect of any meeting of stockholders for the election of directors of the Company or of any other matter, or any rights whatsoever as stockholders of the Company. No provision thereof and no mere enumeration therein of the rights or privileges of the Holder shall give rise to any liability of such holder for the Exercise Price hereunder or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company. To the extent not covered by any statement delivered pursuant to Section 5.2, the Company shall give notice to Registered Holders (and Warrant Agent) by registered mail if at any time prior to the expiration or exercise in full of the Warrants, any of the following events shall occur:
(l)
the Company shall authorize the payment of any dividend payable in any securities upon shares of Common Stock or authorize the making of any distribution (other than a regular quarterly cash dividend) to all holders of Common Stock;
(m)
the Company shall authorize the issuance to all holders of Common Stock of any additional shares of Common Stock or Common Stock Equivalents or of rights, options or warrants to subscribe for or purchase Common Stock or Common Stock Equivalents or of any other subscription rights, options or warrants;
(n)
a dissolution, liquidation or winding up of the Company shall be proposed;
(o)
a capital reorganization or reclassification of the Common Stock (other than a subdivision or combination of the outstanding Common Stock and other than a change in the par value of the Common Stock) or any consolidation or merger of the Company with or into another corporation (other than a consolidation or merger in which the Company is the Successor Person and that does not result in any reclassification or change of Common Stock outstanding) or in the case of any sale or conveyance to another corporation or other entity of the property of the Company as an entirety or substantially as an entirety; or
(p)
the Company shall take any other action which would result in an adjustment in the Exercise Price or the number of Warrant Shares issuable upon exercise of the Warrants.
Subject to applicable Law, such giving of notice shall be initiated as soon as is practicable after a final determination thereof is made, and in no event later than the tenth (10
th
) Business Day prior to the applicable record date or date of the closing of the stock transfer books. Such notice shall specify (i) such record date or the date of closing the stock transfer books, as the case may be, and (ii) the material facts and terms of any such transaction, action or event together with any information that the Company provides, or intends to provide, to holders of its Common Stock in connection therewith. Failure to provide such notice shall not affect the validity of any action taken in connection with such dividend, distribution or subscription rights, or proposed merger, consolidation, sale, conveyance, dissolution, liquidation or winding up. For the avoidance of doubt, no such notice shall supersede or limit any adjustment called for by
Section 5.1
or
Section 5.3
by reason of any event as to which notice is required by this
Section 7.1
.
Section 7.2
Lost, Stolen, Mutilated or Destroyed Global Warrant Certificates
. If any Global Warrant Certificate is lost, stolen, mutilated or destroyed, the Company shall issue, and the Warrant Agent shall countersign and deliver, in exchange and substitution for and upon cancellation of the mutilated Global Warrant Certificate, or in lieu of and substitution for the Global Warrant Certificate lost, stolen or destroyed, a new Global Warrant Certificate of like tenor and representing an equivalent number of Warrants, but only upon receipt of evidence and an affidavit reasonably satisfactory to the Company and the Warrant Agent of the loss, theft or destruction of such Global Warrant Certificate, and an indemnity of the Company and Warrant Agent satisfactory to the Company and the Warrant Agent for any losses in connection therewith, if requested by either the Company or the Warrant Agent. Applicants for such substitute Global Warrant Certificates shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company or the Warrant Agent may prescribe and as required by Section 8-405 of the Uniform Commercial Code as in effect in the State of New York.
Section 7.3
No Restrictive Legends
. No legend shall be stamped or imprinted on any stock certificate for Warrant Shares issued upon the exercise of any Warrant and or stock certificate issued upon the direct or indirect transfer of any such Warrant Shares.
Section 7.4
Cancellation of Warrants
. If the Company shall purchase or otherwise acquire Warrants, the Global Warrant Certificates and the Book-Entry Warrants representing such Warrants shall thereupon be delivered to the Warrant Agent, if applicable, and be cancelled by it and retired. The Warrant Agent shall cancel all Global Warrant Certificates surrendered for exchange, substitution, transfer or exercise in whole or in part. Such cancelled Global Warrant Certificates shall thereafter be disposed of in a manner satisfactory to the Company provided in writing to the Warrant Agent.
Article VIII
CONCERNING THE WARRANT AGENT AND OTHER MATTERS
Section 8.1
Payment of Taxes
. The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Trust, the Company or the Warrant Agent in respect of the issuance or delivery of the Warrant Shares upon the exercise of Warrants, but any taxes or charges in connection with the issuance of Warrants or Warrant Shares in any name other than that of the Holder of the Warrants shall be paid by such Holder; and in any such case, neither the Warrant Agent nor the Company shall be required to issue or deliver any Warrants or Warrant Shares until such taxes or charges shall have been paid or it is established to the Warrant Agent’s and Company’s satisfaction that no tax or charge is due.
Section 8.2
Resignation, Consolidation or Merger of Warrant Agent
.
(c)
Appointment of Successor Warrant Agent
. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of sixty (60) days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the Registered Holder of a Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the Registered Holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the Laws of the State of New York, the United States or any state thereof, in good standing and having an office in the City and State of New York, and shall be authorized under such Laws to exercise corporate trust or similar powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, rights, immunities, duties and obligations of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent, the Company shall make, execute, acknowledge and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties and obligations.
(d)
Notice of Successor Warrant Agent
. In the event a successor Warrant Agent shall be appointed, the Company shall (i) give notice thereof to the predecessor Warrant Agent and the transfer agent for the Common Stock not later than the effective date of any such appointment, and (ii) cause written notice thereof to be delivered to each Registered Holder at such Registered Holder’s address appearing on the Warrant Register. Failure to give any notice provided for in this
Section 8.2(b)
or any defect therein shall not affect the legality or validity of the removal of the Warrant Agent or the appointment of a successor Warrant Agent, as the case may be.
(vi)
Merger, Consolidation or Name Change of Warrant Agent
. Any Person into which the Warrant Agent may be merged or with which it may be consolidated or any Person resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Warrant Agreement, without any further act or deed, if such person would be eligible for appointment as a successor Warrant Agent under the provisions of
Section 8.2(a)
. If any of the Global Warrant Certificates have been countersigned but not delivered at the time such successor to the Warrant Agent succeeds under this Warrant Agreement, any such successor to the Warrant Agent may adopt the countersignature of any previous Warrant Agent; and if at that time any of the Global Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Global Warrant Certificates either in the name of the predecessor Warrant Agent or in the name of the successor Warrant Agent; and in all such cases such Global Warrant Certificates shall have the full force provided in the Global Warrant Certificates and in this Warrant Agreement.
(e)
If at any time the name of the Warrant Agent is changed and at such time any of the Global Warrant Certificates have been countersigned but not delivered, the Warrant Agent whose name has changed may adopt the countersignature under its prior name; and if at that time any of the Global Warrant Certificates have not been countersigned, the Warrant Agent may countersign such Global Warrant Certificates either in its prior name or in its changed name; and in all such cases such Global Warrant Certificates shall have the full force provided in the Global Warrant Certificates and in this Warrant Agreement.
Section 8.3
Fees and Expenses of Warrant Agent
.
(a)
Remuneration
. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as Warrant Agent hereunder and will reimburse the Warrant Agent upon demand for all documented out-of-pocket expenditures (including reasonable counsel fees and expenses) that the Warrant Agent may reasonably incur in connection with the negotiation, preparation, delivery, administration, execution, modification, waiver, delivery, enforcement or amendment of this Warrant Agreement and the exercise and performance of its duties hereunder. The Trust shall not be responsible under any circumstances for any such remuneration or expenditures.
(b)
Further Assurances
. The Company agrees to perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Warrant Agreement.
Section 8.4
Liability of Warrant Agent
.
(a)
Liability
.
(i)
References to the Warrant Agent in this Section 8.4 shall include the Warrant Agent and its affiliates, principals, directors, officers, employees, agents, representatives, attorneys, accountants, advisors and other professionals. The Warrant Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Warrant Agreement, the Warrant Statements or in the Global Warrant Certificates (except, in each case, its countersignature thereof) or be required to verify the same or the execution and delivery or the validity of sufficiency thereof, or have any responsibility in respect of the validity or sufficiency of the same or be responsible for any breach of the same by the Company. The Warrant Agent shall not have any obligations with respect to the exercise of any Warrant, except for canceling the Global Warrant Certificate surrendered to the Company for such exercise or revising the Warrant Register, in each case in accordance with written instructions received from the Company.
(ii)
The Warrant Agent shall have no liability under, and no duty to inquire as to, the provisions of any agreement, instrument or document other than this Warrant Agreement and any notice, instruction or other document or instrument furnished to the Warrant Agent hereunder and the Warrant Agent shall have no obligations (including any duties, responsibilities or obligations to ensure compliance with any securities laws, including in connection with the issuance, transfer, exchange or exercise of the Warrants) under this Warrant Agreement except as expressly directed in accordance with the terms herewith. Furthermore, the Warrant Agent shall have no liability hereunder except as provided in
Section 8.4(c)
.
(iii)
The Warrant Agent may rely on and shall incur no liability or responsibility to any Person for any action taken, suffered or omitted to be taken by it as a result of any notice, instruction or other document or instrument furnished to the Warrant Agent hereunder in accordance with the terms of this Warrant Agreement and reasonably believed by it to be genuine and to have been signed, sent or presented by the proper party or parties (without any obligation to investigate the same) The Warrant Agent shall not take any instructions or directions except those given in accordance with this Warrant Agreement.
(iv)
The Warrant Agent shall act hereunder solely as agent for the Company and in a ministerial capacity and does not assume any obligation or relationship of agency or trust with any of the owners or holders of the Warrants, and its duties shall be determined solely by the provisions hereof.
(v)
Notwithstanding anything in this Warrant Agreement to the contrary, in no event shall the Warrant Agent be liable for any special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), unless paid to a third party. Any liability of the Warrant Agent under this Warrant Agreement shall be limited to an amount equal to two hundred percent (200%) of the annual fees paid by the Company to the Warrant Agent hereunder.
(vi)
In no event shall the Warrant Agent be responsible or liable for any failure or delay in the performance of its obligations under this Warrant Agreement to the extent arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities.
(vii)
In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, Warrant Agent, may, in its sole discretion, refrain from taking any action, shall promptly notify the Company in writing and shall be fully protected and shall not be liable in any way to the Company or any Holder or other person or entity for refraining from taking such action, unless and until the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of Warrant Agent.
(b)
Reliance on Company Statement
. Whenever in the performance of its duties under this Warrant Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer or Chairman of the Board of Directors of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered, in good faith, by it pursuant to the provisions of this Warrant Agreement. The Company will perform, execute, acknowledge and deliver all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing by the Warrant Agent of the provisions of this Warrant Agreement.
(c)
Indemnity
. The Warrant Agent shall not be liable for any action taken, suffered or omitted to be taken in connection with this Warrant Agreement except to the extent that a court of competent jurisdiction finally determines that its own gross negligence, willful misconduct or bad faith was the cause of any loss. The Company agrees to indemnify, defend, protect and save the Warrant Agent and hold it harmless from and against any and all losses, damages, claims, liabilities, costs or expenses of any kind, including without limitation reasonable fees and disbursements of counsel, that may be imposed on, incurred by, or asserted against such Person, at any time, to the extent relating to or arising out of or in connection with, directly or indirectly, the execution, delivery or performance of this Warrant Agreement, or the enforcement of any rights or remedies under or in connection with this Warrant Agreement;
provided
,
however
, that no such Person shall be entitled to be so indemnified, defended, protected, saved and kept harmless to the extent such loss was caused by the Warrant Agent’s gross negligence, bad faith or willful misconduct, each as finally determined by a court of competent jurisdiction. Notwithstanding the foregoing, the Company shall not be responsible for any settlement made without its written consent, which written consent shall not be unreasonably conditioned, withheld or delayed.
(d)
Exclusions
. The Warrant Agent shall have no responsibility with respect to the validity of this Warrant Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Warrant Agreement or in any Warrant; nor shall it be responsible to make any adjustments required under the provisions of
Article V
hereof or responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Warrant Shares to be issued pursuant to this Warrant Agreement or any Warrant or as to whether any Warrant Shares will, when issued, be valid and fully paid and nonassessable.
(e)
Miscellaneous
. The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees. The Warrant Agent may consult at any time with legal counsel reasonably satisfactory to it (who may be legal counsel for the Company or an employee of the Warrant Agent) and the advice of such counsel shall be full and complete authorization and protection to the Warrant Agent as to any action reasonably taken, suffered or omitted to be taken in accordance with such advice. The Warrant Agent may buy, sell, or deal in any of the Warrants or other securities of the Company freely as though it was not Warrant Agent under this Warrant Agreement. Nothing contained herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other Person. The Warrant Agent shall not be required to use or risk its own funds in the performance of any of its obligations or duties or the exercise of any of its rights or powers, and shall not be required to take any action which would, or would be reasonably expected to, subject it to liability hereunder unless furnished with security and indemnity satisfactory to it. The Warrant Agent shall not be required to inquire as to the performance or observation of any obligation, term, or condition under any agreement or arrangement between the Company and any other Person, other than this Warrant Agreement, including without limitation the Plan of Reorganization and the other agreements and arrangements referenced therein, even though reference thereto may be made in this Warrant Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Warrant Agreement.
Section 8.5
Acceptance of Agency
. The Warrant Agent hereby accepts the agency established by this Warrant Agreement and agrees to perform the same upon the express terms and conditions herein set forth and, among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for and pay to the Company all moneys received by the Warrant Agent for the purchase of Warrant Shares through the exercise of Warrants.
Article IX
MISCELLANEOUS PROVISIONS
Section 9.1
Binding Effects; Benefits
. This Warrant Agreement shall inure to the benefit of and shall be binding upon the Company, the Warrant Agent, the Trust and any other Holder and their respective heirs, legal representatives, successors and assigns. Nothing in this Warrant Agreement, expressed or implied, is intended to or shall confer on any person other than the Company, the Warrant Agent, the Trust or any other Holder, or their respective heirs, legal representatives, successors or assigns, any rights, remedies, obligations or liabilities under or by reason of this Warrant Agreement. All covenants, conditions, stipulations, promises, and agreements contained in this Warrant Agreement shall be for the sole and exclusive benefit of the parties hereto, their successors and assigns and the Holders.
Section 9.2
Notices
. All notices required or permitted under this Warrant Agreement must be in writing and will be deemed to be delivered and received (i) if personally delivered or if delivered by the United States Postal Service, facsimile or courier service, when actually received by the party to whom notice is sent or (ii) with respect to parties located other than within the United States, if deposited with the United States Postal Service (whether actually received or not), at the close of business on the seventh Business Day after the day when placed in the mail, postage prepaid, certified or registered with return receipt requested, addressed to the appropriate party or parties, at the address of such party or parties set forth below (or at such other address as such party may designate by written notice to all other parties in accordance with this Section 9.2).
if to the Warrant Agent, to:
Computershare Inc.
480 Washington Boulevard, 29th Floor
Jersey City, New Jersey 07310
Attention: Relationship Manager
with a copy to:
Computershare Inc.
480 Washington Boulevard, 29th Floor
Jersey City, New Jersey 07310
Facsimile: (201) 680-4610
Attention: Legal Department
if to the Company, to:
W. R. Grace & Co.
7500 Grace Drive
Columbia, MD 21044
Attn: Corporate Secretary
Facsimile: (410) 531-4545
with a copy to:
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attn: Adam C. Paul
Facsimile: (312) 862-2200
if to the Trust, to:
B. Thomas Florence
Executive Director, WRG Asbestos PI Trust
C/O ARPC
1220 19
th
Street NW, Suite 700
Washington, DC 20036
Facsimile: (202) 797-3619
t.florence@arpc.com
with a copy to:
James C. Melville
Kaplan, Strangis and Kaplan, P.A.
5500 Wells Fargo Center
Minneapolis, MN 55402
Facsimile: (612) 375-1143
jcm@kskpa.com
and
Edward E. Steiner
Keating Muething & Klekamp PLL
One East Fourth Street, Suite 1400
Cincinnati, OH 45202
Facsimile: (513) 579-6457
esteiner@kmklaw.com
and
Marla Rosoff Eskin
Campbell & Levine, LLC
222 Delaware Avenue, Suite 1620
Wilmington, DE 19801
Facsimile: (302) 426-9947
meskin@camlev.com
and
Philip E. Milch
Campbell & Levine, LLC
1700 Grant Building
Pittsburgh, PA 15219
Facsimile: (412) 261-5066
pem@camlev.com
if to Registered Holders, at their addresses as they appear in the Warrant Register.
Section 9.3
Examination of this Warrant Agreement
. A copy of this Warrant Agreement shall be available at all reasonable times at the office of the Warrant Agent designated for such purpose in
Section 9.2
, for examination by the Holder of any Warrant. Prior to such examination, the Warrant Agent may require any such holder to submit his Warrant for inspection by it.
Section 9.4
Counterparts
. This Warrant Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts (including, without limitation, by facsimile or portable document format (.pdf)), each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. This Warrant Agreement and any notice, instruction, direction, request or other communication, paper or document requiring signature, including the signature or countersignature on any Warrant Certificate or Global Warrant Certificate, may be delivered by manual or facsimile signature.
Section 9.5
Effect of Headings
. The section headings herein are for convenience only and are not part of this Warrant Agreement and shall not affect the interpretation hereof.
Section 9.6
Amendments
.
(a)
Subject to
Section 9.6(b)
, this Warrant Agreement may not be amended except in writing signed by all parties hereto.
(b)
The Company and the Warrant Agent may from time to time supplement or amend this Warrant Agreement or the Warrants with the prior written consent of Holders of the Warrants exercisable for a majority of the Warrant Shares then issuable upon exercise of the Warrants then outstanding;
provided
,
however
, that no such supplement or amendment shall, without the written consent of each Holder affected thereby, (i) shorten the Expiration Date, (ii) increase the Exercise Price of any Warrant, (iii) change any of the provisions of this
Section 9.6(b)
or any other provision hereof specifying the number or percentage of Holders required to waive, amend or modify any rights hereunder or required to make any determinations or grant any consent hereunder, or otherwise to act with respect to this Warrant Agreement or any Warrants, or (iv) change any of the provisions of Article IV or Article V hereof. Notwithstanding anything to the contrary herein, upon the delivery of a certificate from an Appropriate Officer which states that the proposed supplement or amendment is in compliance with the terms of this
Section 9.6
and, provided such supplement or amendment does not change the Warrant Agent’s rights, duties, liabilities or obligations hereunder, the Warrant Agent shall execute such supplement or amendment. Any amendment, modification or waiver effected pursuant to and in accordance with the provisions of this
Section 9.6
will be binding upon all Holders and upon each future Holder, the Company and the Warrant Agent. In the event of any amendment, modification or waiver, the Company shall give prompt notice thereof to all Holders and, if appropriate, notation thereof will be made on all Global Warrant Certificates thereafter surrendered for registration of transfer or exchange.
Section 9.7
No Inconsistent Agreements; No Impairment
. The Company will not, on or after the date hereof, enter into any agreement with respect to its securities which conflicts with the rights granted to the Holders in the Warrants or the provisions hereof. The Company represents and warrants to the Holders that the rights granted hereunder do not in any way conflict with the rights granted to holders of the Company’s securities under any other agreements. The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of the Warrants and in the taking of all such action as may be necessary in order to preserve the exercise rights of the Holders against impairment.
Section 9.8
Integration/Entire Agreement
. This Warrant Agreement together with the Warrants (and solely with respect to the Company and the Holders, together with the Registration Rights Agreement, the Plan of Reorganization and the Confirmation Order, and that certain Implementation Letter dated as of October 25, 2012, by and between the Company, the Asbestos PI Committee, the Asbestos PI FCR, and the Equity Committee and approved by the Court on December 11, 2012 [Docket No. 30025]), is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the Company, the Warrant Agent and the Holders in respect of the subject matter contained herein, and supersedes, preempts and terminates all other prior understandings, agreements or representations by or among the parties hereto, written or oral, to the extent relating thereto.
Section 9.9
Governing Law, Etc.
(a)
This Warrant Agreement and each Warrant issued hereunder shall be deemed to be a contract made under the Laws of the State of New York and for all purposes shall be governed by and construed in accordance with the Laws of the State of New York, without giving effect to any choice or conflict of Law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of New York.
(b)
With respect to all claims, suits, actions, proceedings, and other disputes arising out of, in respect of or relating to this Warrant Agreement (such claims, suits, actions, proceedings, and other disputes, the “
Claims
”) each of the parties to this Warrant Agreement hereby irrevocably submits to the jurisdiction of the Bankruptcy Court for the District of Delaware or the United States District Court for the District of Delaware, or, if both such Courts are not permitted under applicable Law to exercise jurisdiction with respect to the matter in question then, at the sole election of the Trust, to the jurisdiction of any other federal or state court in the state, county and city of New York, New York (the “
Courts
”), and each of the parties to this Warrant Agreement agrees that any and all Claims may be brought, heard and determined in such Courts.
(c)
Each of the parties to this Warrant Agreement agrees that (i) venue shall be proper in such Courts and hereby waives any objection or defense which it may now or hereafter have to the laying of venue in such courts, including any of the foregoing based upon the doctrine of
forum non conveniens
; and (ii) all process which may be or be required to be served in respect of any such Claim (including, without limitation, any pleading, summons or other paper initiating any such suit, action, proceeding, claim or dispute) may be served upon it, which service shall be sufficient for all purposes, in the manner for the provision of notice under this Warrant Agreement and shall be deemed in every respect effective service of process upon such party when so given.
(d)
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS WARRANT AGREEMENT AND THE WARRANTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS WARRANT AGREEMENT AND THE WARRANTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PROVISION
Section 9.10
Further Assurances
. The Company shall execute, acknowledge and deliver all such instruments and take all such action as the Trust from time to time may reasonably request in order to further effectuate the purposes of this Warrant Agreement and to carry out the terms hereof.
Section 9.11
Specific Performance
. Each of the parties hereto acknowledges and agrees that, in the event of any breach of, or any failure to perform, any specific provision of this Warrant Agreement, the non-breaching party would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that the parties hereto (a) shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to compel specific performance of any specific provision of this Warrant Agreement or to obtain injunctive relief to prevent breaches of any specific provision of this Warrant Agreement exclusively in the Courts, (b) shall waive, in any action for specific performance or injunctive relief, the defense of the adequacy of a remedy at law, and (c) shall waive any requirement for the securing or posting of any bond in connection with the obtaining of any such specific performance or injunctive relief. Any party’s pursuit of specific performance or injunctive relief at any time will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which such party may be entitled, including the right to pursue remedies for liabilities or damages incurred or suffered by such party.
Section 9.12
Other Remedies
. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby or by Law on such party, and the exercise of any one remedy shall not preclude the exercise of any other.
Section 9.13
Waivers
. Any of the terms, covenants, representations, warranties or conditions hereof may be waived, only by a written instrument executed by the party waiving compliance. Any waiver by any party of any condition, or of the breach of any provision, term, covenant, representation or warranty contained in this Warrant Agreement, in any one or more instances, shall not be deemed to be nor construed as a further or continuing waiver of any such condition, or of the breach of any other provision, term, covenant, representation or warranty of this Warrant Agreement. No action taken pursuant to this Warrant Agreement, including without limitation any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, condition or agreement contained herein.
Section 9.14
Termination
. This Warrant Agreement shall terminate on the Expiration Date. Notwithstanding the foregoing, this Warrant Agreement will terminate on any earlier date when all Warrants have been exercised. The provisions of Section 8.4 and this Article IX (and the Warrant Agent’s right to payment for fees and expenses incurred) shall survive such termination and the resignation or removal of the Warrant Agent.
Section 9.15
Severability
. Whenever possible, each provision of this Warrant Agreement will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Warrant Agreement by any party hereto is held to be invalid, void, voidable, illegal or unenforceable in any respect under any applicable Law in any jurisdiction, such event will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, or the obligations of any other party to this Warrant Agreement, and this Warrant Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, void, voidable, illegal, unenforceable or rejected provision had never been contained herein;
provided
,
however
, that if any such excluded provision shall adversely affect the rights, immunities, duties or obligations of the Warrant Agent in any material respect, the Warrant Agent shall be entitled to immediately resign. The parties hereto further agree to use commercially reasonable efforts to replace such invalid, void, voidable, illegal, unenforceable or rejected provision of this Warrant Agreement with a an effective, valid and enforceable provision which will achieve, to the fullest extent possible, the economic, business and other purposes of the invalid, void, voidable, illegal, unenforceable or rejected provision.
Section 9.16
Attorneys’ Fees
. The Company shall reimburse the Trust for all documented out-of-pocket costs and expenses arising out of, or incurred by the Trust in connection with, any successful action or proceeding brought against the Company by the Trust to enforce any provision in this Warrant Agreement.
Section 9.17
Funds Received
. All funds received by the Warrant Agent under this Warrant Agreement that are to be distributed or applied by the Warrant Agent (the “
Funds
”) shall be held by Computershare as agent for the Company and deposited in one or more bank accounts to be maintained by Computershare in its name as agent for the Company. Until paid pursuant to the terms of this Warrant Agreement, Computershare will hold the Funds through such accounts in: deposit accounts of commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer Credit Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). The Warrant Agent shall have no responsibility or liability for any diminution of the Funds that may result from any deposit made by the Warrant Agent in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other third party. The Warrant Agent may from time to time receive interest, dividends or other earnings in connection with such deposits. The Warrant Agent shall not be obligated to pay such interest, dividends or earnings to the Company, any holder or any other Person. The Warrant Agent shall forward Funds received for Warrant exercises in a given month by the 5
th
Business Day of the following month by wire transfer to an account designated by the Company.
Section 9.1
Customer Identification Program
. The Company acknowledges that the Warrant Agent is subject to the customer identification program (“Customer Identification Program”) requirements under the USA PATRIOT Act and its implementing regulations, and that the Warrant Agent must obtain, verify and record information that allows the Warrant Agent to identify the Company. Accordingly, prior to accepting an appointment hereunder, the Warrant Agent may request information from the Company that will help the Warrant Agent to identify the Company, including without limitation the Company’s physical address, tax identification number, organizational documents, certificate of good standing, license to do business, or any other information that the Warrant Agent deems necessary. The Company agrees that the Warrant Agent cannot accept an appointment hereunder unless and until the Warrant Agent verifies the Company’s identity in accordance with the Customer Identification Program requirements.
[
Signature Page Follows
]
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed by the parties hereto as of the day and year first above written.
W. R. GRACE & CO.
By:
/s/MARK A. SHELNITZ
Name: Mark A. Shelnitz
Title: Vice President, General Counsel and Secretary
WRG ASBESTOS PI TRUST
By:
/s/LEWIS R. SIFFORD
Name: Lewis R. Sifford
Title: Trustee
By:
/s/HARRY HUGE
Name: Harry Huge
Title: Trustee
By:
/s/DEAN M. TRAFELET
Name: Dean M. Trafelet
Title: Trustee
COMPUTERSHARE INC.
By: /s/MICHAEL LEGREGIN
Name: Michael Legregin
Title: Vice President
FORM OF WARRANT STATEMENT
[
As provided by Warrant Agent
]
FORM OF FACE OF GLOBAL WARRANT CERTIFICATE
VOID AFTER 5:00 P.M., NEW YORK CITY TIME, ON [ DATE]
This Global Warrant Certificate is held by The Depository Trust Company (the “Depositary”) or its nominee in custody for the benefit of the beneficial owners hereof, and is not transferable to any person under any circumstances except that (i) this Global Warrant Certificate may be exchanged in whole but not in part pursuant to Section 6.1(a) of the Warrant Agreement, (ii) this Global Warrant Certificate may be delivered to the Warrant Agent for cancellation pursuant to Section 6.1(h) of the Warrant Agreement and (iii) this Global Warrant Certificate may be transferred to a successor Depositary with the prior written consent of the Company.
Unless this Global Warrant Certificate is presented by an authorized representative of the Depositary to the Company or the Warrant Agent for registration of transfer, exchange or payment and any certificate issued is registered in the name of Cede & Co. or such other entity as is requested by an authorized representative of the Depositary (and any payment hereon is made to Cede & Co. or to such other entity as is requested by an authorized representative of the Depositary), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful because the registered owner hereof, Cede & Co., has an interest herein.
Transfers of this Global Warrant Certificate shall be limited to transfers in whole, but not in part, to nominees of the Depositary or to a successor thereof or such successor’s nominee, and transfers of portions of this Global Warrant Certificate shall be limited to transfers made in accordance with the restrictions set forth in Article VI of the Warrant Agreement.
No registration or transfer of the securities issuable pursuant to the Warrant will be recorded on the books of the Company until such provisions have been complied with.
THE SECURITIES REPRESENTED BY THIS WARRANT CERTIFICATE (INCLUDING THE SECURITIES ISSUABLE UPON EXERCISE OF THE WARRANT) ARE SUBJECT TO ADDITIONAL AGREEMENTS SET FORTH IN THE WARRANT AGREEMENT DATED AS OF [DATE], 20__, BY AND AMONG THE COMPANY, THE TRUST AND THE WARRANT AGENT (THE “
WARRANT AGREEMENT
”).
THIS WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO
5:00 P.M., NEW YORK CITY TIME, ON
[DATE]
WARRANT TO PURCHASE
______________ SHARES OF COMMON STOCK OF
W. R. GRACE & CO.
CUSIP # [ ]
ISSUE DATE:
[Date], 20__
No. ________
This certifies that, for value received, ___________________________, and its registered assigns (collectively, the “Registered Holder”), is entitled to purchase from W. R. Grace & Co., a corporation incorporated under the Laws of the State of Delaware (the “Company”), subject to the terms and conditions hereof, at any time before 5:00 p.m., New York time, on [Date], the number of fully paid and non-assessable shares of Common Stock of the Company set forth above at the Exercise Price (as defined in the Warrant Agreement). The Exercise Price and the number and kind of shares purchasable hereunder are subject to adjustment from time to time as provided in Article V of the Warrant Agreement. The initial Exercise Price shall be $17.00.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company under its corporate seal as of the ____ day of ___________________, 20__.
W. R. GRACE & CO.
By:
Print Name:
Title:
Attest:
Secretary
Computershare Inc., as Warrant Agent
By: ______________________________
Name:
Title:
Address of Registered Holder for Notices (until changed in accordance with this Warrant):
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT CERTIFICATE SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
FORM OF REVERSE OF WARRANT
The Warrant evidenced by this Warrant Certificate is a part of a duly authorized issue of Warrants to purchase ____________ shares of Common Stock issued pursuant to the Warrant Agreement, a copy of which may be inspected at the office of the Warrant Agent designated for such purpose. The Warrant Agreement hereby is incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the Registered Holders of the Warrants. All capitalized terms used on the face of this Warrant herein but not defined that are defined in the Warrant Agreement shall have the meanings assigned to them therein.
Upon due presentment for registration of transfer of the Warrant at the office of the Warrant Agent designated for such purpose, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any applicable tax or other governmental charge.
The Company shall not be required to issue fractions of Warrant Shares or any certificates that evidence fractional Warrant Shares.
No Warrants may be sold, exchanged or otherwise transferred in violation of the Securities Act or state securities Laws.
This Warrant does not entitle the Registered Holder to any of the rights of a stockholder of the Company.
The Company and Warrant Agent may deem and treat the Registered Holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone) for the purpose of any exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
EXERCISE FORM FOR REGISTERED HOLDERS
HOLDING BOOK-ENTRY WARRANTS
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented by the Book-Entry Warrants, to purchase Warrant Shares herewith tenders payment for _______ of the Warrant Shares to the order of W. R. Grace & Co. in the amount of $_________ in accordance with the terms of the Warrant Agreement and this Warrant.
The undersigned requests that [a statement representing] the Warrant Shares be delivered as follows:
Address
Delivery Address (if different)
If said number of shares shall not be all the shares purchasable under the within Warrant Certificate, the undersigned requests that a new Book-Entry Warrant representing the balance of such Warrants shall be registered, with the appropriate Warrant Statement delivered as follows:
Address
Delivery Address (if different)
_______________________________ Signature
Social Security or Other Taxpayer
Identification Number of Holder
Note: If the statement representing the Warrant Shares or any Book-Entry Warrants representing Warrants not exercised is to be registered in a name other than that in which the Book-Entry Warrants are registered, the signature of the holder hereof must be guaranteed.
SIGNATURE GUARANTEED BY:
_______________________________________________
Signatures must be guaranteed by a participant in the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program.
Countersigned:
Dated: , 20
Computershare Inc.
, as Warrant Agent
Signature
Authorized Signatory
FORM OF ASSIGNMENT
(To be executed only upon assignment of Warrant)
For value received, ______________________________ hereby sells, assigns and transfers unto the Assignee(s) named below the rights represented by such Warrant to purchase number of Warrant Shares listed opposite the respective name(s) of the Assignee(s) named below and all other rights of the Registered Holder under the within Warrant, and does hereby irrevocably constitute and appoint _____________________________ attorney, to transfer said Warrant on the books of the within-named Company with respect to the number of Warrant Shares set forth below, with full power of substitution in the premises:
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Name(s) of
Assignee(s)
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Address
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No. of Warrant Shares
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And if said number of Warrant Shares shall not be all the Warrant Shares represented by the Warrant, a new Warrant is to be issued in the name of said undersigned for the balance remaining of the Warrant Shares registered by said Warrant.
Dated: , 20__ Signature
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Note:
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The above signature should correspond exactly with the name on the face of this Warrant
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W.
R.
Grace
&
Co.
7500 Grace Drive
Columbia, MD 21044
+1 410.531.4000
www.grace.com
October 25, 2012
Official Committee of Asbestos Personal Injury Claimants
c/o Caplin
&
Drysdale, Chartered
600 Lexington Avenue, 21st
Floor New York, NY 10022
Attention: Elihu Inselbuch
David T. Austem
Asbestos PI Future Claimants' Representative
c/o Orrick, Herrington
&
Sutcliffe, LLP
1152 15
th
Street, NW
Washington, DC 20005 Attention: Roger Frankel
Official Committee of Equity Security Holders
c/o Kramer Levin Naftalis
&
Frankel, LLP
1177 Avenue of the Americas
New York, NY 10036
Attention: Phillip Bentley
RE:
Implementation of the Warrant Agreement
Gentlemen:
Reference is made to that certain Warrant Agreement (the "
Warrant Agreement"
) by and between W. R. Grace
&
Co., a Delaware corporation ("
Company"
), the WRG Asbestos PI Trust, a Delaware statutory trust established pursuant to §524(g) of Title 11 of the United States Code (the "Trust"), and the warrant agent identified therein (the "Warrant Agent"), as contemplated under the Plan of Reorganization (as defined below), pursuant to which on the Effective Date the Company will issue to the Trust (the date of such issuance, the "
Issue Date"
), upon the terms and subject to the conditions set forth in the Warrant Agreement, warrants (as defined in the Warrant Agreement, the "
Warrants"
) to purchase ten million shares of the Company's common stock, par value $0.01 (as defined in the Warrant Agreement, "Common Stock") at the exercise price of $17.00 per share (as may be adjusted from time to time pursuant to Article V of the Warrant Agreement, the "Exercise Price"). For purposes hereof, "
Plan of Reorganization"
means that certain First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of
W. R. Grace
&
Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants' Representative, and the Official Committee of Equity Security Holders As Modified Through December 23, 2010, filed by the Company and certain of its
affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended
,
supplemented or otherwise modified from time to time in accordance with its terms. Unless otherwise defined herein or the context otherwise requires, all capitalized terms used herein and defined in the Plan of Reorganization or the Warrant Agreement, as the case may be, shall be used herein as therein defined.
This letter (this "Implementation Letter") sets forth our agreement for the implementation of the Plan of Reorganization in respect of the Warrants and the Warrant Agreement. The Company, the Trust and, for purposes of Sections 5 and 6 hereof, the Warrant Agent hereby agree, as follows:
1.
The Company shall purchase from the Trust, and the Trust shall sell to the Company, the Warrants for the Purchase Price (as defined below) on the earlier of (a) the date on which the Trust delivers to the Company a written notice of its election to require the Company to purchase the Warrants on the terms and subject to the conditions set forth herein (the "Election
Notice
"
), or (b) the Expiration Date of the Warrants; provided, however
,
if at any time prior to the Expiration Date an Acquisition Transaction (as defined below) is announced, offered, proposed or disclosed, in each case publicly, and assuming that the Trust has not delivered the Election Notice to the Company, the Trust shall have the option in its sole and absolute discretion to not sell the Warrants to the Company and to participate in the Acquisition Transaction, whether as a stockholder of the Company upon exercise of the Warrants in accordance with the terms of the Warrant Agreement, or by transfer of the Warrants to the prospective acquirer (or its affiliate) in such Acquisition Transaction, by delivery of a written notice of its election to participate in the Acquisition Transaction (the "Participation Notice")
.
The foregoing right to participate in an Acquisition Transaction applies to any one or more subsequently occurring Acquisition Transactions that are announced, offered, proposed or disclosed, in each case publicly, on or prior to the Expiration Date; except that, if a Participation Notice is delivered by the Trust to the Company, this Implementation Letter (other than Sections 4 through and including 14) shall terminate without any further action of the Company, the Trust or any of the other parties hereto. In consideration of the foregoing, the Trust shall refrain from invoking its right to exercise the Warrants pursuant to Section 4.2(a) of the Warrant Agreement, other than in connection with an announced, offered, proposed or disclosed (in each case publicly) Acquisition Transaction as set forth herein
.
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2.
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For purposes of this Implementation Letter,
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(a)
"
Acquisition Transaction"
shall mean with respect to the Company, any transaction or series of related transactions involving: (i) any acquisition by any Person or "group" (as defined under Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) of greater than 50% of the outstanding capital stock of the Company, or any tender offer or exchange offer that, if consummated, would result in any Person or group beneficially owning greater than 50% of the outstanding capital stock of the Company; (ii) any sale, lease, exchange, transfer, license or other disposition of 50% or
more (based on the fair market value thereof) of the assets (including through the acquisition of
affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended
,
supplemented or otherwise modified from time to time in accordance with its terms. Unless otherwise defined herein or the context otherwise requires, all capitalized terms used herein and defined in the Plan of Reorganization or the Warrant Agreement, as the case may be, shall be used herein as therein defined.
This letter (this "Implementation Letter") sets forth our agreement for the implementation of the Plan of Reorganization in respect of the Warrants and the Warrant Agreement. The Company, the Trust and, for purposes of Sections 5 and 6 hereof, the Warrant Agent hereby agree, as follows:
1.
The Company shall purchase from the Trust, and the Trust shall sell to the Company, the Warrants for the Purchase Price (as defined below) on the earlier of (a) the date on which the Trust delivers to the Company a written notice of its election to require the Company to purchase the Warrants on the terms and subject to the conditions set forth herein (the "Election
Notice
"
), or (b) the Expiration Date of the Warrants; provided, however
,
if at any time prior to the Expiration Date an Acquisition Transaction (as defined below) is announced, offered, proposed or disclosed, in each case publicly, and assuming that the Trust has not delivered the Election Notice to the Company, the Trust shall have the option in its sole and absolute discretion to not sell the Warrants to the Company and to participate in the Acquisition Transaction, whether as a stockholder of the Company upon exercise of the Warrants in accordance with the terms of the Warrant Agreement, or by transfer of the Warrants to the prospective acquirer (or its affiliate) in such Acquisition Transaction, by delivery of a written notice of its election to participate in the Acquisition Transaction (the "Participation Notice")
.
The foregoing right to participate in an Acquisition Transaction applies to any one or more subsequently occurring Acquisition Transactions that are announced, offered, proposed or disclosed, in each case publicly, on or prior to the Expiration Date; except that, if a Participation Notice is delivered by the Trust to the Company, this Implementation Letter (other than Sections 4 through and including 14) shall terminate without any further action of the Company, the Trust or any of the other parties hereto. In consideration of the foregoing, the Trust shall refrain from invoking its right to exercise the Warrants pursuant to Section 4.2(a) of the Warrant Agreement, other than in connection with an announced, offered, proposed or disclosed (in each case publicly) Acquisition Transaction as set forth herein
.
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2.
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For purposes of this Implementation Letter,
|
(b)
"
Acquisition Transaction"
shall mean with respect to the Company, any transaction or series of related transactions involving: (i) any acquisition by any Person or "group" (as defined under Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) of greater than 50% of the outstanding capital stock of the Company, or any tender offer or exchange offer that, if consummated, would result in any Person or group beneficially owning greater than 50% of the outstanding capital stock of the Company; (ii) any sale, lease, exchange, transfer, license or other disposition of 50% or more (based on the fair market value thereof) of the assets (including through the acquisition of subsidiaries owning such assets) of the Company and all of its subsidiaries, taken as a whole; or
(iii) any merger, share exchange, consolidation, business combi nation, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its subsidiaries that would result in the effect of (i) or (ii) above.
(c)
"
Purchase Price"
shall mean cash equal to the published average daily closing price ("
ADP"
) of the Common Stock on the New York Stock Exchange for a period beginning one (1) trading day after the Effective Date and concluding one (1) trading day before the first to occur of the date on which the Election Notice is delivered or the Expiration Date, less the then effective Exercise Price, the result of which is multiplied by the number of Warrant Shares then issuable pursuant to the Warrant Agreement;
provided, however,
that (i) if ADP is less than $54.50, the purchase price in cash for the Warrants will be $54.50 less the then effective Exercise Price, the result of which is multiplied by the number of Warrant Shares then issuable pursuant to the Warrant Agreement; and (ii) if ADP is more than $66.00, the purchase price in cash for the Warrants will be $66.00 less the then effective Exercise Price, the result of which is multiplied by the number of Warrant Shares then issuable pursuant to the Warrant Agreement. In the event of any adjustment of the Exercise Price pursuant to the Warrant Agreement, the foregoing $54.50 and $66
.
00 collar prices shall be correspondingly adjusted.
3.
Payment of the Purchase Price for the Warrants shall be made by the Company to the Trust in immediately available funds to a bank account designated by the Trust in writing
,
which payment shall be delivered no later than five (5) Business Days following the first to occur of the Election Notice or the Expiration Date. Failure to pay the Purchase Price in accordance with the terms hereof shall constitute a material breach of this Implementation Letter, and upon any such breach, in addition to all other remedies available at law or in equity, the Trust shall have the right to exercise the Warrants in accordance with Section 4.2(a) of the Warrant Agreement, notwithstanding that the Expiration Date may have occurred.
4.
To the extent the Warrants are transferred in connection with an Acquisition Transaction, notwithstanding anything to the contrary, the registration rights under that certain Registration Rights Agreement to be entered into as of the Effective Date by and between the Company and the Trust (the "
Registration Rights Agreement"
) shall be assigned to, enure to the benefit of, and the Company's obligations thereunder shall be binding upon the Company and enforceable by, any such transferee of the Warrants in connection with an Acquisition Transaction. Notwithstanding anything herein or in the Warrant Agreement, until a Participation Notice is delivered to the Company, the Warrants shall not be sold, assigned, exchanged, or otherwise transferred to any third party.
5.
The Warrant Agent shall carry-out the Company's purchase of the Warrants or the Trust's transfer of the Warrants in connection with an Acquisition Transaction on the terms and subject to the conditions set forth in this Implementation Letter.
6.
Upon the Effective Date, the Trust and the Warrant Agent shall, automatically and without the need for further action, become parties to this Implementation Letter and shall be bound hereto, and thereupon each shall be entitled to enforce this Implementation Letter and have this
Implementation Letter enforced against it.
7.
As evidenced by the signatures of their counsel below, the Asbestos Pl Committee, the Asbestos PI FCR and the Equity Committee agree to the provisions of this Implementation Letter, subject to approval of the Court.
8.
The Company, the Asbestos PI Committee, the Asbestos PI FCR and the Equity Committee will use their reasonable best efforts promptly to obtain entry of an order by the Bankruptcy Court approving this Implementation Letter and providing that this Implementation Letter shall be binding upon the Debtors, and on the Effective Date, without further action or Court order, upon the Reorganized Debtors, the Trust and the Warrant Agent.
9.
Except as expressly set forth in this Implementation Letter, the Warrant Agreement and the Registration Rights Agreement are not modified and as of the Effective Date shall be and remain in full force and effect. In the event of any conflict between this Implementation Letter on the one hand and the Warrant Agreement or the Registration Rights Agreement on the other hand, this Implementation Letter shall control.
10.
All notices required or permitted under this Implementation Letter must be in writing and will be deemed to be delivered and received in accordance with Section 9.2 of the Warrant Agreement.
11.
This Implementation Letter shall be deemed to be a contract made under the Laws of the State of New York and for all purposes shall be governed by and construed in accordance with the Laws of the State of New York, without giving effect to any choice or conflict of Law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of New York.
12.
With respect to all claims, suits, actions, proceedings, and other disputes arising out of, in respect of or relating to this Implementation Letter (such claims, suits, actions, proceedings, and other disputes, the "
Claims"
) each of the parties to this Implementation Letter hereby irrevocably submits to the jurisdiction of the Bankruptcy Court for the District of Delaware or the United States District Court for the District of Delaware, or, if both such Courts are not permitted under applicable Law to exercise jurisdiction with respect to the matter in question then, at the sole election of the Trust, to the jurisdiction of any other federal or state court in the county of New York, New York (the "
Courts"
), and each of the parties to this Implementation Letter agrees that any and all Claims may be brought, heard and determined in such Courts.
Each of the parties to this Implementation Letter agrees that (i) venue shall be proper in such Courts and hereby waives any objection or defense which it may now or hereafter have to the laying of venue in such courts, including any of the foregoing based upon the doctrine of forum non conveniens; and (ii) all process which may be or be required to be served in respect of any such Claim (including, without limitation, any pleading, summons or other paper initiating any such suit, action, proceeding, claim or dispute) may be served upon it, which service shall be
sufficient for all purposes, in the manner for the provision of notice under this
Implementation Letter and shall be deemed in every respect effective service of process upon such party when so given.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS IMPLEMENTATION LETTER. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIYER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS IMPLEMENTATION LETTER, AS APPLICABLE, BY, AMONG OTHER THINGS
,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PROVISION
13.
Each of the parties hereto acknowledges and agrees that, in the event of any breach of, or any failure to perform, any specific provision of this Implementation Letter, the non-breaching party would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that the parties hereto (a) shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to compel specific performance of any specific provision of this Implementation Letter or to obtain injunctive relief to prevent breaches of any specific provision of this Implementation Letter exclusively in the Courts, (b) shall waive
,
in any action for specific performance or injunctive relief, the defense of the adequacy of a remedy at law, and (c) shall waive any requirement for the securing or posting of any bond in connection with the obtaining of any such specific performance or injunctive relief. Any party's pursuit of specific performance or injunctive relief at any time will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which such party may be entitled, including the right to pursue remedies for liabilities or damages incurred or suffered by such party
.
14.
The Company shall reimburse the Trust for all reasonable documented out-of- pocket costs and expenses arising out of, or incurred by the Trust in connection with, any successful action or proceeding brought against the Company by the Trust to enforce any provision in this Implementation Letter.
* * *
If
the foregoing accurately sets forth the implementation agreement with respect to the Warrants and the Warrant Agreement, please counter-sign this Implementation Letter and return the original to the Company at the address on this letterhead. Intending to be legally bound, an authorized representative of the undersigned has executed and delivered this Implementation Letter to
be
effective as of the date hereof, subject to approval of the Court.
Sincerely,
W. R. GRACE
&
CO.
By
:
/s/ Mark A. Shelnitz
Name:
Mark A. Shelnitz
Its:
Vice President and General Counsel
AGREED
AND ACCEPTED
OFFICIAL
COMMITTEE
OF ASBESTOS PERSONAL
INJURY CLAIMANTS
By:
/s/ Peter Van N. Lockwood
Name:
Peter Van N. Lockwood
Its:
Counsel to the Committee
DAVID
T. AUSTERN,
ASBESTOS PI FUTURE CLAIMANTS' REPRESENTATIVE
By:
/s/ Roger Frankel
Name:
Roger Frankel
His:
Counsel
OFFICIAL
COMMITTEE
OF
EQUITY SECURITY
HOLDERS
By:
/s/ Philip Bentley
Name:
Philip Bentley
Its:
Counsel
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re:
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Chapter 11
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W. R. GRACE & CO.,
et al
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Case No. 01-01139 (KJC)
Jointly Administered
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Debtors.
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EXHIBIT 17 TO EXHIBIT BOOK
PLAN REGISTRATION RIGHTS AGREEMENT
EXHIBIT 17
Attached.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “
Registration Rights Agreement
”) is entered into as of February 3, 2014 by and between W. R. Grace & Co., a Delaware corporation (the “
Company
”), and the WRG Asbestos PI Trust (the “
Trust
”), a Delaware statutory trust established pursuant to §524(g) of Title 11 of the United States Code in accordance with the Plan of Reorganization (as defined below). Unless otherwise defined herein or the context otherwise requires, capitalized terms used herein and defined in the Plan of Reorganization shall be used herein as therein defined.
R E C I T A L S
Pursuant to the Plan of Reorganization, on the Effective Date the Company will issue to the Trust, upon the terms and subject to the conditions set forth in the Warrant Agreement, Warrants (as defined below) to purchase shares of Common Stock (as defined below).
NOW, THEREFORE, in consideration of the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1.
Definitions
. Unless the context otherwise requires, the terms defined in this
Section 1
shall have the meanings herein specified for all purposes of this Registration Rights Agreement, applicable to both the singular and plural forms of any of the terms herein defined.
“
Affiliate
” has the meaning given to that term pursuant to Rule 405 promulgated under the Securities Act.
“
Business Day
” means any day other than a Saturday, Sunday, or other day on which banks in the State of New York are authorized by law to remain closed.
“
Commission
” means the U.S. Securities and Exchange Commission and any successor agency thereto.
“
Common Stock
” shall have the meaning assigned to such term in the Warrant Agreement dated as of the date hereof, among the Company, the Trust and Computershare Inc., as warrant agent.
“
Eligible Market
” means the American Stock Exchange, the New York Stock Exchange, Inc., the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
“
Free Writing Prospectus
” means a free writing prospectus, as defined in Rule 405 under the Securities Act.
“
Grace
” means W. R. Grace & Co.-Conn., a Connecticut corporation.
“
Plan of Reorganization
” means that certain First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010, as filed by Grace and certain of its affiliates in their reorganization cases under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, and as confirmed by order of that court dated as of January 31, 2011, together with the exhibits and schedules thereto, each as amended, supplemented or otherwise modified from time to time in accordance with its terms.
The terms “
register
,” “
registered
” and “
registration
” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement.
“
Registration Date
” means the fifth Business Day following the Effective Date.
“
Registrable Securities
” means (i) the Warrants and (ii) the Warrant Shares;
provided, however,
that such Warrants and Warrant Shares shall constitute Registrable Securities only so long as they have not been sold or otherwise disposed of by the Trust.
“
Rule 144
” means Rule 144 as promulgated under the Securities Act, as the same may be amended from time to time.
“
Securities Act
” means the Securities Act of 1933, as amended.
“
Suspension Period
” means any period during which the Company has exercised its rights to defer the filing or effectiveness of a Shelf Registration Statement pursuant to
Section 2(b)(i)
or when a Shelf Registration Statement may not be used to effect the resale of Registrable Securities as the result of the Company exercising its rights pursuant to
Section 2(b)(ii)
.
“
Warrants
” shall mean the warrants to purchase shares of Common Stock issued to the Trust in accordance with the Plan of Reorganization and subject to the terms and conditions of the Warrant Agreement dated as of the date hereof, among the Company, the Trust and Computershare Inc., as warrant agent.
“
Warrant Shares
” means shares of Common Stock and any other shares of capital stock or other securities of the Company issued or issuable as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise purchased or purchasable upon exercise of the Warrants (and, if the context requires, securities which may thereafter be issued by the Company in respect of any such securities so purchased, by means of any stock splits, stock dividends, recapitalizations, reclassifications or the like).
1.1.
Table of Defined Terms
.
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Term
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Section Number
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Claims
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Section 11.9
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Company
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Preamble
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Courts
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Section 11.9
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Lock-Up Period
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Section 9(a)
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Registration Rights Agreement
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Preamble
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Required Period
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Section 2(a)
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Shelf Demand Notice
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Section 2(a)
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Shelf Registration Statement
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Section 2(a)
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Shelf Underwritten Demand Notice
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Section 4(a)
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Trust
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Preamble
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Underwritten Offering
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Section 4(a)
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2.
Shelf Registration
.
(a)
Subject to
Section 2(b)
:
(i)
Following the Registration Date, the Trust shall have the right to request, by delivery of a written notice to the Company (a “
Shelf Demand Notice
”), that the Company file a shelf registration statement (which registration statement shall be on Form S-3 under the Securities Act if the Company is eligible to register Registrable Securities on such form and shall be on Form S-1 if the Company is eligible to register Registrable Securities otherwise than on Form S-3) pursuant to Rule 415 under the Securities Act covering all of the Registrable Securities (a “
Shelf Registration Statement
”) to enable the resale on a delayed or continuous basis of such Registrable Securities;
provided, however,
that the Trust may not deliver to the Company a Shelf Demand Notice at any time when (1) the Registrable Securities then held by the Trust consist only of Warrant Shares, (2) the Trust has satisfied the Rule 144(d)(1)(ii) one-year holding period applicable to such Warrant Shares following their issuance by the Company to the Trust, (3) the Trust is not an Affiliate of the Company, as determined by the Trust in its reasonable, good faith judgment, and (4) all such Warrant Shares are then capable of being sold by the Trust in a single transaction without restriction under Rule 144.
(ii)
As soon as reasonably practicable but in no event later than fifteen (15) days after receiving a Shelf Demand Notice, the Company shall, subject to
Section 3(b)(i)
, file with the Commission a Shelf Registration Statement on Form S-1 or S-3, as applicable;
(iii)
The Company shall use its commercially reasonable best efforts to cause the Shelf Registration Statement to become effective as expeditiously as possible and to remain effective until the earlier of (x) the time all Registrable Securities subject thereto have been sold and (y) the fifth anniversary of the initial effective time of the Shelf Registration Statement (the “
Required Period
”), including by filing necessary post-effective amendments and prospectus supplements reasonably required by the Trust;
provided, however,
that the applicable time period during which the Shelf Registration Statement is to remain effective shall be extended by that number of days equal to the total number of days in all Suspension Periods. In the event that the Shelf Registration Statement may not be used for the offer and sale of Registrable Securities due to the passage of time, the Company shall promptly file a new replacement registration statement (which, once filed, shall constitute a Shelf Registration Statement for purposes of this Registration Rights Agreement) and use its commercially reasonable best efforts to cause the same to become effective as expeditiously as possible and otherwise in accordance with this Registration Rights Agreement.
(b)
Notwithstanding anything to the contrary in Section
2(a
):
(i)
The Company shall have the right to defer the filing or the effectiveness of the Shelf Registration Statement for a period ending not more than 60 days after the date on which the Company would otherwise have been required to file the Shelf Registration Statement pursuant to
Section 2(a)(ii)
by delivery of a written notice to the Trust stating that the Company is exercising its right of deferral under this
Section 2(b)(i)
.
(ii)
The Company shall have the right to prohibit the Trust from selling Registrable Securities pursuant to the Shelf Registration Statement for a period not to exceed 90 consecutive days and 90 days in the aggregate during any 12-month period by delivery of a written notice to the Trust stating that the Company is exercising its sales prohibition right under this
Section 2(b)(ii)
and demanding that the Trust ceases sales of Registrable Securities under the Shelf Registration Statement;
provided, however,
that any deferral of the filing or effectiveness of the Shelf Registration Statement resulting from the exercise by the Company of its rights pursuant to
Section 2(b)(i)
shall be counted towards the 90-day time periods provided in this
Section 2(b)(ii)
for the first twelve-month period.
(c)
The Company may elect to register in the Shelf Registration Statement any additional shares of Common Stock (including, without limitation, any shares of Common Stock to be distributed in a primary offering made by the Company) so long as the inclusion of such Common Stock by the Company would not be reasonably likely to delay in any material respect the Trust’s ability timely to sell the Registrable Securities pursuant to the Shelf Registration Statement. Such election of the Company, if made, shall be made by the Company giving written notice to the Trust stating (A) that the Company proposes to include additional shares of Common Stock in such Shelf Registration Statement, and (B) the number of shares of Common Stock proposed to be included.
3.
Registration Procedures
.
(a)
If and whenever the Company is required by the provisions of
Section 2
or
Section 4
to effect the registration of Registrable Securities under the Securities Act, the Company, at its expense and as expeditiously as possible shall use its reasonable best efforts to effect such registration and:
(iii)
in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder, prepare and file with the Commission a registration statement with respect to such securities and use its reasonable best efforts to cause such registration statement to become and remain effective as provided herein, and prepare and file with the Commission such amendments and supplements to such registration statement and any prospectus contained therein as may be necessary to keep such registration statement effective and such registration statement and prospectus accurate and complete and to permit the Trust subject to such registration statement to sell such securities, until the earlier of (x) the time all Registrable Securities subject thereto have been sold and (y) the third anniversary of the initial effectiveness thereof, subject to the Company’s rights to delay the effectiveness of the Shelf Registration Statement pursuant to
Section 2(b)(ii)
and cause the Trust to cease sales under an effective Shelf Registration Statement pursuant to
Section 2(b)(ii)
);
provided, however,
that the applicable time period during which the Shelf Registration Statement is to remain effective shall be extended by that number of days equal to the total number of days in all Suspension Periods; and
provided further,
that in the event that the Shelf Registration may not be used for the offer and sale of Registrable Securities due to the passage of time, the Company shall promptly file a new replacement registration statement (which, once filed, shall constitute a Shelf Registration Statement for purposes of this Registration Rights Agreement) and use its commercially reasonable best efforts to cause the same to become effective as expeditiously as possible and otherwise in accordance with this Registration Rights Agreement;
(iv)
furnish to the Trust such number of copies of the registration statement and each amendment and supplement thereto, preliminary prospectus, final prospectus, prospectus supplement and such other documents as the Trust may reasonably request;
(v)
use its reasonable best efforts to register or qualify the securities covered by such registration statement under such state securities or blue sky laws of such jurisdictions as the Trust may reasonably request, except that the Company shall not for any purpose be required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction where it is not so qualified;
(vi)
provide a transfer agent and registrar for all securities registered pursuant to this Registration Rights Agreement and provide a CUSIP number for all such securities, in each case not later than the effective date of such registration;
(vii)
upon reasonable notice and at reasonable times during normal business hours, make reasonably available for inspection by a representative of the Trust, one firm of counsel for the Trust, the managing underwriter, if any, participating in any disposition of Registrable Securities and its counsel and any single accountant retained by the Trust or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause appropriate officers, directors and employees of the Company to make reasonably available for such inspection all such relevant information reasonably requested in writing by them in connection with a Registration Statement as is customary for “due diligence” investigations of the type, nature and extent appropriate for an offering of the type contemplated;
provided,
that such Entity shall first agree in writing with the Company that any information that is reasonably designated by the Company as confidential at the time of delivery shall be kept confidential by such Entity and such Entity shall not engage in trading any securities of the Company until such material non-public information becomes publicly available, except nothing in such writing shall restrict (A) disclosure of such information if it is required by Law or (ii) sharing information with other underwriters, agents or dealers participating in the disposition of any Registrable Securities, subject to the execution by such other underwriters, agents or deals of reasonable non-disclosure agreements with the Company;
(viii)
notify the Trust, promptly after it shall receive notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed;
(ix)
notify the Trust promptly of any request by the Commission for the amending or supplementing of such registration statement or prospectus or for additional information;
(x)
prepare and file promptly with the Commission, and promptly notify the Trust of the filing of, such amendments or supplements to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, when any event has occurred as the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(xi)
in case the Trust is required to deliver a prospectus at a time when the prospectus then in circulation is not in compliance with the Securities Act or the rules and regulations promulgated thereunder, the Company shall use reasonable best efforts to prepare promptly upon request such amendments or supplements to such registration statement and such prospectus as may be necessary in order for such prospectus to comply with the requirements of the Securities Act and such rules and regulations;
(xii)
advise the Trust, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for that purpose and promptly use its commercially reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
(xiii)
list the Registrable Securities (and to maintain such listing during the pendency of the relevant registration period) on any securities exchange on which the securities of the Company of the same class with Registrable Securities are listed or, if no similar securities are then listed on any securities exchange, use commercially reasonable best efforts to cause all such Registrable Securities to be listed on an Eligible Market jointly agreed upon by the Company and the Trust; and
(xiv)
make generally available to its security holders, and to deliver to the Trust, an earnings statement of the Company that will satisfy the provisions of Section 11(a) of the Securities Act covering a period of 12 months beginning after the effective date of such registration statement as soon as reasonably practicable after the completion of such 12-month period
(b)
The Trust, at its expense and as expeditiously as possible, agrees to:
(i)
provide the Company with such information and assistance as reasonably requested by the Company to effect such registration under the Securities Act;
(ii)
keep confidential that the Company has exercised its rights under
Section 2
and any other confidential information provided by the Company in connection with this Registration Rights Agreement; and
(iii)
comply with the prospectus delivery requirements and other provisions of the Securities Act and the Exchange Act and the respective rules and regulations promulgated thereunder applicable to the Trust, particularly Regulation M thereunder (or any successor rules or regulations), in connection with any offering by the Trust of Registrable Securities.
(c)
The Trust acknowledges that it has been advised to consult its own independent securities law counsel regarding the consequences of demanding or requesting registration of Registrable Securities hereunder or being named or not being named as a selling securityholder in the registration statement and related prospectus.
4.
Underwritten Offerings
.
(a)
Following the effective date of the Shelf Registration Statement, the Trust shall have the right to request by delivery of a written notice to the Company (a “
Shelf Underwritten Demand Notice
”) that the Company effect two (2) underwritten offerings of all or a portion of the Registrable Securities included in the Shelf Registration Statement (each an “
Underwritten Offering
”). Any such Shelf Underwritten Demand Notice must request an underwritten offering of Registrable Securities having an aggregate market value, based on the average per share closing price of the Registrable Securities as reported on the principal exchange or market on which the Common Stock is then traded over the ten (10) consecutive trading days prior to the date of the Shelf Underwritten Demand Notice, of not less than $15,000,000. Any prospectus supplement or other filing with the Commission including a plan or method of distribution of the securities subject to an Underwritten Offering pursuant to this
Section 4(a)
shall reflect the plan or method of distribution of such securities as shall be designated by the managing underwriter of the offering. The Company shall file with the Commission such amendments to the Shelf Registration Statement and such prospectus supplements or other filings that are necessary in connection with the Underwritten Offering of the Registrable Securities subject to the Shelf Underwritten Demand Notice as promptly as practicable after receipt of such request, subject to
Section 2(b)
. Notwithstanding anything to the contrary herein, the Trust shall not deliver a Shelf Underwritten Demand Notice during the 120-day period following (i) the date of pricing of the prior Underwritten Offering or (ii) the date of termination of the prior Underwritten Offering pursuant to
Section 4(f)
.
(b)
If the Company receives a Shelf Underwritten Demand Notice pursuant to
Section 4(a)
, it shall enter into such agreements (including an underwriting agreement containing representations and warranties and indemnity and contribution provisions of the type made in customary underwriting agreements for an underwritten public offering), in usual and customary form, and take such other actions as may be reasonably requested by the Trust or the managing underwriter to expedite the offer for sale or disposition of the Registrable Securities, and in connection therewith, upon such request and upon the date of closing of any sale of Registrable Securities in such underwritten registration:
(A)
use its reasonable best efforts to obtain opinions of counsel to the Company (such counsel being reasonably satisfactory to the managing underwriter) and updates thereof covering matters customarily covered in opinions of counsel in connection with underwritten offerings, addressed to the Trust and the managing underwriter, in each case which opinion and updates thereof shall each state that it is being delivered at the request of the Company and solely in order to assist the Trust and the managing underwriter in establishing a “due diligence” defense;
(B)
use its reasonable best efforts to obtain customary “comfort” letters from the independent certified public accountants of the Company (to the extent deliverable in accordance with their professional standards) addressed to the Trust (to the extent consistent with Statement on Auditing Standards No. 100 of the American Institute of Certified Public Accountants) and the managing underwriter, in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings; and
(C)
provide officers’ certificates and other customary closing documents customarily delivered in connection with underwritten offerings reasonably requested by the managing underwriter;
provided,
that the Company shall only be required to comply with this
Section 4(b)
in connection with two (2) Underwritten Offerings.
(c)
No securities to be sold for the account of any Entity (including the Company) other than the Trust shall be included in an Underwritten Offering pursuant to this
Section 4
if the managing underwriter of the Underwritten Offering relating thereto advises the Trust that the total amount of Registrable Securities requested to be registered, together with such other securities that the Company and any other stockholders propose to include in such offering, is such as to adversely affect the successful marketing (including the pricing) of the securities included in such offering, in which case the Company shall include in such registration all Registrable Securities requested to be included therein, up to the full amount that, in the view of such managing underwriter can be sold without adversely affecting the success of such offering, before including any securities of any Entity (including the Company) other than the Trust.
(d)
The Trust shall in its reasonable discretion and with the consent of the Company (which consent shall not be unreasonably withheld) select an investment banking firm of national standing to be the managing underwriter for any Underwritten Offering.
(e)
If so requested (pursuant to a timely written notice) by the managing underwriter for the Underwritten Offering relating thereto, the Company shall not effect any underwritten public sale or distribution of any securities for its own account or the account of any Entity not a party hereto that are the same as, or similar to, the Registrable Securities, or any securities convertible into, or exchangeable or exercisable for, any securities of the Company that are the same as, or similar to, the Registrable Securities, during the 15-day period prior to, and during the 60-day period after the date of pricing of the Underwritten Offering.
(f)
Notwithstanding the foregoing provisions of this
Section 4
, no request for the Company to effect an Underwritten Offering pursuant to this
Section 4
will count for the purposes of determining the number of such underwritten offerings if (i) the Shelf Registration Statement relating to such request is not declared effective with one hundred eighty (180) days of the date such Shelf Registration Statement is first filed with the Commission (other than as a result of any action or inaction by the Trust, including any refusal by the Trust to proceed or provide any required information for inclusion therein) and the Trust withdraws its request prior to such Shelf Registration Statement being declared effective, (ii) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason (other than any reason caused by or primarily caused by the Trust) and the Company fails to have such stop order, injunction or other order or requirement removed, withdrawn or resolved to the Trust’s reasonable satisfaction within thirty (30) days of the date of such order, (iii) any condition or conditions to closing specified in the underwriting agreement or purchase agreement entered into in connection with the registration relating to such request and solely with the control of the Company are not satisfied or (iv) the Trust determines in its reasonable, good faith judgment to withdraw an outstanding Shelf Underwritten Demand Notice due to market conditions;
provided,
that only one (1) withdrawal pursuant to this clause (iv) shall be excluded in determining the number of underwritten offerings. In addition, if the Company postpones the filing of a Shelf Registration Statement pursuant to
Section 2(b)(i)
following a request for such filing made by the Trust pursuant to
Section 4(a)
, the Trust will be entitled to withdraw a request for the filing of such Shelf Registration Statement and in such event such registration request will not count for the purpose of determining the number of underwritten offerings which the Company must effect pursuant to
Section 4
.
(g)
If (i) the Shelf Registration Statement cease to be effective at any time during the Required Period, (ii) there are Registrable Securities outstanding and (iii) the Company proposes to register (including for this purpose a registration effected by the Company for holders of capital stock other than the Trust) any of its stock under the Securities Act in connection with the public offering of such securities solely for cash (other than a registration relating solely to the sale of securities to participants in a Company stock plan or a transaction covered by Rule 145 under the Securities Act, a registration in which the only stock being registered is Common Stock issuable upon conversion of debt securities which are also being registered, or any registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities), the Company shall, at such time, promptly give the Trust written notice of such registration. Upon the written request of the Trust given within twenty (20) days after the Trust’s receipt of such notice, subject to
Section 4(h)
, the Company shall cause to be registered under the Securities Act all of the Registrable Securities that the Trust has requested to be registered.
(h)
In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under
Section 4(g)
to include any of the Registrable Securities in such underwriting unless the Trust accepts the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other Entities entitled to select the underwriters), and then only in such quantity as the underwriters determine in their reasonable judgment will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by holders of capital stock to be included in such offering exceeds the amount of securities to be sold other than by the Company that the underwriters determine in their reasonable judgment is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters determine in their reasonable judgment will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling security holders according to the total amount of securities entitled to be included therein owned by each selling security holder or in such other proportions as shall mutually be agreed to by such selling security holders) but in no event shall (i) the amount of securities of the Trust included in the offering be reduced below 25% of the total amount of securities included in such offering or (ii) a greater number of securities from any security holder of the Company other than the Trust be included if any Registrable Securities are excluded.
(i)
Notwithstanding anything to the contrary herein, the Company shall have no obligation to effect more than two (2) Underwritten Offerings.
5.
Expenses
. In connection with the filing of any registration statement under this Registration Rights Agreement and the sale of Registrable Securities pursuant thereto, the Company shall pay for and bear all (i) registration, filing and New York Stock Exchange listing and other fees, listing and other fees of any other securities exchange upon which securities similar to the Registrable Securities are listed, fees and disbursements of printers, counsel and accountants for the Company and (ii) all legal fees and disbursements and other expenses of the Company complying with foreign, state securities or blue sky laws of any jurisdictions in which the securities to be offered are to be registered or qualified and (iii) the expenses incurred by the Company (but not the Trust) in connection with any “road show” undertaken as part of an Underwritten Offering. For the avoidance of doubt, the Trust shall pay for all its own expenses, including fees and expenses of any counsel retained by it.
6.
Indemnification
.
(a)
The Company hereby agrees to indemnify and hold harmless the Trust and each of the Trust’s trustees, officers, employees, legal counsel and accountants, and each Entity which controls the Trust within the meaning of the Securities Act, from and against, and agrees to reimburse the Trust, its trustees, officers, employees, legal counsel and accountants and such controlling Entities with respect to, any and all claims, actions (actual or threatened), investigations, proceedings, demands, losses, damages, liabilities, costs and expenses (including all costs of appearing as a witness in any claim, challenge, action, investigation or proceeding) to which the Trust, trustees, legal counsel and accountants may become subject under the Securities Act or otherwise, insofar as such claims, actions, investigations, proceedings, demands, losses, damages, liabilities, costs or expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in a registration statement covering Registrable Securities, any prospectus related thereto (preliminary or final), any Free Writing Prospectus related thereto or any amendment or supplement thereto, (ii) the omission or alleged omission to state therein a material fact necessary to make the statements therein (in the case of a prospectus or Free Writing Prospectus, in light of the circumstances under which they were made) not misleading or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any federal or state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any federal or state securities law in connection with the offering and sale covered by such registration statement;
provided, however,
that the Company will not be liable to any such Entity to the extent that any such claim, action, investigation, proceeding, demand, loss, damage, liability, cost or expense is caused by an untrue statement or alleged untrue statement or omission or alleged omission of material fact so made in strict conformity with written information furnished by the Trust, its trustees, legal counsel and accountants, specifically for use in the preparation thereof. Such indemnification shall remain in full force and effect regardless of any investigation made by or on behalf of the Trust.
(b)
The Trust hereby agrees to indemnify and hold harmless the Company, its officers, directors, legal counsel and accountants and each Entity who controls the Company within the meaning of the Securities Act, from and against, and agrees to reimburse the Company, its officers, directors, employees, legal counsel, accountants and controlling Entity with respect to, any and all claims, actions, demands, losses, investigations, proceedings, damages, liabilities, costs or expenses to which the Company, its officers, directors, employees, legal counsel, accountants or such controlling Entity may become subject under the Securities Act or otherwise, insofar as such claims, actions, demands, losses, investigations, proceedings, damages, liabilities, costs or expenses arise out of or are based upon (i) any untrue or alleged untrue statement of any material fact contained in a registration statement covering Registrable Securities, any prospectus (preliminary or final) related thereto, any Free Writing Prospectus related thereto or any amendment or supplement thereto, or (ii) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus or Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in reliance upon and in strict conformity with written information furnished by the Trust specifically for use in the preparation thereof;
provided, however,
that the indemnity agreement contained in this
Section 6(b)
shall not apply to amounts paid in settlement of any such loss, claim, investigation, proceeding, damage, liability or action if such settlement is effected without the consent of the Trust, which consent shall not be unreasonably withheld or delayed;
provided, further,
that the total amounts payable in indemnity by the Trust under this
Section 6(b)
shall not exceed the net proceeds received by the Trust in the registered sale out of which such claim, action, investigation, proceeding, demand, loss, damage, liability, cost, or expense arises.
(c)
Promptly after receipt by a party indemnified pursuant to the provisions of
Section 6(a)
or
Section 6(b)
of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such indemnified party will, if a claim therefore is to be made against the indemnifying party pursuant to the provisions of
Section 6(a)
or
Section 6(b)
, notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability which it may have to an indemnified party otherwise than under this
Section 6
and shall not relieve the indemnifying party from liability under this
Section 6
unless such indemnifying party is actually and materially prejudiced by such omission. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying parties similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however,
that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from, conflict with or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party or parties). Upon the permitted assumption by the indemnifying party of the defense of such action, and approval by the indemnified party of counsel, the indemnifying party shall not be liable to such indemnified party under
Section 6(a)
or
Section 6(b)
for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof (other than reasonable costs of investigation) unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time, (iii) the indemnifying party and its counsel do not actively and vigorously pursue the defense of such action, or (iv) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall be liable to an indemnified party for any settlement of any action or claim without the consent of the indemnifying party and no indemnifying party may unreasonably withhold consent to any such settlement. No indemnifying party will consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability with respect to such claim or litigation.
(d)
If the indemnification provided for in
Section 6(a)
or
Section 6(b)
is held by a court of competent jurisdiction to be unavailable to a party to be indemnified with respect to any claims, actions, demands, losses, damages, liabilities, costs or expenses referred to therein, then each indemnifying party under any such subsection, in lieu of indemnifying such indemnified party thereunder, hereby agrees to contribute to the amount paid or payable by such indemnified party as a result of such claims, actions, investigations, proceedings, demands, losses, damages, liabilities, costs or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions which resulted in such claims, actions, investigations, proceedings, demands, losses, damages, liabilities, costs or expenses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Notwithstanding the foregoing, the amount the Trust shall be obligated to contribute pursuant to this
Section 6(d)
shall be limited to an amount equal to the per share sale price multiplied by the number of shares of Registrable Securities sold by the Trust pursuant to the registration statement which gives rise to such obligation to contribute (less the aggregate amount of any damages which the Trust has otherwise been required to pay in respect of such claim, action, investigation, proceeding, demand, loss, damage, liability, cost or expense or any substantially similar claim, action, demand, loss, damage, liability, cost or expense arising from the sale of such Registrable Securities).
(e)
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution hereunder from any person who was not guilty of such fraudulent misrepresentation.
(f)
The obligations of the Company and the Trust under this
Section 6
shall survive the completion of any offering of Registrable Securities in a registration statement and termination of this Registration Rights Agreement.
7.
Stockholder Information
.
The Company may request the Trust to furnish the Company with such information with respect to the Trust and the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing and as shall be required by law or by the Commission in connection therewith, and the Trust agrees to promptly furnish the Company with such information.
8.
Forms
.
All references in this Registration Rights Agreement to particular forms of registration statements are intended to include, and shall be deemed to include, references to all successor forms which are intended to replace, or to apply to similar transactions as, the forms herein referenced.
9.
Agreements
.
(a)
The Trust agrees in connection with any registration of any securities for the account of the Company or any other person that, upon the request of the Company for a period beginning on a date not earlier than five (5) Business Days prior to the date of pricing of any such registration and ending not later than 90 days after the date of such pricing (the “
Lock-Up Period
”), it shall not directly or indirectly (i) offer, pledge; sell, contract to sell, grant any options for the sale of, seek the redemption of or otherwise transfer or dispose of (including pursuant to a registration statement) any shares of Common Stock (or securities exchangeable or exercisable for any shares of Common Stock) or Warrants, (ii) enter into a transaction which would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the shares of Common Stock or Warrants held by it, whether any such aforementioned transaction is to be settled by delivery of shares of Common Stock or such other securities, in cash or otherwise, or (iii) publicly disclose the intention to make any such offer, sale, pledge, transfer or disposition, or to enter into any such transaction, swap, hedge or other arrangement.
(b)
The Trust represents that it has not prepared or had prepared on its behalf or used or referred to, and agrees that it will not prepare or have prepared on it behalf or use or refer to, any Free Writing Prospectus, and has not distributed and will not distribute any written materials in connection with the offer or sale of the Common Stock without the prior express written consent of the Company. The Company represents that it has not prepared or had prepared on its behalf or used or referred to, and agrees that it will not prepare or have prepared on its behalf or use or refer to, any Free Writing Prospectus, and has not distributed and will not distribute any written materials in connection with the offer or sale of the Common Stock without the prior express written consent of the Trust in connection with any registration which is effected pursuant to this Registration Rights Agreement.
(c)
The Trust agrees to cease selling Registrable Securities pursuant to the Shelf Registration Statement if an event under
Section 2(b)(ii)
or
Section 3(a)(ix)
or
Section 3(a)(xi)
shall occur.
(d)
The Company agrees that nothing in this Registration Rights Agreement shall prohibit the Trust, at any time and from time to time, from selling or otherwise transferring Registrable Securities pursuant to a private placement or other transaction which is not registered pursuant to the Securities Act. To the extent requested by the Trust, the Company shall take all commercially reasonable steps necessary to assist and cooperate with the Trust to facilitate such sale or transfer.
10.
Transfer of Registration Rights
.
The rights to cause the Company to register securities granted to the Trust pursuant to this Registration Rights Agreement may not be transferred or assigned to any other Entity.
11.
Miscellaneous
.
11.1.
Waivers and Amendments
.
(a)
With the written consent of the Trust, the obligations of the Company and the rights of the Trust under this Registration Rights Agreement may be waived (either generally or in a particular instance, either retroactively or prospectively and either for a specified period of time or indefinitely), and with such consent the Company may enter into a supplementary agreement for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Registration Rights Agreement or of any supplemental agreement or modifying in any manner the rights and obligations hereunder of the Trust and the Company.
(b)
Neither this Registration Rights Agreement nor any provision hereof may be changed, waived, discharged or terminated orally or by course of dealing, but only by a statement in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought. Specifically, but without limiting the generality of the foregoing, the failure of any party hereunder at any time or times to require performance of any provision hereof by the Company shall in no manner affect the right of such party at a later time to enforce the same. No waiver by any party of the breach of any term or provision contained in this Registration Rights Agreement, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Registration Rights Agreement.
11.2.
Rights of the Trust
. The Trust shall have the absolute right to exercise or refrain from exercising any right or rights which the Trust may have by reason of this Registration Rights Agreement or any Registrable Security, including the right to consent to the waiver of any obligation of the Company under this Registration Rights Agreement and to enter into an agreement with the Company for the purpose of modifying this Registration Rights Agreement or any agreement effecting any such modification. The Company shall reimburse the Trust for all documented out-of-pocket costs and expenses arising out of, or incurred by the Trust in connection with, any successful action or proceeding brought against the Company by the Trust to enforce any provision in this Registration Rights Agreement
11.3.
Notices
. All notices required or permitted under this Registration Rights Agreement must be in writing and will be deemed to be delivered and received (i) if personally delivered or if delivered by the United States Postal Service, facsimile or courier service, when actually received by the party to whom notice is sent or (ii) with respect to parties located other than within the United States, if deposited with the United States Postal Service (whether actually received or not), at the close of business on the seventh Business Day after the day when placed in the mail, postage prepaid, certified or registered with return receipt requested, addressed to the appropriate party or parties, at the address of such party or parties set forth below (or at such other address as such party may designate by written notice to all other parties in accordance with this
Section 11.3
):
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If to the Company:
W. R. Grace & Co.
7500 Grace Drive
Columbia, MD 21044
Attn: Corporate Secretary Facsimile: (410) 531-4545
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With copies, which shall not constitute notice, to:
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Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attn: Adam C. Paul
Facsimile: (312) 862-2200
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If to the Trust:
B. Thomas Florence
Executive Director
WRG Asbestos PI Trust
C/O ARPC
1220 19
th
Street NW, Suite 700
Washington, DC 20036
Facsimile: (202) 797-3619
t.florence@arpc.com
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With copies, which shall not constitute notice, to:
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James C. Melville
Kaplan, Strangis and Kaplan, P.A.
5500 Wells Fargo Center
Minneapolis, MN 55402
Facsimile: (612) 375-1143
jcm@kskpa.com
and
Edward E. Steiner
Keating Muething &
Klekamp PLL
One East Fourth Street, Suite 1400
Cincinnati, OH 45202
Facsimile: (513) 579-6457
esteiner@kmklaw.com
and
Marla Rosoff Eskin
Campbell & Levine, LLC
222 Delaware Avenue, Suite 1620
Wilmington, DE 19801
Facsimile: (302) 426-9947
meskin@camlev.com
and
Philip E. Milch
Campbell & Levine, LLC
1700 Grant Building
Pittsburgh, PA 15219
Facsimile: (412) 261-5066
pem@camlev.com
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11.4.
Severability
. Whenever possible, each provision of this Registration Rights Agreement will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Registration Rights Agreement by any party hereto is held to be invalid, void, voidable, illegal or unenforceable in any respect under any applicable Law in any jurisdiction, such event will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, or the obligations of any other party to this Registration Rights Agreement, and this Registration Rights Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, void, voidable, illegal, unenforceable or rejected provision had never been contained herein. The parties hereto further agree to use commercially reasonable efforts to replace such invalid, void, voidable, illegal, unenforceable or rejected provision of this Registration Rights Agreement with a an effective, valid and enforceable provision which will achieve, to the fullest extent possible, the economic, business and other purposes of the invalid, void, voidable, illegal, unenforceable or rejected provision.
11.5.
Specific Performance
. Each of the parties hereto acknowledges and agrees that, in the event of any breach of, or any failure to perform, any specific provision of this Registration Rights Agreement, the non-breaching party would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that the parties hereto (a) shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to compel specific performance of any specific provision of this Registration Rights Agreement or to obtain injunctive relief to prevent breaches of any specific provision of this Registration Rights Agreement exclusively in the Courts, (b) shall waive, in any action for specific performance or injunctive relief, the defense of the adequacy of a remedy at law, and (c) shall waive any requirement for the securing or posting of any bond in connection with the obtaining of any such specific performance or injunctive relief. Any party’s pursuit of specific performance or injunctive relief at any time will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which such party may be entitled, including the right to pursue remedies for liabilities or damages incurred or suffered by such party.
11.6.
No Third Party Beneficiaries
. Subject to
Section 6
, there are no third party beneficiaries of this Registration Rights Agreement and nothing in this Registration Rights Agreement, express or implied, is intended to confer on any Entity other than the parties hereto and their respective successors, and assigns, any rights, remedies, obligations or liabilities.
11.7.
Headings
. The headings of the sections, subsections and paragraphs of this Registration Rights Agreement have been inserted for convenience of reference only and do not constitute a part of this Registration Rights Agreement.
11.8.
Choice of Law
. It is the intention of the parties that the internal substantive laws, and not the laws of conflicts, of the State of New York should govern the enforceability and validity of this Registration Rights Agreement, the construction of its terms and the interpretation of the rights and duties of the parties.
11.9.
Jurisdiction
. With respect to claims, suits, actions, proceedings, and other disputes arising out of, in respect of or relating to this Registration Rights Agreement (such claims, suits, actions, proceedings, and other disputes, the “
Claims
”), each of the parties to this Registration Rights Agreement hereby irrevocably submits to the jurisdiction of the United States Bankruptcy Court for the District of Delaware or the United States District Court for the
District of Delaware, or, if neither of such are permitted under applicable law to exercise jurisdiction with respect to the matter in question, then to the jurisdiction of any other federal or state court in the state, county and city of New York, New York (the “
Courts
”) and each of the parties to this Registration Rights Agreement agrees that any and all Claims may be brought, heard and determined in such courts.
11.10.
Venue
. Each of the parties to this Registration Rights Agreement agrees that venue shall be proper if determined pursuant to
Section 11.9
and hereby waives any objection or defense which it may now or hereafter have to the laying of venue in such courts, including any of the foregoing based upon the doctrine of
forum non conveniens.
Each of the parties hereto hereby agrees that all process which may be or be required to be served in respect of any Claim (including any pleading, summons or other paper initiating any such Claim) may be served upon it, which service shall be sufficient for all purposes, in the manner for the provision of notice under this Registration Rights Agreement and shall be deemed in every respect effective service of process upon such party when so given.
11.11.
No Jury Trial
. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS REGISTRATION RIGHTS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS REGISTRATION RIGHTS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PROVISION.
11.12.
Counterparts
. This Registration Rights Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts (including by facsimile or portable document (.pdf)), with the same effect as if all parties had signed the same document. All such counterparts shall be deemed an original, shall be construed together and shall constitute one and the same instrument.
11.13.
Reports Under the Exchange Act
. In order to provide the Trust the use of
Section 2
, and so long as there are Registrable Securities outstanding, the Company will (i) file the reports required to be filed by it pursuant to the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder, (ii) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act, (iii) will take such further action as the Trust may reasonably request, all to the extent required from time to time to enable the Trust to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 or Rule 144A under the Securities Act, as such rules may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission, and (iv) take such other actions required by the Company’s transfer agent to consummate any issuance and sale of Registrable Securities in accordance with such Rule 144 or Rule 144A. Upon the request of the Trust, the Company will deliver to the Trust a written statement as to whether it has complied with such reporting and information requirements and, to the extent available, with a copy of the most recent annual or quarterly report of the Company., and such other reports and documents of the Company as the Trust may reasonably request in availing itself of any rule or regulation of the Commission allowing a holder to sell securities without registration only if such report is not available at www.sec.gov or on the Company’s website.
11.14.
Entire Agreement/Effectiveness
.
This Registration Rights Agreement, together with the Warrant Agreement and the Warrants, the Plan of Reorganization and the Confirmation Order, is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the Company and the Trust in respect of the subject matter contained herein, and supersedes, preempts and terminates all other prior understandings, agreements or representations by or among the parties hereto, written or oral, to the extent relating thereto.
11.15.
Other Remedies
.
Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law on such party, and the exercise of any one remedy shall not preclude the exercise of any other.
[Signature page follows]
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto, intending to be bound by the terms of this agreement, have caused this Registration Rights Agreement to be executed by its duly authorized officer as of the date first above written.
W. R. Grace & Co.
By:
/s/MARK A. SHELNITZ
Name: Mark A. Shelnitz
Title: Vice President, General Counsel and Secretary
WRG Asbestos PI Trust
By:
/s/LEWIS R. SIFFORD
Name: Lewis R. Sifford
Title: Trustee
By:
/s/HARRY HUGE
Name: Harry Huge
Title: Trustee
By:
/s/DEAN M. TRAFELET
Name: Dean M. Trafelet
Title: Trustee
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re:
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Chapter 11
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W. R. GRACE & CO.,
et al
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)
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Case No. 01-01139 (KJC)
Jointly Administered
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Debtors.
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EXHIBIT 2 TO EXHIBIT BOOK
ASBESTOS PI TRUST AGREEMENT
EXHIBIT 2
Attached.
WRG ASBESTOS PI TRUST AGREEMENT
WRG ASBESTOS PI TRUST AGREEMENT
TABLE OF CONTENTS
1.4
Acceptance of Assets and Assumption of Liabilities
4
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POWERS AND TRUST ADMINISTRATION
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5
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2.2
General Administration
9
2.3
Claims Administration
13
2.4
Sealed Air Settlement Agreement
13
2.6
Payment of MSP Obligations.
23
2.7
Indemnification for Medicare Claims Reporting and Payment Obligations
23
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ACCOUNTS, INVESTMENTS, AND PAYMENTS
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24
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3.3
Source of Payments
27
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TRUSTEES; DELAWARE TRUSTEE
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27
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4.3
Appointment of Successor Trustees
28
4.4
Liability of Trustees, Members of the TAC and the Futures Representative
29
4.5
Compensation and Expenses of Trustees
29
4.8
Trustees’ Employment of Experts; Delaware Trustee’s Employment of Counsel
32
4.9
Trustees’ Independence
32
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TRUST ADVISORY COMMITTEE
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34
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5.4
Appointment of Successor
36
5.5
TAC’s Employment of Professionals
37
5.6
Compensation and Expenses of the TAC
38
5.7
Procedures for Consultation With and Obtaining the Consent of the TAC
38
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THE FUTURES REPRESENTATIVE
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40
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6.3
Appointment of Successor
41
6.4
Futures Representative’s Employment of Professionals
41
6.5
Compensation and Expenses of the Futures Representative
43
6.6
Procedures for Consultation with and Obtaining the Consent of the Futures Representative
43
7.7
Successors and Assigns
52
7.8
Limitation on Claim Interests for Securities Laws Purposes
52
7.9
Entire Agreement; No Waiver
52
7.12
Settlors’ Representative and Cooperation
53
7.13
Dispute Resolution
53
7.14
Enforcement and Administration
54
7.16
Counterpart Signatures
54
WRG ASBESTOS PI TRUST AGREEMENT
This WRG Asbestos PI Trust Agreement (this “
PI Trust Agreement
”), dated the date set forth on the signature page hereof and effective as of the Effective Date, is entered into, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010 (as it may be amended or supplemented, the “
Plan
”), by W. R. Grace & Co. and the other Debtors (collectively referred to as the “
Debtors
,” “
Grace
,” or the “
Settlors
”), the debtors and debtors-in-possession whose chapter 11 cases are jointly administered under Case No. 01-1139-KJC in the United States Bankruptcy Court for the District of Delaware; the Asbestos PI Future Claimants’ Representative (the “
Futures Representative
”); the Official Committee of Asbestos Personal Injury Claimants (the “
ACC
”); the Asbestos PI Trustees (the “
Trustees
”); Wilmington Trust Company (the “
Delaware Trustee
”); and the members of the Trust Advisory Committee (the “
TAC
”) identified on the signature page hereof; and
WHEREAS
, the Debtors have reorganized under the provisions of chapter 11 of the Bankruptcy Code in cases filed in the United States Bankruptcy Court for the District of Delaware, jointly administered and known as
In re W. R. Grace & Co., et al.
, Case No. 01-1139- KJC; and
WHEREAS
, the Confirmation Order has been entered by the Bankruptcy Court and affirmed by the District Court; and
WHEREAS
, the Plan provides,
inter alia
, for the creation of the WRG Asbestos PI Trust (the “
PI Trust
”); and
WHEREAS
, pursuant to the Plan, the PI Trust is to use its assets and income to satisfy all PI Trust Claims; and
WHEREAS
, it is the intent of Grace, the Trustees, the ACC, the TAC, and the Futures Representative that the PI Trust be administered, maintained, and operated at all times through mechanisms that provide reasonable assurance that the PI Trust will satisfy all PI Trust Claims pursuant to the WRG Asbestos PI Trust Distribution Procedures (the “
TDP
”) that are attached hereto as Exhibit 1 in substantially the same manner, and in strict compliance with the terms of this PI Trust Agreement; and
WHEREAS
, all rights of the holders of PI Trust Claims arising under this PI Trust Agreement and the TDP shall vest upon the Effective Date; and
WHEREAS
, pursuant to the Plan, the PI Trust is intended to qualify as a “qualified settlement fund” within the meaning of section 1.468B-1
et seq
. of the Treasury Regulations promulgated under section 468B of the Internal Revenue Code (the “
QSF Regulations
”); and
WHEREAS
, the Bankruptcy Court has determined that the PI Trust and the Plan satisfy all the prerequisites for an injunction pursuant to section 524(g) of the Bankruptcy Code with respect to any and all PI Trust Claims, and such injunction has been entered in connection with the Confirmation Order;
NOW, THEREFORE
, it is hereby agreed as follows:
section I
AGREEMENT OF TRUST
1.1
Creation and Name
. The Debtors as Settlors hereby create a trust known as the “WRG Asbestos PI Trust,” which is the Asbestos PI Trust provided for and referred to in the Plan. The Trustees of the PI Trust may transact the business and affairs of the PI Trust in the name of the PI Trust, and references herein to the PI Trust shall include a Trustee or Trustees acting on behalf of the Trust. It is the intention of the parties hereto that the trust created hereby constitute a statutory trust under Chapter 38 of title 12 of the Delaware Code, 12 Del. C. § 3801 et seq. (the “
Act
”) and that this document, together with the by-laws described herein, constitute the governing instruments of the PI Trust. The Trustees and the Delaware Trustee are hereby authorized and directed to execute and file a Certificate of Trust with the Delaware Secretary of State in the form attached hereto.
1.2
Purpose
. The purpose of the PI Trust is to assume all liabilities and responsibility for all PI Trust Claims, and, among other things to: (a) direct the processing, liquidation and payment of all PI Trust Claims in accordance with the Plan, the TDP, and the Confirmation Order; (b) preserve, hold, manage, and maximize the assets of the PI Trust for use in paying and satisfying PI Trust Claims; and (c) qualify at all times as a qualified settlement fund. The PI Trust is to use the PI Trust’s assets and income to pay the holders of all PI Trust Claims in accordance with this PI Trust Agreement and the TDP in such a way that such holders of PI Trust Claims are treated fairly, equitably, and reasonably in light of the finite assets available to satisfy such claims, and to otherwise comply in all respects with the requirements of a trust set forth in section 524(g)(2)(B) of the Bankruptcy Code.
1.3
Transfer of Assets
. Pursuant to, and in accordance with, Sections 7.2.2 and 7.2.4 of the Plan, the PI Trust has received the Asbestos PI Trust Assets (collectively, the “
PI Trust Assets
”) to fund the PI Trust and settle, discharge or channel all PI Trust Claims. As part of such transfer, Cryovac, Inc. has directly transferred to the PI Trust the Cryovac Payment (reduced by the amount of Cryovac, Inc.’s transfer to the Asbestos PD Trust as part of the Asbestos PD Initial Payment), and Fresenius has transferred to the PI Trust the Fresenius Payment (reduced by the amount of Fresenius’ transfer to the PD Trust as part of the Asbestos PD Initial Payment). In all events, the PI Trust Assets or any other assets to be transferred to the PI Trust under the Plan will be transferred to the PI Trust free and clear of any liens or other claims by the Debtors, Reorganized Debtors, any creditor, or other entity except as otherwise provided in the Plan. The Debtors, the Reorganized Debtors, and the other Insurance Contributors shall also execute and deliver such documents to the PI Trust as the Trustees reasonably request to transfer and assign any PI Trust Assets to the PI Trust.
1.4
Acceptance of Assets and Assumption of Liabilities
.
(a)
In furtherance of the purposes of the PI Trust, the PI Trust hereby expressly accepts the transfer to the PI Trust of the PI Trust Assets or any other transfers contemplated by the Plan in the time and manner as, and subject to the terms, contemplated in the Plan.
(b)
In furtherance of the purposes of the PI Trust, the PI Trust expressly assumes all liabilities and responsibility for all PI Trust Claims, and the Reorganized Debtors, the Sealed Air Indemnified Parties, and the Fresenius Indemnified Parties shall have no further financial or other responsibility or liability therefor. Except as otherwise provided in this PI Trust Agreement and the TDP, the PI Trust shall have all defenses, cross-claims, offsets, and recoupments, as well as rights of indemnification, contribution, subrogation, and similar rights, regarding such claims that Grace or the Reorganized Debtors have or would have had under applicable law. Regardless of the foregoing, however, a claimant must meet otherwise applicable federal, state and foreign statutes of limitations and repose, except as otherwise provided in Section 5.1(a)(2) of the TDP.
(c)
No provision herein or in the TDP shall be construed or implemented in a manner that would cause the PI Trust to fail to qualify as a “qualified settlement fund” under the QSF Regulations.
(d)
Nothing in this PI Trust Agreement shall be construed in any way to limit (i) the scope, enforceability, or effectiveness of the Asbestos PI Channeling Injunction, the Successor Claims Injunction, or any other injunction or release issued or granted in favor of any (or all) of the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties in connection with the Plan or (ii) subject to the provisions of Section 1.4(b) above, the PI Trust’s assumption of all liability for PI Trust Claims.
SECTION II
POWERS AND TRUST ADMINISTRATION
2.1
Powers
.
(a)
The Trustees are and shall act as the fiduciaries to the PI Trust in accordance with the provisions of this PI Trust Agreement and the Plan. The Trustees shall, at all times, administer the PI Trust and the PI Trust Assets in accordance with the purposes set forth in Section 1.2 above. Subject to the limitations set forth in this PI Trust Agreement, the Trustees shall have the power to take any and all actions that, in the judgment of the Trustees, are necessary or proper to fulfill the purposes of the PI Trust, including, without limitation, each power expressly granted in this Section 2.1, any power reasonably incidental thereto, and any trust power now or hereafter permitted under the laws of the State of Delaware.
(b)
Except as required by applicable law or otherwise specified herein, the Trustees need not obtain the order or approval of any court in the exercise of any power or discretion conferred hereunder.
(c)
Without limiting the generality of Section 2.1(a) above, and except as limited below, the Trustees shall have the power to:
(i)
receive and hold the PI Trust Assets and exercise all rights with respect thereto, including the right to vote and sell any securities that are included in the PI Trust Assets;
(ii)
invest the monies held from time to time by the PI Trust;
(iii)
sell, transfer, or exchange any or all of the PI Trust Assets at such prices and upon such terms as the Trustees may consider proper, consistent with the other terms of this PI Trust Agreement;
(iv)
enter into leasing and financing agreements with third parties to the extent such agreements are reasonably necessary to permit the PI Trust to operate;
(v)
pay liabilities and expenses of the PI Trust;
(vi)
establish such funds, reserves, and accounts within the PI Trust estate, as deemed by the Trustees to be useful in carrying out the purposes of the PI Trust;
(vii)
sue and be sued and participate, as a party or otherwise, in any judicial, administrative, arbitrative, or other proceeding;
(viii)
establish, supervise, and administer the PI Trust in accordance with this PI Trust Agreement and the TDP and the terms thereof;
(ix)
appoint such officers and hire such employees and engage such legal, financial, accounting, investment, auditing, and forecasting, and other consultants and agents as the business of the PI Trust requires, and delegate to such persons such powers and authorities as the fiduciary duties of the Trustees permit and as the Trustees, in their discretion, deem advisable or necessary in order to carry out the terms of this PI Trust;
(x)
pay employees, legal, financial, accounting, investment, auditing, and forecasting, and other consultants, advisors, and agents, including those engaged by the PI Trust in connection with its alternative dispute resolution activities, reasonable compensation;
(xi)
compensate the Trustees, the Delaware Trustee, the TAC members, and the Futures Representative as provided below, and their employees, legal, financial, accounting, investment, and other advisors, consultants, independent contractors, and agents, and reimburse the Trustees, the Delaware Trustee, the TAC members, and the Futures Representatives all reasonable out-of-pocket costs and expenses incurred by such persons in connection with the performance of their duties hereunder;
(xii)
execute and deliver such instruments as the Trustees consider proper in administering the PI Trust;
(xiii)
enter into such other arrangements with third parties as are deemed by the Trustees to be useful in carrying out the purposes of the PI Trust, provided such arrangements do not conflict with any other provision of this PI Trust Agreement;
(xiv)
indemnify the Reorganized Debtors and their Representatives as provided in Section 8.8.10 of the Plan and, in accordance with Section 4.6 below, defend, indemnify, and hold harmless (and purchase insurance indemnifying) (A) the Trustees, the Delaware Trustee, the members of the TAC, and the Futures Representative, and (B) the officers and employees of the PI Trust, and any agents, advisors and consultants of the PI Trust, the TAC, or the Futures Representative (the “
Additional Indemnitees
”), to the fullest extent that a statutory trust organized under the laws of the State of Delaware is from time to time entitled to indemnify and/or insure its directors, trustees, officers, employees, agents, advisors, and representatives;
(xv)
delegate any or all of the authority herein conferred with respect to the investment of all or any portion of the PI Trust Assets to any one or more reputable individuals or recognized institutional investment advisors or investment managers without liability for any action taken or omission made because of any such delegation, except as provided in Section 4.4 below;
(xvi)
consult with the TAC and the Futures Representative at such times and with respect to such issues relating to the conduct of the PI Trust as the Trustees consider desirable; and
(xvii)
make, pursue (by litigation or otherwise), collect, compromise or settle, in the name of the PI Trust, any claim, right, action, or cause of action included in the PI Trust Assets, including, but not limited to, insurance recoveries, before any court of competent jurisdiction.
(d)
The Trustees shall not have the power to guarantee any debt of other persons.
(e)
The Trustees agree to take the actions of the PI Trust required hereunder.
(f)
The Trustees shall give the TAC and the Futures Representative prompt notice of any act performed or taken pursuant to Sections 2.1(c)(i), (iii), (vii), or (xv) above, and any act proposed to be performed or taken pursuant to Section 2.2(f) below.
2.2
General Administration
.
(a)
The Trustees shall act in accordance with the PI Trust Agreement. The Trustees shall adopt and act in accordance with PI Trust Bylaws. To the extent not inconsistent with the terms of this PI Trust Agreement, the PI Trust Bylaws shall govern the affairs of the PI Trust. In the event of an inconsistency between the PI Trust Bylaws and this PI Trust Agreement, this PI Trust Agreement shall govern.
(b)
The Trustees shall (i) timely file such income tax and other returns and statements and shall timely pay all taxes required to be paid by the PI Trust, (ii) comply with all applicable reporting and withholding obligations, (iii) satisfy all requirements necessary to qualify and maintain qualification of the PI Trust as a qualified settlement fund within the meaning of the QSF Regulations, and (iv) take no action that could cause the PI Trust to fail to qualify as a qualified settlement fund within the meaning of the QSF Regulations.
(c)
The Trustees shall timely account to the Bankruptcy Court as follows:
(i)
The Trustees shall cause to be prepared and filed with the Bankruptcy Court, as soon as available, and in any event within one hundred and twenty (120) days following the end of each fiscal year, an annual report (the “
Annual Report
”) containing financial statements of the PI Trust (including, without limitation, a balance sheet of the PI Trust as of the end of such fiscal year and a statement of operations for such fiscal year) audited by a firm of independent certified public accountants selected by the Trustees and accompanied by an opinion of such firm as to the fairness of the financial statements’ presentation of the cash and investments available for the payment of claims and as to the conformity of the financial statements with generally accepted accounting principles. The Trustees shall provide a copy of such Annual Report to the TAC and the Futures Representative when such reports are filed with the Bankruptcy Court.
(ii)
Simultaneously with the filing of the Annual Report, the Trustees
shall cause to be prepared and filed with the Bankruptcy Court a report containing a summary regarding the number and type of claims disposed of during the period covered by the financial statements. The Trustees shall provide a copy of such report to the TAC and the Futures Representatives when such report is filed.
(iii)
All materials required to be filed with the Bankruptcy Court by this
Section 2.2(c) shall be available for inspection by the public in accordance with procedures established by the Bankruptcy Court and shall be filed with the Office of the United States Trustee for the District of Delaware (the “
U.S. Trustee
”).
(d)
The Trustees shall cause to be prepared as soon as practicable prior to the commencement of each fiscal year a budget and cash flow projections covering such fiscal year and the succeeding four fiscal years. The budget and cash flow projections shall include a determination of the Maximum Annual Payment pursuant to Section 2.4 of the TDP, and the Claims Payment Ratio pursuant to Section 2.5 of the TDP. The Trustees shall provide a copy of the budget and cash flow projections to the TAC and the Futures Representative.
(e)
The Trustees shall consult with the TAC and the Futures Representative (i) on the general implementation and administration of the PI Trust; (ii) on the general implementation and administration of the TDP; and (iii) on such other matters as may be required under this PI Trust Agreement and the TDP.
(f)
The Trustees shall be required to obtain the consent of the TAC and the Futures Representative pursuant to the Consent Process set forth in Section 5.7(b) and 6.6(b) below, in addition to any other instances elsewhere enumerated, in order:
(i)
to redetermine the Payment Percentage described in Section 2.3 of the TDP as provided in Section 4.2 of the TDP;
(ii)
to change the Claims Payment Ratio described in Section 2.5 of the TDP in the event that the requirements for such a change as set forth in said provision have been met;
(iii)
to change the Disease Levels, Scheduled Values and/or Medical/Exposure Criteria set forth in Section 5.3(a)(3) of the TDP, and/or the Average Values and/or Maximum Values set forth in Section 5.3(b)(3) and Section 5.4(a) of the TDP;
(iv)
to establish and/or to change the Claims Materials to be provided to holders of PI Trust Claims under Section 6.1 of the TDP;
(v)
to require that claimants provide additional kinds of medical evidence pursuant to Section 7.1 of the TDP;
(vi)
to change the form of release to be provided pursuant to Section 7.8 of the TDP;
(vii)
to terminate the PI Trust pursuant to Section 7.2 below;
(viii)
to settle the liability of any insurer under any insurance policy or legal action related thereto;
(ix)
to change the compensation and/or per diem of the members of the TAC, the Futures Representative, the Delaware Trustee or the Trustees, other than to reflect cost-of-living increases or changes approved by the Bankruptcy Court as otherwise provided herein;
(x)
to take actions to minimize any tax on the PI Trust Assets; provided that no such action prevents the PI Trust from qualifying as a qualified settlement fund within the meaning of the QSF Regulations or requires an election for the PI Trust to be treated as a grantor trust for tax purposes;
(xi)
to adopt the PI Trust Bylaws in accordance with Section 2.2(a) above or thereafter to amend the PI Trust Bylaws in accordance with the terms thereof;
(xii)
to amend any provision of this PI Trust Agreement or the TDP in accordance with the terms thereof;
(xiii)
to vote the stock of a Reorganized Debtor for purposes of appointing members of the Board of Directors of a Reorganized Debtor;
(xiv)
to acquire an interest in or to merge any claims resolution organization formed by the PI Trust with another claims resolution organization that is not specifically created by this PI Trust Agreement or the TDP, or to contract with another claims resolution organization or other entity that is not specifically created by this PI Trust Agreement or the TDP, or permit any other party to join in any claims resolution organization that is formed by the PI Trust pursuant to the PI Trust Agreement or the TDP; provided that such merger, acquisition, contract or joinder shall not (a) subject the Reorganized Debtors or any Asbestos Protected Party, or any successors in interest thereto, to any risk of having any PI Trust Claim asserted against it or them, or (b) otherwise jeopardize the validity or enforceability of the Asbestos PI Channeling Injunction, the Successor Claims Injunction, or any other injunction or release issued or granted in favor of any (or all) of the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties in connection with the Plan; and provided further that the terms of such merger will require the surviving organization to make decisions about the allowability and value of claims in accordance with Section 2.1 of the TDP which requires that such decisions be based on the provisions of the TDP; or
(xv)
if and to the extent required by Section 6.5 of the TDP, to disclose any information, documents, or other materials to preserve, litigate, resolve, or settle coverage, or to comply with an applicable obligation under an insurance policy or settlement agreement pursuant to Section 6.5 of the TDP.
(g)
The Trustees shall meet with the TAC and the Futures Representative no less often than quarterly. The Trustees shall meet in the interim with the TAC and the Futures Representative when so requested by either.
(h)
The Trustees, upon notice from either the TAC or the Futures Representative, if practicable in view of pending business, shall at their next meeting with the TAC or the Futures Representative consider issues submitted by the TAC or the Futures Representative.
2.3
Claims Administration
. The Trustees shall promptly proceed to implement the TDP.
2.4
Sealed Air Settlement Agreement
. Notwithstanding anything in this PI Trust
Agreement, and not by way of limitation of the Sealed Air Settlement Agreement or the Plan, the Pl Trust, the Trustees, the Delaware Trustee, and any of their successors shall (unless otherwise agreed to in writing by each of Sealed Air Corporation and Cryovac, Inc. in its absolute discretion):
(a)
unless otherwise required by a Final Determination (as defined in the
Sealed Air Settlement Agreement), (1) file all Tax Returns required to be filed by the PI Trust, if any, consistent with the provisions of this Section 2.4(a) and shall take all other Defined Actions (as defined in the Sealed Air Settlement Agreement) that are reasonably requested by Sealed Air Corporation and consistent with the provisions of this Section 2.4(a), and (2) be prohibited from taking any Defined Action (as defined in the Sealed Air Settlement Agreement) that may result in the disqualification of the PI Trust as a Qualified Settlement Fund (as defined in the Sealed Air Settlement Agreement) or be inconsistent with Cryovac, Inc. being treated as a “transferor” (as defined under Treasury Regulations section 1.468B-1(d)) (for purposes of this Section 2.4 the “
Transferor
”) of the Cryovac Payment (reduced by the amount of the Asbestos PD Initial Payment) directly to the PI Trust pursuant to Section 7.2.2 of the Plan and the Confirmation Order,
provided
,
however
, that it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to this Section 2.4(a) if each of the following four requirements has been previously satisfied (i) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement, (ii) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this Section 2.4(a), (iii) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (iv) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement);
(b)
unless otherwise required by a Final Determination (as defined in the
Sealed Air Settlement Agreement), treat for all Tax purposes any and all payments by Cryovac, Inc. pursuant to Section 7.2.2 of the Plan and the Confirmation Order, as a direct payment by Cryovac, Inc. to the PI Trust, for Asbestos PI Claims that constitutes an ordinary and necessary expense of Cryovac, Inc.; and shall, unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement): (1) be prohibited from taking any Defined Action (as defined in the Sealed Air Settlement Agreement) that is inconsistent with the foregoing provisions of this Section 2.4(b), and (2) take all Defined Actions (as defined in the Sealed Air Settlement Agreement) that are reasonably requested by Sealed Air Corporation and consistent with the provisions of this Section 2.4(b);
provided
,
however
, that it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to sub-clauses (1) and (2) of this Section 2.4(b) if each of the following four requirements has been previously satisfied (i) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement, (ii) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this Section 2.4(b), (iii) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (iv) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement);
(c)
if it has determined that an issue (for the purposes of this Section 2.4 such
issue, a “
Paragraph VI(f) Issue
”) may exist with respect to its taking, or the failure to take, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to paragraph II(c)(ix) or (x), of the Sealed Air Settlement Agreement or Sections 2.4(a) and 2.4(b), of this PI Trust Agreement, as the case may be, then, prior to delivering a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) in accordance with the provisos set forth in paragraph II(c)(ix) or (x) of the Sealed Air Settlement Agreement, or Sections 2.4(a) and 2.4(b), of this PI Trust Agreement, as the case may be, each of the Trustees, the Delaware Trustee, and any of their successors, as the case may be, shall (1) provide to Sealed Air Corporation, as promptly as practicable, a written notice identifying such Defined Action (as defined in the Sealed Air Settlement Agreement) and describing in detail the Paragraph VI(f) Issue and (2) without limiting any obligation of Sealed Air Corporation to consult and act in good faith set forth in paragraph VI(f)(ii) of the Sealed Air Settlement Agreement, consult and act (and cause its advisors (including accountants and tax attorneys, as the case may be) to, consult and act) in good faith to determine and resolve (i) if such issue relates to a Tax issue, whether, as a result of a Change in Circumstances (as defined in the Sealed Air Settlement Agreement), there is no “reasonable basis”, as defined in IRC section 6662 (or successor provision thereof), for the taking of, or the failure to take, such Defined Action (as defined in the Sealed Air Settlement Agreement) or (ii) if such issue relates to an accounting issue, whether, as a result of a Change in Circumstances (as defined in the Sealed Air Settlement Agreement), the taking, or the failure to take, such Defined Action (as defined in the Sealed Air Settlement Agreement) is inconsistent with generally accepted accounting principles;
(d)
cause the PI Trust to acquire the Sealed Air Common Stock for the PI
Trust’s own account for investment and not with a view toward distribution in a manner which would violate the Securities Act;
(e)
comply with all filing and other reporting obligations under all applicable laws which shall be applicable to the PI Trust with respect to the Sealed Air Common Stock;
(f)
without limiting any obligation of Sealed Air Corporation to comply fully with the Registration Rights Agreement (as defined in the Sealed Air Settlement Agreement), comply fully with the Registration Rights Agreement (as defined in the Sealed Air Settlement Agreement) including, without limitation, by not registering under the Securities Act the Sealed Air Common Stock that is transferred to the PI Trust except to the extent permitted under (and subject to the requirements of) the Registration Rights Agreement (as defined in the Sealed Air Settlement Agreement);
(g)
not, under any circumstances, transfer any fractional shares of the Sealed Air Common Stock such that any Entity shall be the transferee of less than one thousand shares of Sealed Air Common Stock, provided, however, that in no event shall the Asbestos PI Trust incur any costs or expenses associated with such one thousand share limitation; and
(h)
without limiting any obligation of Sealed Air Corporation or Cryovac, Inc. to comply fully with the Sealed Air Settlement Agreement, comply fully with the Sealed Air Settlement Agreement, including, without limitation, by performing all other actions required, and refraining from taking any other actions precluded, by the Sealed Air Settlement Agreement.
The TAC and the Futures Representative shall not cause or advise the PI Trust, the Trustees, the Delaware Trustee, or any of their successors to (i) take any action that is contrary to Section 2.4(a) through (h) of this PI Trust Agreement or (ii) refrain from taking any action that is required to comply with Section 2.4(a) through (h) of this PI Trust Agreement.
2.5
Claims Reporting.
(a)
Sections 2.5 and 2.6 of this PI Trust Agreement are purely prophylactic in nature, and do not imply, and shall not constitute an admission that, the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company have or will have any reporting obligations in respect of their contributions to the PI Trust, or in respect of any payments, settlements, resolutions, awards, or other claim liquidations by the PI Trust, under the reporting provisions of 42 U.S.C. § 1395y et seq., or any other similar statute or regulation, and any related rules, regulations, or guidance issued in connection therewith or amendments thereto (“
MSP
”), including Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (P.L.110-173), or any other similar statute or regulation, and any related rules, regulations, or guidance issued or amendments or amendatory statutes passed in connection therewith (“
MMSEA
”), or that any of them are in fact “applicable plans” within the meaning of MMSEA, or that they have any legal obligation to report any actions undertaken by the PI Trust or contributions to the PI Trust under MMSEA or any other statute or regulation. Unless and until there is definitive regulatory, legislative, or judicial authority, or a letter from the Secretary of Health and Human Services confirming that the Reorganized Debtors, Sealed Air, and the Settled Asbestos Insurance Companies have no reporting obligations under MMSEA with respect to any settlements, payments, or other awards made by the PI Trust or with respect to contributions the Debtors, the Reorganized Debtors, Sealed Air, and the Settled Asbestos Insurance Companies have made or will make to the PI Trust, the PI Trust shall, at its sole expense, in connection with the implementation of the Plan, act as a reporting agent for the Reorganized Debtors, Sealed Air, and the Settled Asbestos Insurance Companies, and shall timely submit all reports that would be required to be made by the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company under MMSEA on account of any claims settled, resolved, paid, or otherwise liquidated by the PI Trust or with respect to contributions to the PI Trust including, but not limited to, reports that would be required if the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company were determined to be “applicable plans” for purposes of MMSEA, or any of the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company were otherwise found to have MMSEA reporting requirements. The PI Trust, in its role as reporting agent for the Reorganized Debtors, Sealed Air, and the Settled Asbestos Insurance Companies, shall follow all applicable guidance published by the Centers for Medicare & Medicaid Services of the United States Department of Health and Human Services and/or any other agent or successor Entity charged with responsibility for monitoring, assessing, or receiving reports made under MMSEA (collectively, “
CMS
”) to determine whether or not, and, if so, how, to report to CMS pursuant to MMSEA.
(b)
If the PI Trust is required to act as a reporting agent for the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company pursuant to the provisions of Section 2.5(a) above, the PI Trust shall provide a written certification to each of the Reorganized Debtors, Sealed Air, and the Settled Asbestos Insurance Companies within ten (10) days following the end of each calendar quarter, confirming that all reports to CMS required by Section 2.5(a) have been submitted in a timely fashion, and identifying (i) any reports that were rejected or otherwise identified as noncompliant by CMS, along with the basis for such rejection or noncompliance, and (ii) any payments to Medicare benefits recipients or Medicare-eligible beneficiaries that the PI Trust did not report to CMS.
(c)
With respect to any reports rejected or otherwise identified as noncompliant by CMS, the PI Trust shall, upon request by the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company, promptly provide to the party making such request copies of the original reports submitted to CMS, as well as any response received from CMS with respect to such reports; provided, however, that the PI Trust may redact from such copies the names, Social Security numbers other than the last four digits, health insurance claim numbers, taxpayer identification numbers, employer identification numbers, mailing addresses, telephone numbers, and dates of birth of the injured parties, claimants, guardians, conservators and/or other personal representatives, as applicable. With respect to any such reports, the PI Trust shall reasonably undertake to remedy any issues of noncompliance identified by CMS and resubmit such reports to CMS, and, upon request by the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company, provide the party making such request copies of such resubmissions; provided, however, that the PI Trust may redact from such copies the names, Social Security numbers other than the last four digits, health insurance claim numbers, taxpayer identification numbers, employer identification numbers, mailing addresses, telephone numbers, and dates of birth of the injured parties, claimants, guardians, conservators and/or other personal representatives, as applicable. In the event the PI Trust is unable to remedy any issue of non-compliance, the provisions of Section 2.5(f) below shall apply.
(d)
If the PI Trust is required to act as a reporting agent for the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company pursuant to the provisions of Section 2.5(a) above, with respect to each claim of a Medicare benefits recipient or Medicare-eligible beneficiary that was paid by the PI Trust and not disclosed to CMS, the PI Trust shall, upon request by the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company, promptly provide to the party making such request the last four digits of the claimant’s Social Security number, the year of the claimant’s birth, the claimants’ asbestos-related disease, and any other information that may be necessary in the reasonable judgment of the party making such request to satisfy their obligations, if any, under MMSEA, as well as the basis for the PI Trust’s failure to report the payment. In the event the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company informs the PI Trust that it disagrees with the PI Trust’s decision not to report a claim paid by the PI Trust, the PI Trust shall promptly report the payment to CMS. All documentation relied upon by the PI Trust in making a determination that a payment did not have to be reported to CMS shall be maintained for a minimum of six years following such determination.
(e)
If the PI Trust is required to act as a reporting agent for the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company pursuant to the provisions of Section 2.5(a) above, the PI Trust shall make the reports and provide the certifications required by Sections 2.5(a) and (b) above until such time as each of the Reorganized Debtors, Sealed Air, and the Settled Asbestos Insurance Companies all determine, in their reasonable judgment, that they have no further legal obligation under MMSEA or otherwise to report any settlements, resolutions, payments, or liquidation determinations made by the PI Trust or contributions to the PI Trust. Furthermore, following any permitted cessation of reporting, or if reporting has not previously commenced due to the satisfaction of one or more of the conditions set forth in Section 2.5(a) above, and if the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company reasonably determines, based on subsequent legislative, administrative, regulatory, or judicial developments, that reporting is required, then the PI Trust shall promptly perform its obligations under Sections 2.5(a) and (b).
(f)
In the event that CMS concludes that reporting done by the PI Trust in accordance with Section 2.5(a) above is or may be deficient in any way, and has not been corrected to the satisfaction of CMS in a timely manner, or if CMS communicates to the PI Trust, the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company a concern with respect to the sufficiency or timeliness of such reporting, or there appears to the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company a reasonable basis for concern with respect to the sufficiency or timeliness of such reporting or non-reporting based upon the information received pursuant to Section 2.5(b), (c) or (d) or other credible information, then each of the Reorganized Debtors, Sealed Air, and such Settled Asbestos Insurance Company shall have the right to submit its own reports to CMS under MMSEA, and the PI Trust shall provide to any party that elects to file its own reports such information as the electing party may reasonably require in order to comply with MMSEA, including, without limitation, the full reports filed by the PI Trust pursuant to Section 2.5(a) without any redactions. The Reorganized Debtors, Sealed Air, and each Settled Asbestos Insurance Company shall keep any information they receive from the PI Trust pursuant to this Section 2.5(f) confidential and shall not use such information for any purpose other than meeting their respective obligations under MMSEA.
(g)
Notwithstanding any other provisions hereof, if the PI Trust is required to act as a reporting agent for the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company, then such entities shall take all steps necessary and appropriate as required by CMS to permit any reports contemplated by this Section 2.5 to be filed. Furthermore, until the Reorganized Debtors, Sealed Air, or a Settled Asbestos Insurance Company provides the PI Trust with any necessary information that may be provided to the Reorganized Debtors, Sealed Air, or such Settled Asbestos Insurance Company by CMS’s Coordination of Benefits Contractor (the “
COBC
”) or other applicable regulatory agency to effectuate reporting, the PI Trust shall have no obligation to report under Section 2.5(a) with respect to any such entity that has not provided such information, but only so long as such entity has not provided such information; and the PI Trust shall have no indemnification obligation under Section 2.7 below to such Reorganized Debtor, Sealed Air, or any such Settled Asbestos Insurance Company for any penalty, interest or sanction that may arise solely on account of such Reorganized Debtor’s, Sealed Air’s, or such Settled Asbestos Insurance Company’s failure to timely provide such information received by the COBC or other applicable regulatory agency to the PI Trust.
2.6
Payment of MSP Obligations.
The Trustees shall obtain prior to remittance of funds to claimants’ counsel or to the claimant, if pro se, in respect of any PI Trust Claim a certification from the claimant to be paid that said claimant has or will provide for the payment and/or resolution of all obligations owing or potentially owing under MSP in connection with, or relating to, such PI Trust Claim. The PI Trust shall provide a quarterly certification of its compliance with this Section 2.6 to each of the Reorganized Debtors, Sealed Air, and the Settled Asbestos Insurance Companies, and permit reasonable audits by such entities, no more often than quarterly, to confirm the PI Trust’s compliance with this Section 2.6. For the avoidance of doubt, the PI Trust shall be obligated to comply with the requirements of this Section 2.6 regardless of whether the Reorganized Debtors, Sealed Air, or any Settled Asbestos Insurance Company elects to file its own reports under MMSEA pursuant to Section 2.5(f) above.
2.7
I
ndemnification for Medicare Claims Reporting and Payment Obligations
. The Reorganized Debtors, Sealed Air, and the Settled Asbestos Insurance Companies shall not be responsible for any payment obligations in connection with the defense or payment of any Medicare related claims or any judgments regarding any Medicare related claims. In addition, the PI Trust shall defend, indemnify, and hold harmless the Reorganized Debtors, Sealed Air, and the Settled Asbestos Insurance Companies from any claims in respect of Medicare claims reporting and payment obligations in connection with PI Trust Claims, including any obligations owing under MMSEA or MSP, and any claims arising from or based upon the PI Trust’s obligations under Sections 2.5 or 2.6 of this PI Trust Agreement.
SECTION III
ACCOUNTS, INVESTMENTS, AND PAYMENTS
3.1
Accounts
.
(i)
The Trustees may, from time to time, create such accounts and reserves within the PI Trust estate as they may deem necessary, prudent, or useful in order to provide for the payment of expenses and payment of PI Trust Claims and may, with respect to any such account or reserve, restrict the use of monies therein.
(j)
The Trustees shall include a reasonably detailed description of the creation of any account or reserve in accordance with this Section 3.1 and, with respect to any such account, the transfers made to such account, the proceeds of or earnings on the assets held in each such account and the payments from each such account in the accounts to be filed with the Bankruptcy Court and provided to the TAC and the Futures Representative pursuant to Section 2.2(c)(i) above.
3.2
Investments
. Investment of monies held in the PI Trust shall be administered in
the manner consistent with the standards set forth in the Uniform Prudent Investor Act, subject to the following limitations and provisions:
(e)
The PI Trust may invest only in diversified equity portfolios whose
benchmark is a broad equity market index such as, but not limited to, the S&P 500 Index, Russell 1000 Index, S&P ADR Index or MSCI EAFE Index. The PI Trust shall not acquire, directly or indirectly, equity in any entity (other than a Reorganized Debtor or any successor to a Reorganized Debtor) or business enterprise if, immediately following such acquisition, the PI Trust would hold more than 5% of the equity in such entity or business enterprise. The PI Trust shall not hold, directly or indirectly, more than 5% of the equity in any entity (other than Sealed Air Corporation (by virtue of the Sealed Air Common Stock that is transferred directly to the PI Trust by Cryovac, Inc.), a Reorganized Debtor, or any successor to a Reorganized Debtor) or business enterprise.
(f)
The PI Trust shall not acquire or hold any long-term debt securities unless
(i) such securities are PI Trust Assets under the Plan, (ii) such securities are rated “Baa” or higher by Moody’s, “BBB” or higher by Standard & Poor’s (“
S&P’s
”), or have been given an equivalent investment grade rating by another nationally recognized statistical rating agency, or (iii) have been issued or fully guaranteed as to principal and interest by the United States of America or any agency or instrumentality thereof. This restriction does not apply to any pooled investment vehicles where pooled assets receive an investment grade rating (i.e., “BBB” rating or above) by a nationally recognized rating agency.
(g)
The PI Trust shall not acquire or hold for longer than ninety (90) days any commercial paper unless such commercial paper is rated “Prime-l” or higher by Moody’s or “A-1” or higher by S&P’s, or has been given an equivalent rating by another nationally recognized statistical rating agency.
(h)
The PI Trust shall not acquire any debt securities or other debt instruments issued by any entity if, following such acquisition, the aggregate market value of all such debt securities and/or other debt instruments issued by such entity held by the PI Trust would exceed 5% of the then current aggregate value of the PI Trust’s assets. There is no limitation on holding debt securities or other debt instruments issued or fully guaranteed as to principal and interest by the United States of America or any agency or instrumentality thereof.
(i)
The PI Trust shall not acquire or hold any certificates of deposit unless all publicly held, long-term debt securities, if any, of the financial institution issuing the certificate of deposit and the holding company, if any, of which such financial institution is a subsidiary, meet the standards set forth in Section 3.2(b) above.
(j)
The PI Trust may acquire and hold any securities or instruments issued by a Reorganized Debtor or any successor to a Reorganized Debtor or obtained as proceeds of litigation or otherwise to resolve disputes, without regard to the limitations set forth in Subsections (a)-(e) above.
(k)
The PI Trust shall not acquire or hold any repurchase obligations unless, in the opinion of the Trustees, they are adequately collateralized.
(l)
The PI Trust may allow its investment managers to acquire prudently or hold derivative instruments, including, without limitation, options, futures and swaps in the normal course of portfolio management. Specifically, the PI Trust may acquire or hold derivatives to help manage or mitigate portfolio risk, including, without limitation, interest rate risk and equity market risk. Using derivative instruments to leverage a portfolio to enhance returns (at a much greater risk to the portfolio) is prohibited.
(m)
The PI Trust may lend securities on a short-term basis, subject to adequate, normal and customary collateral arrangements.
(n)
Notwithstanding (a) above, the PI Trust may acquire and hold an equity interest in a claims resolution organization without limitation as to the size of the equity interest acquired and held if prior to such acquisition, the PI Trust complies with the provisions of Section 2.2(f)(xiv) hereof with respect to the acquisition.
3.3
Source of Payments
.
(i)
All PI Trust expenses and payments and all liabilities with respect to claims shall be payable solely by the Trustees out of the PI Trust Assets. Neither the Debtors, the Reorganized Debtors, the Sealed Air Indemnified Parties, the Fresenius Indemnified Parties, their subsidiaries, any successor in interest, the present or former directors, officers, employees or agents of the Debtors, the Reorganized Debtors, the Sealed Air Indemnified Parties, or the Fresenius Indemnified Parties, nor the Trustees, the TAC or Futures Representative, or any of their officers, agents, advisors, or employees shall be liable for the payment of any PI Trust expense or any other liability of the PI Trust, except to the extent provided in the Plan or Plan Documents.
(j)
The Trustees shall include a reasonably detailed description of any payments made in accordance with this Section 3.3 in the Annual Report.
SECTION IV
TRUSTEES; DELAWARE TRUSTEE
4.1
Number
. In addition to the Delaware Trustee appointed pursuant to Section 4.11, there shall be three (3) Trustees who shall be those persons named on the signature page hereof.
4.2
Term of Service
.
(k)
The initial Trustees named pursuant to Section 4.1 above shall serve staggered terms of three (3), four (4) and five (5) years shown on the signature pages hereof. Thereafter each term of service shall be five (5) years. The initial Trustees shall serve from the Effective Date until the earlier of (i) the end of his or her term, (ii) his or her death, (iii) his or her resignation pursuant to Section 4.2(b) below, (iv) his or her removal pursuant to Section 4.2(c) below, or (v) the termination of the PI Trust pursuant to Section 7.2 below.
(l)
A Trustee may resign at any time by written notice to the remaining Trustees, the TAC, and the Futures Representative. Such notice shall specify a date when such resignation shall take effect, which shall not be less than ninety (90) days after the date such notice is given, where practicable.
(m)
A Trustee may be removed (i) by unanimous vote of the remaining Trustees or (ii) at the recommendation of the TAC and the Futures Representative with the approval of the Bankruptcy Court, in the event that he or she becomes unable to discharge his or her duties hereunder due to accident or physical or mental deterioration, or for other good cause. Good cause shall be deemed to include, without limitation, any substantial failure to comply with the general administration provisions of Section 2.2 above, a consistent pattern of neglect and failure to perform or participate in performing the duties of the Trustees hereunder, or repeated non-attendance at scheduled meetings. Such removal shall require the approval of the Bankruptcy Court and shall take effect at such time as the Bankruptcy Court shall determine.
4.3
Appointment of Successor Trustees
.
(h)
In the event of a vacancy in the position of a Trustee, whether by death, term expiration, resignation, or removal, the remaining Trustees shall consult with the TAC and the Futures Representative concerning appointment of a successor Trustee. The vacancy shall be filled by the unanimous vote of the remaining Trustees unless a majority of the TAC or the Futures Representative vetoes the appointment. In the event that the remaining Trustees cannot agree on a successor Trustee, or a majority of the TAC or the Futures Representative vetoes the appointment of a successor Trustee, the Bankruptcy Court shall make the appointment. Nothing shall prevent the reappointment of a Trustee for an additional term or terms, and there shall be no limit on the number of terms that a Trustee may serve.
(i)
Immediately upon the appointment of any successor Trustee, all rights, titles, duties, powers and authority of the predecessor Trustee hereunder shall be vested in, and undertaken by, the successor Trustee without any further act. No successor Trustee shall be liable personally for any act or omission of his or her predecessor Trustees.
(j)
Each successor Trustee shall serve until the earlier of (i) the end of a full term of five (5) years if the predecessor Trustee completed his or her term, (ii) the end of the remainder of the term of the Trustee whom he or she is replacing if said predecessor Trustee did not complete said term, (iii) his or her death, (iv) his or her resignation pursuant to Section 4.2(b) above, (v) his or her removal pursuant to Section 4.2(c) above, or (vi) the termination of the PI Trust pursuant to Section 7.2 below.
4.4
Liability of Trustees, Members of the TAC and the Futures Representative
. The Trustees, the Members of the TAC and the Futures Representative shall not be liable to the PI Trust, to any individual holding an asbestos claim, or to any other person, except for such individual’s own breach of trust committed in bad faith or willful misappropriation.
4.5
Compensation and Expenses of Trustees
.
(a)
Each Trustee shall receive a retainer from the PI Trust for his or her service as a Trustee in the amount of $60,000.00 per annum, which amount shall be payable in quarterly installments. In addition, for all time expended attending Trustee meetings, preparing for such meetings, and working on authorized special projects, the Trustees shall receive the sum of $500 per hour, and the sum of $250 per hour for non-working travel time, in both cases computed on a quarter-hour basis. The Trustees shall record all hourly time to be charged to the Trust on a daily basis. The per annum retainer and hourly compensation payable to the Trustees hereunder shall be reviewed every year by the Trustees and, after consultation with the members of the TAC and the Futures Representative, appropriately adjusted by the Trustees for changes in the cost of living. The Delaware Trustee shall be paid such compensation as agreed to pursuant to a separate fee agreement.
(b)
The PI Trust will promptly reimburse the Trustees and the Delaware Trustee for all reasonable out-of-pocket costs and expenses incurred by the Trustees or the Delaware Trustee in connection with the performance of their duties hereunder.
(c)
The PI Trust shall include a description of the amounts paid under this Section 4.5 in the Annual Report.
4.6
Indemnification
.
(a)
The PI Trust shall indemnify and defend the Trustees, the Delaware Trustee, the members of the TAC and the Futures Representative in the performance of their duties hereunder to the fullest extent that a statutory trust organized under the laws of the State of Delaware is from time to time entitled to indemnify and defend such persons against any and all liabilities, expenses, claims, damages, or losses incurred by them in the performance of their duties hereunder or in connection with activities undertaken by them prior to the Effective Date in connection with the formation, establishment, or funding of the PI Trust. The PI Trust may indemnify any of the Additional Indemnitees in the performance of their duties hereunder to the fullest extent that a statutory trust organized under the laws of the State of Delaware is from time to time entitled to indemnify and defend such persons against any and all liabilities, expenses, claims, damages, or losses incurred by them in the performance of their duties hereunder or in connection with activities undertaken by them prior to the Effective Date in connection with the formation, establishment or funding of the PI Trust. Notwithstanding the foregoing, no individual shall be indemnified or defended in any way for any liability, expense, claim, damage, or loss for which he or she is ultimately liable under Section 4.4 above.
(b)
Reasonable expenses, costs and fees (including attorneys’ fees and costs) incurred by or on behalf of a Trustee, the Delaware Trustee, a member of the TAC, the Futures Representative or Additional Indemnitee in connection with any action, suit, or proceeding, whether civil, administrative or arbitrative, from which they are indemnified by the PI Trust pursuant to Section 4.6(a) above, shall be paid by the PI Trust in advance of the final disposition thereof upon receipt of an undertaking, by or on behalf of the Trustees, the members of the TAC, the Futures Representative or Additional Indemnitee, to repay such amount in the event that it shall be determined ultimately by final order that such Trustee, member of the TAC, the Futures Representative or Additional Indemnitee is not entitled to be indemnified by the PI Trust.
(c)
The Trustees may purchase and maintain reasonable amounts and types of insurance on behalf of an individual who is or was a Trustee, member of the TAC, the Futures Representative or Additional Indemnitee, including against liability asserted against or incurred by such individual in that capacity or arising from his or her status as a Trustee, TAC member, Futures Representative, an officer or an employee of the PI Trust, or an advisor, consultant or agent of the PI Trust, the TAC or the Futures Representative.
4.7
Lien
. The Trustees, members of the TAC, the Futures Representative and the Additional Indemnitees shall have a first priority lien upon the PI Trust Assets to secure the payment of any amounts payable to them pursuant to Section 4.6 above.
4.8
Trustees’ Employment of Experts; Delaware Trustee’s Employment of
Counsel
.
(a)
The Trustees may, but shall not be required to, retain and/or consult with counsel, accountants, appraisers, auditors, forecasters, experts, financial and investment advisors and such other parties deemed by the Trustees to be qualified as experts on the matters submitted to them (the “
Trust Professionals
”), and in the absence of gross negligence, the written opinion of or information provided by any such party deemed by the Trustees to be an expert on the particular matter submitted to such party shall be full and complete authorization and protection in respect of any action taken or not taken by the Trustees hereunder in good faith and in accordance with the written opinion of or information provided by any such party.
(b)
The Delaware Trustee shall be permitted to retain counsel only in such circumstances as required in the exercise of its obligations hereunder and compliance with the advice of such counsel shall be full and complete authorization and protection for actions taken or not taken by the Delaware Trustee in good faith in compliance with such advice.
4.9
Trustees’ Independence
. The Trustees shall not, during the term of their service, hold a financial interest in, act as attorney or agent for, or serve as any other professional for a Reorganized Debtor. Notwithstanding the foregoing, any Trustee may serve, without any additional compensation other than the per diem compensation to be paid by the PI Trust pursuant to Section 4.5(a) above, as a director of the Reorganized Parent. No Trustee shall act as an attorney for any person who holds an asbestos claim. For the avoidance of doubt, this Section shall not be applicable to the Delaware Trustee.
4.10
Bond
. The Trustees and the Delaware Trustee shall not be required to post any bond or other form of surety or security unless otherwise ordered by the Bankruptcy Court.
4.11
Delaware Trustee
.
(a)
There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 4.11, it shall resign immediately in the manner and with the effect hereinafter specified in Section 4.11(c) below. For the avoidance of doubt, the Delaware Trustee will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b)
The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Trustees set forth herein. The Delaware Trustee shall be one of the trustees of the PI Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the PI Trust in the State of Delaware and (ii) the execution of any certificates required to be filed with the Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c)
The Delaware Trustee shall serve until such time as the Trustees remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Trustees in accordance with the terms of Section 4.11(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Trustees; provided, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Trustees in accordance with Section 4.11(d) below. If the Trustees do not act within such 60-day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d)
Upon the resignation or removal of the Delaware Trustee, the Trustees shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustees and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this PI Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this PI Trust Agreement.
SECTION V
TRUST ADVISORY COMMITTEE
5.1
Members
. The TAC shall consist of four (4) members, who shall initially be the persons named on the signature page hereof.
5.2
Duties
. The members of the TAC shall serve in a fiduciary capacity representing all holders of present PI Trust Claims. The Trustees must consult with the TAC on matters identified in Section 2.2(e) above and in other provisions herein, and must obtain the consent of the TAC on matters identified in Section 2.2(f) above. Where provided in the TDP, certain other actions by the Trustees are also subject to the consent of the TAC.
5.3
Term of Office
.
(a)
The initial members of the TAC appointed in accordance with Section 5.1 above shall serve the staggered three-, four-, or five-year terms shown on the signature pages hereof. Thereafter, each term of office shall be five (5) years. Each member of the TAC shall serve until the earlier of (i) his or her death, (ii) his or her resignation pursuant to Section 5.3(b) below, (iii) his or her removal pursuant to Section 5.3(c) below, (iv) the end of his or her term as provided above, or (v) the termination of the PI Trust pursuant to Section 7.2 below.
(b)
A member of the TAC may resign at any time by written notice to the other members of the TAC, the Trustees and the Futures Representative. Such notice shall specify a date when such resignation shall take effect, which shall not be less than ninety (90) days after the date such notice is given, where practicable.
(c)
A member of the TAC may be removed in the event that he or she becomes unable to discharge his or her duties hereunder due to accident, physical deterioration, mental incompetence, or a consistent pattern of neglect and failure to perform or to participate in performing the duties of such member hereunder, such as repeated non-attendance at scheduled meetings, or for other good cause. Such removal shall be made at the recommendation of the remaining members of the TAC with the approval of the Bankruptcy Court.
5.4
Appointment of Successor
.
(d)
If, prior to the termination of service of a member of the TAC other than as a result of removal, he or she has designated in writing an individual to succeed him or her as a member of the TAC, such individual shall be his or her successor. If such member of the TAC did not designate an individual to succeed him or her prior to the termination of his or her service as contemplated above, such member’s law firm may designate his or her successor. If (i) a member of the TAC did not designate an individual to succeed him or her prior to the termination of his or her service and such member’s law firm does not designate his or her successor as contemplated above or (ii) he or she is removed pursuant to Section 5.3(c) above, his or her successor shall be appointed by a majority of the remaining members of the TAC or, if such members cannot agree on a successor, the Bankruptcy Court. Nothing in this Agreement shall prevent the reappointment of an individual serving as a member of the TAC for an additional term or terms, and there shall be no limit on the number of terms that a TAC member may serve.
(e)
Each successor TAC member shall serve until the earlier of (i) the end of the full term of five (5) years for which he or she was appointed if his or her immediate predecessor member of the TAC completed his or her term, (ii) the end of the term of the member of the TAC whom he or she replaced if his or her predecessor member did not complete such term (iii) his or her death, (iv) his or her resignation pursuant to Section 5.3(b) above, (v) his or her removal pursuant to Section 5.3(c) above, or (vi) the termination of the PI Trust pursuant to Section 7.2 below.
5.5
TAC’s Employment of Professionals
.
(d)
The TAC may but is not required to retain and/or consult counsel, accountants, appraisers, auditors, forecasters, experts, and financial and investment advisors, and such other parties deemed by the TAC to be qualified as experts on matters submitted to the TAC (the “
TAC Professionals
”). The TAC and the TAC Professionals shall at all times have complete access to the PI Trust’s officers, employees and agents, as well as to the Trust Professionals, and shall also have complete access to all information generated by them or otherwise available to the PI Trust or the Trustees provided that any information provided by the Trust Professionals shall not constitute a waiver of any applicable privilege. In the absence of gross negligence, the written opinion of or information provided by any TAC Professional or Trust Professional deemed by the TAC to be qualified as an expert on the particular matter submitted to the TAC shall be full and complete authorization and protection in support of any action taken or not taken by the TAC in good faith and in accordance with the written opinion of or information provided by the TAC Professional or Trust Professional.
(e)
The PI Trust shall promptly reimburse, or pay directly if so instructed, the TAC for all reasonable fees and costs associated with the TAC’s employment of legal counsel pursuant to this provision in connection with the TAC’s performance of its duties hereunder. The PI Trust shall also promptly reimburse, or pay directly if so instructed, the TAC for all reasonable fees and costs associated with the TAC’s employment of any other TAC Professional pursuant to this provision in connection with the TAC’s performance of its duties hereunder;
provided
,
however
, that (i) the TAC has first submitted to the PI Trust a written request for such reimbursement setting forth the reasons (A) why the TAC desires to employ such TAC Professional, and (B) why the TAC cannot rely on Trust Professionals to meet the need of the TAC for such expertise or advice, and (ii) the PI Trust has approved the TAC’s request for reimbursement in writing. If the PI Trust agrees to pay for the TAC Professional, such reimbursement shall be treated as a PI Trust expense. If the PI Trust declines to pay for the TAC Professional, it must set forth its reasons in writing. If the TAC still desires to employ the TAC Professional at the PI Trust’s expense, the TAC and/or the Trustees shall resolve their dispute pursuant to Section 7.13 below.
5.6
Compensation and Expenses of the TAC
.
The members of the TAC shall receive compensation from the PI Trust for their services as TAC members in the form of a reasonable hourly rate set by the Trustees for attendance at meetings or other conduct of PI Trust business. The members of the TAC shall also be reimbursed promptly for all reasonable out-of-pocket costs and expenses incurred in connection with the performance of their duties hereunder. Such reimbursement or direct payment shall be deemed a PI Trust expense. The PI Trust shall include a description of the amounts paid under this Section 5.6 in the Annual Report to be filed with the Bankruptcy Court and provided to the Futures Representative and the TAC pursuant to Section 2.2(c)(i).
5.7
Procedures for Consultation With and Obtaining the Consent of the TAC
.
(c)
Consultation Process
.
(i)
In the event the Trustees are required to consult with the TAC pursuant to Section 2.2(e) above or on other matters as provided herein, the Trustees shall provide the TAC with written advance notice of the matter under consideration, and with all relevant information concerning the matter as is reasonably practicable under the circumstances. The Trustees shall also provide the TAC with such reasonable access to the Trust Professionals and other experts retained by the PI Trust and its staff (if any) as the TAC may reasonably request during the time that the Trustees are considering such matter, and shall also provide the TAC the opportunity, at reasonable times and for reasonable periods of time, to discuss and comment on such matter with the Trustees.
(ii)
In determining when to take definitive action on any matter subject to the consultation procedures set forth in this Section 5.7(a), the Trustees shall take into consideration the time required for the TAC, if its members so wish, to engage and consult with its own independent financial or investment advisors as to such matter. In any event, the Trustees shall not take definitive action on any such matter until at least thirty (30) days after providing the TAC with the initial written notice that such matter is under consideration by the Trustees, unless such time period is waived by the TAC.
(d)
Consent Process
.
(i)
In the event the Trustees are required to obtain the consent of the TAC pursuant to Section 2.2(f) above, the Trustees shall provide the TAC with a written notice stating that their consent is being sought pursuant to that provision, describing in detail the nature and scope of the action the Trustees propose to take, and explaining in detail the reasons why the Trustees desire to take such action. The Trustees shall provide the TAC as much relevant additional information concerning the proposed action as is reasonably practicable under the circumstances. The Trustees shall also provide the TAC with such reasonable access to the Trust Professionals and other experts retained by the PI Trust and its staff (if any) as the TAC may reasonably request during the time that the Trustees are considering such action, and shall also provide the TAC the opportunity, at reasonable times and for reasonable periods of time, to discuss and comment on such action with the Trustees.
(ii)
The TAC must consider in good faith and in a timely fashion any request for its consent by the Trustees, and must in any event advise the Trustees in writing of its consent or its objection to the proposed action within thirty (30) days of receiving the original request for consent from the Trustees. The TAC may not withhold its consent unreasonably. If the TAC decides to withhold its consent, it must explain in detail its objections to the proposed action. If the TAC does not advise the Trustees in writing of its consent or its objections to the action within thirty (30) days of receiving notice regarding such request, the TAC’s consent to the proposed actions shall be deemed to have been affirmatively granted.
(iii)
If, after following the procedures specified in this Section 5.7(b), the TAC continues to object to the proposed action and to withhold its consent to the proposed action, the Trustees and/or the TAC shall resolve their dispute pursuant to Section 7.13. However, the burden of proof with respect to the validity of the TAC’s objection and withholding of its consent shall be on the TAC.
SECTION VI
THE FUTURES REPRESENTATIVE
6.1
Duties
. The initial Futures Representative shall be the individual identified on the signature pages hereto. He shall serve in a fiduciary capacity, representing the interests of the holders of future PI Trust Claims for the purpose of protecting the rights of such persons. The Trustees must consult with the Futures Representative on matters identified in Section 2.2(e) above and on certain other matters provided herein, and must obtain the consent of the Futures Representative on matters identified in Section 2.2(f) above. Where provided in the TDP, certain other actions by the Trustees are also subject to the consent of the Futures Representative.
6.2
Term of Office
.
(d)
The Futures Representative shall serve until the earlier of (i) his or her
death, (ii) his or her resignation pursuant to Section 6.2(b) below, (iii) his or her removal pursuant to Section 6.2(c) below, or (iv) the termination of the PI Trust pursuant to Section 7.2 below.
(e)
The Futures Representative may resign at any time by written notice to the Trustees. Such notice shall specify a date when such resignation shall take effect, which shall not be less than ninety (90) days after the date such notice is given, where practicable.
(f)
The Futures Representative may be removed by the Bankruptcy Court in the event he or she becomes unable to discharge his or her duties hereunder due to accident, physical deterioration, mental incompetence, or a consistent pattern of neglect and failure to perform or to participate in performing the duties hereunder, such as repeated non-attendance at scheduled meetings, or for other good cause.
6.3
Appointment of Successor
. A vacancy caused by death or resignation shall be
filled with an individual nominated prior to the effective date of the resignation or the death by the resigning or deceased Futures Representative, and a vacancy caused by removal of the Futures Representative shall be filled with an individual nominated by the Trustees in consultation with the TAC, subject, in each case, to the approval of the Bankruptcy Court. In the event a majority of the Trustees cannot agree, or a nominee has not been pre-selected, the successor shall be chosen by the Bankruptcy Court.
6.4
Futures Representative’s Employment of Professionals
.
(f)
The Futures Representative may, but is not required to, retain and/or consult counsel, accountants, appraisers, auditors, forecasters, experts, and financial and investment advisors, and such other parties deemed by the Futures Representative to be qualified as experts on matters submitted to the Futures Representative (the “
Futures Representative Professionals
”). The Futures Representative and the Futures Representative Professionals shall at all times have complete access to the PI Trust’s officers, employees and agents, as well as to the Trust Professionals, and shall also have complete access to all information generated by them or otherwise available to the PI Trust or the Trustees provided that any information provided by the Trust Professionals shall not constitute a waiver of any applicable privilege. In the absence of gross negligence, the written opinion of or information provided by any Futures Representative Professional or Trust Professional deemed by the Futures Representative to be qualified as an expert on the particular matter submitted to the Futures Representative shall be full and complete authorization and protection in support of any action taken, or not taken, by the Futures Representative in good faith and in accordance with the written opinion of or information provided by the Futures Representative Professional or Trust Professional.
(g)
The PI Trust shall promptly reimburse, or pay directly if so instructed, the Futures Representative for all reasonable fees and costs associated with the Futures Representative’s employment of legal counsel pursuant to this provision in connection with the Futures Representative’s performance of his or her duties hereunder. The PI Trust shall also promptly reimburse, or pay directly if so instructed, the Futures Representative for all reasonable fees and costs associated with the Futures Representative’s employment of any other Futures Representative Professionals pursuant to this provision in connection with the Futures Representative’s performance of his or her duties hereunder;
provided
,
however
, that (i) the Futures Representative has first submitted to the PI Trust a written request for such reimbursement setting forth the reasons (A) why the Futures Representative desires to employ the Futures Representative Professional, and (B) why the Futures Representative cannot rely on Trust Professionals to meet the need of the Futures Representative for such expertise or advice, and (ii) the PI Trust has approved the Futures Representative’s request for reimbursement in writing. If the PI Trust agrees to pay for the Futures Representative Professional, such reimbursement shall be treated as a PI Trust expense. If the PI Trust declines to pay for the Futures Representative Professional, it must set forth its reasons in writing. If the Futures Representative still desires to employ the Futures Representative Professional at the PI Trust’s expense, the Futures Representative and/or the Trustees shall resolve their dispute pursuant to Section 7.13 below.
6.5
Compensation and Expenses of the Futures Representative
. The Futures Representative shall receive compensation from the PI Trust in the form of payment at the Futures Representative’s normal hourly rate for services performed. The PI Trust will promptly reimburse the Futures Representative for all reasonable out-of-pocket costs and expenses incurred by the Futures Representative in connection with the performance of his or her duties hereunder. Such reimbursement or direct payment shall be deemed a PI Trust expense. The PI Trust shall include a description of the amounts paid under this Section 6.5 in the Annual Report to be filed with the Bankruptcy Court and provided to the Futures Representative and the TAC pursuant to Section 2.2(c)(i).
6.6
Procedures for Consultation with and Obtaining the Consent of the Futures Representative
.
(e)
Consultation Process
.
(i)
In the event the Trustees are required to consult with the Futures Representative pursuant to Section 2.2(e) above or on any other matters specified herein, the Trustees shall provide the Futures Representative with written advance notice of the matter under consideration, and with all relevant information concerning the matter as is reasonably practicable under the circumstances. The Trustees shall also provide the Futures Representative with such reasonable access to the Trust Professionals and other experts retained by the PI Trust and its staff (if any) as the Futures Representative may reasonably request during the time that the Trustees are considering such matter, and shall also provide the Futures Representative the opportunity, at reasonable times and for reasonable periods of time, to discuss and comment on such matter with the Trustees.
(ii)
In determining when to take definitive action on any matter subject to the consultation process set forth in this Section 6.6(a), the Trustees shall take into consideration the time required for the Futures Representative, if he or she so wishes, to engage and consult with his or her own independent financial or investment advisors as to such matter. In any event, the Trustees shall not take definitive action on any such matter until at least thirty (30) days after providing the Futures Representative with the initial written notice that such matter is under consideration by the Trustees, unless such period is waived by the Futures Representative.
(f)
Consent Process
.
(i)
In the event the Trustees are required to obtain the consent of the Futures Representative pursuant to Section 2.2(f) above, the Trustees shall provide the Futures Representative with a written notice stating that his or her consent is being sought pursuant to that provision, describing in detail the nature and scope of the action the Trustees propose to take, and explaining in detail the reasons why the Trustees desire to take such action. The Trustees shall provide the Futures Representative as much relevant additional information concerning the proposed action as is reasonably practicable under the circumstances. The Trustees shall also provide the Futures Representative with such reasonable access to the Trust Professionals and other experts retained by the PI Trust and its staff (if any) as the Futures Representative may reasonably request during the time that the Trustees are considering such action, and shall also provide the Futures Representative the opportunity, at reasonable times and for reasonable periods of time, to discuss and comment on such action with the Trustees.
(ii)
The Futures Representative must consider in good faith and in a timely fashion any request for his or her consent by the Trustees, and must in any event advise the Trustees in writing of his or her consent or objection to the proposed action within thirty (30) days of receiving the original request for consent from the Trustees. The Futures Representative may not withhold his or her consent unreasonably. If the Futures Representative decides to withhold consent, he or she must explain in detail his or her objections to the proposed action. If the Futures Representative does not advise the Trustees in writing of his or her consent or objections to the proposed action within thirty (30) days of receiving the notice from the Trustees regarding such consent, the Futures Representative’s consent shall be deemed to have been affirmatively granted.
(iii)
If, after following the procedures specified in this Section 6.6(b), the Futures Representative continues to object to the proposed action and to withhold his or her consent to the proposed action, the Trustees and/or the Futures Representative shall resolve their dispute pursuant to Section 7.13. However, the burden of proof with respect to the validity of the Futures Representative’s objection and withholding of his or her consent shall be on the Futures Representative.
SECTION VII
GENERAL PROVISIONS
7.1
Irrevocability
. To the fullest extent permitted by applicable law, the PI Trust is irrevocable.
7.2
Term; Termination
.
(f)
The term for which the PI Trust is to exist shall commence on the date of the filing of the Certificate of Trust and shall terminate pursuant to the provisions of Section 7.2 below.
(g)
The PI Trust shall automatically dissolve on the date (the “
Dissolution Date
”) ninety (90) days after the first to occur of the following events:
(iv)
the date on which the Trustees decide to dissolve the PI Trust
because (A) they deem it unlikely that new asbestos claims will be filed against the PI Trust, (B) all PI Trust Claims duly filed with the PI Trust have been liquidated and paid to the extent provided in this PI Trust Agreement and the TDP or have been disallowed by a final non-appealable order, to the extent possible based upon the funds available through the Plan, and (C) twelve (12) consecutive months have elapsed during which no new asbestos claim has been filed with the PI Trust; or
(v)
if the Trustees have procured and have in place irrevocable insurance policies and have established claims handling agreements and other necessary arrangements with suitable third parties adequate to discharge all expected remaining obligations and expenses of the PI Trust in a manner consistent with this PI Trust Agreement and the TDP, the date on which the Bankruptcy Court enters an order approving such insurance and other arrangements and such order becomes a final order; or
(vi)
to the extent that any rule against perpetuities shall be deemed applicable to the PI Trust, the date on which twenty-one (21) years less ninety-one (91) days pass after the death of the last survivor of all of the descendants of the late Joseph P. Kennedy, Sr., father of the late President John F. Kennedy, living on the date hereof.
(h)
On the Dissolution Date or as soon as reasonably practicable, after the wind-up of the PI Trust’s affairs by the Trustees and payment of all the PI Trust’s liabilities have been provided for as required by applicable law including Section 3808 of the Act, all monies remaining in the PI Trust estate shall be given to such organization(s) exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code, which tax-exempt organization(s) shall be selected by the Trustees using their reasonable discretion;
provided
,
however
, that (i) if practicable, the activities of the selected tax-exempt organization(s) shall be related to the treatment of, research on, or the relief of suffering of individuals suffering from asbestos related lung disease or disorders, and (ii) the tax-exempt organization(s) shall not bear any relationship to the Reorganized Debtors within the meaning of section 468B(d)(3) of the Internal Revenue Code. Notwithstanding any contrary provision of the Plan and related documents, this Section 7.2(c) cannot be modified or amended.
(i)
Following the dissolution and distribution of the assets of the PI Trust, the PI Trust shall terminate and the Trustees, or any one of them, shall execute and cause a Certificate of Cancellation of the Certificate of Trust of the PI Trust to be filed in accordance with the Act. Notwithstanding anything to the contrary contained in this Pl Trust Agreement, the existence of the PI Trust as a separate legal entity shall continue until the filing of such Certificate of Cancellation.
7.3
Amendments
. The Trustees, after consultation with the TAC and the Futures Representative, and subject to the unanimous consent of the TAC and the Futures Representative, may modify or amend this PI Trust Agreement and the PI Trust By-laws. The Trustees, after consultation with the TAC and the Futures Representative, and subject to the consent of the TAC and the Futures Representative, may modify or amend the TDP;
provided
,
however
, that no amendment to the TDP shall be inconsistent with the provisions limiting amendments to that document provided therein, and in particular the provisions limiting amendment of the Claims Payment Ratio set forth in Section 2.5 of the TDP and of the Payment Percentage set forth in Section 4.2 of the TDP. Any modification or amendment made pursuant to this Section must be done in writing. Notwithstanding anything contained in this PI Trust Agreement or the TDP to the contrary, neither this PI Trust Agreement, the PI Trust Bylaws, the TDP, nor any document annexed to the foregoing shall be modified or amended in any way that could jeopardize, impair, or modify (i) Section 2.4 of this PI Trust Agreement unless expressly consented to in writing by each of Sealed Air Corporation and Cryovac, Inc. in its absolute discretion, (ii) Sections 2.5, 2.6 and 2.7 of this PI Trust Agreement unless expressly consented to in writing by the Reorganized Debtors, by Sealed Air, and by each Settled Asbestos Insurance Company adversely affected by such amendment or modification, (iii) the applicability of section 524(g) of the Bankruptcy Code to the Plan and the Confirmation Order, (iv) the efficacy or enforceability of the Asbestos PI Channeling Injunction, the Successor Claims Injunction, or any other injunction or release issued or granted in favor of any (or all) of the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties in connection with the Plan, (v) the PI Trust’s qualified settlement fund status under the QSF Regulations, or (vi) any provision, condition, or restriction relating to or with respect to the Sealed Air Common Stock in the Plan, the Confirmation Order, the Sealed Air Settlement Agreement, or in this PI Trust Agreement (unless expressly consented to in writing by each of Sealed Air Corporation and Cryovac, Inc. in its absolute discretion).
7.4
Meetings
. The Delaware Trustee shall not be required nor permitted to attend meetings relating to the PI Trust.
7.5
Severability
. Should any provision in this PI Trust Agreement be determined to be unenforceable, such determination shall in no way limit or affect the enforceability and operative effect of any and all other provisions of this PI Trust Agreement.
7.6
Notices
. Notices to persons asserting claims shall be given by first class mail, postage prepaid, at the address of such person, or, where applicable, such person’s legal representative, in each case as provided on such person’s claim form submitted to the PI Trust with respect to his or her PI Trust Claim.
(a)
Any notices or other communications required or permitted hereunder to the following parties shall be in writing and delivered at the addresses designated below, or sent by e-mail or facsimile pursuant to the instructions listed below, or mailed by registered or certified mail, return receipt requested, postage prepaid, addressed as follows, or to such other address or addresses as may hereafter be furnished in writing to each of the other parties listed below in compliance with the terms hereof.
To the PI Trust through the Trustees:
B. Thomas Florence
Executive Director, WRG Asbestos PI Trust
C/O ARPC
1220 19
th
Street NW, Suite 700
Washington, DC 20036
Facsimile: (202) 797-3619
t.florence@arpc.com
with copies to:
Marla Rosoff Eskin
Campbell & Levine, LLC
222 Delaware Avenue, Suite 1620
Wilmington, DE 19801
Facsimile: (302) 426-9947
meskin@camlev.com
and
Philip E. Milch
Campbell & Levine, LLC
1700 Grant Building
Pittsburgh, PA 15219
Facsimile: (412) 261-5066
pem@camlev.com
To the Delaware Trustee:
Wilmington Trust Company
Attn: Corporate Trust Administration
1100 N. Market Street
Wilmington, DE 19890-1625
Attention: Corporate Custody
To the TAC:
Russell Budd, Esq.
Baron & Budd, PC
3102 Oak Lawn Avenue, Suite 1100
Dallas, TX 75219
Facsimile: (214) 520-1181
E-mail: rbudd@baronbudd.com
John D. Cooney, Esq.
Cooney & Conway
120 N. LaSalle Street, 30th Floor
Chicago, IL 60602
Facsimile: (312) 236-3029
E-mail: jcooney@cooneyconway.com
Joseph F. Rice, Esq.
Motley Rice LLC
28 Bridgeside Boulevard
Mount Pleasant, SC 29464
Facsimile: (843) 216-9450
E-mail: jrice@motleyrice.com
Perry Weitz, Esq.
Weitz & Luxenberg
180 Maiden Lane
New York, NY 10038
Facsimile: (212) 344-5461
E-mail: pweitz@weitzlux.com
To the Futures Representative:
Roger Frankel, Esq.
Futures Representative
c/o Frankel Wyron LLP
2101 L. Street, NW
Suite 800
Washington, D.C. 20037
Telephone: (202) 903-0700
E-mail:
rfrankel@frankelwyron.com
with a copy to:
Frankel Wyron LLP
Attn: Richard Wyron
2101 L. Street, NW
Suite 800
Washington, D.C. 20037
Telephone: (202) 903-0700
E-mail:
rwyron@frankelwyron.com
Orrick, Herrington & Sutcliffe LLP
Attn: Debra L. Felder
Columbia Center
1152 15th Street N.W.
Washington, D.C. 20005-1706
Facsimile: (202) 339-8500
E-mail: dfelder@orrick.com
To the Reorganized Debtors:
W. R. Grace & Co.
Attn: Mark Shelnitz
7500 Grace Drive
Columbia, MD 21044
Facsimile: (410) 531-4545
E-mail: mark.shelnitz@grace.com
with a copy to:
Kirkland & Ellis LLP
Attn: Adam C. Paul
300 North LaSalle
Chicago, IL 60654
Facsimile: (312) 862-2200
E-mail: apaul@kirkland.com
(b)
All such notices and communications if mailed shall be effective when physically delivered at the designated addresses or, if electronically transmitted, when the communication is received at the designated addresses and confirmed by the recipient by return transmission.
7.7
Successors and Assigns
. The provisions of this PI Trust Agreement shall be binding upon and inure to the benefit of the Debtors, the PI Trust, the Trustees, and the Reorganized Debtors, and their respective successors and assigns, except that neither the Debtors, the PI Trust, the Trustees, nor the Reorganized Debtors may assign or otherwise transfer any of its, or their, rights or obligations, if any, under this PI Trust Agreement except, in the case of the PI Trust and the Trustees, as contemplated by Section 2.1 above.
7.8
Limitation on Claim Interests for Securities Laws Purposes
. PI Trust Claims, and any interests therein (a) shall not be assigned, conveyed, hypothecated, pledged, or otherwise transferred, voluntarily or involuntarily, directly or indirectly, except by will or under the laws of descent and distribution; (b) shall not be evidenced by a certificate or other instrument; (c) shall not possess any voting rights; and (d) shall not be entitled to receive any dividends or interest; provided, however, that clause (a) of this Section 7.8 shall not apply to the holder of a claim that is subrogated to a PI Trust Claim as a result of its satisfaction of such PI Trust Claim.
7.9
Entire Agreement; No Waiver
. The entire agreement of the parties relating to the subject matter of this PI Trust Agreement is contained herein and in the documents referred to herein, and this PI Trust Agreement and such documents supersede any prior oral or written agreements concerning the subject matter hereof. No failure to exercise or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any further exercise thereof or of any other right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of rights under law or in equity.
7.10
Headings
. The headings used in this PI Trust Agreement are inserted for convenience only and do not constitute a portion of this PI Trust Agreement, nor in any manner affect the construction of the provisions of this PI Trust Agreement.
7.11
Governing Law
. This PI Trust Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to Delaware conflict of law principles.
7.12
Settlors’ Representative and Cooperation
. The Debtors are hereby irrevocably designated as the Settlors, and they are hereby authorized to take any action required of the Settlors by the Trustees in connection with the PI Trust Agreement. The Reorganized Debtors agree to cooperate in implementing the goals and objectives of this PI Trust Agreement.
7.13
Dispute Resolution
. Any disputes that arise under this PI Trust Agreement or under the TDP among the parties hereto shall be resolved by submission of the matter to an alternative dispute resolution (“
ADR
”) process mutually agreeable to the parties involved. Should any party to the ADR process be dissatisfied with the decision of the arbitrator(s), that party may apply to the Bankruptcy Court for a judicial determination of the matter. Any review conducted by the Bankruptcy Court shall be
de novo
. In any case, if the dispute arose pursuant to the consent provision set forth in Section 5.7(b) (in the case of the TAC) or Section 6.6(b) (in the case of the Futures Representative), the burden of proof shall be on the party or parties who withheld consent to show that the objection was valid. Should the dispute not be resolved by the ADR process within thirty (30) days after submission, the parties are relieved of the requirement to pursue ADR prior to application to the Bankruptcy Court. If the Trustees determine that the matter in dispute is exigent and cannot await the completion of the ADR process, the Trustees shall have the discretion to elect out of the ADR process altogether or at any stage of the process and seek resolution of the dispute in the Bankruptcy Court.
7.14
Enforcement and Administration
. The provisions of this PI Trust Agreement and the TDP attached hereto shall be enforced by the Bankruptcy Court pursuant to the Plan. The parties hereby further acknowledge and agree that the Bankruptcy Court shall have exclusive jurisdiction over the settlement of the accounts of the Trustees and over any disputes hereunder not resolved by alternative dispute resolution in accordance with Section 7.13 above.
7.15
Effectiveness
. This PI Trust Agreement shall not become effective until it has been executed and delivered by all the parties hereto.
7.16
Counterpart Signatures
. This PI Trust Agreement may be executed in any number of counterparts, each of which shall constitute an original, but such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this PI Trust Agreement this _
3rd
_ day of ___
February
_______, 20
14
.
W. R. GRACE & CO.
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
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DAREX PUERTO RICO, INC.
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
DEWEY AND ALMY, LLC.
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
|
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GLOUCESTER NEW COMMUNITIES COMPANY, INC.
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
|
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GRACE CHEMICAL COMPANY OF CUBA
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
|
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GRACE ENERGY CORPORATION
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
|
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GRACE EUROPE, INC.
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
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GRACE INTERNATIONAL HOLDINGS, INC.
(f/k/a Dearborn International Holdings, Inc.)
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
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GRACE PAR CORPORATION
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
|
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GUANICA‑CARIBE LAND DEVELOPMENT CORPORATION
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
|
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HANOVER SQUARE CORPORATION
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
|
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KOOTENAI DEVELOPMENT COMPANY
By:
/s/HUDSON LA FORCE, III
Title: Vice President
|
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REMEDIUM GROUP, INC.
(f/k/a Environmental Liability Management, Inc., E&C Liquidating Corp., Emerson & Cuming, Inc.)
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Assistant Treasurer
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W. R. GRACE CAPITAL CORPORATION
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
|
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W. R. GRACE & CO.‑CONN.
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
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W. R GRACE LAND CORPORATION
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
WATER STREET CORPORATION
By:
/s/HUDSON LA FORCE, III
Title: Vice President and Chief Financial Officer
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TRUSTEES
|
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ASBESTOS CLAIMANTS’ COMMITTEE
|
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/s/HARRY HUGE
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By:
/s/PETER VAN N. LOCKWOOD
|
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Name: Harry Huge
Expiration Date of Initial Term:
FIFTH
Anniversary of the date of this PI Trust Agreement
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DELAWARE TRUSTEE
|
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/s/LEWIS SIFFORD
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By:
/s/DAVID B. YOUNG
|
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Name: Lewis Sifford
Expiration Date of Initial Term:
THIRD
Anniversary of the date of this PI Trust Agreement
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Vice President
|
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/s/DEAN TRAFELET
|
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Name: Dean Trafelet
Expiration Date of Initial Term:
FOURTH
Anniversary of the date of this PI Trust Agreement
|
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TRUST ADVISORY COMMITTEE
/s/RUSSELL W. BUDD
Name: Russell W. Budd
Expiration Date of Initial Term: Third Anniversary of the date of this PI Trust Agreement
/s/JOHN D. COONEY
Name: John D. Cooney
Expiration Date of Initial Term: Fifth Anniversary of the date of this PI Trust Agreement
/s/JOSEPH F. RICE
Name: Joseph F. Rice
Expiration Date of Initial Term: Fifth Anniversary of the date of this PI Trust Agreement
/s/PERRY WEITZ
Name: Perry Weitz
Expiration Date of Initial Term: Fourth Anniversary of the date of this PI Trust Agreement
FUTURES REPRESENTATIVE
/s/ROGER FRANKEL
Roger Frankel
Exhibit 1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re:
W. R. Grace & Co., et al.,
Debtors.
|
))))))))
|
Chapter 11
Case No. 01-01139 (KJC)
Jointly Administered
|
EXHIBIT 3 TO EXHIBIT BOOK
ASBESTOS PD TRUST AGREEMENT
EXHIBIT 3
Attached.
WRG ASBESTOS PROPERTY DAMAGE SETTLEMENT
TRUST AGREEMENT
WRG ASBESTOS PROPERTY DAMAGE SETTLEMENT TRUST AGREEMENT
TABLE OF CONTENTS
1.3
Transfer of Assets.
4
1.4
Acceptance of Assets and Assumption of Liabilities.
7
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POWERS AND TRUST ADMINISTRATION
|
8
|
2.2
General Administration.
13
2.3
Claims Administration
17
2.4
Sealed Air Settlement Agreement
18
2.5
Class 7B Claims -- Educational Program
21
|
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ACCOUNTS, INVESTMENTS AND PAYMENTS
|
22
|
3.3
Source of Payments.
25
|
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TRUSTEES; DELAWARE TRUSTEE
|
26
|
4.3
Appointment of Successor Trustees.
27
4.4
Liability of Trustees ZTAC Members, and the PD FCR
28
4.5
Compensation and Expenses of Trustees.
28
4.8
Trustees’ Employment of Experts; Delaware Trustee’s Employment of Counsel.
30
4.9
Trustees’ Independence
31
4.11
Delaware Trustee.
31
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TRUST ADVISORY COMMITTEE CLASS - 7B CLAIMS
|
33
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5.4
Appointment of Successor.
34
5.5
TAC’s Employment of Professionals.
35
5.6
Compensation and Expenses of the ZTAC
36
5.7
Procedures for Consultation With and Obtaining the Consent of the ZTAC.
37
6.3
Appointment of Successor
40
6.4
PD FCR’s Employment of Professionals.
40
6.5
Compensation and Expenses of the PD FCR
42
6.6
Procedures for Consultation with and Obtaining the Consent of the PD FCR.
42
7.2
Term; Termination.
44
7.7
Successors and Assigns
50
7.8
Limitation on Claim Interests for Securities Laws Purposes
50
7.9
Entire Agreement; No Waiver
50
7.12
Settlors’ Representative and Cooperation
51
7.14
Dispute Resolution
51
7.15
Enforcement and Administration
52
7.17
Counterpart Signatures
52
WRG ASBESTOS PROPERTY DAMAGE SETTLEMENT TRUST AGREEMENT
This WRG Asbestos Property Damage Settlement Trust Agreement (this “
PD Trust Agreement
”), dated the date set forth on the signature page hereof and effective as of the Effective Date, is entered into, pursuant to the First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code of W. R. Grace & Co., et al., the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants’ Representative, and the Official Committee of Equity Security Holders as Modified Through December 23, 2010 (as it may be amended or modified, the “
Plan
”), by W. R. Grace & Co. and the other Debtors (collectively, referred to as the “
Debtors
,” “
Grace
,” or the “
Settlors
”), the debtors and debtors-in-possession whose chapter 11 cases are jointly administered under Case No. 01-1139-KJC in the United States Bankruptcy Court for the District of Delaware; the Asbestos PD Future Claimants’ Representative (the “
PD FCR
”); the Official Committee of Asbestos Property Damage Claimants (the “
PD Committee
”); the Asbestos PD Trustees (the “
Trustees
”); Wilmington Trust Company (the “
Delaware Trustee
”); and the members of the Zonolite Attic Insulation Trust Advisory Committee (the “
ZTAC
” or “
ZTAC Members
”) identified on the signature page hereof; and
WHEREAS
, the Debtors have reorganized under the provisions of chapter 11 of the Bankruptcy Code in cases filed in the United States Bankruptcy Court for the District of Delaware, jointly administered and known as
In re W. R. Grace & Co
.,
et
al
., Case No. 01-1139-KJC; and
WHEREAS
, the Confirmation Order has been entered by the Bankruptcy Court and affirmed by the District Court; and
WHEREAS
, the Plan provides, inter alia, for the creation of the WRG Asbestos PD Trust (the “
PD Trust
”); and
WHEREAS
, pursuant to the Plan, the PD Trust is to use its assets and income to satisfy all PD Trust Claims and all costs and expenses incurred in relation thereto; and
WHEREAS
, it is the intent of Grace, the Trustees, the PD Committee, the ZTAC, and the PD FCR that the PD Trust be administered, maintained, and operated at all times through mechanisms that provide reasonable assurance that the PD Trust will satisfy all Allowed PD Trust Claims pursuant to either (1) in the case of PD Trust Claims in Class 7A under the Plan (
“Class 7A Claims”
), the Case Management Order for Class 7A Asbestos PD Claims (the
“Class 7A CMO”
) to be entered by the Bankruptcy Court, PD Settlement Agreements, or Final Orders of the Court determining the Allowed Amount of the Unresolved Asbestos PD Claims in Class 7A; or (2) in the case of PD Trust Claims in Class 7B
(“Class 7B Claims”
), the WRG United States Zonolite Attic Insulation
(“US ZAI”
) Property Damage Settlement Trust Distribution Procedures, incorporating the ZAI Class Settlement Agreement (the
“ZAI TDP”
); and WHEREAS, all rights of the holders of PD Trust Claims arising under this PD Trust Agreement and the ZAI TDP shall vest upon the Effective Date; and
WHEREAS
, pursuant to the Plan, the PD Trust is intended to qualify as a “qualified settlement fund” within the meaning of section 1.468B-l
et seq
. of the Treasury Regulations promulgated under section 468B of the Internal Revenue Code (the
“QSF Regulations”
); and
WHEREAS
, the Bankruptcy Court has determined that the PD Trust and the Plan satisfy all the prerequisites for an injunction pursuant to section 524(g) of the Bankruptcy Code with respect to any and all PD Trust Claims, and such injunction has been entered in connection with the Confirmation Order;
NOW, THEREFORE
, it is hereby agreed as follows:
SECTION I
AGREEMENT OF TRUST
1.1
Creation and Name
.
The Debtors as Settlors hereby create a trust known as the ‘‘WRG Asbestos PD Trust,” which is the PD Trust provided for and referred to in the Plan. The Trustees of the PD Trust shall transact the business and affairs of the PD Trust in the name of the PD Trust, and references herein to the PD Trust shall include a Trustee or Trustees acting on behalf of the PD Trust. The PD Trust will have a separate ZAI Trustee who will administer all funds paid pursuant to the ZAI Term Sheet as incorporated in the Deferred Payment Agreement (Class 7B ZAI) and all earnings thereof (the
“ZAI Trust Assets”
); the ZAI Claims Process; the ZAI educational program and all related ZAI matters. The ZAI Trust Assets will not be comingled with any other assets in the PD Trust. The ZAI Trustee and any successor will be chosen by the ZTAC and the PD FCR. It is the intention of the parties hereto that the trust created hereby constitute a statutory trust under Chapter 38 of title 12 of the Delaware Code, 12 Del. C. § 3801 et seq. (the
“Act’’
) and that this document, together with the by-laws described herein, constitute the governing instruments of the PD Trust. The Trustees and the Delaware Trustee are hereby authorized and directed to execute and file a Certificate of Trust with the Delaware Secretary of State in the form attached hereto.
1.2
Purpose
.
The purpose of the PD Trust is to assume all liabilities and responsibility for all Allowed PD Trust Claims, and, among other things to: (a) assume, and direct and perform the processing, liquidation and payment of all Class 7A Claims in accordance with the Plan, this PD Trust Agreement, the Class 7A CMO, any judgments pursuant to the Class 7A CMO, PD Settlement Agreements, and the Final Orders by the Court determining the Allowed Amount of the Unresolved Asbestos PD Claims in Class 7A; (b) direct the processing, liquidation and payment of all Class 7B Claims in accordance with the Plan, this PD Trust Agreement, and the ZAI TDP; (c) preserve, hold, manage, and maximize the assets of the PD Trust for use in paying and satisfying PD Trust Claims and all costs and expenses incurred in relation thereto; (d) qualify at all times as a qualified settlement fund for federal income tax purposes within the meaning of the treasury regulations issued pursuant to Section 468B of the IRC; and (e) otherwise carry out the provisions of this PD Trust Agreement, the ZAI TDP, and any other agreements into which the Trustees have entered or will enter in connection with the Plan. The PD Trust is to use the PD Trust’s assets and income to pay the holders of all PD Trust Claims in accordance with this PD Trust Agreement, the Class 7A CMO and the ZAI TDP in such a way that such holders of PD Trust Claims are treated fairly, equitably, and reasonably in light of the assets available to satisfy such claims, and to otherwise comply in all respects with the requirements of a trust set forth in section 524(g)(2)(B) of the Bankruptcy Code.
1.3
Transfer of Assets
.
(a)
Pursuant to, and in accordance with, Section 7.3.2 of the Plan, on the Effective Date, Cryovac, Inc. shall transfer directly to the Asbestos PD Trust its share of the amount of the Class 7A Initial Payment and Fresenius shall transfer directly to the Asbestos PD Trust its share of the amount of the Class 7A Initial Payment. The Class 7A Initial Payment shall remain segregated from (i) the Class 7B Initial Payment and (ii) any payments made to the Asbestos PD Trust on account of CDN ZAI PD Claims.
(b)
Pursuant to, and in accordance with, Section 7.3.2 of the Plan, on the Effective Date, the Asbestos PD Trust shall assume, or shall be deemed to have assumed, the PD Settlement Agreements and shall immediately reserve and segregate from the Class 7A Initial Payment all amounts required to be paid upon the occurrence of the Effective Date pursuant to PD Settlement Agreements that require such payment, and shall provide for the payment of such amounts in the manner and at the time set forth in such PD Settlement Agreements.
(c)
Pursuant to, and in accordance with, Section 7.3.2 of the Plan, on the Effective Date, Cryovac, Inc. shall transfer directly to the Asbestos PD Trust its share of the amount of the Class 7B Initial Payment and Fresenius shall transfer directly to the Asbestos PD Trust its share of the amount of the Class 7B Initial Payment. The Class 7B Initial Payment shall remain segregated from (i) the Class 7A Initial Payment and (ii) any payments made to the Asbestos PD Trust on account of CDN ZAI PD Claims.
(d)
Pursuant to, and in accordance with, Section 7.3.2 of the Plan, on the Effective Date, Grace-Conn, or Parent shall, on behalf of the Reorganized Debtors and the Non-Debtor Affiliates, transfer to the Asbestos PD Trust all funds as set forth in the CDN ZAI Minutes of Settlement. The Class 7A Trustee, on behalf of the PD Trust, shall receive the funds transferred on account of the CDN ZAI Minutes of Settlement and shall immediately transfer such funds to the CDN ZAI PD Claims Fund to be used in the manner set forth in the CDN ZAI Minutes of Settlement. In no event shall the Asbestos PD Initial Payment (or any portion thereof) be transferred to the CDN ZAI PD Claims Fund.
(e)
Pursuant to, and in accordance with, Section 7.3.2 of the Plan, after the Effective Date, Grace-Conn or Parent shall, on behalf of the Reorganized Debtors and the Non-Debtor Affiliates, transfer to the Asbestos PD Trust all funds as set forth in the Class 7A Asbestos PD Deferred Payment Agreement and the Class 7B Asbestos PD Deferred Payment Agreement. Funds transferred pursuant to the Class 7A Asbestos PD Deferred Payment Agreement shall remain segregated from funds transferred pursuant to the Class 7B Asbestos PD Deferred Payment Agreement. In addition, on the Effective Date, by virtue of the confirmation of the Plan, without further notice, action, or deed, the Asbestos PD Trust Causes of Action shall be automatically transferred and assigned to, and indefeasibly vested in, the Asbestos PD Trust, and the Asbestos PD Trust shall thereby become the estate representative pursuant to section 1123(b)(3)(B) of the Bankruptcy Code with respect to the Asbestos PD Trust Causes of Action, with the exclusive right to enforce the Asbestos PD Trust Causes of Action, against any Entity, except those related to Claims and Demands in Class 7A, which shall be enforced by the Reorganized Debtors on behalf of the Asbestos PD Trust, and the proceeds of the recoveries of such Asbestos PD Trust Causes of Action shall be deposited in and shall become the property of the Asbestos PD Trust;
provided, however
, that nothing herein shall alter, amend or modify the injunctions and/or releases provided under the Plan including the Asbestos PD Channeling Injunction, the Asbestos PI Channeling Injunction, the Successor Claims Injunction, and the Asbestos Insurance Entity Injunction. The Class 7A Trustee shall have the right, but not the obligation, to prosecute and/or otherwise enforce any Asbestos PD Trust Causes of Action related to Non-ZAI Trust Assets or Class 7A Claimants. Grace shall provide the Class 7A Trustee with a list of any Asbestos PD Trust Causes of Action which Grace wants investigated, enforced, and/or prosecuted by the Class 7A Trustee.
(f)
In all events, the transfers on account of Class 7A Claims (the “
Non-ZAI Trust Assets
”) and the transfers of ZAI Trust Assets (collectively the “
PD Trust Assets
”), along with the CDN Assets, or any other assets to be transferred to the PD Trust under the Plan will be transferred to the PD Trust free and clear of any liens or other claims by the Debtors, Reorganized Debtors, any creditor, or other entity except as otherwise provided in the Plan. The Debtors and the Reorganized Debtors shall also execute and deliver such documents to the PD Trust as the Trustees reasonably request to transfer and assign any PD Trust Assets to the PD Trust.
1.4
Acceptance of Assets and Assumption of Liabilities
.
(a)
In furtherance of the purposes of the PD Trust, the PD Trust hereby expressly accepts the transfer to the PD Trust of the PD Trust Assets and any other transfers contemplated by the Plan in the time and manner as, and subject to the terms, contemplated in the Plan.
(b)
In furtherance of the purposes of the PD Trust and in accordance with the Plan, the PD Trust expressly assumes all liabilities and responsibility for all PD Trust Claims, and the Reorganized Debtors, the Sealed Air Indemnified Parties, the Fresenius Indemnified Parties, and all other Asbestos Protected Parties shall have no further financial or other responsibility or liability therefor, except, in the case of the Reorganized Debtors, as provided for in the Plan, including but not limited to the Class 7A Deferred Payment Agreement, the Class 7B Deferred Payment Agreement, the W. R. Grace & Co. Guarantee Agreement (Class 7A PD), the W. R. Grace & Co. Guarantee Agreement (Class 7B ZAI) and the Share Issuance Agreement. In addition, the PD Trust assumes the obligations of the PD Settlement Agreements. Except as otherwise provided in this PD Trust Agreement, the Class 7A CMO, and the ZAI TDP, the PD Trust shall have, with respect to all Asbestos PD Claims other than Asbestos PD Claims that have been allowed pursuant to PD Settlement Agreements, all defenses, cross-claims, offsets, and recoupments, as well as rights of indemnification, contribution, subrogation, and similar rights, regarding such claims that Grace or the Reorganized Debtors have or would have had under applicable law. Regardless of the foregoing, however, a claimant must meet otherwise applicable federal, state and foreign statutes of limitations and repose, except as otherwise provided in Section 5.1.2 of the ZAI TDP.
(c)
No provision herein or in the Class 7A CMO or ZAI TDP shall be construed or implemented in a manner that would cause the PD Trust to fail to qualify as a “qualified settlement fund” under the QSF Regulations.
(d)
Nothing in this PD Trust Agreement shall be construed to be inconsistent with any material provision of the Plan, the ZAI TDP, or the PD CMO (except, with respect to the PD CMO, as specifically stated in this PD Trust Agreement), or in any way to limit (i) the scope, enforceability, or effectiveness of the Asbestos PD Channeling Injunction or the Successor Claims Injunction, or any other injunction or release issued or granted in favor of any (or all) of the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties in connection with the Plan, or (ii) subject to the provisions of Section 1.3(f) above and Section 2.l(d) below, the PD Trust’s assumption of all liability for PD Trust Claims.
SECTION II
POWERS AND TRUST ADMINISTRATION
2.1
Powers
.
(a)
The Trustees are and shall act as the fiduciaries to the PD Trust in accordance with the provisions of this PD Trust Agreement and the Plan. The Class 7A Trustee shall not be a fiduciary for any holder of any ZAI PD Claim and shall not exercise any control over the ZAI Trust Assets. The Class 7B Trustee shall not be a fiduciary for any holder of any Class 7A Claim and shall not exercise any control over the Non-ZAI Trust Assets. The Trustees shall, at all times, administer the PD Trust and the PD Trust Assets in accordance with the purposes set forth in Section 1.2 above. Subject to the limitations set forth in this PD Trust Agreement, the Trustees shall have the power to take any and all actions that, in the judgment of the Trustees, are necessary or proper to fulfill the purposes of the PD Trust, including, without limitation, each power expressly granted in this Section 2.1, any power reasonably incidental thereto, and any trust power now or hereafter permitted under the laws of the State of Delaware.
(b)
Except as required by applicable law or otherwise specified herein, the Trustees need not obtain the order or approval of any court in the exercise of any power or discretion conferred hereunder.
(c)
Without limiting the generality of Section 2.1(a) above, and except as limited below, the respective Trustees shall have the power with regard to the assets under their control to:
(i)
receive and hold the PD Trust Assets and exercise all rights with respect thereto (except that, notwithstanding any other provision of this Section 2.1, the PD Trust shall assume, as of the Effective Date, and shall pay, as and when due, without any deduction, proration, reduction, setoff or discount, the obligations owed to the holder of any Allowed Asbestos PD Claim under any PD Settlement Agreement), including the right to vote and sell any securities that are included in the PD Trust Assets;
(ii)
prudently invest the monies held from time to time by the PD Trust;
(iii)
sell, transfer, or exchange any or all of the PD Trust Assets at such prices and upon such terms as the Trustees may consider proper, consistent with the other terms of this PD Trust Agreement;
(iv)
enter into leasing and financing agreements with third parties to the extent such agreements are reasonably necessary to permit the PD Trust to operate;
(v)
pay liabilities and expenses of the PD Trust;
(vi)
establish such funds, reserves, and accounts within the PD Trust estate, as deemed by the Trustees to be useful in carrying out the purposes of the PD Trust;
(vii)
sue and be sued and participate, as a party or otherwise, in any judicial administrative, arbitrative, or other proceeding;
(viii)
establish, supervise, and administer the PD Trust in accordance with (1) this PD Trust Agreement, the Class 7A CMO, and the terms hereof for PD Trust Claims in Class 7A and (2) this PD Trust Agreement, the ZAI TDP, and the terms hereof for PD Trust Claims in Class 7B;
provided
,
however
, that with respect to future claimants in Section II of the Class 7A CMO, notwithstanding any other provision of this PD Trust Agreement or the Class 7A CMO, in the event that the Reorganized Debtor materially breaches its obligations to the PD Trust under the Deferred Payment Agreement (Class 7A PD) -- (I) Section 2.l(d) of this PD Trust Agreement and Paragraph II(C)(3) of the Class 7A CMO shall no longer be operative for such future claimants; (II) the Class 7A Trustee shall, in consultation with and the approval of the PD FCR, formulate Class 7A Trust Distribution Procedures which, at a minimum, provides for a FIFO queue, maximum annual payments, and a payment percentage to assure that the future claimants’ claims are valued and paid in a substantially similar manner as the current claimants; and (III) following implementation of the Class 7A TDP, the Class 7A Trustee shall have all of the same reporting obligations as the Class 7B Trustee found in Section 2.2(d) of this PD Trust Agreement;
(ix)
appoint such officers and hire such employees and engage such legal, financial, accounting, investment, auditing, forecasting, and other consultants and agents as the business of the PD Trust requires, and delegate to such persons such powers and authorities as the fiduciary duties of the Trustees permit and as the Trustees, in their discretion, deem advisable or necessary in order to carry out the terms of this PD Trust;
(x)
pay reasonable compensation to employees, legal, financial, accounting, investment, auditing, and forecasting, and other consultants, advisors, and agents, including those engaged by the PD Trust in connection with its alternative dispute resolution activities;
(xi)
compensate the Trustees, the Delaware Trustee, the ZTAC Members, and the PD FCR as provided below, and their employees, legal, financial, accounting, investment, and other advisors, consultants, independent contractors, and agents, and reimburse the Trustees, the Delaware Trustee, the ZTAC Members, and the PD FCR all reasonable out-of pocket costs and expenses incurred by such persons in connection with the performance of their duties hereunder;
(xii)
execute and deliver such instruments as the Trustees consider proper in administering the PD Trust;
(xiii)
enter into such other arrangements with third parties as are deemed by the Trustees to be useful in carrying out the purposes of the PD Trust, provided such arrangements do not conflict with any other provision of this PD Trust Agreement;
(xiv)
delegate any or all of the authority herein conferred with respect to the investment of all or any portion of the PD Trust Assets to any one or more reputable individuals or recognized institutional investment advisors or investment managers without liability for any action taken or omission made because of any such delegation, except as provided in Section 4.4 below;
(xv)
consult with the ZTAC in the case of Class 7B issues and the PD FCR at such times and with respect to such issues relating to the conduct of the PD Trust as the respective Trustees consider desirable;
(xvi)
make, pursue (by litigation or otherwise), collect, compromise or settle, in the name of the PD Trust, any claim, right, action, or cause of action included in the PD Trust Assets before any court of competent jurisdiction; and
(xvii)
provide books, records, and other materials to Grace pursuant to Section 7.13 herein and the provisions of the ZAI TDP governing Grace’s audit rights.
(d)
Notwithstanding the foregoing, the Reorganized Debtors shall, in their sole discretion, and on behalf of the PD Trust, prosecute and defend all proceedings initiated under the PD CMO or a complaint filed in the federal district courts pursuant to the PD CMO related to any Class 7A Claims.
(e)
The Trustees shall not have the power to guarantee any debt of other persons.
(f)
The Trustees agree to take the actions of the PD Trust required hereunder.
(g)
The Trustee for the PD Trust Claims in Class 7A (the “
Class 7A Trustee
”) shall give the PD FCR prompt notice of any act performed or taken pursuant to any section of this agreement which requires such notice, including, without limitation, Sections 2.l(c)(i), (iii), (vii), (viii) or (xv) above, and any act proposed to be performed or taken pursuant to Section 2.2(f) below, and the Trustee for the PD Trust Claims in Class 7B (the “
Class 7B Trustee
” or the “
ZAI Trustee
”) shall give the PD FCR and the ZTAC prompt notice of any act performed or taken pursuant to any section of this agreement which requires such notice, including, without limitation, Sections 2.1(c)(i), (iii), (vii), or (xv) above, and any act proposed to be performed or taken pursuant to Section 2.2(f) below.
2.2
General Administration
.
(g)
The Trustees shall act in accordance with the PD Trust Agreement. In addition, the Class 7B Trustee shall act in accordance with the ZAI TDP. The Trustees shall adopt and act in accordance with PD Trust Bylaws. To the extent not inconsistent with the terms of this PD Trust Agreement, the PD Trust Bylaws shall govern the affairs of the PD Trust. In the event of an inconsistency between the PD Trust Bylaws and this PD Trust Agreement, this PD Trust Agreement shall govern.
(h)
The Trustees shall (i) timely file such income tax and other returns and statements and shall timely pay all taxes required to be paid by the PD Trust, (ii) comply with all applicable reporting and withholding obligations, (iii) satisfy all requirements necessary to qualify and maintain qualification of the PD Trust as a qualified settlement fund within the meaning of the QSF Regulations, and (iv) take no action that could cause the PD Trust to fail to qualify as a qualified settlement fund within the meaning of the QSF Regulations.
(i)
The respective Trustees for Class 7A and Class 7B shall timely account to the Bankruptcy Court as follows:
(i)
The Trustees shall cause to be prepared and filed with the Bankruptcy Court, as soon as available, and in any event within one hundred and twenty (120) days following the end of each fiscal year, annual reports (the “
Annual Report
”) for the claims and assets under their control containing financial statements of the PD Trust (including, without limitation, a balance sheet of the PD Trust as of the end of such fiscal year and a statement of operations for such fiscal year) audited by a firm of independent certified public accountants selected by the Trustees and accompanied by an opinion of such firm as to the fairness of the financial statements’ presentation of the cash and investments available for the payment of claims and as to the conformity of the financial statements with generally accepted accounting principles. The Class 7A Trustee shall provide a copy of such Annual Report to the PD FCR and Grace, and the Class 7B Trustee shall provide a copy of such Annual Report to the PD FCR, and the ZTAC Members, and Grace when such reports are filed with the Bankruptcy Court.
(ii)
Simultaneously with the filing of the Annual Report, the respective Trustees shall cause to be prepared and filed with the Bankruptcy Court, for the claims in their Class, a report containing a summary regarding the number and type of claims disposed of during the period covered by the financial statements. The Class 7A Trustee shall provide a copy of such report to the PD FCR, and the Class 7B Trustee shall provide a copy of such report to the PD FCR and the ZTAC Members when such report is filed.
(iii)
All materials required to be filed with the Bankruptcy Court by this Section 2.2(c) shall be available for inspection by the public in accordance with procedures established by the Bankruptcy Court and shall be filed with the Office of the United States Trustee for the District of Delaware (the “
U.S. Trustee
”).
(j)
The Class 7B Trustee shall cause to be prepared as soon as practicable prior to the commencement of each fiscal year budgets and cash flow projections covering such fiscal year and the succeeding four fiscal years for Class 7B Claims. The budgets and cash flow projections shall include a determination of the Maximum Annual Payment pursuant to Section 2.4 of the ZAI TDP, and the Percentage Payment pursuant to Sections 2.3 and 4.2 of the ZAI TDP. The Class 7A Trustee shall prepare such budgets and/or cash flow projections as requested in writing by Grace, subject to the terms of the Deferred Payment Agreement (Class 7A PD). The Class 7A Trustee shall provide a copy of any budget and cash flow projections for Class 7A Claims to the PD FCR and Grace, and the Class 7B Trustee shall provide a copy of the budget and cash flow projections for Class 7B Claims to the PD FCR, the ZTAC Members, and Grace.
(k)
The Class 7A Trustee shall consult with the PD FCR (i) on the general implementation and administration of the PD Trust; and (ii) on such other matters as may be required under this PD Trust Agreement. The Class 7B Trustee shall consult with the PD FCR and the ZTAC Members (i) on the general implementation and administration of the PD Trust; (ii) on the general implementation and administration of the ZAI TDP; and (iii) on such other matters as may be required under this PD Trust Agreement and the ZAI TDP.
(l)
The Class 7B Trustee shall be required to obtain the consent of Grace as required by the ZAI TDP. The Trustees shall be required to obtain the consent of the PD FCR and the ZTAC Members for matters involving Class 7B Claims and the ZAI TDP, pursuant to the Consent Process set forth in Section 5.7(b) and 6.6(b) below, in addition to any other instances elsewhere enumerated, in order:
(i)
to establish and/or to change the Claims Materials to be provided to holders of PD Trust Claims under Sections 6.1 and 6.2 of the ZAI TDP;
(ii)
to require that claimants provide additional kinds of evidence pursuant to Section 5.4 of the ZAI TDP;
(iii)
to change the form of release to be provided pursuant to Section 7.4 of the ZAI TDP;
(iv)
to terminate the PD Trust pursuant to Section 7.2 below;
(v)
to change the compensation and/or per diem of the ZTAC Members, the PD FCR, the Delaware Trustee or the Trustees, other than to reflect cost-of-living increases, or changes approved by the Bankruptcy Court as otherwise provided herein;
(vi)
to take actions to minimize any tax on the PD Trust Assets; provided that no such action prevents the PD Trust from qualifying as a qualified settlement fund within the meaning of the QSF Regulations or requires an election for the PD Trust to be treated as a grantor trust for tax purposes;
(vii)
to adopt the PD Trust Bylaws in accordance with Section 2.2(a) above or thereafter to amend the PD Trust Bylaws in accordance with the terms thereof;
(viii)
to amend any provision of this PD Trust Agreement or the ZAI TDP in accordance with the terms thereof;
(ix)
to acquire an interest in or to merge any claims resolution organization formed by the PD Trust with another claims resolution organization that is not specifically created by this PD Trust Agreement or the ZAI TDP, or to contract with another claims resolution organization or other entity that is not specifically created by this PD Trust Agreement or the ZAI TDP, or permit any other party to join in any claims resolution organization that is formed by the PD Trust pursuant to the PD Trust Agreement or the ZAI TDP;
provided
that such merger, acquisition, contract or joinder shall not (a) subject the Reorganized Debtors or any Asbestos Protected Party, or any successors in interest thereto, to any risk of having any PD Trust Claim asserted against it or them, (b) increase the costs of administering, maintaining and operating the PD Trust above the costs that would have been incurred by the PD Trust in the absence of such merger, acquisition, contract, or joinder, or (c) otherwise jeopardize the validity or enforceability of the Asbestos PD Channeling Injunction, the Successor Claims Injunction, or any other injunction or release issued or granted in favor of any (or all) of the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties in connection with the Plan; and provided further that the terms of such merger will require the surviving organization to make decisions about the allowability and value of claims in accordance with Section 1.1 of the ZAI TDP which requires that such decisions be based on the provisions of the ZAI TDP; or
(x)
to fund an educational program related to Class 7B Claims.
(m)
The Class 7A Trustee shall meet with the PD FCR no less often than quarterly, and shall meet in the interim with the PD FCR when so requested. The Class 7B Trustee shall meet with the PD FCR and ZTAC Members no less often than quarterly, and shall meet in the interim with the PD FCR and the ZTAC Members when so requested by either.
(n)
The Class 7A Trustee, upon notice from the PD FCR, if practicable in view of pending business, shall at the next meeting with the PD FCR consider issues submitted by the PD FCR. The Class 7B Trustee, upon notice from the PD FCR or the ZTAC Members, if practicable in view of pending business, shall at the next meeting with the PD FCR or the ZTAC Members consider issues submitted by the PD FCR or the ZTAC Members.
2.3
Claims Administration
. The Class 7B Trustee shall promptly proceed to implement the ZAI TDP. The Class 7A Trustee shall promptly coordinate adjudication of the Class 7A Claims with the Reorganized Debtors.
2.4
Sealed Air Settlement Agreement
.
Notwithstanding anything in this PD Trust Agreement, and not by way of limitation of the Sealed Air Settlement Agreement or the Plan, the PD Trust, the Trustees, (including, without limitation, the Class 7A Trustee and the Class 7B Trustee), and any of their successors shall (unless otherwise agreed to in writing by each of Sealed Air Corporation and Cryovac, Inc. in its absolute discretion)
(a)
unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement) (1) file all Tax Returns required to be filed by the PD Trust, if any, consistent with the provisions of this Section 2.4(a) and shall take all other Defined Actions (as defined in the Sealed Air Settlement Agreement) that are reasonably requested by Sealed Air Corporation and consistent with the provisions of this Section 2.4 (a), and (2) be prohibited from taking any Defined Action (as defined in the Sealed Air Settlement Agreement) that may result in the disqualification of the PD Trust as a Qualified Settlement Fund (as defined in the Sealed Air Settlement Agreement) or be inconsistent with Cryovac, Inc. being treated as a “transferor” (as defined under Treasury Regulations section 1.468B-l(d)) (for purposes of this Section 2.4, the “
Transferor
”) of the Asbestos PD Initial Payment directly to the PD Trust pursuant to Section 7.3.2 of the Plan and the Confirmation Order; provided, however, that it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to sub-clauses (1) and (2) of this Section 2.4(a) if each of the following four requirements has been previously satisfied: (i) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement, (ii) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this Section 2.4(a), (iii) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (iv) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement);
(b)
unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement), treat for all Tax purposes any and all payments by Cryovac, Inc. pursuant to Section 7.3.2 of the Plan and the Confirmation Order, as a direct payment by Cryovac, Inc. to the PD Trust, for Asbestos PD Claims that constitutes an ordinary and necessary expense of Cryovac, Inc.; and shall, unless otherwise required by a Final Determination (as defined in the Sealed Air Settlement Agreement): (1) be prohibited from taking any Defined Action (as defined in the Sealed Air Settlement Agreement) that is inconsistent with the foregoing provisions of this Section 2.4(b), and (2) take all Defined Actions (as defined in the Sealed Air Settlement Agreement) that are reasonably requested by Sealed Air Corporation and consistent with the provisions of this Section 2.4(b);
provided
,
however
, that it shall not be required to take, or be prohibited from taking, as the case may be, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to sub-clauses (1) and (2) of this Section 2.4(b) if each of the following four requirements has been previously satisfied (i) it has fully performed all of its obligations set forth in paragraph VI(f) of the Sealed Air Settlement Agreement, (ii) it has received a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) required or prohibited pursuant to this Section 2.4(b), (iii) it has provided a copy of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation, and (iv) within forty-five days of the receipt by Sealed Air Corporation of such Contrary Opinion (as defined in the Sealed Air Settlement Agreement), Sealed Air Corporation has not provided it with a Sealed Air Opinion (as defined in the Sealed Air Settlement Agreement);
(c)
if it has determined that an issue (for the purposes of this Section 2.4 such issue, a “
Paragraph VI(f) Issue
”) may exist with respect to its taking, or the failure to take, a Defined Action (as defined in the Sealed Air Settlement Agreement) as required pursuant to paragraph II(c)(ix) or (x), of the Sealed Air Settlement Agreement or Sections 2.4(a) and 2.4(b), of this PD Trust Agreement the case may be, then, prior to delivering a Contrary Opinion (as defined in the Sealed Air Settlement Agreement) to Sealed Air Corporation with respect to such Defined Action (as defined in the Sealed Air Settlement Agreement) in accordance with the provisos set forth in paragraph II(c)(ix) or (x) of the Sealed Air Settlement Agreement or Sections 2.4(a) and 2.4(b), of this PD Trust Agreement, as the case may be, each of the Trustees (including, without limitation, the Class 7A Trustee and the Class 7B Trustee), the Delaware Trustee and any of their successors, as the case may be, shall (1) provide to Sealed Air Corporation, as promptly as practicable, a written notice identifying such Defined Action (as defined in the Sealed Air Settlement Agreement) and describing in detail the Paragraph VI(f) Issue and (2) without limiting any obligation of Sealed Air Corporation to consult and act in good faith set forth in paragraph VI(f)(ii) of the Sealed Air Settlement Agreement, consult and act (and cause its advisors (including accountants and tax attorneys, as the case may be) to, consult and act) in good faith to determine and resolve (i) if such issue relates to a Tax issue, whether, as a result of a Change in Circumstances (as defined in the Sealed Air Settlement Agreement), there is no “reasonable basis”, as defined in IRC section 6662 (or successor provision thereof), for the taking of, or the failure to take, such Defined Action (as defined in the Sealed Air Settlement Agreement) or (ii) if such issue relates to an accounting issue, whether, as a result of a Change in Circumstances (as defined in the Sealed Air Settlement Agreement), the taking, or the failure to take, such Defined Action (as defined in the Sealed Air Settlement Agreement) is inconsistent with generally accepted accounting principles; and
(d)
without limiting any obligation of Sealed Air Corporation or Cryovac, Inc. to comply fully with the Sealed Air Settlement Agreement, comply fully with the Sealed Air Settlement Agreement, including, without limitation, by performing all other actions required, and refraining from taking any other actions precluded, by the Sealed Air Settlement Agreement. The PD FCR and the ZTAC Members shall not cause or advise the PD Trust, the Trustees (whether the Class 7A Trustee, the Class 7B Trustee, or any other Trustee), the Delaware Trustee, or any of their successors to (i) take any action that is contrary to Section 2.4(a) through (d) of this PD Trust Agreement or (ii) refrain from taking any action that is required to comply with Section 2.4(a) through (d) of this PD Trust Agreement
2.5
Class 7B Claims -- Educational Program
.
The Class 7B Trustee, after consultation with the PD FCR and the ZTAC Members as described in Section 5.7 below and Section 2.2(f)(x) above, may in his discretion pay up to $2 million over the first three years after the Effective Date, and up to $500,000 for each three-year period thereafter, to fund an educational program about Zonolite Attic Insulation. Initially, the content of the educational program must be consistent with published Environmental Protection Agency guidance concerning Zonolite Attic Insulation and with the Debtors’ bar date program for ZAI claims;
provided, however,
that the educational program’s content shall reflect any material scientific or regulatory changes or developments that pertain to ZAI, in terms and in manner of publication acceptable to the Reorganized Debtors. In the event that the PD Trust and the Reorganized Debtors disagree on any matter set forth in this Section 2.5, the parties shall submit such disagreement to an alternative dispute resolution procedure for resolution as set forth in the ZAI TDP.
SECTION III
ACCOUNTS, INVESTMENTS AND PAYMENTS
3.1
Accounts.
(o)
The Trustees may, from time to time, create such accounts and reserves within the PD Trust estate as they may deem necessary, prudent, or useful in order to provide for the payment of expenses and payment of PD Trust Claims and may, with respect to any such account or reserve, restrict the use of monies therein. Notwithstanding the foregoing, (i) the Class 7B Trustee shall keep segregated the ZAI Trust Assets from the other PD Trust Assets at all times and the Class 7A Trustee shall keep segregated the Non-ZAI Trust Assets from the ZAI Trust Assets at all times; (ii) on the Effective Date, the PD Trust shall immediately reserve and segregate from the Class 7A Initial Payment, all amounts required to be paid upon and after the occurrence of the Effective Date pursuant to PD Settlement Agreements that require such payment, and shall provide for the payment of such amounts in the manner and at the time set forth in such PD Settlement Agreements; and (iii) the PD Trust shall perform and pay, as and when due, without any deduction, proration, reduction, setoff or discount, the obligations owed to the holder of any Allowed Asbestos PD Claim under any PD Settlement Agreement.
(p)
The Trustees shall include a reasonably detailed description of any account or reserve created in accordance with this Section 3.1 and, with respect to any such account, the transfers made to such account, the proceeds of or earnings on the assets held in each such account and the payments from each such account in the accounts to be filed with the Bankruptcy Court and provided to PD FCR, the ZTAC Members, and Grace, if applicable, pursuant to Section 2.2(c)(i) above.
3.2
Investments
.
Investment of monies held in the PD Trust shall be administered in the manner consistent with the standards set forth in the Uniform Prudent Investor Act, subject to the following limitations and provisions:
(e)
To the extent the Trust Assets are invested in equities, the PD Trust may invest only in diversified equity portfolios whose benchmark is a broad equity market index such as, but not limited to, the S&P 500 Index, Russell 1000 Index, S&P ADR Index or MSCI EAFE Index. The PD Trust shall not acquire, directly or indirectly, equity in any entity (other than a Reorganized Debtor or any successor to a Reorganized Debtor) or business enterprise if, immediately following such acquisition, the PD Trust would hold more than 5% of the equity in such entity or business enterprise. The PD Trust shall not hold, directly or indirectly, more than 5% of the equity in any entity, a Reorganized Debtor, or any successor to a Reorganized Debtor or business enterprise.
(f)
The PD Trust shall not acquire or hold any long-term debt securities unless (i) such securities are PD Trust Assets under the Plan, (ii) such securities are rated “Baa” or higher by Moody’s, “BBB” or higher by Standard & Poor’s (“
S&P’s
”), or have been given an equivalent investment grade rating by another nationally recognized statistical rating agency, or (iii) have been issued or fully guaranteed as to principal and interest by the United States of America or any agency or instrumentality thereof. This restriction does not apply to any pooled investment vehicles where pooled assets receive an investment grade rating (i.e., “BBB” rating or above) by a nationally recognized rating agency.
(g)
The PD Trust shall not acquire or hold for longer than ninety (90) days any commercial paper unless such commercial paper is rated “Prime-1’’ or higher by Moody’s or “A-1” or higher by S&P’s, or has been given an equivalent rating by another nationally recognized statistical rating agency.
(h)
The PD Trust shall not acquire any debt securities or other debt instruments issued by any entity if, following such acquisition, the aggregate market value of all such debt securities and/or other debt instruments issued by such entity held by the PD Trust would exceed 5% of the then current aggregate value of the PD Trust’s assets. There is no limitation on holding debt securities or other debt instruments issued or fully guaranteed as to principal and interest by the United States of America or any agency or instrumentality thereof.
(i)
The PD Trust shall not acquire or hold any certificates of deposit unless all publicly held, long-terrn debt securities, if any, of the financial institution issuing the certificate of deposit and the holding company, if any, of which such financial institution is a subsidiary, meet the standards set forth in Section 3.2(b) above.
(j)
The PD Trust may acquire and hold any securities or instruments issued by a Reorganized Debtor or any successor to a Reorganized Debtor or obtained as proceeds of litigation or otherwise to resolve disputes, without regard to the limitations set forth in Subsections (a)-(e) above.
(k)
The PD Trust shall not acquire or hold any repurchase obligations unless, in the opinion of the Trustees, they are adequately collateralized.
(l)
The PD Trust may allow its investment managers to acquire prudently or hold derivative instruments, including, without limitation, options, futures and swaps in the normal course of portfolio management. Specifically, the PD Trust may acquire or hold derivatives to help manage or mitigate portfolio risk, including, without limitation, interest rate risk and equity market risk. Using derivative instruments to leverage a portfolio to enhance returns (at a much greater risk to the portfolio) is prohibited.
(m)
The PD Trust may lend securities on a short-term basis, subject to adequate, normal and customary collateral arrangements.
(n)
Notwithstanding (a) above, the PD Trust may acquire and hold an equity interest in a claims resolution organization without limitation as to the size of the equity interest acquired and held if prior to such acquisition, the PD Trust complies with the provisions of Section 2.2(f)(xiv) hereof with respect to the acquisition.
3.3
Source of Payments
.
(e)
All PD Trust expenses and payments and all liabilities with respect to claims shall be payable solely by the Trustees out of the PD Trust Assets. Notwithstanding the foregoing, ZAI Trust Assets shall be used only for ZAI-related expenses and payments. Neither the Debtors, the Reorganized Debtors, the Sealed Air Indemnified Parties, the Fresenius Indemnified Parties, their subsidiaries and affiliates, any successor in interest, the present or former directors, officers, employees or agents of the Debtors, the Reorganized Debtors, the Sealed Air Indemnified Parties, or the Fresenius Indemnified Parties, nor the Trustees, the ZTAC or PD FCR, or any of their officers, agents, advisors, or employees shall be liable for the payment of any PD Trust expense or any other liability of the PD Trust, except to the extent provided in the Plan or Plan Documents.
(f)
The Trustees shall include a reasonably detailed description of any payments made in accordance with this Section 3.3 in the Annual Report.
SECTION IV
TRUSTEES; DELAWARE TRUSTEE
4.1
Number
.
In addition to the Delaware Trustee appointed pursuant to Section 4.11, there shall be two (2) Trustees who shall be those persons named on the signature page hereof - the Class 7A Trustee and the Class 7B Trustee. The Class 7A Trustee shall be appointed to administer the Class 7A Claims and the non-ZAI Trust Assets, and the Class 7B Trustee shall be appointed to administer the Class 7B Claims and the ZAI Trust Assets.
4.2
Term of Service
.
(g)
The initial Trustees named pursuant to Article 4.1 above shall serve an initial five (5) year term. Thereafter each term of service shall be five (5) years. The initial Trustees shall serve from the Effective Date until the earlier of (i) the end of his or her term, (ii) his or her death, (iii) his or her resignation pursuant to Section 4.2(b) below, (iv) his or her removal pursuant to Section 4.2(c) below, or (v) the termination of the PD Trust pursuant to Section 7.2 below.
(h)
A Class 7A Trustee may resign at any time by written notice to the PD FCR, and a Class 7B Trustee may resign at any time by written notice to the PD FCR and the ZTAC Members. Such notice shall specify a date when such resignation shall take effect, which shall not be less than ninety (90) days after the date such notice is given, where practicable.
(i)
A Class 7A Trustee may be removed at the recommendation of the PD FCR with the approval of the Bankruptcy Court and a Class 7B Trustee may be removed at the recommendation of the PD FCR, the ZTAC Members, and the approval of the Bankruptcy Court, in the event that he or she becomes unable to discharge his or her duties hereunder due to accident or physical or mental deterioration, or for other good cause. Good cause shall be deemed to include, without limitation, any substantial failure to comply with the general administration provisions of Section 2.2 above, a consistent pattern of neglect and failure to perform or participate in performing the duties of the Trustees hereunder, or repeated non‑attendance at scheduled meetings. Such removal shall require the approval of the Bankruptcy Court and shall take effect at such time as the Bankruptcy Court shall determine.
4.3
Appointment of Successor Trustees
.
(a)
In the event of a vacancy in the position of a Class 7A Trustee, whether by death, term expiration, resignation, or removal, the PD FCR shall appoint a successor Class 7A Trustee. In the event of a vacancy in the position of a Class 7B Trustee, whether by death, term expiration, resignation, or removal the PD FCR and the ZTAC Members shall appoint a successor Class 7B Trustee. If the ZTAC and the PD FCR cannot agree on the appointment of a successor Class 7B Trustee, the Bankruptcy Court shall make the appointment. Nothing shall prevent the reappointment of a Trustee for an additional term or terms, and there shall be no limit on the number of terms that a Trustee may serve.
(b)
Immediately upon the appointment of any successor Trustee, all rights, titles, duties, powers and authority of the predecessor Trustee hereunder shall be vested in, and undertaken by, the successor Trustee without any further act. No successor Trustee shall be liable personally for any act or omission of his or her predecessor Trustees.
(c)
Each successor Trustee shall serve until the earlier of (i) the end of a full term of five (5) years if the predecessor Trustee completed his or her term, (ii) the end of the remainder of the term of the Trustee whom he or she is replacing if said predecessor Trustee did not complete said term, (iii) his or her death, (iv) his or her resignation pursuant to Section 4.2(b) above, (v) his or her removal pursuant to Section 4.2(c) above, or (vi) the termination of the PD Trust pursuant to Section 7.2 below.
4.4
Liability of Trustees ZTAC Members, and the PD FCR
.
The Trustees, the PD FCR, the ZTAC Members, and professionals employed by the foregoing shall not be liable to the PD Trust, to any individual holding a PD Trust Claim, or to any other person, except for such individual’s own breach of trust committed in bad faith or for willful misappropriation.
4.5
Compensation and Expenses of Trustees
.
(a)
The Class 7A Trustee shall receive a retainer from the PD Trust for his or her service as a Trustee in the amount of $40,000 per annum, and the Class 7B Trustee shall receive a retainer from the ZAI Trust Assets in the PD Trust for his or her service as a Trustee in the amount of $40,000 per annum. These retainers shall be payable in quarterly installments. In addition, for all time expended attending Trustee meetings, traveling to meetings, preparing for such meetings, and working on authorized special projects, the Trustees shall receive the sum of $695 per hour, computed on a quarter hour basis. The Trustees shall record all hourly time to be charged to the Trust on a daily basis;
provided
that the ZTAC, after consultation with the PD FCR, may authorize a reduced Class 7B Trustee hourly rate for ZAI-related projects not enumerated above. The per annum retainer and hourly compensation payable to the Class 7A Trustee hereunder shall be reviewed every year by the PD FCR, and the per annum retainer and hourly compensation payable to the Class 7B Trustee hereunder shall be reviewed every year by the PD FCR and the ZTAC Members. The per annum retainer and hourly compensation for the Trustees shall be appropriately adjusted for changes in the cost of living. The Delaware Trustee shall be paid such compensation as agreed to pursuant to a separate fee agreement.
(b)
The PD Trust will promptly reimburse the Trustees and the Delaware Trustee for all reasonable out-of-pocket costs and expenses incurred by the Trustees or the Delaware Trustee in connection with the performance of their duties hereunder, provided, however, that ZAI Trust Assets will be used to reimburse the Class 7B Trust and for the share of the Delaware Trustee’s costs and expenses allocable to Class 7B.
(c)
The PD Trust shall include a description of the amounts paid under this Section 4.5 in the Annual Report.
4.6
Indemnification
.
(a)
The PD Trust shall indemnify and defend the Trustees, the Delaware Trustee, the ZTAC Members, the PD FCR and professionals employed by the foregoing in the performance of their duties hereunder to the fullest extent that a statutory trust organized under the laws of the State of Delaware is from time to time entitled to indemnify and defend such persons against any and all liabilities, expenses, claims, damages, or losses incurred by them in the performance of their duties hereunder or in connection with activities undertaken by them prior to the Effective Date in connection with the formation, establishment, or funding of the PD Trust. Notwithstanding the foregoing, no individual shall be indemnified or defended in any way for any liability, expense, claim, damage, or loss for which he or she is ultimately found liable under Section 4.4 above.
(b)
Reasonable expenses, costs and fees (including attorneys’ fees and costs) incurred by or on behalf of a Trustee, the Delaware Trustee, a ZTAC Member, or the PD FCR in connection with any action, suit, or proceeding, whether civil, administrative or arbitrative, from which they are indemnified by the PD Trust pursuant to Section 4.6(a) above, shall be paid by the PD Trust in advance of the final disposition thereof upon receipt of an undertaking, by or on behalf of the Trustees, the ZTAC Members, or the PD FCR, to repay such amount in the event that it shall be determined ultimately by final order that such Trustee, Delaware Trustee, ZTAC Member, or the PD FCR is not entitled to be indemnified by the PD Trust.
(c)
The Trustees may purchase and maintain reasonable amounts and types of insurance on behalf of an individual who is or was a Trustee, ZTAC Member, the PD FCR, an officer or an employee of the PD Trust, or an advisor, consultant or agent of the PD Trust, the ZTAC, or the PD FCR, including for liability asserted against or incurred by such individual in that capacity or arising from his or her status as a Trustee, ZTAC Member, PD FCR, an officer or an employee of the PD Trust, or an advisor, consultant or agent of the PD Trust, the ZTAC, or the PD FCR.
4.7
Trustees’ Lien
.
The Trustees, ZTAC Members, and the PD FCR shall have a first priority lien upon the PD Trust Assets to secure the payment of any amounts payable to them pursuant to Section 4.6 above.
4.8
Trustees’ Employment of Experts; Delaware Trustee’s Employment of Counsel
.
(a)
The Trustees may, but shall not be required to, retain and/or consult with counsel, accountants, appraisers, auditors, forecasters, experts, financial and investment advisors and such other parties deemed by the Trustees to be qualified as experts on the matters submitted to them (the “
Trust Professionals
”), and in the absence of gross negligence, the written opinion of or information provided by any such party deemed by the Trustees to be an expert on the particular matter submitted to such party shall be full and complete authorization and protection in respect of any action taken or not taken by the Trustees hereunder in good faith and in accordance with the written opinion of or information provided by any such party.
(b)
The Delaware Trustee shall be permitted to retain counsel only in such circumstances as required in the exercise of its obligations hereunder and compliance with the advice of such counsel shall be full and complete authorization and protection for actions taken or not taken by the Delaware Trustee in good faith in compliance with such advice.
4.9
Trustees’ Independence
.
The Trustees shall not, during the term of their service, hold a financial interest in, act as attorney or agent for, or serve as any other professional for a Reorganized Debtor. Notwithstanding the foregoing, any Trustee may serve, without any additional compensation other than the per diem compensation to be paid by the PD Trust pursuant to Section 4.5(a) above, as a director of the Reorganized Parent. No Trustee shall act as an attorney for any person who holds a PD Trust Claim. For the avoidance of doubt, this Section shall not be applicable to the Delaware Trustee.
4.10
Bond
.
The Trustees and the Delaware Trustee shall not be required to post any bond or other form of surety or security unless otherwise ordered by the Bankruptcy Court.
4.11
Delaware Trustee
.
(a)
There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least 21 years of age and a resident of the State of Delaware or (ii) a legal entity that has its principal place of business in the State of Delaware, otherwise meets the requirements of applicable Delaware law and shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 4.11, it shall resign immediately in the manner and with the effect hereinafter specified in Section 4.1l(c) below. For the avoidance of doubt, the Delaware Trustee will only have such rights and obligations as expressly provided by reference to the Delaware Trustee hereunder.
(b)
The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Trustees set forth herein. The Delaware Trustee shall be one of the trustees of the PD Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Act and for taking such actions as are required to be taken by a Delaware Trustee under the Act. The duties (including fiduciary duties), liabilities and obligations of the Delaware Trustee shall be limited to (i) accepting legal process served on the PD Trust in the State of Delaware and (ii) the execution of any certificates required to be filed with the Secretary of State of the State of Delaware that the Delaware Trustee is required to execute under Section 3811 of the Act and there shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.
(c)
The Delaware Trustee shall serve until such time as the Trustees remove the Delaware Trustee or the Delaware Trustee resigns and a successor Delaware Trustee is appointed by the Trustees in accordance with the terms of Section 4.11(d) below. The Delaware Trustee may resign at any time upon the giving of at least sixty (60) days’ advance written notice to the Trustees;
provided
, that such resignation shall not become effective unless and until a successor Delaware Trustee shall have been appointed by the Trustees in accordance with Section 4.11(d) below. If the Trustees do not act within such 60-day period, the Delaware Trustee may apply to the Court of Chancery of the State of Delaware for the appointment of a successor Delaware Trustee.
(d)
Upon the resignation or removal of the Delaware Trustee, the Trustees shall appoint a successor Delaware Trustee by delivering a written instrument to the outgoing Delaware Trustee. Any successor Delaware Trustee must satisfy the requirements of Section 3807 of the Act. Any resignation or removal of the Delaware Trustee and appointment of a successor Delaware Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Delaware Trustee to the outgoing Delaware Trustee and the Trustees and any fees and expenses due to the outgoing Delaware Trustee are paid. Following compliance with the preceding sentence, the successor Delaware Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Delaware Trustee under this PD Trust Agreement, with like effect as if originally named as Delaware Trustee, and the outgoing Delaware Trustee shall be discharged of its duties and obligations under this PD Trust Agreement.
SECTION V
TRUST ADVISORY COMMITTEE CLASS - 7B CLAIMS
5.1
Members
.
The ZTAC shall consist of two (2) regular ZTAC Members, who shall initially be the persons named on the signature page hereof. In addition to the ZTAC Members, the PD FCR shall sit on the ZTAC on an ex officio basis as set forth in Section 6.1 below.
5.2
Duties
.
The regular ZTAC Members shall serve in a fiduciary capacity representing all holders of present PD Trust Claims in Class 7B. The Class 7B Trustee must consult with the ZTAC and the PD FCR on matters identified in Section 2.2(e) above and in other provisions herein, and must obtain the consent of the ZTAC and the PD FCR on matters identified in Section 2.2(f) above. Where provided in the ZAI TDP, certain other actions by the Class 7B Trustee are also subject to the consent of the ZTAC and the PD FCR.
5.3
Term of Office
.
(a)
The initial ZTAC Members appointed in accordance with Section 5.1 above shall serve the staggered four- or five-year terms shown on the signature pages hereof. Thereafter, each term of office shall be five (5) years. Each ZTAC Member shall serve until the earlier of (i) his or her death, (ii) his or her resignation pursuant to Section 5.3(b) below, (iii) his or her removal pursuant to Section 5.3(c) below, (iv) the end of his or her term as provided above, or (v) the termination of the PD Trust pursuant to Section 7.2 below.
(b)
A ZTAC Member may resign at any time by written notice to the other ZTAC Member, the Class 7B Trustee, and the PD FCR. Such notice shall specify a date when such resignation shall take effect, which shall not be less than ninety (90) days after the date such notice is given, where practicable.
(c)
A ZTAC Member may be removed in the event that he or she becomes unable to discharge his or her duties hereunder due to accident, physical deterioration, mental incompetence, or a consistent pattern of neglect and failure to perform or to participate in performing the duties of such member hereunder, such as repeated non-attendance at scheduled meetings, or for other good cause. Such removal shall be made at the recommendation of the remaining ZTAC Member and the PD FCR with the approval of the Bankruptcy Court.
5.4
Appointment of Successor
.
(d)
If, prior to the termination of service of a ZTAC Member other than as a result of removal, he or she has designated in writing an individual to succeed him or her as a ZTAC Member, such individual shall be his or her successor. If (i) such ZTAC Member did not designate an individual to succeed him or her prior to the termination of his or her service as contemplated above, or (ii) he or she is removed pursuant to Section 5.3(c) above, his or her successor shall be appointed by the remaining ZTAC Member and the PD FCR, or, if they cannot agree on a successor, the Bankruptcy Court. Nothing in this Agreement shall prevent the reappointment of an individual serving as a ZTAC Member for an additional term or terms, and there shall be no limit on the number of terms that a ZTAC Member may serve.
(e)
Each successor ZTAC Member shall serve until the earlier of (i) the end of the full term of five (5) years for which he or she was appointed if his or her immediate predecessor ZTAC Member completed his or her term, (ii) the end of the term of the ZTAC Member whom he or she replaced if his or her predecessor member did not complete such term (iii) his or her death, (iv) his or her resignation pursuant to Section 5.3(b) above, (v) his or her removal pursuant to Section 5.3(c) above, or (vi) the termination of the PD Trust pursuant to Section 7.2 below.
5.5
TAC’s Employment of Professionals
.
(d)
The ZTAC may, but is not required to, retain and/or consult counsel, accountants, appraisers, auditors, forecasters, experts, and financial and investment advisors, and such other parties deemed by the ZTAC to be qualified as experts on matters submitted to the ZTAC (the “
ZTAC Professionals
”). The ZTAC and the ZTAC Professionals shall at all times have complete access to the PD Trust’s officers, employees and agents, as well as to the Trust Professionals, and shall also have complete access to all information generated by them or otherwise available to the PD Trust or the Class 7B Trustee provided that any information provided by the Trust Professionals shall not constitute a waiver of any applicable privilege. In the absence of gross negligence, the written opinion of or information provided by any ZTAC Professional or Trust Professional deemed by the ZTAC to be qualified as an expert on the particular matter submitted to the ZTAC shall be full and complete authorization and protection in support of any action taken or not taken by the ZTAC in good faith and in accordance with the written opinion of or information provided by the ZTAC Professional or Trust Professional.
(e)
The PD Trust through the ZAI Trustee shall promptly reimburse from ZAI Trust Assets, or pay directly if so instructed, the ZTAC for all reasonable fees and costs associated with the ZTAC’s employment of legal counsel pursuant to this provision in connection with the ZTAC’s performance of its duties hereunder. The PD Trust through the ZAI Trustee shall similarly promptly reimburse, or pay directly if so instructed, the ZTAC for all reasonable fees and costs associated with the ZTAC’s employment of any other ZTAC Professional pursuant to this provision in connection with the ZTAC’s performance of its duties hereunder;
provided, however,
that (i) the ZTAC has first submitted to the PD Trust through the ZAI Trustee a written request for such reimbursement setting forth the reasons (A) why the ZTAC desires to employ such ZTAC Professional, and (B) why the ZTAC cannot rely on Trust Professionals to meet the need of the ZTAC for such expertise or advice, and (ii) the ZAI Trustee has approved the ZTAC’s request for reimbursement in writing. If the ZAI Trustee agrees to pay for the ZTAC Professional, such reimbursement shall be treated as an expense against ZAI Trust Assets. If the ZAI Trustee declines to pay for the ZTAC Professional, he must set forth his reasons in writing. If the ZTAC still desires to employ the ZTAC Professional at the PD Trust’s expense, the ZTAC and/or the Trustees shall resolve their dispute pursuant to Section 7.14 below.
5.6
Compensation and Expenses of the ZTAC
.
The ZTAC Members shall receive compensation from the PD Trust for their services as ZTAC Members in the form of a reasonable hourly rate set by the Class 7B Trustee for attendance at meetings or other conduct of PD Trust business except that the original ZTAC Members have waived their entitlement to such compensation for the initial year of the PD Trust’s operations;
provided
, that for the avoidance of doubt, the waiver of compensation is not applicable to the PD FCR. The ZTAC Members shall also be reimbursed promptly for all reasonable out-of-pocket costs and expenses incurred in connection with the performance of their duties hereunder. Such reimbursement or direct payment shall be deemed a PD Trust expense from ZAI Trust Assets. The PD Trust shall include a description of the amounts paid under this Section 5.6 in the Annual Report to be filed with the Bankruptcy Court and provided to the ZTAC pursuant to Section 2.2(c)(i).
5.7
Procedures for Consultation With and Obtaining the Consent of the ZTAC
.
(c)
Consultation Process
.
(i)
In the event the Class 7B Trustee is required to consult with the ZTAC or Grace pursuant to Section 2.2(e) above or on other matters as provided herein or by the ZAI TDP, the Class 7B Trustee shall provide the ZTAC and Grace with written advance notice of the matter under consideration, and with all relevant information concerning the matter as is reasonably practicable under the circumstances. The Class 7B Trustee shall also provide the ZTAC and Grace with such reasonable access to the Trust Professionals and other experts retained by the PD Trust and its staff (if any) as the ZTAC and Grace may reasonably request during the time that the Class 7B Trustee is considering such matter, and shall also provide the ZTAC and Grace the opportunity, at reasonable times and for reasonable periods of time, to discuss and comment on such matter with the Class 7B Trustee.
(ii)
In determining when to take definitive action on any matter subject to the consultation procedures set forth in this Section 5.7(a), the Class 7B Trustee shall take into consideration the time required for the ZTAC and Grace to engage and consult with their own independent financial or investment advisors as to such matter. In any event, the Class 7B Trustee shall not take definitive action on any such matter until at least thirty (30) days after providing the ZTAC and Grace with the initial written notice that such matter is under consideration by the Class 7B Trustee, unless such time period is waived by the ZTAC and Grace.
(d)
Consent Process
.
(xi)
In the event the Class 7B Trustee is required to obtain the consent of the ZTAC or Grace pursuant to Section 2.2(f) above or the ZAI TDP, the Class 7B Trustee shall provide the ZTAC or Grace with a written notice stating that their consent is being sought pursuant to that provision, describing in detail the nature and scope of the action the Class 7B Trustee proposes to take, and explaining in detail the reasons why the Class 7B Trustee desires to take such action. The Class 7B Trustee shall provide the ZTAC or Grace with as much relevant additional information concerning the proposed action as is reasonably practicable under the circumstances. The Class 7B Trustee shall also provide the ZTAC or Grace with such reasonable access to the Trust Professionals and other experts retained by the PD Trust and its staff (if any) as the ZTAC or Grace may reasonably request during the time that the Class 7B Trustee is considering such action, and shall also provide the ZTAC or Grace the opportunity, at reasonable times and for reasonable periods of time, to discuss and comment on such action with the Class 7B Trustee.
(xii)
The ZTAC or Grace must consider in good faith and in a timely fashion any request for its consent by the Class 7B Trustee, and must in any event advise the Class 7B Trustee in writing of its consent or its objection to the proposed action within thirty (30) days of receiving the original request for consent from the Class 7B Trustee. The ZTAC or Grace may not withhold its consent unreasonably. If the ZTAC or Grace decides to withhold its consent, it must explain in detail its objections to the proposed action. If the ZTAC or Grace does not advise the Class 7B Trustee in writing of its consent or its objections to the action within thirty (30) days of receiving notice regarding such request, the ZTAC’s or Grace’s consent to the proposed actions shall be deemed to have been affirmatively granted.
(xiii)
If, after following the procedures specified in this Section 5.7(b), the ZTAC or Grace continues to object to the proposed action and to withhold its consent to the proposed action, the Class 7B Trustee and/or the ZTAC or Grace shall resolve their dispute pursuant to Section 7.14 or as set forth in the ZAI TDP. However, the burden of proof with respect to the validity of the ZTAC’s or Grace’s objection and withholding of its consent shall be on the ZTAC or Grace.
SECTION VI
THE PD FCR
6.1
Duties
.
The initial PD FCR shall be the individual identified on the signature pages hereto. In accordance with the Plan, he shall serve in a fiduciary capacity, representing the interests of the holders of future PD Trust Claims in Class 7A and 7B for the purpose of protecting the rights of such persons. The PD FCR shall also be an
ex officio
member of the ZTAC for Class 7B Claims as provided in the ZAI TDP. The PD FCR shall be entitled to all of the rights of a ZTAC Member; provided, that the PD FCR shall not vote on matters put to the ZTAC unless the matter voted upon is tied. The Trustees must consult with the PD FCR on matters identified in Section 2.2(e) above and on certain other matters provided herein, and must obtain the consent of the PD FCR on matters identified in Section 2.2(f) above.
6.2
Term of Office
.
(d)
The PD FCR shall serve until the earlier of (i) his or her death, (ii) his or her resignation pursuant to Section 6.2(b) below, (iii) his or her removal pursuant to Section 6.2(c) below, or (iv) the termination of the PD Trust pursuant to Section 7.2 below.
(e)
The PD FCR may resign at any time by written notice to the Trustees. Such notice shall specify a date when such resignation shall take effect, which shall not be less than ninety (90) days after the date such notice is given, where practicable.
(f)
The PD FCR may be removed by the Bankruptcy Court in the event he or she becomes unable to discharge his or her duties hereunder due to accident, physical deterioration, mental incompetence, or a consistent pattern of neglect and failure to perform or to participate in performing the duties hereunder, such as repeated non-attendance at scheduled meetings, or for other good cause.
6.3
Appointment of Successor
.
A vacancy caused by death or resignation shall be filled with an individual nominated prior to the effective date of the resignation or the death by the resigning or deceased PD FCR and a vacancy caused by removal of the PD FCR shall be filled with an individual nominated by the Class 7B Trustee in consultation with the ZTAC Members, subject, in each case, to the approval of the Bankruptcy Court. In the event the Class 7B Trustee and ZTAC cannot agree, or a nominee has not been pre-selected, the successor shall be chosen by the Bankruptcy Court. A successor PD FCR shall also serve as an
ex officio
ZTAC Member.
6.4
PD FCR’s Employment of Professionals
.
(f)
The PD FCR may, but is not required to, retain and/or consult counsel, accountants, appraisers, auditors, forecasters, experts, and financial and investment advisors, and such other parties deemed by the PD FCR to be qualified as experts on matters submitted to the PD FCR (the “
PD FCR Professionals
”). The PD FCR and the PD FCR Professionals shall at all times have complete access to the PD Trust’s officers, employees and agents, as well as to the Trust Professionals, and shall also have complete access to all information generated by them or otherwise available to the PD Trust or the Trustees provided that any information provided by the Trust Professionals shall not constitute a waiver of any applicable privilege. In the absence of gross negligence, the written opinion of or information provided by any PD FCR Professional or Trust Professional deemed by the PD FCR to be qualified as an expert on the particular matter submitted to the PD FCR shall be full and complete authorization and protection in support of any action taken, or not taken, by the PD FCR in good faith and in accordance with the written opinion of or information provided by the PD FCR Professional or Trust Professional.
(g)
The PD Trust shall promptly reimburse, or pay directly if so instructed, the PD FCR for all reasonable fees and costs associated with the PD FCR’s employment of legal counsel pursuant to this provision in connection with the PD FCR’s performance of his or her duties hereunder. The PD Trust shall also promptly reimburse, or pay directly if so instructed, the PD FCR for all reasonable fees and costs associated with the PD FCR’s employment of any other PD FCR Professionals pursuant to this provision in connection with the PD FCR’s performance of his or her duties hereunder;
provided, however,
that (i) the PD FCR has first submitted to the PD Trust a written request for such reimbursement setting forth the reasons (A) why the PD FCR desires to employ the PD FCR Professional, and (B) why the PD FCR cannot rely on Trust Professionals to meet the need of the PD FCR for such expertise or advice, and (ii) the PD Trust has approved the PD FCR’s request for reimbursement in writing. If the PD Trust agrees to pay for the PD FCR Professional, such reimbursement shall be treated as a PD Trust expense. If the PD Trust declines to pay for the PD FCR Professional, it must set forth its reasons in writing. If the PD FCR still desires to employ the PD FCR Professional at the PD Trust’s expense, the PD FCR and/or the Trustees shall resolve their dispute pursuant to Section 7.13 below.
6.5
Compensation and Expenses of the PD FCR
.
The PD FCR shall receive compensation from the PD Trust in the form of payment at the PD FCR’s normal hourly rate for services performed. The PD Trust will promptly reimburse the PD FCR for all reasonable out- of-pocket costs and expenses incurred by the PD FCR in connection with the performance of his or her duties hereunder. Such reimbursement or direct payment shall be deemed a PD Trust expense. The PD Trust shall include a description of the amounts paid under this Section 6.5 in the Annual Report to be filed with the Bankruptcy Court and provided to the PD FCR and the ZTAC pursuant to Section 2.2(c)(i).
6.6
Procedures for Consultation with and Obtaining the Consent of the PD FCR
.
(e)
Consultation Process
.
(i)
In the event the Trustees are required to consult with the PD FCR pursuant to Section 2.2(e) above or on any other matters specified herein, the Trustees shall provide the PD FCR with written advance notice of the matter under consideration, and with all relevant information concerning the matter as is reasonably practicable under the circumstances. The Trustees shall also provide the PD FCR with such reasonable access to the Trust Professionals and other experts retained by the PD Trust and its staff (if any) as the PD FCR may reasonably request during the time that the Trustees are considering such matter, and shall also provide the PD FCR the opportunity, at reasonable times and for reasonable periods of time, to discuss and comment on such matter with the Trustees.
(ii)
In determining when to take definitive action on any matter subject to the consultation process set forth in this Section 6.6(a), the Trustees shall take into consideration the time required for the PD FCR, if he or she so wishes, to engage and consult with his or her own independent financial or investment advisors as to such matter. In any event, the Trustees shall not take definitive action on any such matter until at least thirty (30) days after providing the PD FCR with the initial written notice that such matter is under consideration by the Trustees, unless such period is waived by the PD FCR.
(f)
Consent Process
.
(i)
In the event the Trustees are required to obtain the consent of the PD FCR pursuant to Section 2.2(f) above, the Trustees shall provide the PD FCR with a written notice stating that his or her consent is being sought pursuant to that provision, describing in detail the nature and scope of the action the Trustees propose to take, and explaining in detail the reasons why the Trustees desire to take such action. The Trustees shall provide the PD FCR as much relevant additional information concerning the proposed action as is reasonably practicable under the circumstances. The Trustees shall also provide the PD FCR with such reasonable access to the Trust Professionals and other experts retained by the PD Trust and its staff (if any) as the PD FCR may reasonably request during the time that the Trustees are considering such action, and shall also provide the PD FCR the opportunity, at reasonable times and for reasonable periods of time, to discuss and comment on such action with the Trustees.
(ii)
The PD FCR must consider in good faith and in a timely fashion any request for his or her consent by the Trustees, and must in any event advise the Trustees in writing of his or her consent or objection to the proposed action within thirty (30) days of receiving the original request for consent from the Trustees. The PD FCR may not withhold his or her consent unreasonably. If the PD FCR decides to withhold consent, he or she must explain in detail his or her objections to the proposed action. If the PD FCR does not advise the Trustees in writing of his or her consent or objections to the proposed action within thirty (30) days of receiving the notice from the Trustees regarding such consent, the PD FCR’s consent shall be deemed to have been affirmatively granted.
(iii)
If, after following the procedures specified in this Section 6.6(b), the PD FCR continues to object to the proposed action and to withhold its consent to the proposed action, the Trustees and/or the PD FCR shall resolve their dispute pursuant to Section 7.14.
SECTION VII
GENERAL PROVISIONS
7.1
Irrevocability
.
To the fullest extent permitted by applicable law, the PD Trust is irrevocable.
7.2
Term; Termination
.
(f)
The term for which the PD Trust is to exist shall commence on the date of the filing of the Certificate of Trust and shall terminate pursuant to the provisions of Section 7.2 below.
(g)
The PD Trust shall automatically dissolve on the date (the “
Dissolution Date
’’) ninety (90) days after the first to occur of the following events:
(xiv)
the later of (A) 25 years following the Effective Date of the Plan, or (B) when the PD Trust has paid out all of the PD Trust Assets following the final deferred contingent payment for Class 7B Claims; or
(xv)
to the extent that any rule against perpetuities shall be deemed applicable to the PD Trust, the date on which twenty-one (21) years less ninety-one (91) days pass after the death of the last survivor of all of the descendants of the late Joseph P. Kennedy, Sr., father of the late President John F. Kennedy, living on the date hereof.
(h)
On the Dissolution Date or as soon as reasonably practicable, after the wind-up of the PD Trust’s affairs by the Trustees and payment of all the PD Trust’s liabilities have been provided for as required by applicable law including Section 3808 of the Act, all monies remaining in the PD Trust estate for Class 7B Claims shall be paid over to the Asbestos PI Trust, which shall be treated as an offset against the amount owed by the Reorganized Debtors to the Asbestos PI Trust if paid during the first 25 years after the Effective Date. Notwithstanding any contrary provision of the Plan and related documents, this Section 7.2(c) cannot be modified or amended.
(i)
Following the dissolution and distribution of the assets of the PD Trust, the PD Trust shall terminate and the Trustees, or any one of them, shall execute and cause a Certificate of Cancellation of the Certificate of Trust of the PD Trust to be filed in accordance with the Act. Notwithstanding anything to the contrary contained in this PD Trust Agreement, the existence of the PD Trust as a separate legal entity shall continue until the filing of such Certificate of Cancellation.
7.3
Amendments
.
The Class 7A Trustee, after consultation with the PD FCR and with the consent of Grace, which shall be provided in writing in accordance with Section 7.6(a), may modify or amend this PD Trust Agreement and the PD trust By-Laws to the extent the amendment affects the Non-ZAI Trust Assets or the Class 7A Claims or administration. The Class 7B Trustee, after consultation with the ZTAC, the PD FCR, and Grace, and subject to the unanimous consent of the ZTAC and the PD FCR, may modify or amend this PD Trust Agreement and the PD Trust By-laws to the extent the amendment affects the ZAI Trust Assets or ZAI Claims or administration. The Class 7B Trustee, after consultation with the ZTAC, the PD FCR, and Grace, and subject to the consent of the ZTAC and the PD FCR, may modify or amend the ZAI TDP;
provided, however,
that no amendment to the ZAI TDP shall be inconsistent with the provisions of the Plan relating to PD Trust Claims or the ZAI TDP limiting amendments to that document as provided therein. Any modification or amendment made pursuant to this Article must be done in writing. Notwithstanding anything contained in this PD Trust Agreement or the ZAI TDP to the contrary, neither this PD Trust Agreement, the PD Trust Bylaws, the ZAI TDP, nor any document annexed to the foregoing shall be modified or amended in any way that could jeopardize, impair, be inconsistent with, or modify (i) Section 2.4 of this PD Trust Agreement unless expressly consented to in writing by each of Sealed Air Corporation and Cryovac, Inc. in its absolute discretion, (ii) the applicability of section 524(g) of the Bankruptcy Code to the Plan and the Confirmation Order, (iii) the efficacy or enforceability of the Asbestos PD Channeling Injunction or the Successor Claims Injunction, or any other injunction or release issued or granted in favor of any (or all) of the Sealed Air Indemnified Parties or the Fresenius Indemnified Parties in connection with the Plan, (iv) any other material provision of the Plan, or (v) the PD Trust’s qualified settlement fund status under the QSF Regulations.
7.4
Meetings
.
The Delaware Trustee shall not be required nor permitted to attend meetings relating to the PD Trust.
7.5
Severability
.
Should any provision in this PD Trust Agreement be determined to be unenforceable, such determination shall in no way limit or affect the enforceability and operative effect of any and all other provisions of this PD Trust Agreement.
7.6
Notices
.
Notices to persons asserting claims shall be given by first class mail, postage prepaid, at the address of such person, or, where applicable, such person’s legal representative, in each case as provided on such person’s claim form submitted to the PD Trust with respect to his or her PD Trust Claim.
(a)
Any notices or other communications required or permitted hereunder to the following parties shall be in writing and delivered at the addresses designated below, or sent by e-mail or facsimile pursuant to the instructions listed below, or mailed by registered or certified mail, return receipt requested, postage prepaid, addressed as follows, or to such other address or addresses as may hereafter be furnished in writing to each of the other parties listed below in compliance with the terms hereof.
To the PD Trust through the Trustees:
To the Class 7A Trustee
Richard B. Schiro
WRG Asbestos PD Trust
c/o Wilmington Trust
Attention: Corporate Trust Administration
1100 N. Market Street
Wilmington, DE 19890-1625
Telephone: (302) 651-8742
with a copy to:
Richard B. Schiro
WRG Asbestos PD Trust
2706 Fairmount Street
Dallas, Texas 75201-1958
Telephone: (214) 521-5994
Facsimile: (214) 521-3838
-and-
Deborah D. Williamson
Cox Smith Matthews Incorporated
112 E. Pecan Street, Suite 1800
San Antonio, Texas 78205
Telephone: (210) 554-5275
Facsimile: (210 226-8395
To the Class 7B Trustee
Edward B. Cottingham, Jr.
The Cottingham Law Firm
317 Wingo Way, Suite 303
P.O. Box 810
Mt. Pleasant, SC 29465
Telephone: (843) 849-1384
with a copy to:
M. Dawes Cooke
Barnwell Whaley Patterson & Helms LLC
P.O. Drawer H
Charleston, SC 29402
Telephone: (843) 577-7700
Facsimile: (843) 577-7708
To the Delaware Trustee:
Wilmington Trust Company
1100 N. Market Street
Wilmington, DE 19890
Attention: Corporate Trust Administration
To the ZTAC:
Edward J. Westbrook
Richardson Patrick
Westbrook & Brickman LLC
1037 Chuck Dawley Blvd, Building A
Mount Pleasant, SC 29464
Telephone: (843) 727-6500
Facsimile:(843) 727-6688
-and-
Darrell W. Scott
The Scott Law Group, P.S.
926 W. Sprague Avenue, Suite 680
Spokane, WA 99201
Telephone: (509) 455-3966
Toll Free: 1-888-955-3966
Facsimile: (509) 455-3906
To the PD FCR:
Hon. Alexander M. Sanders, Jr.
19 Water Street
Charleston, South Carolina 29401
Telephone: (843) 953-5755
Facsimile: (843) 953-7570
with a copy to:
Alan B. Rich
Attorney and Counselor
1201 Elm Street, Suite 4244
Dallas, Texas 75270
Telephone: (214) 744-5100
Facsimile: (214) 744-5101
To the Reorganized Debtors:
W. R. Grace & Co.
7500 Grace Drive
Columbia, MD 21044
Telephone: (410) 531-4000
Facsimile: (410) 531-4545
Attn: Mark Shelnitz
with a copy to:
Adam C. Paul
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Telephone: (312) 862-2000
Facsimile: (312) 862-2200
Email: apaul@kirkland.com
(b)
All such notices and communications if mailed shall be effective when physically delivered at the designated addresses or, if electronically transmitted, when the communication is received at the designated addresses and confirmed by the recipient by return transmission.
7.7
Successors and Assigns
.
The provisions of this PD Trust Agreement shall be binding upon and inure to the benefit of the Debtors, the PD Trust, the Trustees, the ZTAC, and the Reorganized Debtors, and their respective successors and assigns, except that neither the Debtors, the PD Trust, the Trustees, the ZTAC, nor the Reorganized Debtors may assign or otherwise transfer any of its, or their, rights or obligations, if any, under this PD Trust Agreement except, in the case of the PD Trust and the Trustees, as contemplated by Section 2.1 above.
7.8
Limitation on Claim Interests for Securities Laws Purposes
.
PD Trust Claims, and any interests therein (a) shall not be evidenced by a certificate or other instrument; (b) shall not possess any voting rights; and (c) shall not be entitled to receive any dividends or interest.
7.9
Entire Agreement; No Waiver
.
The entire agreement of the parties relating to the subject matter of this PD Trust Agreement is contained herein and in the documents referred to herein, and this PD Trust Agreement and such documents supersede any prior oral or written agreements concerning the subject matter hereof. No failure to exercise or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any further exercise thereof or of any other right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of rights under law or in equity.
7.10
Headings
.
The headings used in this PD Trust Agreement are inserted for convenience only and do not constitute a portion of this PD Trust Agreement, nor in any manner affect the construction of the provisions of this PD Trust Agreement.
7.11
Governing Law
.
This PD Trust Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to Delaware conflict of law principles.
7.12
Settlors’ Representative and Cooperation
.
The Debtors and Reorganized Debtors are hereby irrevocably designated as the Settlors, and they are hereby authorized to take any action required of the Settlors by the Trustees in connection with the PD Trust Agreement. The Settlors agree to cooperate in implementing the goals and objectives of this PD Trust Agreement.
7.13
Audit Rights
.
The Settlors shall have the right to conduct annual audits of the books, records, and claims processing procedures of the PD Trust as set forth more fully in the ZAI TDP and to confirm that the Asbestos PD Trust expenditures have complied with the terms of the Plan, the PD Settlement Agreements, the Final Orders of the Court determining the Allowed Amount of Unresolved Asbestos PD Claims in Class 7A, the Class 7A CMO, the ZAI TDP, and this PD Trust Agreement.
7.14
Dispute Resolution
.
Any disputes that arise under this PD Trust Agreement or under the ZAI TDP among the parties hereto shall be resolved by submission of the matter to an alternative dispute resolution (
“ADR”
) process mutually agreeable to the parties involved. Should any party to the ADR process be dissatisfied with the decision of the arbitrator(s), that party may apply to the Bankruptcy Court for a judicial determination of the matter. Any review conducted by the Bankruptcy Court shall be
de novo
. Should the dispute not be resolved by the ADR process within ninety (90) days after submission, the parties are relieved of the requirement to pursue ADR prior to application to the Bankruptcy Court. If the Trustees determine that the matter in dispute is exigent and cannot await the completion of the ADR process, the Trustees shall have the discretion to elect out of the ADR process altogether or at any stage of the process and seek resolution of the dispute in the Bankruptcy Court.
7.15
Enforcement and Administration
.
The provisions of this PD Trust Agreement, the portions of the Class 7A CMO at Exhibit 1 hereto which empower the Bankruptcy Court to take an action, and only to the extent that said action is at issue, and the ZAI TDP at Exhibit 2 hereto shall be enforced by the Bankruptcy Court pursuant to the Plan. The parties hereby further acknowledge and agree that the Bankruptcy Court shall have exclusive jurisdiction over the settlement of the accounts of the Trustees and over any disputes hereunder not resolved by alternative dispute resolution in accordance with Section 7.14 above.
7.16
Effectiveness
.
This PD Trust Agreement shall not become effective until it has been executed and delivered by all the parties hereto.
7.17
Counterpart Signatures
.
This PD Trust Agreement may be executed in any number of counterparts, each of which shall constitute an original, but such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this PD Trust Agreement this _
3rd
_ day of _
February
_, 2014.
W. R. GRACE & CO.
on behalf of itself and the other Debtors
By:
/s/MARK A. SHELNITZ
Title: Vice President, General Counsel and Secretary
|
|
|
|
|
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TRUSTEES
/s/RICHARD B. SCHIRO
|
PD COMMITTEE
By:
/s/SCOTT L. BAENA
|
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Name: Richard Schiro (Class 7A Trustee)
Expiration Date of Initial Term: 5th
Anniversary of the date of this PD Trust Agreement
/s/EDWARD B. COTTINGHAM, JR.
Name: Edward B. Cottingham, Jr. (Class 7B Trustee)
Expiration Date of Initial Term: 5th
Anniversary of the date of this PD Trust Agreement
|
Name: Scott L. Baena
DELAWARE TRUSTEE
Wilmington Trust Company
By:
/s/DAVID B. YOUNG
Name: David B. Young
Title: Vice President
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Exhibit 1
Class 7A CMO
Exhibit 2
ZAI TDP
W. R. GRACE & CO.
2014 STOCK INCENTIVE PLAN
1.
Purposes.
The purposes of this Plan are (a) to enable Key Persons to have incentives related to Common Stock, (b) to encourage Key Persons to increase their interest in the growth and prosperity of the Company and to stimulate and sustain constructive and imaginative thinking by Key Persons, (c) to further the identification of interests of Key Persons with the interests of the Company's stockholders, and (d) to induce the service or continued service of Key Persons and to enable the Company to compete with other organizations offering similar or other incentives in obtaining and retaining the services of the most highly qualified individuals.
2.
Definitions.
When used in this Plan, the following terms shall have the meanings set forth in this section 2.
Board of Directors:
The Board of Directors of the Company.
cessation of service (or words of similar import):
When a person ceases to be an employee of the Company or a Subsidiary, or ceases to serve as a Director, as appropriate. For purposes of this definition, if an entity that was a Subsidiary ceases to be a Subsidiary, persons who immediately thereafter remain employees of that entity (and are not employees of the Company or an entity that is a Subsidiary) shall be deemed to have ceased service.
Change in Control:
Shall be deemed to have occurred if (a) the Company determines that any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, has become the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of twenty (20%) percent or more of the outstanding Common Stock of the Company
(provided, however,
that a Change in Control shall not be deemed to have occurred if such person has become the beneficial owner of twenty (20%) percent or more of the outstanding Common Stock as the result of a sale of Common Stock by the Company that has been approved by the Board of Directors); (b) individuals who are "Continuing Directors" (as defined below) cease to constitute a majority of any class of the Board of Directors; (c) there occurs a reorganization, merger, consolidation or other corporate transaction involving the Company (a "Corporate Transaction"), in each case, with respect to which the stockholders of the Company immediately prior to such Corporate Transaction do not, immediately after the Corporate Transaction, own fifty (50%) percent or more of the combined voting power of the corporation resulting from such Corporate Transaction; or (d) the stockholders of the Company approve a complete liquidation or dissolution of the Company. "Continuing Director" means any member of the Board of Directors who was such a member on the date on which this Plan was approved by the Committee and any successor to such a Continuing Director who is approved as a nominee or elected to succeed a Continuing Director by a majority of Continuing Directors who are then members of the Board of Directors.
Code
: The Internal Revenue Code of 1986, as amended, and the rules and regulations issued thereunder.
Committee:
The Compensation Committee of the Board of Directors of the Company or any other committee or entity designated by the Board of Directors to administer stock incentive and stock option plans of the Company and the Subsidiaries generally or this Plan specifically. However, the grant of Stock Incentives to individuals who are subject to Section 16 of the Exchange Act or Section 162(m) of the Code may only be made by a Committee which consists of not less than two (2) members of the Board of Directors of the Company, each of whom is a "non-employee director" within the meaning of Rule 16b-3 under the Exchange Act and an "outside director" within the meaning of Section 162(m) of the Code and the regulations thereunder.
Common
Stock:
The common stock of the Company, par value $.01 per share, or such other class of shares or other securities or property as may be applicable pursuant to the provisions of section 9.
Company:
W. R.
Grace & Co., a Delaware corporation.
Continuing Director:
The meaning set forth in the definition of "Change in Control" above.
Corporate Transaction:
The meaning set forth in the definition of "Change in Control" above.
Covered Employee:
A Key Person of the Company or a Subsidiary who is subject to Code Section 162(m).
Director:
A member of the Board of Directors of the Company who is not an employee of the Company.
Effective Date:
The date that the Plan becomes effective in accordance with section 10.
Exchange Act:
The Securities Exchange Act of 1934, as amended.
Exercise Period:
The meaning set forth in section 15(a)(iii) of this Plan.
Fair Market Value:
(a) The mean between the high and low sales prices of a share of Common Stock in New York Stock Exchange composite transactions on the applicable date, as reported in
The Wall Street Journal
or another newspaper of general circulation, or, if no sales of shares of Common Stock were reported for such date, on the next preceding date for which such sales were so reported, or, if the shares are not traded on the New York Stock Exchange, (b) the fair market value of a share of Common Stock determined in accordance with any other reasonable method approved by the Committee in such a manner as to comply with Code Section 409A.
Incentive Stock Option:
An Option that states that it is an incentive stock option and that is intended to meet the requirements of Section 422 of the Code and the regulations thereunder applicable to incentive stock options, as in effect from time to time.
issuance (or words of similar import):
The issuance of authorized but unissued Common Stock or the transfer of issued Common Stock held by the Company or a Subsidiary.
Key Person:
Either (i) an employee of the Company or a Subsidiary who, in the opinion of the Committee, has contributed or can contribute significantly to the growth and successful operations of the Company or one or more Subsidiaries, as determined by the Committee, or (ii) a Director. The grant of a Stock Incentive to an employee shall be deemed a determination by the Committee that such person is a Key Person.
Net Exercise Option:
An Option described in section 7 hereof.
Nonstatutory Stock Option:
An Option that is not an Incentive Stock Option.
Option:
An option granted under this Plan to purchase shares of Common Stock.
Option Agreement:
An agreement setting forth the terms of an Option.
Performance Award:
A Stock Incentive that is awarded in accordance with the provisions of section 16 of this Plan.
Performance Measure:
One or more of the following criteria, or such other operating objectives, with respect to a Performance Award, selected by the Committee to measure performance of the Company or any Subsidiary or other business division of same for a Performance Period, whether in absolute or relative terms: basic or diluted earnings per share of Common Stock; revenue; operating income; net income (either before or after taxes); earnings and/or net income before interest and taxes; earnings and/or net income before interest, taxes, depreciation and amortization; return on capital; return on equity; return on assets; net cash provided by operations; free cash flow; Common Stock price; economic profit; economic value added; total stockholder return; gross margins and costs. Each such measure shall be determined in accordance with generally accepted accounting principles as consistently applied and, as determined by the independent accountants of the Company in the case of a Performance Award to a Covered Employee, to the extent intended to meet the performance-based compensation exception under Code Section 162(m), or as determined by the Committee for other Performance Awards, adjusted to omit the effects of extraordinary items, gain or loss on the disposal of a business segment, unusual or infrequently occurring events and transactions and cumulative effects of changes in accounting principles
Performance Period:
A period of not less than one year over which the achievement of targets for Performance Measures is determined
.
Plan:
The 2014 Stock Incentive Plan of the Company herein set forth, as the same may from time to time be amended.
service:
Service to the Company or a Subsidiary as an employee or as a Director (as appropriate). “To serve” has a correlative meaning.
Stock Award
: An issuance of shares of Common Stock or an undertaking (other than an Option) to issue such shares in the future.
Spread:
The meaning set forth in section 15(a)(iii) of this Plan.
Stock Incentive:
A stock incentive granted under this Plan in one of the forms provided for in section 3.
Subsidiary:
A corporation (or other form of business association) of which shares (or other ownership interests) having fifty (50%) percent or more of the voting power regularly entitled to vote for directors (or equivalent management rights) are owned, directly or indirectly, by the Company, or any other entity designated as such by the Board of Directors with respect to whose employees Common Stock would constitute “service recipient stock” as defined under Treasury Regulations Section 1.409A-1(b)(5)(iii) or any successor provision;
provided, however,
that in the case of an Incentive Stock Option, the term "Subsidiary" shall mean a Subsidiary (as defined by the preceding clause) that is also a "subsidiary corporation" as defined in Section 424(f) of the Code and the regulations thereunder, as in effect from time to time.
3.
Grants
of
Stock Incentives.
(a)
Subject to the provisions of this Plan, the Committee may at any time and from time to time, grant Stock Incentives under this Plan to, and only to, Key Persons.
(b)
The Committee may grant a Stock Incentive to be effective at a specified future date or upon the future occurrence of a specified event. For the purposes of this Plan, any such Stock Incentive shall be deemed granted on the date it becomes effective. An agreement or other commitment to grant a Stock Incentive that is to be effective in the future shall not be deemed the grant of a Stock Incentive until the date on which such Stock Incentive becomes effective.
(c)
A Stock Incentive may be granted in the form of:
(i)
a Stock Award, or
(ii)
an Option, or
(iii)
a Net Exercise Option, or
(iv)
a combination of a Stock Award, an Option and/or Net Exercise Option.
4.
Stock Subject to this Plan.
(a) Subject to the provisions of paragraphs (c) and (d) of this section 4 and the provisions of section 9, the maximum number of shares of Common Stock that may be issued pursuant to Stock Incentives granted under this Plan shall not exceed Six Million (6,000,000). Authorized but unissued shares of Common Stock and issued shares of Common Stock held by the Company or a Subsidiary, whether acquired specifically for use under this Plan or otherwise, may be used for purposes of this Plan.
(b)
If any shares of Common Stock subject to a Stock Incentive shall not be issued and shall cease to be issuable because of the termination, in whole or in part, of such Stock Incentive or for any other reason, or if any such shares shall, after issuance, be reacquired by the Company or a Subsidiary from the recipient of such Stock Incentive, or from the estate of such recipient, for any reason, such shares shall no longer be charged against the limitation provided for in paragraph (a) of this section 4 and may again be made subject to Stock Incentives; provided that, no more than Six Million (6,000,000) shares of Common Stock (adjusted as provided in section 9) may be issued under Incentive Stock Options issued under this Plan.
(c) The maximum number of shares of Common Stock that may be subject to Stock Incentives granted to any one Covered Employee during any one calendar year shall be limited to 1,000,000 shares of Common Stock (subject to adjustment as provided in section 9).
To the extent required by Section 162(m) of the Code and so long as Section 162(m) of the Code is applicable to persons eligible to participate in the Plan, shares of Common Stock subject to the maximum in the preceding sentence with respect to which the related Stock Incentive is terminated, surrendered or canceled shall nonetheless continue to be taken into account with respect to such maximum for the calendar year in which granted.
(d) Notwithstanding any other provision of this Plan, for each share of Common Stock issued under the Plan as a Stock Award, three (3) shares of the limit specified in paragraph (a) of this section 4 shall be regarded as utilized; and for each share of Common Stock that is covered by a grant of an Option under the Plan, one (1) share of that limit will be regarded as utilized (subject to the provisions of section 7 with respect to Net Exercise Options).
5.
Stock Awards.
Except as otherwise provided in section 12, Stock Incentives in the form of Stock Awards shall be subject to the following provisions:
(a)
For purposes of this Plan, all shares of Common Stock subject to a Stock Award shall be valued at not less than one hundred (100%) percent of the Fair Market Value of such shares on the date such Stock Award is granted, regardless of whether or when such shares are issued pursuant to such Stock Award and whether or not such shares are subject to restrictions affecting their value.
(b)
Shares of Common Stock subject to a Stock Award may be issued to a Key Person at the time the Stock Award is granted, or at any time subsequent thereto, or in installments from time to time. In the event that any such issuance shall not be made at the time the Stock Award is granted, the Stock Award may provide for the payment to such Key Person, either in cash or shares of Common Stock, of amounts not exceeding the dividends that would have been payable to such Key Person in respect of the number of shares of Common Stock subject to such Stock Award (as adjusted under section 9) if such shares had been issued to such Key Person at the time such Stock Award was granted. Any Stock Award may provide that the value of any shares of Common Stock subject to such Stock Award may be paid in cash, on each date on which shares would otherwise have been issued, in an amount equal to the Fair Market Value on such date of the shares that would otherwise have been issued.
(c)
The material terms of each Stock Award shall be determined by the Committee. Each Stock Award shall be evidenced by a written instrument consistent with this Plan. It is intended that a Stock Award would be (i) made contingent upon the attainment of one or more specified objectives and (ii) subject to restrictions on the sale or other disposition of the Stock Award or the shares subject thereto for a period of two or more years;
provided, however,
that (x) a Stock Award may include restrictions and limitations in addition to those provided for herein and (y) of the total number of shares specified in paragraph (a) of section 4 (subject to adjustment as specified therein), up to five (5%) percent may be subject to Stock Awards not subject to clause (i) or clause (ii) of this sentence.
(d)
A Stock Award shall be granted for such lawful consideration as may be provided therein.
6.
Options.
Except as otherwise provided in section 12, Stock incentives in the form of Options shall be subject to the following provisions:
(a)
The purchase price per share of Common Stock shall not be less than one hundred (100%) percent of the Fair Market Value of a share of Common Stock on the date the Option is granted; and such purchase price per share of Common Stock shall not be reduced, by action of the Board of Directors or otherwise, at any time after the date the Option is granted (subject to section 9 hereof). The purchase price and any withholding tax that may be due on the exercise of an Option may be paid in cash, or, if so provided in the Option Agreement, (i) in shares of Common Stock (including shares issued pursuant to the Option being exercised and shares issued pursuant to a Stock Award granted subject to restrictions as provided for in paragraph (c) of section 5), or (ii) in a combination of cash and such shares;
provided, however,
that no shares of Common Stock delivered in payment of the purchase price may be "immature shares," as determined in accordance with generally accepted accounting principles in effect at the time. Any shares of Common Stock delivered to the Company in payment of the purchase price or withholding tax shall be valued at their Fair Market Value on the date of exercise. No indication of ownership of shares of Common Stock shall be issued upon the exercise of an Option until the purchase price for such shares has been paid in full and arrangements have been made for any tax withholding due.
(b)
If so provided in the Option Agreement (but subject to paragraph (i) of this section 6), the Company shall, upon the request of the holder of the Option and at any time and from time to time, cancel all or a portion of the Option then subject to exercise and either (i) pay the holder an amount of money equal to the excess, if any, of the Fair Market Value, at such time or times, of the shares subject to the portion of the Option so canceled over the purchase price for such shares; or (ii) issue shares of Common Stock to the holder with a Fair Market Value, at such time or times, equal to such excess; or (iii) pay such excess by a combination of
money and shares.
(c)
Each Option may be exercisable in full at the time of grant, or may become exercisable in one or more installments and at such time or times or upon the occurrence of such events, as may be specified in the Option Agreement, as determined by the Committee. Unless otherwise provided in the Option Agreement, an Option, to the extent it is or becomes exercisable, may be exercised at any time in whole or in part until the expiration or termination of such Option.
(d)
Each Option shall be exercisable during the life of
the holder only by him and, after his death, only by his estate or by a person who acquires the right to exercise the Option by will or the laws of descent and distribution. An Option, to the extent that it shall not have been exercised or canceled, shall terminate as follows after the holder ceases to serve: (i) if the holder shall voluntarily cease to serve without the consent of the Committee or shall have his service terminated for cause, the Option shall terminate immediately upon cessation of service; (ii) if the holder shall cease to serve by reason of death, incapacity or retirement under a retirement plan of the Company or a Subsidiary, the Option shall terminate three years after the date on which he ceased to serve; and (iii) except as provided in the next sentence, in all other cases the Option shall terminate three months after the date on which the holder ceased to serve unless the Committee shall approve a longer period (which approval may be given before or after cessation of service) not to exceed three years. If the holder shall die or become incapacitated during the three (3) month period (or such longer period as the Committee may approve) referred to in the preceding clause (iii), the Option shall terminate three (3) years after the date on which he ceased to serve. A leave of absence for military or governmental service or other purposes shall not, if approved by the Committee (which approval may be given before or after the leave of absence commences), be deemed a cessation of service within the meaning of this paragraph (d). Notwithstanding the foregoing provisions of this paragraph (d) or any other provision of this Plan, no Option shall be exercisable after expiration of a period of five (5) years and one (1) month from the date the Option is granted and no Incentive Stock Option shall be exercisable after expiration of a period of five (5) years from the date the Option is granted. Except as otherwise provided in Code Section 409A, where a Nonstatutory Option is granted for a term of less than five (5) years and one (1) month, the Committee may, at any time prior to the expiration of the Option, extend its term for a period ending not later than five (5) years and one (1) month from the date the Option was granted. Such an extension shall not be deemed the grant of a new Option under this Plan.
(e)
No Option nor any right thereunder may be assigned or transferred except by will or the laws of descent and distribution and except, in the case of a Nonstatutory Option, pursuant to a qualified domestic relations order (as defined in the Code), unless otherwise provided in the Option Agreement.
(f)
An Option may, but need not, be an Incentive Stock Option;
provided, however,
that (i) no Incentive Stock Option may be granted more than ten years after the earlier of adoption of the Plan by the Committee or approval by the Company’s stockholders; (ii) the exercise price of any Incentive Stock Option granted to a Key Person who owns (within the meaning of Section 422(b)(6) of the Code, after the application of the attribution rules in Section 424(d) of the Code) more than ten (10%) percent of the total combined voting power of all classes of shares of stock of the Company or any parent or Subsidiary of the Company shall be not less than one hundred ten (110%) percent of the Fair Market Value of the Common Stock on the grant date and the term of such stock option shall not exceed five (5) years;
(iii) the aggregate Fair Market Value (determined as of the time an Incentive Stock Option is granted) of the shares subject to each installment becoming exercisable for the first time in any calendar year under Incentive Stock Options granted (under all plans, including this Plan, of his employer corporation and its parent and subsidiary corporations) to the Key Person to whom such Incentive Stock Option is granted shall not exceed $100,000; (iv) Incentive Stock Options shall only be issued to Key Persons who are employees of the Company or of a Subsidiary; and (v) no stock option issued under the Plan shall be an Incentive Stock Option unless the Plan is approved by the stockholders of the Company within twelve (12) months of its adoption by the Committee.
(g)
The material terms of each Option shall be determined by the Committee. Each Option shall be evidenced by a written instrument consistent with this Plan and shall specify whether the Option is an Incentive Stock Option or a Nonstatutory Option. An Option may include restrictions and limitations in addition to those provided for in this Plan.
(h)
Options shall be granted for such lawful consideration as may be provided for in the Option Agreement.
(i)
Subject to section 9 hereof, no transaction or series of transactions shall have the effect of exchanging all or any portion of any Option granted under this Plan (a "Previously Granted Option") for, or replacing all or any portion of
any Previously Granted Option with, a new Option, where the purchase price per share of Common Stock under the new Option is less than such purchase price applicable under the Previously Granted Option.
7. Net Exercise Options.
A “Net Exercise Option” is an Option that is a Nonstatutory Stock Option, where the applicable Option Agreement specifies that the Company will reduce the number of shares issued under the Option upon exercise by the minimum whole number of shares with a Fair Market Value sufficient to pay the aggregate exercise price of the exercised shares. (If the Fair Market Value of the whole number of shares withheld exceeds the aggregate exercise price of the exercised shares, the excess fractional share shall be forfeited by the Option holder.) Shares of Common Stock that are withheld to pay the exercise price on a Net Exercise Option shall not be charged against the limitation provided for in paragraph (a) of section 4 and may again be made subject to Stock Incentives.
8. Combination of Stock Awards and Options.
Stock Incentives authorized by paragraph (c)(iv) of section 3 in the form of combinations of Stock Awards and Options shall be subject to the following provisions:
(a) A Stock Incentive may be a combination of any form of Stock Award and any form of Option;
provided, however,
that the terms and conditions of such a Stock Incentive pertaining to a Stock Award are consistent with section 5 and the terms and conditions of
such a Stock Incentive pertaining to an Option are consistent with section 6 and in the case of an Incentive Stock Option, the combination is not in violation of Treasury Regulations Section 1.422-5(d).
(b)
Such a combination Stock Incentive shall be subject to such other terms and conditions as may be specified therein, including without limitation a provision terminating in whole or in part a portion thereof upon the exercise in whole or in part of another portion thereof.
(c)
The material terms of each combination Stock Incentive shall be determined by the Committee. Each combination Stock Incentive shall be evidenced by a written instrument consistent with this Plan.
9.
Adjustment Provisions. (a)
In the event that any reclassification, split-up (whether by a dividend payable in Common Stock or otherwise), or consolidation of the Common Stock shall be effected, or the outstanding shares of Common Stock are, in connection with a merger or consolidation of the Company or a sale by the Company of all or a part of its assets, exchanged for a different number or class of shares of stock or other securities or property
of
the Company or for shares of the stock or other securities or property of any other corporation or person; (i) the number, kind, and class of shares or other securities or property that may be issued pursuant to Stock Incentives thereafter granted, (ii) the number, kind and class of shares or other securities or property that have not been issued under outstanding Stock Incentives; (iii) the purchase price to be paid per share or other unit under outstanding Stock Incentives; and (iv) the price to be paid per share or other unit by the Company or a Subsidiary for shares or other securities or property issued pursuant to Stock Incentives that are subject to a right of the Company or a Subsidiary to re-acquire such shares or other securities or property, shall in each case be equitably adjusted as determined by the Committee.
(b) In the event that there shall occur any spin-off or other distribution of assets of the Company to its shareholders (including without limitation an extraordinary dividend), (i) the number, kind and class of shares or other securities or property that may be issued pursuant to Stock Incentives thereafter granted, (ii) the number, kind and class of shares or other securities or property that have not been issued under outstanding Stock Incentives, (iii) the purchase price to be paid per share or other unit under outstanding Stock Incentives, and (iv) the price to be paid per share or other unit by the Company or a Subsidiary for shares or other securities or property issued pursuant to Stock Incentives that are subject to a right of the Company or a Subsidiary to re-acquire such shares or other securities or property, shall in each case be equitably adjusted as determined by the Committee.
10.
Term.
This Plan shall be deemed adopted, if it is approved by the Committee, and by the U.S. Bankruptcy Court as part of the Company’s “plan or reorganization” under Chapter 11 of the U.S. Bankruptcy Code. If adopted, this Plan shall become effective on the date that the Company’s plan of reorganization is confirmed by the Bankruptcy Court.
11.
Administration.
(a) This Plan shall be administered by the Committee, which shall have full authority to act in the matter of selection of Key Persons and in granting Stock Incentives to them and such other authority as is granted to the Committee by this Plan. Notwithstanding any other provision of this Plan, the Board of Directors may exercise any and all powers of the Committee with respect to this Plan, except to the extent that the possession or exercise of any power by the Board of Directors would cause any Stock Incentive to become subject to, or to lose an exemption from, Section 162(m) of the Code or Section 16(b) of the Exchange Act.
(b)
The Committee may establish such rules and regulations, not inconsistent with the provisions of this Plan, as it deems necessary to determine eligibility to be granted Stock Incentives under this Plan and for the proper administration of this Plan, and the Committee may amend or revoke any rule or regulation so established. The Committee may make such determinations and interpretations under or in connection with this Plan as it deems necessary or advisable. All such rules, regulations, determinations and interpretations shall be binding and conclusive upon the Company, its Subsidiaries, its shareholders and its directors, officers and employees, and upon their respective legal representatives, beneficiaries, successors and assigns, and upon all other persons claiming under or through any of them.
(c)
Members of the Board of Directors and members of the Committee acting under this Plan shall be fully protected in relying in good faith upon the advice of counsel and shall incur no liability in the performance of their duties, except as otherwise provided by applicable law.
12.
General Provisions.
(a) Nothing in this Plan or in any instrument executed pursuant hereto shall confer upon any person any right to continue in the service of the Company or a Subsidiary, or shall affect the right of the Company or of a Subsidiary to terminate the service of any person with or without cause.
(b) No shares of Common Stock shall be issued pursuant to a Stock Incentive unless and until all legal requirements applicable to the issuance of such shares have, in the opinion of counsel to the Company, been complied with. In connection with any such issuance, the person acquiring the shares shall, if requested by the Company, give assurances, satisfactory to counsel to the Company, in respect of such matters as the Company or a Subsidiary may deem desirable to assure compliance with all applicable legal requirements.
(c)
No person (individually or as a member of a group), and no beneficiary or other person claiming under or through him, shall have any right, title or interest in or to any shares of Common Stock allocated or reserved for the purposes of this Plan or subject to any Stock Incentive, except as to such shares of Common Stock, if any, as shall have been issued to him.
(d)
In the case of a grant of a Stock Incentive to a Key Person who is employed by a Subsidiary, such grant may provide for the issuance of the shares covered by the Stock Incentive to the Subsidiary, for such consideration as may be provided or as a contribution to the Subsidiary’s capital, upon the condition or understanding that the Subsidiary will transfer the shares to the Key Person in accordance with the terms of the Stock Incentive.
(e)
In the event the laws of a country in which the Company or a Subsidiary has employees prescribe certain requirements for Stock Incentives to qualify for advantageous tax treatment under the laws of that country (including, without limitation, laws establishing options analogous to Incentive Stock Options), the Committee, may, for the benefit of such employees, amend, in whole or in part, this Plan and may include in such amendment additional provisions for the purposes of qualifying the amended plan and Stock Incentives granted thereunder under such laws;
provided, however,
that (i) the terms and conditions of a Stock Incentive granted under such amended plan may not be more favorable to the recipient than would be permitted if such Stock Incentive had been granted under this Plan as herein set forth, (ii) all shares allocated to or utilized for the purposes of such amended plan shall be subject to the limitations of section 4,
and (iii) the provisions of the amended plan may restrict but may not extend or amplify the provisions of sections 9 and 13.
(f)
The Company or a Subsidiary may make such provisions as either may deem appropriate for the withholding of any taxes that the Company or a Subsidiary determines is required to be withheld in connection with any Stock Incentive.
(g)
Nothing in this Plan is intended to be a substitute for, or shall preclude or limit the establishment or continuation of, any other plan, practice, or arrangement for the payment of compensation or benefits to directors, officers, or employees generally, or to any class or group of such persons, that the Company or any Subsidiary now has or may hereafter put into effect, including, without limitation, any incentive compensation, retirement, pension, group insurance, stock purchase, stock bonus, or stock option plan.
(h)
Stock Incentives under the Plan are intended to be either exempt from Code Section 409A or in compliance with Code Section 409A and the Plan shall be so administered and interpreted. Any Stock Award which does not meet the requirements for a “short-term deferral” under Treasury Regulations Section 1.409A-1(b)(4) or is otherwise not exempt from Section 409A will be issued pursuant to an agreement that complies with Section 409A. The Committee shall take no action under the Plan that would cause a Stock Incentive under the Plan to fail to either be exempt from Code Section 409A or in compliance with Code Section 409A. Notwithstanding the foregoing, Stock Incentive recipients are solely responsible for the tax consequences to them of Stock Incentives under the Plan including any tax consequences under Code Section 409A.
13.
Acquisitions.
If the Company or any Subsidiary should merge or consolidate with, or purchase stock or assets or otherwise acquire the whole or part of the business of, another entity, the Company, upon the approval of the Committee, (a) may assume, in whole or in part and with or without modifications or conditions, any stock incentives granted by the acquired entity to its directors, officers, employees or consultants in their capacities as such, or (b) may grant new Stock Incentives in substitution therefor. Any such assumed or substitute Stock Incentives may contain terms and conditions inconsistent with the provisions of this Plan (including the limitations set forth in paragraph (d) of section 4), including additional benefits for the recipient; provided, however,
that if such assumed or substitute Stock Incentives are Incentive Stock Options, such terms and conditions are permitted under the plan of the acquired entity. For the purposes of any applicable plan provision involving time or a date, a substitute Stock Incentive shall be deemed granted as of the date of grant of the original stock incentive.
14.
Amendments and Termination. (a)
Anytime subsequent to the Effective Date, this Plan may be amended or terminated by the Committee;
provided, however,
that, without the approval of the stockholders of the Company, no amendment shall be made that (i) causes this Plan to cease to comply with applicable law; (ii) permits any person who is not a Key Person to be granted a Stock Incentive (except as otherwise provided in section 13); (iii) increases the maximum number of shares of Common Stock that may be issued pursuant to Stock Incentives granted under this Plan (subject to the provisions of section 4(c) and the provisions of section 9); (iv) amends the provisions of paragraph (d) of section 4, paragraph (a) of section 5 or paragraph (a) or paragraph (f) of section 6 to permit shares to be valued at, or to have a purchase price of, respectively, less than the percentage of Fair Market Value specified therein; (v) amends section 10 to extend the date set forth therein; or (vi) amends this section 14.
(b) No amendment or termination of this Plan shall adversely affect any Stock Incentive theretofore granted, and no amendment of any Stock Incentive granted pursuant to this Plan shall adversely affect such Stock Incentive, without the consent of the holder thereof.
15.
Change in Control Provisions. (a)
Notwithstanding any other provision of this Plan to the contrary, in the event of a Change in Control:
(i)
Any Options outstanding as of the date on which such Change in Control occurs, and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant;
(ii)
All restrictions and deferral limitations applicable to Stock Incentives shall lapse, and Stock Incentives shall become free of all restrictions and become fully vested and transferable to the full extent of the original grant;
(iii)
During the sixty (60) day period from and after a Change in Control (the "Exercise Period"), unless the Committee shall determine otherwise at the time of grant, the holder of an Option shall have the right, in lieu of the payment of the purchase price for the shares of Common Stock being purchased under the Option, by giving notice to the Company, to elect (within the Exercise Period) to surrender all or part of the Option to the Company and to receive cash, within thirty (30) days after such notice, in an amount equal to the amount by which the Fair Market Value per share of Common Stock on the date of such election shall exceed the purchase price per share of Common Stock under the Option (the "Spread") multiplied by the number of shares of Common Stock subject to the Option as to which the right subject to this section 15(a)(iii) shall have been exercised; and
(iv)
The Committee shall take such action as it deems appropriate and equitable to effectuate the purposes of this Plan and to protect the grantees of Options, which action may include, without limitation, any one or more of the following, provided such action is in compliance with Code Section 409A if applicable: (i) acceleration or change of the exercise and/or expiration dates of any Option to require that exercise be made, if at all, prior to the Change in Control; (ii) cancellation of any Option upon payment to the holder in cash of the Fair Market Value of the shares subject to such Option as of the date of (and, to the extent applicable, as established for purposes of) the Change in Control, less the aggregate exercise price, if any, of the Option; and (iii) in any case where equity securities of another entity are proposed to be delivered in exchange for or with respect to shares of Common Stock of the Company, arrangements to have such other entity replace the Options granted hereunder with awards with respect to such other securities, with appropriate adjustments in the number of shares subject to, and the exercise prices under, the Option.
16.
Performance Awards
(a) The Committee, in its discretion, may authorize the granting, vesting, payment and/or delivery of any form of Stock Incentive as Performance Awards to such Key Persons upon achievement of such targets for Performance Measures during a Performance Period as are selected by the Committee. The Committee, in its discretion, shall determine the Key Persons eligible for Performance Awards, the targets for Performance Measures to be achieved during each Performance Period, and the type, amount, and terms and conditions of any Performance Awards. Performance Awards may be granted either alone or in addition to other Stock Incentives made under the Plan.
(b) If the Company is subject to Code Section 162(m), in connection with any Performance Awards granted to a Covered Employee which are intended to meet the performance-based compensation exception under Code Section 162(m), the Committee shall (i) establish in the Performance Award Agreement the specific targets relative to the Performance Measures which must be attained before the respective Performance Award is granted, vests, or is otherwise paid or delivered, (ii) provide in the applicable Performance Award Agreement the method for computing the portion of the Performance Award which shall be granted, vested, paid and/or delivered if the target or targets are attained in full or part, and (iii) at the end of the relevant Performance Period and prior to any such grant, vesting, payment or delivery certify the extent to which the applicable target or targets were achieved and whether any other material terms were in fact satisfied. The specific targets and the method for computing the portion of such Performance Award which shall be granted, vested, paid or delivered to any Covered Employee shall be established by the Committee prior to the earlier to occur of (A) ninety (90) days after the commencement of the Performance Period to which the Performance Measure applies and (B) the elapse of twenty-five (25%) percent of the Performance Period and in any event while the outcome is substantially uncertain. In interpreting Plan provisions applicable to Performance Measures and Performance Awards which are intended to meet the performance-based compensation exception under Code Section 162(m), it is the intent of the Plan to conform with the standards of Section 162(m) of the Code and Treasury Regulations Section 1.162-27(e)(2), and the Committee in interpreting the Plan shall be guided by such provisions.
February 3, 2014
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Grace Emerges from Chapter 11
Joint Plan of Reorganization Is Effective Today
Columbia, MD
– February 3, 2014 – W. R. Grace & Co. (NYSE: GRA) announced that its Joint Plan of Reorganization became effective today, marking the company’s emergence from Chapter 11.
The Joint Plan establishes two independent trusts to compensate asbestos personal injury claimants and property owners. The trusts will be funded with more than $4 billion from a variety of sources including cash, warrants to purchase Grace common stock, deferred payment obligations, insurance proceeds, and payments from former affiliates. All allowed claims of non-asbestos creditors will be paid in full.
On April 2, 2001, Grace voluntarily filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code in order to resolve its asbestos-related liabilities.
About Grace
Grace is a leading global supplier of catalysts; engineered and packaging materials; and, specialty construction chemicals and building materials. The company’s three industry-leading business segments—Grace Catalysts Technologies, Grace Materials Technologies and Grace Construction Products—provide innovative products, technologies and services that enhance the quality of life. Grace employs approximately 6,500 people in over 40 countries and had 2012 net sales of $3.2 billion. More information about Grace is available at www.grace.com.
# # #
This announcement contains forward-looking statements, that is, information related to future, not past, events. Such statements generally include the words “believes,” “plans,” “intends,” “targets,” “will,” “expects,” “suggests,” “anticipates,” “outlook,” “continues” or similar expressions. Forward-looking statements include, without limitation, all statements regarding Grace’s Chapter 11 case; expected financial positions; results of operations; cash flows; financing plans; business strategy; budgets; capital and other expenditures; competitive positions; growth opportunities for existing products; benefits from new technology and cost reduction initiatives, plans and objectives; and markets for securities. For these statements, Grace claims the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. Like other businesses, Grace is subject to risks and uncertainties that could cause its actual results to differ materially from its projections or that could cause other forward-looking statements to prove incorrect. Factors that could cause actual results to materially differ from those contained in the forward-looking statements include, without limitation: developments affecting Grace’s bankruptcy, propose
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plan of reorganization and settlements with certain creditors, the cost and availability of raw materials (including rare earth) and energy, developments affecting Grace’s underfunded and unfunded pension obligations, risks related to foreign operations, especially in emerging region, acquisitions and divestitures of assets and gains and losses from dispositions or impairments, the effectiveness of its research and development and growth investments, its legal and environmental proceedings, costs of compliance with environmental regulation and those factors set forth in Grace’s most recent Annual Report on Form 10-K, quarterly report on Form 10-Q and current reports on Form 8-K, which have been filed with the Securities and Exchange Commission and are readily available on the Internet at www.sec.gov. Reported results should not be considered as an indication of future performance. Readers are cautioned not to place undue reliance on Grace’s projections and forward-looking statements, which speak only as the date thereof. Grace undertakes no obligation to publicly release any revision to the projections and forward-looking statements contained in this announcement, or to update them to reflect events or circumstances occurring after the date of this announcement.
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Grace Announces $500 Million Share Repurchase Program
Columbia, MD
– February 4, 2014 – W. R. Grace & Co. (NYSE: GRA) announced that its Board of Directors has authorized a share repurchase program of up to $500 million expected to be completed over the next 12 to 24 months at the discretion of management.
“This program demonstrates our commitment to increasing long-term shareholder value," said Fred Festa, Grace’s Chairman and Chief Executive Officer. “Our strong balance sheet and cash flow provide the financial flexibility both to invest in growth and return capital to shareholders.”
Repurchases under the program may be made through one or more open market transactions at prevailing market prices; unsolicited or solicited privately negotiated transactions; accelerated share repurchase programs; or through any combination of the foregoing, or in such other manner as determined by management. The timing of the repurchases and the actual amount repurchased will depend on a variety of factors, including the market price of Grace’s shares and general market and economic conditions. Repurchased shares will be held in treasury. There is no guarantee as to the number of shares that will be repurchased and the share repurchase program may be extended, suspended or discontinued at any time without notice.
About Grace
Grace is a leading global supplier of catalysts; engineered and packaging materials; and, specialty construction chemicals and building materials. The company’s three industry-leading business segments—Grace Catalysts Technologies, Grace Materials Technologies and Grace Construction Products—provide innovative products, technologies and services that enhance the quality of life. Grace employs approximately 6,500 people in over 40 countries and had 2012 net sales of $3.2 billion. More information about Grace is available at www.grace.com.
# # #
This announcement contains forward-looking statements, that is, information related to future, not past, events. Such statements generally include the words “believes,” “plans,” “intends,” “targets,” “will,” “expects,” “suggests,” “anticipates,” “outlook,” “continues” or similar expressions. Forward-looking statements include, without limitation, all statements regarding Grace’s Chapter 11 case; expected financial positions; results of operations; cash flows; financing plans; business strategy; budgets; capital and other expenditures; competitive positions; growth opportunities for existing products; benefits from new technology and cost reduction initiatives, plans and objectives; and markets for securities. For these statements, Grace claims the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. Like other businesses, Grace is subject to risks and uncertainties that could cause its
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actual results to differ materially from its projections or that could cause other forward-looking statements to prove incorrect. Factors that could cause actual results to materially differ from those contained in the forward-looking statements include, without limitation: developments affecting Grace’s bankruptcy, propose plan of reorganization and settlements with certain creditors, the cost and availability of raw materials (including rare earth) and energy, developments affecting Grace’s underfunded and unfunded pension obligations, risks related to foreign operations, especially in emerging region, acquisitions and divestitures of assets and gains and losses from dispositions or impairments, the effectiveness of its research and development and growth investments, its legal and environmental proceedings, costs of compliance with environmental regulation and those factors set forth in Grace’s most recent Annual Report on Form 10-K, quarterly report on Form 10-Q and current reports on Form 8-K, which have been filed with the Securities and Exchange Commission and are readily available on the Internet at www.sec.gov. Reported results should not be considered as an indication of future performance. Readers are cautioned not to place undue reliance on Grace’s projections and forward-looking statements, which speak only as the date thereof. Grace undertakes no obligation to publicly release any revision to the projections and forward-looking statements contained in this announcement, or to update them to reflect events or circumstances occurring after the date of this announcement.
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