Exhibit 10.1
$310,000,000
CREDIT AGREEMENT
Dated as of July 11, 2003
among
TABLETOP HOLDINGS, INC.,
MERISANT COMPANY
AS BORROWER,
THE LENDERS AND ISSUERS PARTY HERETO,
CREDIT SUISSE FIRST BOSTON,
AS ADMINISTRATIVE AGENT,
CREDIT SUISSE FIRST BOSTON,
AS SOLE ARRANGER AND BOOK MANAGER,
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT,
and
BANK ONE, NA
and
FORTIS CAPITAL CORP.,
AS CO-DOCUMENTATION AGENTS
TABLE OF CONTENTS
ARTICLE I DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS...........................1
Section 1.1 Defined Terms.....................................................1
Section 1.2 Computation of Time Periods......................................32
Section 1.3 Accounting Terms and Principles..................................33
Section 1.4 Certain Terms....................................................33
ARTICLE II THE FACILITIES...........................................................34
Section 2.1 The Commitments..................................................34
Section 2.2 Borrowing Procedures.............................................34
Section 2.3 Swing Loans......................................................37
Section 2.4 Letters of Credit. ..............................................39
Section 2.5 Reduction and Termination of the Commitments.....................44
Section 2.6 Repayment of Loans...............................................44
Section 2.7 Evidence of Debt.................................................46
Section 2.8 Optional Prepayments.............................................47
Section 2.9 Mandatory Prepayments............................................48
Section 2.10 Interest.........................................................50
Section 2.11 Conversion/Continuation Option...................................51
Section 2.12 Fees. ...........................................................52
Section 2.13 Payments and Computations........................................53
Section 2.14 Special Provisions Governing LIBO Rate Loans.....................56
Section 2.15 Capital Adequacy.................................................58
Section 2.16 Taxes............................................................59
Section 2.17 Substitution of Lenders..........................................60
ARTICLE III CONDITIONS TO LOANS AND LETTERS OF CREDIT...............................61
Section 3.1 Conditions Precedent to Initial Loans and Letters of Credit......61
Section 3.2 Conditions Precedent to Each Loan and Letter of Credit...........66
ARTICLE IV REPRESENTATIONS AND WARRANTIES...........................................67
Section 4.1 Financial Condition..............................................67
Section 4.2 No Change........................................................67
Section 4.3 Corporate Existence; Compliance with Law.........................67
Section 4.4 Corporate Power; Authorization; Enforceable Obligations..........68
Section 4.5 No Legal Bar.....................................................68
Section 4.6 Litigation.......................................................69
Section 4.7 No Default.......................................................69
Section 4.8 Ownership of Property; Liens.....................................69
Section 4.9 Intellectual Property............................................69
Section 4.10 Taxes............................................................69
Section 4.11 Federal Regulations..............................................70
Section 4.12 Labor Matters....................................................70
Section 4.13 ERISA............................................................70
Section 4.14 Investment Company Act; Other Regulations........................71
Section 4.15 Ownership of Borrower; Subsidiaries..............................71
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Section 4.16 Use of Proceeds..................................................71
Section 4.17 Environmental Matters ...........................................72
Section 4.18 Accuracy of Information, etc.....................................73
Section 4.19 Security Documents...............................................74
Section 4.20 Solvency.........................................................74
Section 4.21 Regulation H.....................................................74
Section 4.22 SwissCo Intercompany Note........................................75
Section 4.23 Insurance........................................................75
Section 4.24 Senior Subordinated Debt Documents...............................75
ARTICLE V AFFIRMATIVE COVENANTS.....................................................76
Section 5.1 Financial Statements.............................................76
Section 5.2 Certificates; Other Information..................................77
Section 5.3 Payment of Obligations and Taxes.................................80
Section 5.4 Maintenance of Existence; Compliance.............................80
Section 5.5 Maintenance of Property; Insurance...............................80
Section 5.6 Inspection of Property; Books and Records; Discussions...........81
Section 5.7 Notices..........................................................81
Section 5.8 Environmental Laws...............................................82
Section 5.9 Ratings..........................................................82
Section 5.10 Additional Collateral and Guaranties.............................82
Section 5.11 Liens Securing Excluded Foreign Subsidiary Indebtedness..........84
Section 5.12 Application of Proceeds..........................................84
ARTICLE VI NEGATIVE COVENANTS.......................................................84
Section 6.1 Financial Condition Covenants....................................84
Section 6.2 Indebtedness.....................................................87
Section 6.3 Liens............................................................89
Section 6.4 Fundamental Changes..............................................90
Section 6.5 Disposition of Property..........................................91
Section 6.6 Restricted Payments..............................................92
Section 6.7 Capital Expenditures.............................................93
Section 6.8 Investments......................................................94
Section 6.9 Special Purpose Subsidiary.......................................95
Section 6.10 Transactions with Affiliates.....................................95
Section 6.11 Sales and Leasebacks.............................................96
Section 6.12 Changes in Fiscal Periods........................................96
Section 6.13 Negative Pledge Clauses..........................................96
Section 6.14 Clauses Restricting Subsidiary Distributions.....................96
Section 6.15 Lines of Business................................................97
Section 6.16 Amendments to the SwissCo Intercompany Note; Principal Amount....97
Section 6.17 Modification of Subordinated Agreements..........................98
Section 6.18 Post-Closing Deliveries..........................................99
ARTICLE VII EVENTS OF DEFAULT.......................................................99
Section 7.1 Events of Default................................................99
Section 7.2 Remedies........................................................102
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Section 7.3 Actions in Respect of Letters of Credit.........................102
Section 7.4 Rescission......................................................103
ARTICLE VIII THE ADMINISTRATIVE AGENT; THE AGENTS..................................103
Section 8.1 Authorization and Action........................................103
Section 8.2 Administrative Agent's Reliance, Etc............................104
Section 8.3 The Administrative Agent Individually...........................104
Section 8.4 Lender Credit Decision..........................................105
Section 8.5 Indemnification.................................................105
Section 8.6 Successor Administrative Agent..................................105
Section 8.7 Concerning the Collateral and the Collateral Documents..........106
Section 8.8 Collateral Matters Relating to Related Obligations..............107
ARTICLE IX MISCELLANEOUS...........................................................108
Section 9.1 Amendments. Waivers. Etc........................................108
Section 9.2 Assignments and Participations..................................110
Section 9.3 Costs and Expenses..............................................114
Section 9.4 Indemnities.....................................................116
Section 9.5 Limitation of Liability.........................................118
Section 9.6 Right of Set-off................................................118
Section 9.7 Sharing of Payments. Etc........................................118
Section 9.8 Notices, Etc....................................................119
Section 9.9 No Waiver; Remedies.............................................121
Section 9.10 Binding Effect..................................................121
Section 9.11 Governing Law...................................................121
Section 9.12 Submission to Jurisdiction; Service of Process..................121
Section 9.13 Waiver of Jury Trial............................................122
Section 9.14 Marshaling; Payments Set Aside..................................122
Section 9.15 Section Titles..................................................123
Section 9.16 Execution in Counterparts.......................................123
Section 9.17 Entire Agreement................................................123
Section 9.18 Confidentiality.................................................123
Section 9.19 Waiver of Usury Defense.........................................124
Section 9.20 Survival of Agreement...........................................124
Schedules
Schedule I - Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule 4.10 - Tax Returns under Audit or Examination
Schedule 4.15 - Subsidiaries
Schedule 4.19(a) - Security Interest Filings
Schedule 4.19(b) - Mortgage Filings
Schedule 4.22 - Foreign Trademarks
Schedule 6.2 - Existing Indebtedness
Schedule 6.8 - Existing Investments
Schedule 6.18 - Post-Closing Deliveries
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Exhibits
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Revolving Credit Note
Exhibit B-2 - Form of Tranche (A) (Euro) Term Loan Note
Exhibit B-3 Form of Tranche B Term Loan Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Letter of Credit Request
Exhibit E - Form of Notice of Conversion or Continuation
Exhibit F - Form of Opinion of Counsel for the Loan Parties
Exhibit G - Form of Guaranty
Exhibit H - Form of Security Agreement
Exhibit I - Form of Compliance Certificate
Exhibit J - Form of Notice of Optional Prepayment
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CREDIT AGREEMENT, dated as of July 11, 2003 among MERISANT COMPANY, a
Delaware corporation (the "BORROWER"), TABLETOP HOLDINGS, INC., a Delaware
corporation ("HOLDINGS"), the Lenders (as defined below), the Issuers (as
defined below), CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, as agent for the Lenders and the Issuers (in such capacity, the
"ADMINISTRATIVE AGENT") and as sole arranger and book manager (in such capacity,
the "ARRANGER"), WACHOVIA BANK, NATIONAL ASSOCIATION, as syndication agent (in
such capacity, the "SYNDICATION AGENT"), and BANK ONE, NA and FORTIS CAPITAL
CORP., as co-documentation agents (in such capacity the "CO-DOCUMENTATION
AGENTS").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders and Issuers make
available for the purposes specified in this Agreement term loans and a
revolving credit and letter of credit facility; and
WHEREAS, the Lenders and Issuers are willing to make available to the
Borrower such term loans and revolving credit and letter of credit facility upon
the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
SECTION 1.1 DEFINED TERMS. As used in this Agreement, the following terms
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"ADMINISTRATIVE AGENT" has the meaning specified in the preamble to this
Agreement.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, either to (a) vote 10% or more
of the securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person, or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"AGREEMENT" means this
Credit Agreement.
"AGREEMENT CURRENCY" has the meaning assigned to such term in Section
9.12(b).
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"APPLICABLE CURRENCY" means (i) euro in the case of Euro Loans or
Reimbursement Obligations in respect of Letters of Credit (Euro) or interest
thereon or (ii) Dollars in the case of all other Loans, Reimbursement
Obligations or other Obligations.
"APPLICABLE CURRENCY DENOMINATION" means (i) in the case of any Euro Loan,
EURO 1,000,000 or an integral multiple of EURO 1,000,000 in excess thereof, (ii)
in the case of any LIBO Rate Dollar Loan, $1,000,000 or an integral multiple of
$1,000,000 in excess thereof or (iii) in the case of any Base Rate Loan,
$1,000,000 or an integral multiple of $1,000,000 in excess thereof.
"APPLICABLE LENDER" has the meaning assigned to such term in Section
9.12(b).
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, its
Domestic Lending Office in the case of a Base Rate Loan, and its LIBOR Lending
Office in the case of a LIBO Rate Loan.
"APPLICABLE MARGIN" means (a) during the period commencing on the Closing
Date and ending on the date 3 Business Days after the receipt by the
Administrative Agent of the Financial Statements required to be delivered
pursuant to Section 5.1(b) for the Fiscal Quarter ending September 30, 2003, (i)
with respect to the Revolving Loans and Swing Loans maintained as (A) Base Rate
Loans, a rate equal to 1.50% per annum or (B) LIBO Rate Loans (including any
Euro Loans), a rate equal to 2.75% per annum, (ii) with respect to Tranche A
(Euro) Term Loans, a rate equal to 2.75% per annum, and (iii) with respect to
the Tranche B Term Loans maintained as (A) Base Rate Loans, a rate equal to
1.50% per annum or (B) LIBO Rate Loans, a rate equal to 2.75% per annum and (b)
thereafter, as of any date of determination, a per annum rate equal to the rate
set forth below opposite the applicable type of Loan and the then applicable
Consolidated Leverage Ratio (determined for the period ending on the last day of
the most recent Fiscal Quarter or Fiscal Year, as applicable, for which
Financial Statements have been delivered pursuant to Section 5.1(a) or (b)) set
forth below:
Applicable
Margin for
Applicable Margin for Tranche A
Revolving Loans (Euro) Term Applicable Margin for
and Swingline Loans Loans Tranche B Term Loans
------------------------------------------------------------------------------------------
CONSOLIDATED LIBO RATE BASE RATE LIBO RATE LIBO RATE BASE RATE
LEVERAGE RATIO LOANS LOANS LOANS LOANS LOANS
Greater than or equal to 4x 2.75% 1.50% 2.75% 2.75% 1.50%
Less than 4x but greater
than or equal to 3.5x 2.50% 1.25% 2.50% 2.75% 1.50%
Less than 3.5x 2.25% 1.00% 2.25% 2.75% 1.50%
Changes in the Applicable Margin resulting from changes in the Consolidated
Leverage Ratio shall become effective as to all Loans on the date that is 3
Business Days after the date on which Financial Statements are delivered to the
Lenders pursuant to Section 5.1(a) or (b) of this Agreement and shall remain in
effect until the next change to be effected pursuant to this
2
paragraph. Notwithstanding anything to the contrary set forth in this Agreement
(including the then effective Leverage Ratio), (i) if any financial statements
referred to above are not delivered within the time periods specified in Section
5.1(a) or (b) of this Agreement, then the Applicable Margin from and including
the date on which such respective financial statements were so required to be
delivered to but not including the date that is 3 Business Days after the date
on which such financial statements are delivered, shall equal the highest
Applicable Margin set forth in each column of the above chart; and (ii) at all
times while an Event of Default shall have occurred and be continuing, the
Applicable Margin shall equal the highest rate set forth in each column of the
above chart. Each determination of the Consolidated Leverage Ratio pursuant to
the above chart shall be made in a manner consistent with the determination
thereof pursuant to Section 6.1(a) of this Agreement.
"APPLICABLE UNUSED COMMITMENT FEE RATE" means (a) during the period
commencing on the Closing Date and ending on the date 3 Business Days after the
receipt by the Administrative Agent of the Financial Statements required to be
delivered by Section 5.1(b) for the Fiscal Quarter ending September 30, 2003,
0.50% per annum and (b) thereafter, as of any date of determination, a per annum
rate equal to the rate set forth below opposite the then applicable Consolidated
Leverage Ratio (determined for the period ending on the last day of the most
recent Fiscal Quarter or Fiscal Year, as applicable, for which Financial
Statements have been delivered pursuant to Section 5.1(a) or (b)) set forth
below:
Applicable Unused
Consolidated Leverage Ratio Commitment Fee Rate
------------------------------------------------------------------
Greater than or equal to 4.5x 0.75%
Less than 4.5x but greater than or equal to 4x 0.50%
Less than 4x but greater than or equal to 3.5x 0.50%
Less than 3.5x 0.50%
Changes in the Applicable Unused Commitment Fee Rate resulting from changes in
the Consolidated Leverage Ratio shall become effective on the date that is 3
Business Days after the date on which Financial Statements are delivered to the
Lenders pursuant to Section 5.1(a) or (b) of this Agreement and shall remain in
effect until the next change to be effected pursuant to this paragraph.
Notwithstanding anything to the contrary set forth in this Agreement (including
the then effective Leverage Ratio), (i) if any financial statements referred to
above are not delivered within the time periods specified in Section 5.1(a) or
(b) of this Agreement, then the Applicable Unused Commitment Fee Rate from and
including the date on which such respective financial statements were so
required to be delivered to but not including the date that is 3 Business Days
after the date on which such financial statements are delivered, shall equal the
highest Applicable Unused Commitment Fee Rate set forth in the above chart; and
(ii) at all times while an Event of Default shall have occurred and be
continuing, the Applicable Unused Commitment Fee Rate shall equal the highest
rate set forth in the above chart. Each determination of the Consolidated
Leverage Ratio pursuant to the above chart shall be made in a manner consistent
with the determination thereof pursuant to Section 6.1(a) of this Agreement.
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"APPROVED FUND" means any Fund that is advised or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or Affiliate of an entity that
administers or manages a Lender.
"ARRANGER" means CSFB, in its capacity as sole arranger and book manager.
"ASSET SALE" means (i) any Disposition of property or series of related
Dispositions of property (excluding any Disposition permitted by clause (i),
(ii), (iii), (iv), (v), (vi), (viii) or (ix) of Section 6.5 but including any
Disposition permitted by clause (vii) of Section 6.5) that yields gross proceeds
to Holdings, the Borrower or any of its Subsidiaries (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of notes or
other debt securities and valued at fair market value in the case of other
non-cash proceeds) in excess of $1,000,000 and (ii) notwithstanding the
exclusion from clause (i) above of any Disposition permitted by clause (v) of
Section 6.5, any Receivable Qualifying Asset Sale.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered into
by a Lender and an assignee, and accepted by the Administrative Agent, in
substantially the form of Exhibit A.
"AVAILABLE CREDIT" means, at any time, an amount equal to (a) the Available
Revolving Credit Commitments effective at such time minus (b) the aggregate
Revolving Credit Outstandings at such time.
"AVAILABLE EURO CREDIT" means, at any time, an amount equal to the lesser
of (x) the Available Credit at such time and (y) the excess, if any, of (a)
$15,000,000 over (b) the aggregate Revolving Credit Euro Outstandings at such
time.
"AVAILABLE REVOLVING CREDIT COMMITMENTS" means, at any time, (i) the
aggregate Revolving Credit Commitments effective at such time minus (ii) the
aggregate outstanding potential liability of the Borrower under any Foreign
Overdraft Guarantees at such time.
"BASE RATE" means, for any day, an alternate base rate calculated as a
fluctuating rate per annum as shall be in effect from time to time, equal to the
greater of:
(a) Prime Rate in effect on such day; and
(b) the sum of (i) 0.5% per annum PLUS (ii) the Federal Funds Effective
Rate on such day.
As used in this definition, the term "Prime Rate" means the rate of interest per
annum announced from time to time by the Administrative Agent as its prime rate
in effect at its principal office in
New York City. The parties hereto
acknowledge that the Prime Rate is an index or base rate and shall not
necessarily be the lowest or best rate charged by CSFB to its customers or other
banks. If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate, for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient quotation
in accordance with the terms hereof, the Base Rate shall be determined with out
regard to clause (b) above until the circumstances giving rise to such inability
no longer exist. Any
4
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the effective day of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"BASE RATE LOAN" means any Loan during any period in which it bears
interest based on the Base Rate.
"BORROWING" means a borrowing consisting of Loans made in the same currency
on the same day by the Lenders ratably according to their respective
Commitments. A Borrowing may be a Revolving Credit Borrowing, a Tranche A (Euro)
Term Loan Borrowing, a Tranche B Term Loan Borrowing or a Swing Loan Borrowing.
"BUSINESS DAY" means a day of the year that is: (i) a day on which banks
are not required or authorized to close in
New York City; and (ii) with respect
to any Loan denominated in euro, in the case of (x) payments or purchases of
euro, a TARGET Business Day and (y) all other purposes, including the giving and
receiving of notices, a TARGET Business Day on which banks are generally open
for business in ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and any other principal
financial center as the Administrative Agent may from time to time determine for
this purpose; and (iii) with respect to all notices (except with respect to
general matters not relating directly to funding), determinations and fundings
in connection with, and payments of principal and interest on, LIBO Rate Loans,
a day for trading by and between banks in deposits of the Applicable Currency
for such Loans in the London interbank market. For purposes of this definition,
a "TARGET BUSINESS DAY" is a day when the Trans-European Automated Real-time
Gross Settlement Express Transfer System, or any successor thereto, is scheduled
to be open for business.
"CAPITAL EXPENDITURES" means, for any period, with respect to any Person,
the aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) that are required to be capitalized under GAAP
on a consolidated balance sheet of such Person and its Subsidiaries, excluding,
without duplication, any such expenditures to the extent constituting (i)
expenditures of insurance proceeds to acquire or repair any asset after a
Recovery Event with respect to such asset, (ii) leasehold improvement
expenditures for which the Borrower or a Subsidiary is reimbursed by the lessor,
sublessor or sublessee, (iii) expenditures made with the proceeds of any
Reinvestment Deferred Amount and (iv) with respect to any Investment permitted
under Section 6.8(x), without duplication, (a) the purchase price of such
Investment or (b) any capital expenditures expended by the seller or entity to
be acquired in connection with such Investment prior to the date of such
Investment.
"CAPITAL LEASE OBLIGATIONS" means, as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
5
"CAPITAL STOCK" means, with respect to any Person, any Stock or Stock
Equivalents of such Person.
"CASH COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreement.
"CASH EQUIVALENTS" means (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year after the date of acquisition thereof; (b)
certificates of deposit, time deposits, Eurodollar time deposits or overnight
bank deposits having maturities of six months or less after the date of
acquisition thereof issued by any Lender or by any commercial bank organized
under the laws of the United States or any state thereof having combined capital
and surplus of not less than $500,000,000; (c) commercial paper of an issuer
rated at least A-1 by S&P or P-1 by ▇▇▇▇▇'▇, or carrying an equivalent rating by
a nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months after the date of acquisition thereof; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days, with
respect to securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less after the date of
acquisition thereof issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing authority
of any such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by ▇▇▇▇▇'▇; (f) securities with maturities of six months or less
after the date of acquisition thereof backed by standby letters of credit issued
by any Lender or any commercial bank satisfying the requirements of clause (b)
of this definition; or (g) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses (a) through
(f) of this definition.
"CLOSING DATE" means the first date on which any Loan is made or Letter of
Credit is issued.
"CODE" means the Internal Revenue Code of 1986 (or any successor
legislation thereto), as amended from time to time.
"CO-DOCUMENTATION AGENTS" has the meaning given such terms in the preamble
hereof.
"COLLATERAL" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by any Loan Party in or upon which a
Lien is granted under any of the Collateral Documents.
"COLLATERAL DOCUMENTS" means the Security Agreement, the Mortgages, the
Deposit Account Control Agreements and Securities Account Control Agreements
(each as defined in the Security Agreement) and any other pledge, security
agreement or other document executed and delivered by a Loan Party granting a
Lien on any of its property to secure payment of the Secured Obligations.
6
"COMMITMENT" means with respect to any Lender, such Lender's Revolving
Credit Commitment, if any, Tranche A (Euro) Term Loan Commitment, if any, or
Tranche B Term Loan Commitment, if any, and "COMMITMENTS" means the aggregate
Revolving Credit Commitments, Tranche A (Euro) Term Loan Commitments and Tranche
B Term Loan Commitments of all Lenders.
"COMPLIANCE CERTIFICATE" means a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit I.
"CONFIDENTIAL INFORMATION MEMORANDUM" means the Confidential Information
Memorandum dated June 2003 and furnished to the Lenders.
"CONSOLIDATED CURRENT ASSETS" means, at any date, 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 Subsidiaries at such date.
"CONSOLIDATED CURRENT LIABILITIES" means, at any date, 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 Subsidiaries at such date, but excluding (a) the principal
amount of the current portion of any Funded Debt of the Borrower and its
Subsidiaries and (b) without duplication of clause (a) above, all Indebtedness
consisting of Revolving Loans or Swingline Loans to the extent otherwise
included therein.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income for
such period PLUS, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) Consolidated Interest Expense, (c) depreciation and
amortization expense, (d) amortization of intangibles (including goodwill) and
organization costs, (e) any extraordinary, unusual or non-recurring non-cash
expenses or losses (including non-cash losses on sales of assets outside of the
ordinary course of business), (f) non-cash contributions and other non-cash
compensation expense, (g) non-cash losses attributable to equity in
non-consolidated Subsidiaries, (h) transaction costs associated with the
Recapitalization which are expensed and not amortized, (i) any non-cash foreign
currency translation adjustments, (j) any extraordinary or non-recurring cash
losses or expenses arising from restructuring not to exceed $8,600,000 in the
aggregate since October 1, 2002, and (k) any other non-cash charges, including
(in case of clauses (e), (f), (g), (i) or (k)) charges representing either (x)
accruals of or reserves for cash expenditures in a future period or (y)
amortization of prepaid items paid in cash in a prior period, MINUS, to the
extent included in the statement of such Consolidated Net Income for such
period, the sum of (a) interest income, (b) any extraordinary, unusual or
non-recurring income or gains (including, whether or not otherwise includable as
a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of
business), (c) non-cash gains related to employee compensation, (d) any other
non-cash income, all as determined on a consolidated basis, and (e) cash
expenditures for (x) previously accrued or reserved charges or (y) prepaid items
to be amortized in future periods. For the purposes of calculating Consolidated
EBITDA for any period of four consecutive Fiscal Quarters (each, a "REFERENCE
PERIOD") pursuant to any determination of the Consolidated Leverage Ratio, (i)
if at any time during such
7
Reference Period the Borrower or any Subsidiary shall have made any Material
Disposition, the Consolidated EBITDA for such Reference Period shall be reduced
by an amount equal to the Consolidated EBITDA (if positive) attributable to the
property that is the subject of such Material Disposition for such Reference
Period or increased by an amount equal to the Consolidated EBITDA (if negative)
attributable thereto for such Reference Period and (ii) if during such Reference
Period the Borrower or any Subsidiary shall have made a Material Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated after giving
PRO FORMA effect thereto as if such Material Acquisition occurred on the first
day of such Reference Period. As used in this definition, "MATERIAL ACQUISITION"
means any acquisition of property or series of related acquisitions of property
(including by way of a merger or consolidation) that (a) constitutes assets
comprising all or substantially all of an operating unit of a business or
constitutes all or substantially all of the common stock of a Person and (b)
involves the payment of consideration by the Borrower and its Subsidiaries in
excess of $10,000,000; and "MATERIAL DISPOSITION" means any Disposition of
property or series of related Dispositions of property that yields gross
proceeds to the Borrower or any of its Subsidiaries in excess of $10,000,000.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, for any period, the ratio
of (a) Consolidated EBITDA for such period less the aggregate amount actually
paid by the Borrower and its Subsidiaries during such period on account of
Capital Expenditures (excluding the principal amount of Indebtedness incurred in
connection with such expenditures and any such expenditures financed with the
proceeds of any Reinvestment Deferred Amount permitted by Section 6.7(b)) to (b)
Consolidated Fixed Charges for such period.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period, (b)
Consolidated Lease Expense for such period, (c) actual or estimated income tax
payable during such period by the Borrower and its Subsidiaries and (d)
scheduled payments made (or required to be made) during such period on account
of principal of Indebtedness of the Borrower or any of its Subsidiaries
(including scheduled principal payments in respect of the Term Loans), but
excluding mandatory (non-scheduled) prepayments and optional prepayments of (a)
Indebtedness under the Prior Credit Facility and (b) other Indebtedness
permitted to be prepaid under the terms of this Agreement.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, for any period, the ratio of
(a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period:
(a) the sum of (i) total cash interest expense (including that
attributable to Capital Lease Obligations) for such period (including all
commissions, discounts and other fees and charges associated with Indebtedness
(including the Loans) or owed with respect to letters of credit and bankers'
acceptance financing, amortization or write-off of debt discount and debt
issuance costs and net costs under Interest Rate Contracts to the extent such
net costs are allocable to such period in accordance with GAAP) plus (ii) any
interest accrued during such period in respect of Indebtedness that is required
to be capitalized rather than included in consolidated interest for such period
in accordance with GAAP; MINUS
8
(b) the sum of (i) net gains under Interest Rate Contracts to the extent
such gains are allocable to such period in accordance with GAAP PLUS (ii) any
cash interest income for such period, all determined for the Borrower and its
Subsidiaries on a consolidated basis in conformity with GAAP.
"CONSOLIDATED LEASE EXPENSE" means, for any period, the aggregate amount of
fixed and contingent rentals payable by the Borrower and its Subsidiaries for
such period with respect to leases of real and personal property, determined on
a consolidated basis in accordance with GAAP.
"CONSOLIDATED LEVERAGE RATIO" means, as at the last day of any period, the
ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for
such period.
"CONSOLIDATED NET INCOME" means, for any period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; PROVIDED that there shall be
excluded (a) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries or such Person is acquired in a pooling of
interests transaction, (b) the income (or loss) of any Person (other than a
Subsidiary of the Borrower whose net income is consolidated into the net income
of the Borrower in accordance with GAAP) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions, (c) the net income of any Subsidiary of the
Borrower to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is at the time restricted or not permitted by
the terms of any Contractual Obligation (other than under any Loan Document) or
Requirement of Law applicable to such Subsidiary, and (d) any one-time increase
or decrease to net income which is required to be recorded because of the
adoption of new accounting policies, practices or standards required by GAAP.
"CONSOLIDATED TOTAL DEBT" means, at any date, the aggregate principal
amount of all Indebtedness of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, at any date, the excess of
Consolidated Current Assets on such date OVER Consolidated Current Liabilities
on such date.
"CONSTITUENT DOCUMENTS" means, with respect to any Person, (a) the articles
of incorporation, certificate of incorporation or certificate of formation (or
the equivalent organizational documents) of such Person, (b) the by-laws (or the
equivalent governing documents) of such Person and (c) any document setting
forth the manner of election and duties of the directors or managing members of
such Person (if any) and the designation, amount or relative rights, limitations
and preferences of any class or series of such Person's Stock.
"CONTINUING DIRECTORS" means the directors of Holdings on the Formation
Date and each other director, if, in each case, such other director's nomination
for election to the board of directors of Holdings is recommended by at least
66 2/3% of the then Continuing Directors or
9
such other director receives the vote of the LLC or the Permitted Investors, if
applicable, in his or her election by the shareholders of Holdings.
"CONTRACTUAL OBLIGATION" of any Person means any obligation, agreement,
undertaking or similar provision of any Security issued by such Person or of any
agreement, undertaking, contract, lease, indenture, mortgage, deed of trust or
other instrument (excluding a Loan Document) to which such Person is a party or
by which it or any of its property is bound or to which any of its properties is
subject.
"CONTROL INVESTMENT AFFILIATE" means as to any Person, any other Person
that (a) directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person and (b) is organized by such Person primarily
for the purpose of making equity or debt investments in one or more companies.
For purposes of this definition, "control" of a Person means the power, directly
or indirectly, to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"CORPORATE CHART" means a corporate organizational chart, list or other
similar document in each case in form reasonably acceptable to the
Administrative Agent and setting forth, for each Person that is a Loan Party,
that is subject to Section 5.10 or that is a Subsidiary of any Loan Party, (a)
the full legal name of such Person (and any trade name, fictitious name or other
name such Person may have had or operated under), (b) the jurisdiction of
organization, the organizational number (if any) and the tax identification
number (if any) of such Person, (c) the location of such Person's chief
executive office (or sole place of business) and (d) the number of shares of
each class of such Person's Stock authorized (if applicable), the number
outstanding as of the date of delivery and the number and percentage of such
outstanding shares for each such class owned (directly or indirectly) by any
Loan Party or any Subsidiary of any Loan Party.
"CSFB" means Credit Suisse First Boston, a bank organized under the laws of
Switzerland.
"DEBT ISSUANCE" means the incurrence of Indebtedness by Holdings, the
Borrower or any of its Subsidiaries (other than any Indebtedness incurred in
accordance with Section 6.2).
"DEFAULT" means any event which with the passing of time or the giving of
notice or both would become an Event of Default.
"DISCLOSURE CIRCULAR" means the Rule 144A Confidential Offering Circular
prepared by the Company dated [June 30], 2003 in respect of the Senior
Subordinated Initial Notes.
"DISCLOSURE DOCUMENTS" means, collectively, (i) the Confidential
Information Memoranda and related materials; and (ii) the Disclosure Circular.
"DISPOSITION" means, with respect to any property, (i) any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
(including by way of a merger or consolidation) of such property or any interest
therein (including the sale or factoring at maturity or collection of any
accounts) or (ii) permitting or suffering any other Person to acquire any
interest (other than a Lien permitted under Section 6.3) in such property. The
terms "DISPOSE" and "DISPOSED OF" shall have correlative meanings.
10
"DOCUMENTARY LETTER OF CREDIT" means any Letter of Credit intended to be
drawn upon presentation of documents evidencing the sale or shipment of goods
purchased by the Borrower or any of its Subsidiaries in the ordinary course of
its business.
"DOLLAR EQUIVALENT" means, at the time of determination thereof, (a) in
relation to any amount denominated in euro, the equivalent of such amount in
Dollars determined by using the rate of exchange indicated for the purchase of
Dollars with euro on the Bloomberg Key Cross Currency Rates screen at 11:00 a.m.
(
New York City time) on the most recent Valuation Date; or (b) in relation to
any amount denominated in Dollars, the amount thereof.
"DOLLAR LOAN" means a Loan denominated in Dollars.
"DOLLARS" and the sign "$" each mean the lawful money of the United States
of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule II or on the Assignment and Acceptance by which it became a Lender or
such other office of such Lender as such Lender may from time to time specify to
the Borrower and the Administrative Agent.
"DOMESTIC SUBSIDIARY" means any Subsidiary of the Borrower that is not a
Foreign Subsidiary.
"ENVIRONMENTAL LAWS" means any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment.
"EQUITY ISSUANCE" means the issue or sale of any Capital Stock of Holdings,
the Borrower or any of the Subsidiaries of the Borrower by Holdings, the
Borrower or any of the Subsidiaries of the Borrower to any Person or any
contribution by any Person to the capital of Holdings, the Borrower or any of
its Subsidiaries other than:
(i) any issuance or sale of Capital Stock of the Borrower to (or
capital contribution in respect thereof to the Borrower by) Holdings;
(ii) any issuance or sale of Capital Stock of any Subsidiary of the
Borrower to (or capital contribution in respect thereof to such Subsidiary
by) the Borrower or any Subsidiary of the Borrower to the extent permitted
by Section 6.5;
(iii) any Capital Stock of Holdings issued (A) upon exercise of
options in respect of the Stock of Holdings held by directors, officers and
employees of Holdings, the Borrower and its Subsidiaries or (B) to
management of the Borrower or any of its Subsidiaries; or
(iv) any issuance or sale of Holdings Permitted Preferred Stock the
aggregate liquidation preference of which, when added to the principal
amount of any Holdings Permitted PIK Notes issued on or after the Closing
Date, does not exceed $100,000,000
11
in the aggregate for all Holdings Permitted Preferred Stock and Holdings
Permitted PIK Notes issued on or after the Closing Date.
"ERISA" means the Employee Retirement Income Security Act of 1974 (or any
successor legislation thereto), as amended from time to time, and the
regulations promulgated hereunder.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated)
under common control which, together with the Borrower or any of its
Subsidiaries, is or is treated as a single employer within the meaning of
Section 414 (b) or (c) of the Code.
"EURO" and the sign "EURO " each mean the lawful money of the participating
member states of the European Union.
"EURO LOAN" means any Revolving Euro Loan and any Tranche A (Euro) Term
Loan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board, as in effect from time to time.
"EVENT OF DEFAULT" has the meaning specified in Article VII.
"EXCESS CASH FLOW" means, for any Fiscal Year of the Borrower, the excess,
if any, of (a) the sum, without duplication, of (i) Consolidated Net Income for
such Fiscal Year, (ii) an amount equal to the amount of all non-cash charges
(including depreciation and amortization) deducted in arriving at such
Consolidated Net Income, (iii) the excess, if any, of Consolidated Working
Capital at the beginning of such Fiscal Year over the Consolidated Working
Capital at the end of such Fiscal Year, and (iv) an amount equal to the
aggregate net non-cash loss on the Disposition of property by the Borrower and
its Subsidiaries during such Fiscal Year (other than sales of inventory in the
ordinary course of business), to the extent deducted in arriving at such
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, (ii) the aggregate amount actually paid by the Borrower
and its Subsidiaries in cash during such Fiscal Year on account of Capital
Expenditures to the extent such Capital Expenditures are permitted by this
Agreement (excluding the principal amount of Indebtedness incurred in connection
with such expenditures), (iii) the aggregate amount of (x) all cash principal
prepayments of Revolving Loans and Swingline Loans during such Fiscal Year to
the extent accompanying permanent optional reductions of the Revolving Credit
Commitments pursuant to Section 2.5(a), (y) all optional cash principal
prepayments of the Term Loans pursuant to Section 2.8(b) during such Fiscal Year
and (z) all mandatory cash principal payments of Funded Debt (including the Term
Loans) of the Borrower and its Subsidiaries made during such Fiscal Year as the
result of receipt of (1) cash proceeds of an Asset Sale during such Fiscal Year
to the extent of net cash gain deriving from such Asset Sale included in
arriving at such Consolidated Net Income or (2) cash payments on the SwissCo
Intercompany Note during such Fiscal Year to the extent of cash credits of
SwissCo 2 and its Subsidiaries during such Fiscal Year included in arriving at
such Consolidated Net Income, (iv) the aggregate amount of all regularly
scheduled cash principal payments of Funded Debt (including the Term Loans and
loans under the Prior Credit Facility) of the Borrower and its Subsidiaries made
during such Fiscal Year (other than in respect of any revolving credit facility
to the extent that is not an equivalent permanent reduction in
12
commitments thereunder) to the extent such Funded Debt and payments are
permitted by this Agreement, (v) the excess, if any, of Consolidated Working
Capital at the end of such Fiscal Year over Consolidated Working Capital at the
beginning of such Fiscal Year, (vi) an amount equal to the aggregate net
non-cash gain on the Disposition of property by the Borrower and its
Subsidiaries during such Fiscal Year (other than sales of inventory in the
ordinary course of business), to the extent included in arriving at such
Consolidated Net Income, (vii) the lesser of (x) the Fair Market Value at the
time of Disposition of Receivables Assets Disposed of to a Special Purpose
Subsidiary during such Fiscal Year to the extent resulting in a decrease in
Consolidated Working Capital on such date of Disposition and (y) the aggregate
amount of all cash principal payments of Term Loans pursuant to Section 2.9(a)
during such Fiscal Year resulting from such Disposition and (viii) the aggregate
amount of all Investments permitted under Section 6.8(x) made in cash during
such Fiscal Year.
"EXCLUDED FOREIGN SUBSIDIARY" means any Foreign Subsidiary (i) in respect
of which either (a) the pledge of all of the Stock of such Subsidiary as
Collateral or (b) the guaranteeing by such Subsidiary of the Obligations, would,
in the good faith judgment of the Borrower, result in adverse tax consequences
to the Borrower and (ii) which is not a party or subject to any Guaranty
Obligation in respect of any Indebtedness of any Loan Party.
"FACILITIES" means (a) the Tranche A (Euro) Term Loan Facility, (b) the
Tranche B Term Loan Facility and (c) the Revolving Credit Facility.
"FAIR MARKET VALUE" means (a) with respect to any asset or group of assets
(other than a marketable Security) at any date, the value of the consideration
obtainable in a sale of such asset at such date assuming a sale by a willing
seller to a willing purchaser dealing at arm's length and arranged in an orderly
manner over a reasonable period of time having regard to the nature and
characteristics of such asset, as reasonably determined by (i) management of the
Borrower or (ii) in respect of any asset or group of assets valued at more than
$20,000,000, by the Board of Directors of the Borrower, or, if such asset shall
have been the subject of a relatively contemporaneous appraisal by an
independent third party appraiser, the basic assumptions underlying which have
not materially changed since its date, the value set forth in such appraisal,
and (b) with respect to any marketable Security at any date, the closing sale
price of such Security on the Business Day next preceding such date, as
appearing in any published list of any national securities exchange or the
Nasdaq Stock Market or, if there is no such closing sale price of such Security,
the final price for the purchase of such Security at face value quoted on such
business day by a financial institution of recognized standing which regularly
deals in securities of such type selected by the Administrative Agent.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of
New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
13
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal Reserve
System, or any successor thereto.
"FEE LETTER" shall mean the fee letter dated June 16, 2003 addressed to the
Borrower from the Arranger and accepted by the Borrower as of June 16, 2003,
with respect to certain fees to be paid from time to time.
"FINANCIAL STATEMENTS" means the financial statements of the Borrower and
its Subsidiaries delivered in accordance with Section 4.1 and Section 5.1.
"FIRST-TIER EXCLUDED SUBSIDIARY" means any Excluded Foreign Subsidiary any
shares of Stock of which are owned directly by Holdings, the Borrower or one or
more Included Subsidiaries.
"FISCAL QUARTER" means each of the three month periods ending on March 31,
June 30, September 30 and December 31.
"FISCAL YEAR" means the twelve month period ending on December 31.
"FOREIGN OVERDRAFT GUARANTEES" means any Guarantee Obligation of the
Borrower with respect to overdrafts by Excluded Foreign Subsidiaries with
respect to deposit accounts maintained outside the United States.
"FOREIGN REQUIRED MINORITY SHARES" means Capital Stock of a Foreign
Subsidiary that is required by the applicable laws and regulations of such
foreign jurisdiction to be owned by the government of such foreign jurisdiction
or individual or corporate citizens of such foreign jurisdiction in order for
such Foreign Subsidiary to transact business in such foreign jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Borrower that both (1) is
not organized under the laws of the United States, any state thereof or the
District of Columbia and (2) conducts substantially all of its business
operations outside of the United States. For purposes of this definition,
"United States" excludes the Commonwealth of Puerto Rico so long as a
corporation formed under the laws of the Commonwealth of Puerto Rico is treated
as a foreign corporation under Section 7701 of the Code.
"FOREIGN TRADEMARKS" means the trademarks and the trademark license
agreement with The NutraSweet Company owned by SwissCo 2 and pledged by SwissCo
2 to the Borrower pursuant to the SwissCo 2 Note Security Agreement to secure
SwissCo 2's obligations under the SwissCo Intercompany Note.
"FOREIGN TRADEMARKS SPECIFIED JURISDICTIONS" means France, Germany, the
United Kingdom, Italy, Benelux, Mexico, Australia and Switzerland.
"FORMATION DATE" means March 17, 2000, the date of original acquisition by
the Borrower of its principal assets.
14
"FUND" means any Person (other than a natural Person) that is or will be
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"FUNDED DEBT" means, as to any Person, all Indebtedness of such Person that
matures more than one year from the date of its creation or matures within one
year from such date but is renewable or extendible, 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 all
current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date of
its creation and, in the case of the Borrower, Indebtedness in respect of the
Loans.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"GRANTING BANK" has the meaning specified in Section 9.2(f).
"GUARANTOR" means Holdings and each Subsidiary Guarantor.
"GUARANTY" means the guaranty, in substantially the form of Exhibit G,
executed by Holdings and each Subsidiary Guarantor.
"GUARANTY OBLIGATION" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
Indebtedness of another Person, if the purpose or intent of such Person in
incurring the Guaranty Obligation is to provide assurance to the obligee of such
Indebtedness that such Indebtedness will be paid or discharged, or that any
agreement relating thereto will be complied with, or that any holder of such
Indebtedness will be protected (in whole or in part) against loss in respect
thereof including, (a) the direct or indirect guaranty, endorsement (other than
for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of Indebtedness
of another Person and (b) any liability of such Person for Indebtedness of
another Person through any agreement (contingent or otherwise) (i) to purchase,
repurchase or otherwise acquire such Indebtedness or any security therefor, or
to provide funds for the payment or discharge of such Indebtedness (whether in
the form of a loan, advance, stock purchase, capital contribution or otherwise),
(ii) to maintain the solvency or any balance sheet item, level of income or
financial condition of another Person, (iii) to make take-or-pay or similar
payments, if required, regardless of non-performance by any other party or
parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee)
property, or to purchase or sell services, primarily for the purpose of
15
enabling the debtor to make payment of such Indebtedness or to assure the holder
of such Indebtedness against loss, or (v) to supply funds to or in any other
manner invest in such other Person (including to pay for property or services
irrespective of whether such property is received or such services are
rendered), if in the case of any agreement described under subclause (i), (ii),
(iii), (iv) or (v) of clause (b) of this sentence the primary purpose or intent
thereof is to provide assurance that Indebtedness of another Person will be paid
or discharged, that any agreement relating thereto will be complied with or that
any holder of such Indebtedness will be protected (in whole or in part) against
loss in respect thereof. The amount of any Guaranty Obligation shall be equal to
the amount of the Indebtedness so guaranteed or otherwise supported or, if the
amount of the maximum liability under such Guaranty Obligation is less than the
amount of such Indebtedness, then the amount of such maximum liability.
"HEDGING CONTRACTS" means all Interest Rate Contracts, foreign exchange
contracts, currency swap or option agreements, forward contracts, commodity
swap, purchase or option agreements, other commodity price hedging arrangements,
and all other similar agreements or arrangements designed to alter the risks of
any Person arising from fluctuations in interest rates, currency values or
commodity prices.
"HOLDINGS" has the meaning specified in the preamble of this Agreement.
"HOLDINGS PERMITTED PIK NOTES" means non-amortizing payment-in-kind notes
issued solely by Holdings (and as to which neither the Borrower nor any
Subsidiary thereof has any obligation) that mature at least six months after the
Tranche B Term Loan Maturity Date, bear interest payable only in-kind for at
least the first 5 years after the indebtedness is incurred, are subordinated in
right of payment to the guarantee by Holdings in the Guaranty of the Obligations
and do not otherwise confer upon the holders of such Indebtedness (or the
trustee or other representative on their behalf) any rights or impose
obligations on Holdings, that, taken as a whole, would be materially adverse to
the interests of Holdings or the Lenders as determined by the Administrative
Agent in the exercise of its reasonable direction.
"HOLDINGS PERMITTED PREFERRED STOCK" means any privately issued preferred
Stock issued by Holdings in a transaction not resulting in an Event of Default,
is non-redeemable prior to the date six months after the Tranche B Term Loan
Maturity Date and does not otherwise confer upon the holders of such preferred
Stock any rights or impose obligations on Holdings, that, taken as a whole,
would be materially adverse to the interests of Holdings or the Lenders as
determined by the Administrative Agent in the exercise of its reasonable
discretion.
"INCLUDED SUBSIDIARY" means any Subsidiary of Holdings or the Borrower that
is not an Excluded Foreign Subsidiary.
"INDEBTEDNESS" means, with respect to any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade payables incurred in the ordinary course of
such Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the
16
event of default are limited to repossession or sale of such property), (e) all
Capital Lease Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under or in respect of
acceptances, letters of credit, surety bonds or similar arrangements, (g) all
obligations of such Person to purchase, redeem, retire, defease or otherwise
acquire for value any Capital Stock of such Person, valued, in the case of
redeemable preferred stock, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends, (h) all Guarantee
Obligations of such Person in respect of obligations of the kind referred to in
clauses (a) through (g) above, (i) all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including accounts and contract rights) owned by such Person,
whether or not such Person has assumed or become liable for the payment of such
obligation, and (j) for the purposes of Section 6.2 and Section 7.1(e) only, all
obligations of such Person in respect of Hedging Contracts. The Indebtedness of
any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.
"INDEMNITEES" has the meaning specified in Section 9.4.
"INSOLVENCY" means with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"INSOLVENT" means pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY" means the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to ▇▇▇ at law or in
equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"INTEREST PERIOD" means, in the case of any LIBO Rate Loan, (a) initially,
the period commencing on the date such LIBO Rate Loan is made or on the date of
conversion of a Base Rate Loan to such LIBO Rate Loan and ending one, two, three
or six months thereafter, as selected by the Borrower in its Notice of Borrowing
or Notice of Conversion or Continuation given to the Administrative Agent
pursuant to Section 2.2 or Section 2.11(a), and (b) thereafter, if such Loan is
continued, in whole or in part, as a LIBO Rate Loan pursuant to Section 2.11(a),
a period commencing on the last day of the immediately preceding Interest Period
therefor and ending one, two, three or six months thereafter, as selected by the
Borrower in its Notice of Conversion or Continuation given to the Administrative
Agent pursuant to Section 2.11(a); PROVIDED, HOWEVER, that all of the foregoing
provisions relating to Interest Periods in respect of LIBO Rate Loans are
subject to the following:
(i) if any Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business
17
Day, unless the result of such extension would be to extend such Interest
Period into another calendar month, in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month;
(iii) the Borrower may not select any Interest Period that ends
after the date of a scheduled principal payment on the Loans as set forth
in Article II unless, in each case, after giving effect to such selection,
the aggregate unpaid principal amount of the Loans for which Interest
Periods end after such scheduled principal payment shall be equal to or
less than the principal amount to which the Loans are required to be
reduced after such scheduled principal payment is made; and
(iv) there shall be outstanding at any one time no more than 10
Interest Periods in the aggregate.
"INTEREST RATE CONTRACTS" means all interest rate swap agreements, interest
rate cap agreements, interest rate collar agreements and interest rate
insurance.
"INVESTMENT" has the meaning specified in Section 6.8.
"INVENTORY" has the meaning specified in the Security Agreement.
"IRS" means the Internal Revenue Service of the United States or any
successor thereto.
"ISSUER" means each Lender or Affiliate of a Lender that (a) is listed on
the signature pages hereof as an "ISSUER" or (b) hereafter becomes an Issuer
with the approval of the Administrative Agent and the Borrower by agreeing
pursuant to an agreement with and in form and substance satisfactory to the
Administrative Agent and the Borrower to be bound by the terms hereof applicable
to Issuers.
"JUDGMENT CURRENCY" shall have the meaning assigned to such term in Section
9.12(b).
"LEASES" means, with respect to any Person, all of those leasehold estates
in real property of such Person, as lessee, as such may be amended, supplemented
or otherwise modified from time to time.
"LENDER" means each financial institution or other entity that (a) is
listed on the signature pages hereof as a "LENDER" or (b) from time to time
becomes a party hereto by execution of an Assignment and Acceptance.
"LETTER OF CREDIT" means any letter of credit issued pursuant to Section
2.4.
"LETTER OF CREDIT (EURO) OBLIGATIONS" means, at any time, the aggregate of
all liabilities at such time of the Borrower to all Issuers with respect to
Letters of Credit (Euro), whether or not
18
any such liability is contingent, including the sum, with respect to such
Letters of Credit (Euro), of (a) the Reimbursement Obligations at such time and
(b) the Letter of Credit Undrawn Amounts at such time.
"LETTER OF CREDIT (EURO)" means any Letter of Credit drawings under which
are payable in euro.
"LETTER OF CREDIT OBLIGATIONS" means, at any time, the aggregate of all
liabilities at such time of the Borrower to all Issuers with respect to Letters
of Credit, whether or not any such liability is contingent, including the sum of
(a) the Reimbursement Obligations at such time and (b) the Letter of Credit
Undrawn Amounts at such time.
"LETTER OF CREDIT REIMBURSEMENT AGREEMENT" has the meaning specified in
Section 2.4(e).
"LETTER OF CREDIT REQUEST" has the meaning specified in Section 2.4(c).
"LETTER OF CREDIT UNDRAWN AMOUNTS" means, at any time, the aggregate
undrawn face amount of all Letters of Credit outstanding at such time.
"LIBOR" means, with respect to any Interest Period for any LIBO Rate Loan
in an Applicable Currency comprising part of the same Borrowing, the rate of
interest per annum determined by the Administrative Agent at approximately 10:00
a.m. (
New York City time) on the date that is two Business Days prior to the
beginning of the relevant Interest Period by reference to the British Bankers'
Association Interest Settlement Rates LIBOR for deposits in the Applicable
Currency (as set forth by the Bloomberg Information Service or any successor
thereto or any other service selected by the Administrative Agent which has been
nominated by the British Bankers' Association as an authorized information
vendor for the purpose of displaying such rates) for a period equal to such
Interest Period; PROVIDED that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, "LIBOR"
shall be the interest rate per annum determined by the Administrative Agent to
be the average of the rates per annum at which deposits in the Applicable
Currency are offered for such relevant Interest Period to major banks in the
London interbank market in London, England by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date that is two Business Days
prior to the beginning of such Interest Period.
"LIBO RATE" means, with respect to any Interest Period for any LIBO Rate
Loan in an Applicable Currency an interest rate per annum equal to the product
of (a) LIBOR in effect for such Interest Period for such Applicable Currency and
(b) LIBOR Statutory Reserves.
"LIBO RATE DOLLAR LOAN" means any LIBO Rate Loan denominated in Dollars.
"LIBO RATE EURO LOAN" means any LIBO Rate Loan denominated in euro.
"LIBO RATE LOAN" means any Loan that, for an Interest Period, bears
interest based on the LIBO Rate.
"LIBOR LENDING OFFICE" means, with respect to any Lender, the office of
such Lender specified as its "LIBOR LENDING OFFICE" opposite its name on
Schedule II or on the Assignment
19
and Acceptance by which it became a Lender (or, if no such office is specified,
its Domestic Lending Office) or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Administrative Agent.
"LIBOR STATUTORY RESERVES" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Federal Reserve Board and any other banking authority,
domestic or foreign, to which the Administrative Agent or any Lender (including
any branch, Affiliate, or other fronting office making or holding a Loan) is
subject for Eurocurrency Liabilities. Such reserve percentages shall include
those imposed pursuant to Regulation D of the Federal Reserve Board as in effect
from time to time. LIBO Rate Loans shall be deemed to constitute Eurocurrency
Liabilities and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under Regulation D of the Federal Reserve Board as in effect
from time to time. LIBOR Statutory Reserves shall be adjusted automatically on
and as of the effective date of any change in any reserve percentage.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or other obligation, including any conditional sale
or other title retention agreement, the interest of a lessor under a Capital
Lease, any financing lease having substantially the same economic effect as any
of the foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction naming the owner of the
asset to which such Lien relates as debtor.
"LLC" means Tabletop Holdings, LLC, a limited liability company organized
under the laws of Delaware.
"LOAN" means any loan made by any Lender pursuant to this Agreement.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes (if any),
the Guaranty, the Fee Letter, each Letter of Credit Reimbursement Agreement,
each Hedging Contract to which a Loan Party and a Lender or an Affiliate of a
Lender is a party, the Collateral Documents and each certificate, agreement,
waiver, consent or document executed by a Loan Party and delivered to the
Administrative Agent or any Lender in connection with or pursuant to any of the
foregoing.
"LOAN PARTY" means each of the Borrower, Holdings, and each Subsidiary
Guarantor.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, property, operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole, or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
20
"MATERIALS OF ENVIRONMENTAL CONCERN" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, pollutant or contaminant
defined or regulated as such in or under any Environmental Law, including
asbestos, polychlorinated biphenyls, fungi, bacterium and urea-formaldehyde
insulation.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Services, Inc. and any successor thereto.
"MORTGAGES" means the Original Mortgage and any other mortgages, deeds of
trust or other real estate security documents made or required herein to be made
by the Borrower or any other Loan Party.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower, any of its Subsidiaries or any ERISA
Affiliate has any obligation or liability, contingent or otherwise.
"NET CASH PROCEEDS" means:
(a) in connection with any Asset Sale or any Recovery Event, the proceeds
thereof in the form of cash and Cash Equivalents (including any such proceeds
received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but
only as and when received and excluding (in the case of any Asset Sale or
Recovery Event with respect to assets of an Excluded Foreign Subsidiary) any
portion of such proceeds not freely convertible into Dollars or euro until so
convertible) of such Asset Sale or Recovery Event, net of (i) amounts required
to be applied to the repayment of Indebtedness secured by a Lien expressly
permitted hereunder on any asset that is the subject of such Asset Sale or
Recovery Event (other than any Lien pursuant to a Security Document), (ii) in
the case of an Asset Sale, attorneys' fees, accountants' fees, investment bank
fees or other customary fees and expenses actually incurred in connection
therewith and (iii) taxes paid or reasonably estimated to be payable as a result
thereof (after taking into account any available tax credits or deductions and
any tax sharing arrangements); PROVIDED, HOWEVER, that the evidence of each of
(i), (ii) and (iii) are provided to the Administrative Agent in form and
substance reasonably satisfactory to it; or
(b) in connection with any Equity Issuance or Debt Issuance (or, solely
for purposes of Section 6.6(vii), any issuance of Holdings Permitted PIK Notes
or Holdings Permitted Preferred Stock), the cash proceeds received from such
issuance or incurrence, net of attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts and commissions and other customary
fees and expenses actually incurred in connection therewith; PROVIDED, HOWEVER,
that in the case of this clause (b) evidence of such costs is provided to the
Administrative Agent in form and substance reasonably satisfactory to it.
"NON-CONSENTING LENDER" has the meaning specified in Section 9.1(c).
"NON-FUNDING LENDER" has the meaning specified in Section 2.2(e).
"NON-US. LENDER" means each Lender or Administrative Agent that is not a
United States person as defined in Section 7701(a)(30) of the Code.
21
"NOTE" means any Revolving Credit Note, Tranche A (Euro) Term Loan Note or
Tranche B Term Loan Note.
"NOTICE OF BORROWING" has the meaning specified in Section 2.2(a).
"NOTICE OF CONVERSION OR CONTINUATION" has the meaning specified in Section
2.10(d).
"NOTICE OF OPTIONAL PREPAYMENT" has the meaning specified in Section
2.8(a).
"OBLIGATIONS" means the Loans, the Letter of Credit Obligations and all
other amounts, obligations, covenants and duties owing by the Borrower to the
Administrative Agent, any Lender, any Issuer, any Affiliate of any of them or
any Indemnitee, of every type and description (whether by reason of an extension
of credit, opening or amendment of a letter of credit or payment of any draft
drawn thereunder, loan, guaranty, indemnification, foreign exchange or currency
swap transaction, interest rate hedging transaction or otherwise), present or
future, arising under this Agreement or any other Loan Document, whether direct
or indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising and however acquired and
whether or not evidenced by any note, guaranty or other instrument or for the
payment of money, and includes all letter of credit and other fees, interest,
charges, expenses, fees, attorneys' fees and disbursements and other sums
chargeable to the Borrower under this Agreement or any other Loan Document and
all obligations of the Borrower to provide cash collateral for Letter of Credit
Obligations.
"ORIGINAL MORTGAGE" means the Mortgage, Security Agreement and Assignment
of Leases and Rents dated as of the Closing Date executed by Merisant US, Inc.,
as mortgagor, in favor of CSFB, as Collateral Agent.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"PERMIT" means any permit, approval, authorization, license, variance or
permission required from a Governmental Authority under an applicable
Requirement of Law.
"PERMITTED INVESTORS" means the collective reference to the Sponsor and the
members of the LLC as of the Formation Date and their Control Investment
Affiliates.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, estate, trust, limited liability company,
unincorporated association, joint venture or other entity, or a Governmental
Authority.
"PLAN" means, at a particular time, any employee benefit plan that is
covered by ERISA other than a Multiemployer Plan and in respect of which the
Borrower or an ERISA Affiliate is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"PLEDGED NOTES" has the meaning specified in the Security Agreement.
"PLEDGED STOCK" has the meaning specified in the Security Agreement.
22
"PRIOR CREDIT FACILITY" means that certain Amended and Restated
Credit
Agreement, dated as of February 19, 2002, among Holdings, the Borrower, the
several lenders from time to time parties thereto, Deutsche Bank Securities
Inc., as sole lead arranger and bookrunner and Bankers Trust Company, as
administrative agent.
"PROJECTIONS" has the meaning specified in Section 5.2(c).
"PROPOSED CHANGE" has the meaning specified in Section 9.1(c).
"RATABLE PORTION" or "RATABLY" means, with respect to any Lender, (a) with
respect to the Revolving Credit Facility, the percentage obtained by dividing
(i) the Revolving Credit Commitment of such Lender by (ii) the aggregate
Revolving Credit Commitments of all Lenders (or, at any time after the Revolving
Credit Termination Date, the percentage obtained by dividing the aggregate
outstanding principal balance of the Revolving Credit Outstandings owing to such
Lender by the aggregate outstanding principal balance of the Revolving Credit
Outstandings owing to all Lenders); (b) with respect to the Tranche A (Euro)
Term Loan Facility, the percentage obtained by dividing (i) the Tranche A (Euro)
Term Loan Commitment of such Lender by (ii) the aggregate Tranche A (Euro) Term
Loan Commitments of all Lenders (or, at any time after the Closing Date, the
percentage obtained by dividing the principal amount of such Lender's Tranche A
(Euro) Term Loans by the aggregate Tranche A (Euro) Term Loans of all Lenders);
and (c) with respect to the Tranche B Term Loan Facility, the percentage
obtained by dividing (i) the Tranche B Term Loan Commitment of such Lender by
(ii) the aggregate Tranche B Term Loan Commitments of all Lenders (or, at any
time after the Closing Date, the percentage obtained by dividing the principal
amount of such Lender's Tranche B Term Loans by the aggregate Tranche B Term
Loans of all Lenders).
"RECAPITALIZATION" means the repayment by the Borrower of an intercompany
payable (in the approximate amount of $3,600,000) owing to Holdings and the
payment by the Borrower to Holdings of a dividend on the Closing Date, or
promptly thereafter, in an aggregate amount for both such repayment and payment
of up to $197,000,000 and thereupon payment on the Closing Date, or promptly
thereafter, by Holdings to its equity owners of dividends in the same aggregate
amount.
"RECEIVABLES ASSETS" means any accounts receivable, instruments, chattel
paper, general intangibles and similar assets (whether now existing or arising
in the future, "RECEIVABLES") of the Borrower or any of its Subsidiaries, and
any assets related thereto including all collateral securing such Receivables,
all contracts, contract rights and all guarantees or other obligations in
respect of such Receivables, proceeds of such Receivables and any other assets
which are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions.
"RECEIVABLE ASSET SALE" means any Disposition of Receivable Assets
permitted by clause (v) of Section 6.5 with respect to a Receivable Financing
Transaction.
"RECEIVABLE FINANCING TRANSACTION" means any transaction or series of
transactions entered into by the Borrower or any of its Subsidiaries pursuant to
which the Borrower or any Subsidiary sells, conveys or otherwise transfers,
directly or indirectly, to (a) a Special Purpose
23
Subsidiary (without recourse to or guarantee by any Loan Party (excluding any
guarantee of obligations (other than the principal of, or interest on,
Indebtedness), or recourse, pursuant to Standard Securitization Undertakings))
and (b) thereupon such Special Purpose Subsidiary sells, conveys or otherwise
transfers to any other Person (or grants to any other Person a security interest
in), any Receivables Assets in each case in a manner customary for asset
securitization transactions involving accounts receivable.
"RECEIVABLE QUALIFYING ASSET SALE" means (i) the initial Receivable Asset
Sale to any Special Purpose Subsidiary and (ii) any subsequent Receivable Asset
Sale to such Special Purpose Subsidiary except to the extent (and only to the
extent) the consideration for the Disposition of the Receivables Assets to such
Special Purpose Subsidiary is paid (x) solely with the proceeds of collection in
the ordinary course of business upon other Receivables Assets previously
Disposed of to such Special Purpose Subsidiary in a previous Receivable Asset
Sale and (y) not with the proceeds of Indebtedness or participation certificates
or certificates of beneficial interest incurred or issued by such Special
Purpose Subsidiary or any other Person to which Receivables Assets are or have
been Disposed of.
"RECOVERY EVENT" means any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of Holdings, the Borrower or any of its Subsidiaries.
"REGISTER" has the meaning specified in Section 9.2(d).
"REIMBURSEMENT DUE DATE" has the meaning specified in Section 2.4(h).
"REIMBURSEMENT OBLIGATIONS" means all matured reimbursement or repayment
obligations of the Borrower to any Issuer with respect to amounts drawn under
Letters of Credit.
"REINVESTMENT DEFERRED AMOUNT" means, with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by Holdings, the Borrower or any
of its Subsidiaries in connection therewith that are duly specified in a
Reinvestment Notice as not being required to be initially applied to prepay the
Term Loans or reduce the Revolving Commitments pursuant to Section 2.9 as a
result of the delivery of such Reinvestment Notice.
"REINVESTMENT EVENT" means any Asset Sale (other than any Receivable
Qualifying Asset Sale) or Recovery Event in respect of which the Borrower has
duly delivered a Reinvestment Notice.
"REINVESTMENT NOTICE" means a written notice executed by a Responsible
Officer stating that no Event of Default has occurred and is continuing and that
the Borrower (directly or indirectly through a Subsidiary) intends and expects
to use all or a portion of the Net Cash Proceeds of an Asset Sale (other than
any Receivable Qualifying Asset Sale) or Recovery Event specified in such notice
to acquire or repair assets of the same type as those subject to such Asset Sale
or Recovery Event or equipment or real property useful in the business of the
Borrower or one of its Subsidiaries (which amount of such Net Cash Proceeds so
specified, when combined with the amount of Net Cash Proceeds specified in any
other Reinvestment Notices with respect to Net Cash Proceeds of an Asset Sale
(other than any Receivable Qualifying Asset Sale) or Recovery Event received in
the same Fiscal Year, shall not exceed $20,000,000).
24
"REINVESTMENT PREPAYMENT AMOUNT" means, with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire or repair
assets of the same type as those subject to such Asset Sale or Recovery Event or
equipment or real property useful in the business of the Borrower or one of its
Subsidiaries.
"REINVESTMENT PREPAYMENT DATE" means, with respect to any Reinvestment
Event, the earlier of (a) the date occurring 365 days after such Reinvestment
Event and (b) the date on which the Borrower shall have determined not to, or
shall have otherwise ceased to, acquire or repair assets of the same type as
those subject to such Asset Sale or Recovery Event or equipment or real property
useful in the business of the Borrower or one of its Subsidiaries with all or
any portion of the relevant Reinvestment Deferred Amount.
"REORGANIZATION" means, with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg.
Section 4043.
"REQUIREMENT OF LAW" means, with respect to any Person, (i) the Constituent
Documents of such Person and (ii) the common law and all federal, state, local
and foreign laws, rules and regulations, orders, judgments, decrees and other
legal requirements or determinations of any Governmental Authority or
arbitrator, applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"REQUISITE LENDERS" means, collectively, Lenders having more than 50% of
the sum of (a) the aggregate outstanding amount of the Revolving Credit
Commitments or, after the Revolving Credit Termination Date, the aggregate
Revolving Credit Outstandings; (b) the aggregate outstanding amount of the
Tranche A (Euro) Term Loan Commitments and, after the funding of the Tranche A
(Euro) Term Loans on the Closing Date, the principal amount of all Tranche A
(Euro) Term Loans then outstanding; and (c) the aggregate outstanding amount of
the Tranche B Term Loan Commitments and, after the funding of the Tranche B Term
Loans on the Closing Date, the principal amount of all Tranche B Term Loans then
outstanding. A Non-Funding Lender shall not be included in the calculation of
"REQUISITE LENDERS."
"REQUISITE REVOLVING CREDIT LENDERS" means Revolving Credit Lenders having
more than 50% of the aggregate outstanding amount of the Revolving Credit
Commitments or, after the Revolving Credit Termination Date, more than 50% of
the aggregate Revolving Credit Outstandings. A Non-Funding Lender shall not be
included in the calculation of "Requisite Revolving Credit Lenders."
"REQUISITE TRANCHE A (EURO) TERM LOAN LENDERS" means Tranche A (Euro)Term
Loan Lenders having more than 50% of the aggregate outstanding amount of the
Tranche A (Euro) Term Loan Commitments or, after the funding of the Tranche A
(Euro) Term Loans on the Closing Date, more than 50% of the principal amount of
all Tranche A (Euro) Term Loans then outstanding.
25
"REQUISITE TRANCHE B TERM LOAN LENDERS" means Tranche B Term Loan Lenders
having more than 50% of the aggregate outstanding amount of the Tranche B Term
Loan Commitments or, after the funding of the Tranche B Term Loans on the
Closing Date, more than 50% of the principal amount of all Tranche B Term Loans
then outstanding.
"RESPONSIBLE OFFICER" means, with respect to any Person, any of the
principal executive officers, managing members or general partners of such
Person as applicable, but in any event, with respect to financial matters, the
chief financial officer, treasurer or controller of such Person.
"REVOLVING BASE RATE LOAN" means any Revolving Loan that is a Base Rate
Loan.
"REVOLVING CREDIT BORROWING" means Revolving Loans made in the same
currency on the same day by the Revolving Credit Lenders ratably according to
their respective Revolving Credit Commitments.
"REVOLVING CREDIT COMMITMENT" means, with respect to each Revolving Credit
Lender, the commitment of such Lender to make Revolving Loans and acquire
interests in other Revolving Credit Outstandings in the aggregate principal
amount outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule I under the caption "REVOLVING CREDIT COMMITMENT," as amended
to reflect each Assignment and Acceptance executed by such Lender and as such
amount may be reduced pursuant to this Agreement.
"REVOLVING CREDIT EURO OUTSTANDINGS" means, at any particular time, the
Dollar Equivalent of the sum of (a) the principal amount of the Revolving Euro
Loans outstanding at such time PLUS (b) the Letter of Credit (Euro) Obligations
outstanding at such time.
"REVOLVING CREDIT FACILITY" means the Revolving Credit Commitments and the
provisions herein related to the Revolving Loans, Swing Loans and Letters of
Credit.
"REVOLVING CREDIT LENDER" means each Lender having a Revolving Credit
Commitment.
"REVOLVING CREDIT NOTE" means, if issued pursuant to Section 2.7(d) or
Section 9.2(c), a promissory note of the Borrower payable to the order of any
Revolving Credit Lender in a principal amount equal to the amount of such
Lender's Revolving Credit Commitment evidencing the aggregate Indebtedness of
the Borrower to such Lender resulting from the Revolving Loans owing to such
Lender.
"REVOLVING CREDIT OUTSTANDINGS" means, at any particular time, the Dollar
Equivalent of the sum of (a) the principal amount of the Revolving Loans
outstanding at such time PLUS (b) the Letter of Credit Obligations outstanding
at such time PLUS (c) the principal amount of the Swing Loans outstanding at
such time.
"REVOLVING CREDIT TERMINATION DATE" means the earliest of (a) the Scheduled
Termination Date, (b) the date of termination of the Revolving Credit
Commitments pursuant to Section 2.5 and (c) the date on which the Obligations
become due and payable pursuant to Article VII.
26
"REVOLVING EURO LOAN" means a Revolving Loan denominated in euro.
"REVOLVING LIBO RATE LOAN" means any Revolving Loan that is a LIBO Rate
Loan.
"REVOLVING LIBO RATE DOLLAR LOAN" means a Revolving LIBO Rate Loan
denominated in Dollars.
"REVOLVING LOAN" has the meaning specified in Section 2.1(a).
"S&P" means Standard & Poor's Rating Services and any successor thereto.
"SCHEDULED TERMINATION DATE" means January 11, 2009 (or, if such date is
not a Business Day, the next preceding Business Day).
"SEC" means the Securities and Exchange Commission.
"SECURED OBLIGATIONS" means, in the case of the Borrower, the Obligations,
and, in the case of any other Loan Party, the obligations of such Loan Party
under the Guaranty and the other Loan Documents to which it is a party.
"SECURED PARTIES" means the Lenders, the Issuers, the Administrative Agent
and any other holder of any of the Obligations.
"SECURITY" means any Stock, Stock Equivalent, voting trust certificate,
bond, debenture, note or other evidence of Indebtedness, whether secured,
unsecured, convertible or subordinated, or any certificate of interest, share or
participation in, or any temporary or interim certificate for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing, but shall not include any evidence of the Obligations.
"SECURITY AGREEMENT" means an agreement, in substantially the form of
Exhibit H, executed by the Borrower, Holdings and each Subsidiary Guarantor.
"SENIOR SUBORDINATED DEBT DOCUMENTS" means the Senior Subordinated Notes
Indenture and each other document and instrument executed with respect thereto.
"SENIOR SUBORDINATED INITIAL NOTES" means the senior subordinated notes in
an aggregate principal amount not to exceed $225,000,000 issued on the Closing
Date by Borrower and guaranteed by the Guarantors under the Senior Subordinated
Notes Indenture.
"SENIOR SUBORDINATED NOTES" means the Senior Subordinated Initial Notes and
any senior subordinated notes having terms identical thereto (other than
non-material conforming changes) issued pursuant to Section 6.2(xi).
"SENIOR SUBORDINATED NOTES INDENTURE" means the Indenture, dated as of the
Closing Date among Holdings, the Borrower, certain subsidiaries of the Borrower,
and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Trustee.
27
"SIGNIFICANT SUBSIDIARY" means (i) SwissCo 2 (so long as the SwissCo 2
Intercompany Note remains outstanding) and (ii) any Subsidiary of the Borrower
that would be a "Significant Subsidiary" of the Borrower within the meaning of
Rule 1-02 under Regulation S-X promulgated by the SEC.
"SINGLE EMPLOYER PLAN" means any Plan, including a "multiple employer
plan," that is covered by Title IV of ERISA other than a Multiemployer Plan.
"SOLVENT" means, with respect to any Person, that the value of the assets
of such Person (both at fair value and present fair saleable value) is, on the
date of determination, greater than the total amount of liabilities (including
contingent and unliquidated liabilities) of such Person as of such date and
that, as of such date, such Person is able to pay all liabilities of such Person
as such liabilities mature and does not have unreasonably small capital. In
computing the amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, 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.
"SPC" has the meaning specified in Section 9.2(f).
"SPECIAL PURPOSE SUBSIDIARY" means any Wholly Owned Subsidiary (other than
a Subsidiary Guarantor):
(a) which has been created by the Borrower or any of its Domestic
Subsidiaries for the sole purpose of facilitating, and which engages in no
activities other than in connection with, Receivable Financing Transactions;
(b) all of the Capital Stock in which is owned by the Borrower or a Wholly
Owned Subsidiary Guarantor, and all (or, if such Subsidiary is a Excluded
Foreign Subsidiary, at least 65%) of such Capital Stock has been pledged by the
Borrower or Wholly Owned Subsidiary Guarantor owning such Capital Stock under
the Security Agreement to secure the Obligations;
(c) which is designated by the Board of Directors of the Borrower (as
provided below) as a Special Purpose Subsidiary;
(d) no portion of the Indebtedness or any other obligations (contingent or
otherwise) of which (i) is guaranteed by the Borrower or any other Subsidiary
(excluding guarantees of obligations (other than the principal of, or interest
on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is
recourse to or obligates the Borrower or any other 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, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings;
(e) with which neither the Borrower nor any other Subsidiary has any
material contract, agreement, arrangement or understanding (except in connection
with a Receivable Financing Transaction) other than on terms no less favorable
to the Borrower or such other Subsidiary than those that might be obtained at
the time from persons that are not Affiliates of
28
the Borrower, other than as may be customary in accounts receivable transactions
including fees payable in the ordinary course of business in connection with
servicing accounts receivable;
(f) to which neither the Borrower nor any other Subsidiary has any
obligation to maintain or preserve such entity's financial condition or cause
such entity to achieve certain levels of operating results; and
(g) which has no Subsidiaries.
Any such designation by the Board of Directors of the Borrower shall be
evidenced to the Administrative Agent by filing with the Administrative Agent a
certified copy of the resolution of the Board of Directors of the Borrower
giving effect to such designation and a certificate of the Borrower's chief
financial officer certifying, to the best of such officer's knowledge and belief
after consulting with counsel, that such designation complies with the foregoing
conditions.
"SPONSOR" means Pegasus Partners II, L.P., a Delaware limited partnership.
"STANDARD SECURITIZATION UNDERTAKINGS" means representations, warranties,
covenants and indemnities entered into by the Borrower or any Subsidiary
transferring Receivables Assets to a Special Purpose Subsidiary in the ordinary
course of business in connection with a Receivable Financing Transaction which
are reasonably customary in an accounts receivable transaction.
"STANDBY LETTER OF CREDIT" means any Letter of Credit that is not a
Documentary Letter of Credit.
"STOCK" means shares of capital stock (whether denominated as common stock
or preferred stock), beneficial, partnership or membership, interests,
participations or other equivalents (regardless of how designated) of or in a
corporation, partnership, limited liability company or equivalent entity,
whether voting or non-voting.
"STOCK EQUIVALENTS" means all securities convertible into or exchangeable
for Stock and all warrants, options or other rights to purchase or subscribe for
any Stock, whether or not presently convertible, exchangeable or exercisable.
"SUBSIDIARY" means, as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person.
"SUBSIDIARY GUARANTOR" means each Subsidiary of Holdings or the Borrower
that is a party to the Guaranty.
"SYNDICATION AGENT" has the meaning given such term in the preamble hereof.
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"SWING LOAN" has the meaning specified in Section 2.3(a).
"SWING LOAN BORROWING" means a borrowing consisting of a Swing Loan.
"SWING LOAN COMMITMENT" means the commitment of the Swing Loan Lender to
make Swing Loans to the Borrower pursuant to Section 2.3 in the aggregate
principal amount at any time outstanding not to exceed $5,000,000.
"SWING LOAN LENDER" means CSFB and each other Revolving Credit Lender who
becomes Administrative Agent hereunder.
"SWING LOAN REQUEST" has the meaning specified in Section 2.3(b).
"SWISSCO 2" means Merisant Company 2 Sarl, a limited liability company
organized and existing under the laws of Switzerland and an indirect Wholly
Owned Subsidiary of the Borrower.
"SWISSCO 2 NOTE ORIGINAL SECURITY AGREEMENT" means that certain security
agreement dated as of December 22, 2000, between SwissCo 2 and the Borrower,
providing for the pledge of the Foreign Trademarks to secure the obligations of
SwissCo 2 under the SwissCo Intercompany Note.
"SWISSCO 2 NOTE SECURITY AGREEMENT" means the SwissCo 2 Note Original
Security Agreement, as amended by the SwissCo 2 Note Security Agreement
Amendment.
"SWISSCO 2 NOTE SECURITY AGREEMENT AMENDMENT" means that certain amendment,
dated as of the Closing Date, between SwissCo 2 and the Borrower, providing for
the amendment of the SwissCo 2 Note Original Security Agreement to change
references therein in respect of matters relating to the Prior Credit Facility
to matters relating to the Facilities.
"SWISSCO INTERCOMPANY NOTE" means the SwissCo Original Intercompany Note,
as the same may be amended, supplemented or otherwise modified from time to time
as permitted in Section 6.16.
"SWISSCO ORIGINAL INTERCOMPANY NOTE" means that certain promissory note,
made by SwissCo 2 in favor of the Borrower, dated December 22, 2000.
"TAX AFFILIATE" means, with respect to any Person, (a) any Subsidiary of
such Person, and (b) any Affiliate of such Person with which such Person files
or is eligible to file consolidated, combined or unitary tax returns.
"TAX RETURN" has the meaning specified in Section 4.10.
"TAXES" has the meaning specified in Section 2.16(a).
"TERM LOANS" means Tranche A (Euro) Term Loans and Tranche B Term Loans.
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"TRANCHE" means each of the Tranche A (Euro) Term Loans and the Tranche B
Term Loans, respectively.
"TRANCHE A (EURO) TERM LOAN" has the meaning specified in Section 2.1(b).
"TRANCHE A (EURO) TERM LOAN BORROWING" means Tranche A (Euro) Term Loans
made on the same day by the Tranche A (Euro) Term Loan Lenders ratably according
to their respective Tranche A (Euro) Term Loan Commitments.
"TRANCHE A (EURO) TERM LOAN COMMITMENT" means, with respect to each Tranche
A (Euro) Term Loan Lender, the commitment of such Lender to make Tranche A
(Euro) Term Loans to the Borrower in the aggregate principal amount outstanding
not to exceed the amount set forth opposite such Lender's name on Schedule I
under the caption "TRANCHE A (EURO) TERM LOAN COMMITMENT" as such amount may be
reduced pursuant to this Agreement.
"TRANCHE A (EURO) TERM LOAN FACILITY" means the Tranche A (Euro) Term Loan
Commitments and the provisions herein related to the Tranche A (Euro) Term
Loans.
"TRANCHE A (EURO) TERM LOAN LENDER" means each Lender having a Tranche A
(Euro) Term Loan Commitment.
"TRANCHE A (EURO) TERM LOAN MATURITY DATE" means January 11, 2009 (or, if
such date is not a Business Day, the next preceding Business Day).
"TRANCHE A (EURO) TERM LOAN NOTE" means, if requested pursuant to Section
2.7(d), a promissory note of the Borrower payable to the order of any Tranche A
(Euro) Term Loan Lender in a principal amount equal to the amount of such
Lender's Tranche A (Euro) Term Loan Commitment evidencing the Indebtedness of
the Borrower to such Lender resulting from the Tranche A (Euro) Term Loan owing
to such Lender.
"TRANCHE B TERM LOAN" has the meaning specified in Section 2.1(c).
"TRANCHE B TERM LOAN BORROWING" means Tranche B Term Loans made on the same
day by the Tranche B Term Loan Lenders ratably according to their respective
Tranche B Term Loan Commitments.
"TRANCHE B TERM LOAN COMMITMENT" means, with respect to each Tranche B Term
Loan Lender, the commitment of such Lender to make Tranche B Term Loans to the
Borrower in the aggregate principal amount outstanding not to exceed the amount
set forth opposite such Lender's name on Schedule I under the caption "TRANCHE B
TERM LOAN COMMITMENT" as such amount may be reduced pursuant to this Agreement.
"TRANCHE B TERM LOAN FACILITY" means the Tranche B Term Loan Commitments
and the provisions herein related to the Tranche B Term Loans.
"TRANCHE B TERM LOAN LENDER" means each Lender having a Tranche B Term Loan
Commitment.
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"TRANCHE B TERM LOAN MATURITY DATE" means January 11, 2010 (or, if such
date is not a Business Day, the next preceding Business Day).
"TRANCHE B TERM LOAN NOTE" means a promissory note of the Borrower payable
to the order of any Tranche B Term Loan Lender in a principal amount equal to
the amount of such Lender's Tranche B Term Loan Commitment evidencing the
Indebtedness of the Borrower to such Lender resulting from the Tranche B Term
Loan owing to such Lender.
"UNUSED COMMITMENT FEE" has the meaning specified in Section 2.12(a).
"VALUATION DATE" means (x) with respect to the Revolving Credit Facility,
(i) the date three Business Days prior to the making of any Revolving LIBO Rate
Dollar Loan, the continuation of any Revolving LIBO Rate Dollar Loan, the
conversion of any Revolving Base Rate Loan into a Revolving LIBO Rate Dollar
Loan, the conversion of any Revolving LIBO Rate Dollar Loan into a Revolving
Base Rate Loan or issuance of any Letter of Credit denominated in Dollars, (ii)
the date four Business Days prior to the making of any Revolving Euro Loan, the
continuation of any Revolving Euro Loan or the issuance of any Letter of Credit
in euro, (iii) the date two Business Days prior to the making of any Revolving
Base Rate Loan, (iv) the last Business Day of any calendar quarter, and (v) any
other date designated by the Administrative Agent or (y) with respect to the
Tranche A (Euro) Term Loan Facility, the date four Business Days prior to the
initial funding on the Closing Date of the Tranche A (Euro) Term Loan.
"VOTING STOCK" means Stock of any Person having ordinary power to vote in
the election of members of the board of directors, managers, trustees or other
controlling Persons, of such Person (irrespective of whether, at the time, Stock
of any other class or classes of such entity shall have or might have voting
power by reason of the happening of any contingency).
"WHOLLY OWNED EXCLUDED FOREIGN SUBSIDIARY" means any Excluded Foreign
Subsidiary that is a Wholly Owned Subsidiary.
"WHOLLY OWNED SUBSIDIARY" means (i) any Domestic Subsidiary all of the
Capital Stock of which is owned by the Borrower directly or through other Wholly
Owned Subsidiaries and (ii) any Foreign Subsidiary if (A) all of the Capital
Stock of such Foreign Subsidiary (other than directors' qualifying shares and
Foreign Required Minority Shares, in each case only to the extent required by
applicable law) is owned by the Borrower directly or through other Wholly Owned
Subsidiaries, and (B) the Borrower, by contract or otherwise, controls the
management and business of such Foreign Subsidiary and derives the economic
benefits of ownership of such Foreign Subsidiary to substantially the same
extent as if all of the Capital Stock of such Foreign Subsidiary were owned
directly by the Borrower.
"WHOLLY OWNED SUBSIDIARY GUARANTOR" means any Wholly Owned Subsidiary that
is a Guarantor.
SECTION 1.2 COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding" and the word "through" means "to and including."
32
SECTION 1.3 ACCOUNTING TERMS AND PRINCIPLES.
(a) Except as set forth below, all accounting terms not specifically
defined herein shall be construed in conformity with GAAP and all accounting
determinations required to be made pursuant hereto shall, unless expressly
otherwise provided herein, be made in conformity with GAAP.
(b) If any change in the accounting principles used in the preparation of
the most recent Financial Statements referred to in Section 5.1 is hereafter
required or permitted by the rules, regulations, pronouncements and opinions of
the Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or any successors thereto) and such change is adopted by the
Borrower with the agreement of its independent public accountants and results in
a change in any of the calculations required by Article VI had such accounting
change not occurred, the parties hereto agree to enter into negotiations in
order to amend such provisions so as to equitably reflect such change with the
desired result that the criteria for evaluating compliance with such covenants
by the Borrower shall be the same after such change as if such change had not
been made; PROVIDED, HOWEVER, that no change in GAAP that would affect a
calculation that measures compliance with any covenant contained in Article VI
shall be given effect until such provisions are amended to reflect such changes
in GAAP.
SECTION 1.4 CERTAIN TERMS.
(a) The words "herein," "hereof' and "hereunder" and similar words refer
to this Agreement as a whole, and not to any particular Article, Section,
subsection or clause in, this Agreement.
(b) References in this Agreement to an Exhibit, Schedule, Article,
Section, subsection or clause refer to the appropriate Exhibit or Schedule to,
or Article, Section, subsection or clause in this Agreement.
(c) Each agreement defined in this Article I shall include all appendices,
exhibits and schedules thereto. If the prior written consent of the Requisite
Lenders is required hereunder for an amendment, restatement, supplement or other
modification to any such agreement and such consent is obtained, references in
this Agreement to such agreement shall be to such agreement as so amended,
restated, supplemented or modified.
(d) References in this Agreement to any statute shall be to such statute
as amended or modified and in effect at the time any such reference is
operative.
(e) The term "including" when used in any Loan Document means "including
without limitation" except when used in the computation of time periods.
(f) The term "or" has, except where otherwise indicated, the inclusive
meaning represented by the phrase "and/or".
(g) The terms "Lender," "Issuer" and "Administrative Agent" include their
respective successors.
33
(h) Upon the appointment of any successor Administrative Agent pursuant to
Section 8.6, references to CSFB in Section 8.3 shall be deemed to refer to the
financial institution then acting as the Administrative Agent or one of its
Affiliates if it so designates.
(i) The words "asset" and "property" shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, Capital Stock, Securities, revenues, accounts,
leasehold interests and contract rights
ARTICLE II
THE FACILITIES
SECTION 2.1 THE COMMITMENTS.
(a) REVOLVING CREDIT COMMITMENTS.
On the terms and subject to the conditions contained in this Agreement,
each Revolving Credit Lender severally agrees to make loans denominated in
Dollars or (subject to Section 2.14) euro (each a "REVOLVING LOAN") to the
Borrower from time to time on any Business Day during the period from the date
hereof until the Revolving Credit Termination Date in an aggregate amount having
a Dollar Equivalent not to exceed at any time outstanding for all such Loans by
such Lender such Lender's Revolving Credit Commitment; PROVIDED, HOWEVER, that
at no time shall any Lender be obligated to make (x) a Revolving Loan having a
Dollar Equivalent in excess of such Lender's Ratable Portion of the Available
Credit or (y) a Revolving Euro Loan having a Dollar Equivalent in excess of such
Lender's Ratable Portion of the Available Euro Credit. Within the limits of each
Lender's Revolving Credit Commitment, amounts of Revolving Loans repaid may be
reborrowed under this Section 2.1(a).
(b) TRANCHE A (EURO) TERM LOAN COMMITMENTS.
On the terms and subject to the conditions contained in this Agreement,
each Tranche A (Euro) Term Loan Lender severally agrees to make a loan
denominated in euro (each a "TRANCHE A (EURO) TERM LOAN") to the Borrower on the
Closing Date, in an amount the Dollar Equivalent of which does not exceed such
Lender's Tranche A (Euro) Term Loan Commitment. Amounts of Tranche A (Euro) Term
Loans paid or prepaid may not be reborrowed.
(c) TRANCHE B TERM LOAN COMMITMENTS.
On the terms and subject to the conditions contained in this Agreement,
each Tranche B Term Loan Lender severally agrees to make a loan denominated in
Dollars (each a "TRANCHE B TERM LOAN") to the Borrower on the Closing Date, in
an amount not to exceed such Lender's Tranche B Term Loan Commitment. Amounts of
Tranche B Term Loans paid or prepaid may not be reborrowed.
SECTION 2.2 BORROWING PROCEDURES.
(a) Each Revolving Credit Borrowing shall be made on notice given by the
Borrower to the Administrative Agent not later than (i) 12:00 noon (
New York
City time) one Business Day, in the case of a Borrowing of Base Rate Loans, (ii)
12:00 noon (
New York City time) three
34
Business Days, in the case of a Borrowing of LIBO Rate Dollar Loans or (iii)
12:00 noon (
New York City time) four Business Days, in the case of a Borrowing
of LIBO Rate Euro Loans, prior to the date of the proposed Revolving Credit
Borrowing. Each such notice shall be in substantially the form of Exhibit C (a
"NOTICE OF BORROWING"), specifying (A) the date of such proposed Revolving
Credit Borrowing, (B) the currency (Dollars or euro) and aggregate amount of
such proposed Revolving Credit Borrowing, (C) what portion of the proposed
Revolving Credit Borrowing denominated in Dollars will be of Base Rate Loans or
LIBO Rate Loans, (D) the initial Interest Period or Periods for any such LIBO
Rate Loans, (E) the aggregate outstanding potential liability of the Borrower
under any Foreign Overdraft Guarantees on the date of such proposed Revolving
Credit Borrowing, and (F) remittance instructions for such proposed Revolving
Credit Borrowing. In lieu of giving a Notice of Borrowing for any Revolving
Credit Borrowing, the Borrower may give the Administrative Agent telephonic
notice prior to the time required for giving a Notice of Borrowing; PROVIDED,
HOWEVER, that such telephonic notice shall be promptly confirmed in writing by
delivery of a duly executed Notice of Borrowing to the Administrative Agent
prior to the applicable date of such Revolving Credit Borrowing. The Revolving
Loans shall be made in Dollars unless (subject to Section 2.14) the Notice of
Borrowing specifies that the Loan is a Revolving Euro Loan. The Revolving Loans
denominated in Dollars shall be made as Base Rate Loans unless (subject to
Section 2.14) the Notice of Borrowing specifies that all or a portion thereof
shall be LIBO Rate Loans. Revolving Loans denominated in euro shall be made as
LIBO Rate Loans and shall not be available as Base Rate Loans. Each Revolving
Credit Borrowing shall be in an aggregate amount equal to an Applicable Currency
Denomination.
(b) All Term Loan Borrowings shall be made upon receipt of a Notice of
Borrowing given by the Borrower to the Administrative Agent not later than 11:00
a.m. (
New York City time) (i) one Business Day, in the case of a Borrowing of
Base Rate Loans, (ii) three Business Days, in the case of a Borrowing of LIBO
Rate Dollar Loans or (iii) four Business Days, in the case of a Borrowing of
LIBO Rate Euro Loans, prior to the Closing Date. The Notice of Borrowing shall
specify (A) the Closing Date, (B) the aggregate amount of such proposed Term
Loan Borrowing, (C) in the case of any Tranche B Term Loan Borrowing, what
portion of the proposed Term Loan Borrowing will be of Base Rate Loans or LIBO
Rate Loans, (D) the initial Interest Period or Periods for any such LIBO Rate
Loans, and (E) remittance instructions for such proposed Term Loan Borrowing.
The Tranche A (Euro) Term Loans shall be made as LIBO Rate Loans and shall not
be available as Base Rate Loans. The Tranche B Term Loans shall be made as Base
Rate Loans unless (subject to Section 2.14) the Notice of Borrowing specifies
that all or a portion thereof shall be LIBO Rate Loans. The Tranche A (Euro)
Term Loan Borrowing shall be in an aggregate amount (i) the Dollar Equivalent of
which equals the aggregate Tranche A (Euro) Term Loan Commitments or (ii) equal
to an Applicable Currency Denomination. The Tranche B Term Loan Borrowing shall
be in an aggregate amount equal to an Applicable Currency Denomination.
(c) The Administrative Agent shall give to each Lender prompt notice of
the Administrative Agent's receipt of a Notice of Borrowing (or of telephonic
notice duly given in lieu thereof), the Applicable Currency and (if a Euro Loan)
the initial Dollar Equivalent thereof, and if LIBO Rate Loans are properly
requested in such Notice of Borrowing, the applicable interest rate determined
pursuant to Section 2.14(a). Each Lender shall, before 11:00 a.m. (
New York City
time) on the date of the proposed Borrowing, make available to the
Administrative
35
Agent at an account designated from time to time by the Administrative Agent of
a bank in New York City (or, in the case of payments in euro, at an account
designated from time to time by the Administrative Agent as the place for
payments in euro), in immediately available funds, such Lender's Ratable Portion
of such proposed Borrowing in the Applicable Currency. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Section 3.1 and Section 3.2, the Administrative Agent will make
such funds available to the Borrower.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any proposed Borrowing that such Lender will not
make available to the Administrative Agent such Lender's Ratable Portion of such
Borrowing in the Applicable Currency, the Administrative Agent may assume that
such Lender has made such Ratable Portion available to the Administrative Agent
in the Applicable Currency on the date of such Borrowing in accordance with this
Section 2.2 and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount. If and to
the extent that such Lender shall not have so made such Ratable Portion
available to the Administrative Agent in the Applicable Currency, such Lender
and the Borrower severally agree to repay to the Administrative Agent forthwith
on demand, in the Applicable Currency, such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Effective Rate for the first Business Day and thereafter at the
interest rate applicable at the time to the Loans comprising such Borrowing. If
such Lender shall repay to the Administrative Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Loan as part of such
Borrowing for purposes of this Agreement. If the Borrower shall repay to the
Administrative Agent such corresponding amount, such payment shall not relieve
such Lender of any obligation it may have hereunder to the Borrower. With
respect to any Ratable Portion of a Borrowing not made available by a Lender as
contemplated above, if such Lender subsequently repays such corresponding amount
to the Administrative Agent and the Borrower has also repaid to the
Administrative Agent such corresponding amount (together with interest thereon
at the rate specified in clause (i) of the third preceding sentence), then the
Administrative Agent shall promptly repay to Borrower such corresponding amount
so received from such Lender (including interest thereon at the rate specified
in clause (ii) of the third preceding sentence to the extent received from such
Lender by the Administrative Agent); PROVIDED, HOWEVER, that such repayment to
the Borrower shall not operate as a waiver or any abandonment of any rights or
remedies of the Borrower with respect to such Lender.
(e) The failure of any Lender to make the Loan or any payment required by
it on the date specified (a "NON-FUNDING LENDER"), including any payment in
respect of its participation in Swing Loans and Letter of Credit Obligations,
shall not relieve any other Lender of its obligations to make such Loan or
payment on such date but no such other Lender shall be responsible for the
failure of any Non-Funding Lender to make a Loan or payment required under this
Agreement.
(f) Neither the Administrative Agent nor any Lender shall incur any
liability to the Borrower in acting upon any telephonic notice referred to in
Section 2.2(a) or Section 2.11(a)
36
that the Administrative Agent believes in good faith to have been given by a
Responsible Officer or other person authorized to execute Notices of Borrowing
on behalf of the Borrower or for otherwise acting in good faith under this
Section 2.2 or under Section 2.11, and upon funding of any Loans by the Lenders,
or upon any conversion or continuation of any Loans pursuant to Section 2.11, in
each case in accordance with this Agreement, pursuant to any such telephonic
notice, the Borrower shall be deemed to have borrowed Loans or effected a
conversion or continuation, as the case may be, hereunder.
(g) Except as otherwise provided in Section 2.14, a Notice of Borrowing or
a Notice of Conversion or Continuation (or telephonic notice in lieu thereof)
shall be irrevocable, and the Borrower shall be bound to make a Borrowing or to
effect a conversion or continuation in accordance therewith.
(h) Any Notice of Borrowing in respect of any LIBO Rate Loan to be made on
the Closing Date shall be in writing and contain an indemnity agreement
reasonably satisfactory to the Borrower and the Administrative Agent as to the
matters specified in Section 2.14(e). Any Revolving Loan made on the Closing
Date (or either of the next two Business Days) shall be a Base Rate Loan.
SECTION 2.3 SWING LOANS.
(a) On the terms and subject to the conditions contained in this
Agreement, the Swing Loan Lender agrees to make loans denominated in Dollars
(each a "SWING LOAN") otherwise available to the Borrower under the Revolving
Credit Facility from time to time on any Business Day during the period from the
Closing Date until the Revolving Credit Termination Date in an aggregate amount
at any time outstanding at any time not to exceed the lesser of (x) the Swing
Loan Commitment and (y) the Available Credit at such time. Each Swing Loan shall
be a Base Rate Loan and shall mature on the Scheduled Termination Date. Within
the limits set forth in the first sentence of this Section 2.3(a), amounts of
Swing Loans repaid may be reborrowed under this Section 2.3(a).
(b) In order to request a Swing Loan, the Borrower shall telecopy to the
Swing Loan Lender, with a copy to the Administrative Agent, a duly completed
request setting forth the date, the requested amount and date of the Swing Loan
(a "SWING LOAN REQUEST"), to be received by the Swing Loan Lender not later than
1:00 p.m. (New York City time) on the day of the proposed borrowing. Subject to
the terms of this Agreement, the Swing Loan Lender shall make a Swing Loan
available to the Borrower not later than 3:00 p.m. (New York City time) on the
date of the relevant Swing Loan Request. The Swing Loan Lender shall not make
any Swing Loan in the period commencing on the first Business Day after it
receives written notice from any Lender that one or more of the conditions
precedent contained in Section 3.2 shall not on such date be satisfied, and
ending when such conditions are satisfied. The Swing Loan Lender shall not
otherwise be required to determine that, or take notice whether, the conditions
precedent set forth in Section 3.2 hereof have been satisfied in connection with
the making of any Swing Loan. Each Swing Loan Borrowing shall be in an aggregate
amount equal to $500,000 or an integral multiple of $100,000 in excess thereof.
37
(c) The Swing Loan Lender shall notify the Administrative Agent in writing
(which writing may be by a telecopy or electronic mail) weekly, by no later than
10:00 a.m. (New York City time) on the first Business Day of each week, of the
aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time during the continuance of
an Event of Default that each Revolving Credit Lender pay to the Administrative
Agent, for the account of the Swing Loan Lender, in the manner provided in
subsection (e) below, such Revolving Credit Lender's Ratable Portion of all or a
portion of the outstanding Swing Loans, which demand shall be made through the
Administrative Agent, shall be in writing and shall specify the outstanding
principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each demand referred to in
clause (d) above to each Revolving Credit Lender on the day such demand is
received by the Administrative Agent (except that any such demand received by
the Administrative Agent after 10:00 a.m. (New York City time) on any Business
Day or any such demand received on a day that is not a Business Day shall not be
required to be forwarded to the Revolving Credit Lenders by the Administrative
Agent until the next succeeding Business Day), together with a statement
prepared by the Administrative Agent specifying the amount of each Revolving
Credit Lender's Ratable Portion of the aggregate principal amount of the Swing
Loans demanded to be paid pursuant to such demand, and, notwithstanding whether
or not the conditions precedent set forth in Section 3.2 shall have been
satisfied (which conditions precedent the Revolving Credit Lenders hereby
irrevocably waive), each Revolving Credit Lender shall, before 2:00 p.m. (New
York City time) on the same Business Day as the date of such Revolving Credit
Lender's receipt of such written statement, make available to the Administrative
Agent, in immediately available funds, for the account of the Swing Loan Lender,
the amount specified in such statement. Upon such payment by a Revolving Credit
Lender, such Revolving Credit Lender shall, except as provided in clause (f)
below, be deemed to have made a Revolving Loan to the Borrower. The
Administrative Agent shall use such funds to repay the Swing Loans to the Swing
Loan Lender. To the extent that any Revolving Credit Lender fails to make such
payment available to the Administrative Agent for the account of the Swing Loan
Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default under Section 7.1(f), each Revolving
Credit Lender shall purchase, without recourse or warranty, an undivided
participation in each Swing Loan otherwise required to be repaid by such
Revolving Credit Lender pursuant to clause (e) above, which participation shall
be in a principal amount equal to such Revolving Credit Lender's Ratable Portion
of such Swing Loan, by paying to the Swing Loan Lender on the date on which such
Revolving Credit Lender would otherwise have been required to make a payment in
respect of such Swing Loan pursuant to clause (e) above, in immediately
available funds, an amount equal to such Revolving Credit Lender's Ratable
Portion of such Swing Loan. If such amount is not in fact made available by such
Revolving Credit Lender to the Swing Loan Lender on such date, the Swing Loan
Lender shall be entitled to recover such amount on demand from such Revolving
Credit Lender together with interest accrued from such date at the Federal Funds
Effective Rate for the first Business Day after such payment was due and
thereafter at the rate of interest then applicable to Base Rate Loans.
38
(g) From and after the date on which any Revolving Credit Lender (i) is
deemed to have made a Revolving Loan pursuant to clause (e) above with respect
to any Swing Loan or (ii) purchases an undivided participation interest in a
Swing Loan pursuant to clause (f) above, the Swing Loan Lender shall promptly
distribute to such Revolving Credit Lender such Revolving Credit Lender's
Ratable Portion of all payments of principal of and interest received by the
Swing Loan Lender on account of such Swing Loan other than those received from a
Revolving Credit Lender pursuant to clause (e) or (f) above.
SECTION 2.4 LETTERS OF CREDIT.
(a) On the terms and subject to the conditions contained in this
Agreement, each Issuer agrees to issue one or more Letters of Credit denominated
in Dollars or euro at the request of the Borrower for the account of the
Borrower from time to time during the period commencing on the Closing Date and
ending on the earlier of the Revolving Credit Termination Date and 30 days prior
to the Scheduled Termination Date; PROVIDED, HOWEVER, that no Issuer shall be
under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuer
from issuing such Letter of Credit or any Requirement of Law applicable to
such Issuer or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over such Issuer
shall prohibit, or request that such Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such Issuer with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which such Issuer is not
otherwise compensated) not in effect on the date of this Agreement or
result in any unreimbursed loss, cost or expense which was not applicable,
in effect or known to such Issuer as of the date of this Agreement and
which such Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) such Issuer shall have received written notice from the
Administrative Agent, any Revolving Credit Lender or the Borrower, on or
prior to the requested date of issuance of such Letter of Credit, that one
or more of the applicable conditions contained in Section 3.1 or Section
3.2 is not then satisfied;
(iii) after giving effect to the issuance of such Letter of Credit,
the aggregate Revolving Credit Outstandings would exceed the aggregate of
the Available Revolving Credit Commitments in effect at such time;
(iv) after giving effect to the issuance of such Letter of Credit,
the Dollar Equivalent of the sum of (i) the Letter of Credit Undrawn
Amounts at such time and (ii) the Reimbursement Obligations at such time
would exceed $20,000,000;
(v) any fees due in connection with a requested issuance have not
been paid;
(vi) with respect to any requested Letter of Credit (Euro),
immediately after giving effect to the issuance of such Letter of Credit,
the Revolving Credit Euro Outstandings at such time would exceed
$15,000,000; or
39
(vii) with respect to any requested Letter of Credit (Euro), the
obligation of any Lender to make Revolving Euro Loans is suspended at such
time pursuant to Section 2.14(b) or (d).
None of the Revolving Credit Lenders (other than the Issuers in their
capacity as such) shall have any obligation to issue any Letter of Credit.
(b) In no event shall the expiration date of (x) any Documentary Letter of
Credit be later than the earlier of (A) 180 days after the date of issuance and
(B) the later of (i) 30 days prior to the Scheduled Termination Date, and (ii)
if cash collateral in the Applicable Currency and in an amount equal to the
outstanding amount of such Documentary Letter of Credit shall have been duly
deposited with respect to such Letter of Credit in a Cash Collateral Account
with the Administrative Agent prior to the date in clause (x)(B)(i), 90 days
after the Scheduled Termination Date; or (y) any Standby Letter of Credit be
after the earlier of (A) one year from its date of issuance and (B) the later of
(i) 10 Business Days preceding the Scheduled Termination Date and (ii) if cash
collateral in the Applicable Currency and in an amount equal to the outstanding
amount of such Standby Letter of Credit shall have been duly deposited with
respect to such Letter of Credit in a Cash Collateral Account with the
Administrative Agent prior to the date in clause (y)(B)(i), 90 days after the
Scheduled Termination Date, provided that any Standby Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the later date referred to in
clause (y)(B) above).
(c) In connection with the issuance of each Letter of Credit, the Borrower
shall give the relevant Issuer and the Administrative Agent at least two
Business Days' prior written notice, in substantially the form of Exhibit D (or
in such other written or electronic form as is acceptable to the Issuer), of the
requested issuance of such Letter of Credit (a "LETTER OF CREDIT REQUEST"). Such
notice shall be irrevocable and shall specify (A) the Issuer of such Letter of
Credit, (B) the stated amount of the Letter of Credit requested (which stated
amount shall not violate clauses (iii), (iv) or (vi) of Section 2.4(a)), (C) the
date of issuance of such requested Letter of Credit (which day shall be a
Business Day), (D) the date on which such Letter of Credit is to expire (which
date shall be a Business Day), (E) the Person for whose benefit the requested
Letter of Credit is to be issued and (F) the aggregate outstanding principal
liability of the Borrower under any Foreign Overdraft Guarantees on such date of
issuance of such Letter of Credit. Such notice, to be effective, must be
received by the relevant Issuer and the Administrative Agent not later than
12:00 noon (New York City time) on the third Business Day (in the case of
Standby Letters of Credit) or fifth Business Day (in the case of Documentary
Letters of Credit) prior to the requested issuance of such Letter of Credit.
(d) Subject to the satisfaction of the conditions set forth in this
Section 2.4, the relevant Issuer shall, on the requested date, issue a Letter of
Credit on behalf of the Borrower in accordance with such Issuer's usual and
customary business practices. No Issuer shall issue any Letter of Credit in the
period commencing on the first Business Day after it receives written notice
from any Lender that one or more of the conditions precedent contained in
Section 3.2 shall not on such date be satisfied, and ending when such conditions
are satisfied. The relevant Issuer shall not otherwise be required to determine
that, or take notice whether, the conditions
40
precedent set forth in Section 3.2 have been satisfied in connection with the
issuance of any Letter of Credit.
(e) If requested by the relevant Issuer, prior to the issuance of each
Letter of Credit by such Issuer, and as a condition of such issuance and of the
participation of each Revolving Credit Lender in the Letter of Credit
Obligations arising with respect thereto, the Borrower shall have delivered to
such Issuer a letter of credit reimbursement agreement, in such form as the
Issuer may employ in its ordinary course of business for its own account (a
"LETTER OF CREDIT REIMBURSEMENT AGREEMENT"), signed by the Borrower, and such
other documents or items as may be required pursuant to the terms thereof. In
the event of any conflict between the terms of any Letter of Credit
Reimbursement Agreement and this Agreement, the terms of this Agreement shall
govern.
(f) Each Issuer shall:
(i) give the Administrative Agent written notice (or telephonic
notice confirmed promptly thereafter in writing, which writing may be a
telecopy or electronic mail) of the issuance or renewal of a Letter of
Credit issued by it, of all drawings under a Letter of Credit issued by it
and the payment (or the failure to pay when due) by the Borrower of any
Reimbursement Obligation when due (which notice the Administrative Agent
shall promptly transmit by telecopy, electronic mail or similar
transmission to each Revolving Credit Lender).
(ii) upon the request of any Revolving Credit Lender, furnish to
such Revolving Credit Lender copies of any Letter of Credit Reimbursement
Agreement to which such Issuer is a party and such other documentation as
may reasonably be requested by such Revolving Credit Lender; and
(iii) no later than 10 Business Days following the last day of each
calendar month, provide to the Administrative Agent (and the Administrative
Agent shall provide a copy to each Revolving Credit Lender requesting the
same) and the Borrower separate schedules for Documentary and Standby
Letters of Credit issued by it, in form and substance reasonably
satisfactory to the Administrative Agent, setting forth the aggregate
Letter of Credit Obligations outstanding at the end of each month and any
information requested by the Borrower or the Administrative Agent relating
thereto.
(g) Immediately upon the issuance by an Issuer of a Letter of Credit in
accordance with the terms and conditions of this Agreement, such Issuer shall be
deemed to have sold and transferred to each Revolving Credit Lender, and each
Revolving Credit Lender shall be deemed irrevocably and unconditionally to have
purchased and received from such Issuer, without recourse or warranty, an
undivided interest and participation, to the extent of such Revolving Credit
Lender's Ratable Portion of the Revolving Credit Commitments, in such Letter of
Credit and the obligations of the Borrower with respect thereto (including all
Letter of Credit Obligations with respect thereto) and any security therefor and
guaranty pertaining thereto.
(h) The Borrower agrees to pay to the Issuer of any Letter of Credit the
amount of all Reimbursement Obligations owing to such Issuer under any Letter of
Credit in the Applicable
41
Currency no later than (and such Reimbursement Obligations shall be due and
payable on) the date (the "REIMBURSEMENT DUE DATE") that is the next succeeding
Business Day after the Borrower receives notice from the Issuer that payment has
been made under such Letter of Credit, irrespective of any claim, set-off,
defense or other right which the Borrower may have at any time against such
Issuer or any other Person. In the event that any Issuer makes any payment under
any Letter of Credit, such Reimbursement Obligation shall bear interest computed
from the date on which such Reimbursement Obligation arose to the date of
repayment in full at the rate of interest applicable during such period to
Revolving Loans that are Base Rate Loans (if the Applicable Currency is Dollars)
or Revolving Euro Loans with Interest Periods of one month (if the Applicable
Currency is euro) plus, for the period from the Reimbursement Due Date to the
date of repayment in full, an additional 2% per annum. Unless the Borrower shall
have notified the Administrative Agent and the Issuer with respect to any Letter
of Credit prior to 10:00 a.m. (New York City time) on the Business Day prior to
(if the Applicable Currency is Dollars) or the fourth Business Day prior to (if
the Applicable Currency is euro) the date on which such Issuer makes payment
under such Letter of Credit that the Borrower intends to reimburse such Issuer
with funds other than proceeds of Revolving Loans or, notwithstanding such
notice, the Borrower shall not have repaid such Reimbursement Obligation to such
Issuer pursuant to this clause (h) in the Applicable Currency or such payment is
rescinded or set aside for any reason, such Issuer shall promptly notify the
Administrative Agent, which shall promptly notify each Revolving Credit Lender
of the Borrower's intention to use proceeds of Revolving Loans or failure to
repay such Reimbursement Obligation, and each Revolving Credit Lender shall
promptly and unconditionally pay to the Administrative Agent for the account of
such Issuer the amount of such Revolving Credit Lender's Ratable Portion of such
payment in the Applicable Currency and in immediately available funds. If the
Administrative Agent so notifies such Revolving Credit Lender on any Business
Day, such Revolving Credit Lender shall make available to the Administrative
Agent for the account of such Issuer its Ratable Portion of the amount of such
payment no later than 12:00 noon (New York City time) on the next succeeding
Business Day (if the Applicable Currency is Dollars) or the second succeeding
Business Day (if the Applicable Currency is euro) in the Applicable Currency and
in immediately available funds. Upon such payment by a Revolving Credit Lender,
such Revolving Credit Lender shall, except during the continuance of an Event of
Default under Section 7.1(f) and notwithstanding whether or not the conditions
precedent set forth in Section 3.2 shall have been satisfied (which conditions
precedent the Revolving Credit Lenders hereby irrevocably waive), be deemed to
have made a Revolving Loan to the Borrower in the principal amount of such
payment. Whenever any Issuer receives from the Borrower a payment of a
Reimbursement Obligation as to which the Administrative Agent has received for
the account of such Issuer any payment from a Revolving Credit Lender pursuant
to this clause (h) above, such Issuer shall pay to the Administrative Agent and
the Administrative Agent shall promptly pay to such Revolving Credit Lender, in
immediately available funds, an amount equal to such Revolving Credit Lender's
Ratable Portion of the amount of such payment adjusted, if necessary, to reflect
the respective amounts the Revolving Credit Lenders have paid in respect of such
Reimbursement Obligation.
(i) The Borrower's obligation to pay each Reimbursement Obligation and the
obligations of the Revolving Credit Lenders to make payments to the
Administrative Agent for the account of the Issuers with respect to Letters of
Credit in the Applicable Currency shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the
42
terms of this Agreement, under any and all circumstances whatsoever, including
the occurrence of any Default or Event of Default, and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit
or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from
all or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, set off, defense or other right
that the Borrower, any other party guaranteeing, or otherwise obligated
with, the Borrower, any Subsidiary or other Affiliate thereof or any other
Person may at any time have against the beneficiary under any Letter of
Credit, Issuer, the Administrative Agent or any Lender or any other Person,
whether in connection with this Agreement, any other Loan Document or any
other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a 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;
(v) payment by the Issuer under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuer, the Lenders, the Administrative Agent or any other Person or any
other event or circumstance whatsoever, whether or not similar to any of
the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
Any action taken or omitted to be taken by the relevant Issuer under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not put such Issuer under any
resulting liability to the Borrower or any Revolving Credit Lender. In
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof, the 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, in
making any payment under any Letter of Credit (x) the Issuer may rely
exclusively on the documents presented to it under such Letter of Credit as to
any and all matters set forth therein, including reliance on the amount of any
draft presented under such Letter of Credit, whether or not the amount due to
the beneficiary thereunder equals the amount of such draft and whether or not
any document presented pursuant to such Letter of Credit proves to be
insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or untrue in any respect whatsoever
and any noncompliance in any immaterial respect of the documents presented under
such Letter of Credit with the terms thereof shall, in each case, be deemed not
to constitute willful misconduct or gross negligence of the Issuer.
43
(j) If and to the extent such Revolving Credit Lender shall not have so
made its Ratable Portion of the amount of the payment required by clause (h)
above available to the Administrative Agent for the account of such Issuer, such
Revolving Credit Lender agrees to pay to the Administrative Agent for the
account of such Issuer forthwith on demand such amount together with interest
thereon, for the first Business Day after payment was first due at the Federal
Funds Effective Rate, and thereafter until such amount is repaid to the
Administrative Agent for the account of such Issuer, at the rate per annum
applicable to Base Rate Loans under the Revolving Credit Facility (if not a
Letter of Credit (Euro)) or Revolving Euro Loans with Interest Periods
determined by the Administrative Agent (if a Letter of Credit (Euro)). The
failure of any Revolving Credit Lender to make available to the Administrative
Agent for the account of such Issuer its Ratable Portion of any such payment
shall not relieve any other Revolving Credit Lender of its obligation hereunder
to make available to the Administrative Agent for the account of such Issuer its
Ratable Portion of any payment on the date such payment is to be made, but no
Revolving Credit Lender shall be responsible for the failure of any other
Revolving Credit Lender to make available to the Administrative Agent for the
account of the Issuer such other Revolving Credit Lender's Ratable Portion of
any such payment.
SECTION 2.5 REDUCTION AND TERMINATION OF THE COMMITMENTS.
(a) The Borrower may, upon at least three Business Days' prior notice to
the Administrative Agent, terminate in whole or reduce in part, without premium
or penalty (other than any amounts owing pursuant to Section 2.14(e)), ratably
the unused portions of the respective Revolving Credit Commitments of the
Revolving Credit Lenders; PROVIDED, HOWEVER, that each partial reduction shall
be in the aggregate amount equal to $1,000,000 or an integral multiple in excess
thereof.
(b) The then current Revolving Credit Commitments shall be reduced on each
date on which a prepayment of Revolving Loans or Swing Loans is made pursuant to
Section 2.9(a) and (b) or would be required to be made had the outstanding
Revolving Loans and Swing Loans equaled the Revolving Credit Commitments then in
effect, in each case in the amount of such prepayment (or deemed prepayment)
(and the Revolving Credit Commitment of each Lender shall be reduced by its
Ratable Portion of such amount).
(c) The Tranche A (Euro) Term Loan Commitments shall be reduced to zero
upon the funding of Tranche A (Euro) Term Loans on the Closing Date.
(d) The Tranche B Term Loan Commitments shall be reduced to zero upon the
funding of Tranche B Term Loans on the Closing Date.
SECTION 2.6 REPAYMENT OF LOANS.
(a) The Borrower shall repay the entire unpaid principal amount of the
Revolving Loans and the Swing Loans on the Scheduled Termination Date.
(b) The Borrower shall repay the Tranche A (Euro) Term Loans on the dates
(or, if any such date is not a Business Day, the next preceding Business Day)
and in the amounts set forth below:
44
Date Amount of Principal (EURO)
----------------------------------------------------------
October 31, 2003 1,104,142.00
January 31, 2004 1,104,142.00
April 30, 2004 1,104,142.00
July 31, 2004 1,104,142.00
October 31, 2004 1,656,214.00
January 31, 2005 1,656,214.00
April 30, 2005 1,656,214.00
July 31, 2005 1,656,214.00
October 31, 2005 1,656,214.00
January 31, 2006 1,656,214.00
April 30, 2006 1,656,214.00
July 31, 2006 1,656,214.00
October 31, 2006 2,208,285.00
January 31, 2007 2,208,285.00
April 30, 2007 2,208,285.00
July 31, 2007 2,208,285.00
October 31, 2007 2,208,285.00
January 31, 2008 2,208,285.00
April 30, 2008 2,208,285.00
July 31, 2008 2,208,285.00
October 31, 2008 4,416,571.00
January 11, 2009 4,416,578.74
PROVIDED, HOWEVER, that the Borrower shall repay the entire unpaid principal
amount of the Tranche A (Euro) Term Loans on the Tranche A (Euro) Term Loan
Maturity Date.
(c) The Borrower shall repay the Tranche B Term Loans on the dates (or, if
any such date is not a Business Day, the next preceding Business Day) and in the
amounts set forth below:
Date Amount of Principal ($)
----------------------------------------------------------
October 31, 2003 $ 562,500
January 31, 2004 $ 562,500
April 30, 2004 $ 562,500
July 31, 2004 $ 562,500
October 31, 2004 $ 562,500
January 31, 2005 $ 562,500
April 30, 2005 $ 562,500
July 31, 2005 $ 562,500
October 31, 2005 $ 562,500
January 31, 2006 $ 562,500
April 30, 2006 $ 562,500
July 31, 2006 $ 562,500
October 31, 2006 $ 562,500
January 31, 2007 $ 562,500
45
April 30, 2007 $ 562,500
July 31, 2007 $ 562,500
October 31, 2007 $ 562,500
January 31, 2008 $ 562,500
April 30, 2008 $ 562,500
July 31, 2008 $ 562,500
October 31, 2008 $ 562,500
January 31, 2009 $ 562,500
April 30, 2009 $ 562,500
July 31, 2009 $ 562,500
October 31, 2009 $ 562,500
January 11, 2010 $ 210,937,500
PROVIDED, HOWEVER, that the Borrower shall repay the entire unpaid principal
amount of the Tranche B Term Loans on the Tranche B Term Loan Maturity Date.
SECTION 2.7 EVIDENCE OF DEBT.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing Indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(b) The Administrative Agent shall maintain accounts in accordance with
its usual practice in which it will record (i) the amount of each Loan made and,
if a LIBO Rate Loan, the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable by the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof, if applicable.
(c) The entries made in the accounts maintained pursuant to clauses (a)
and (b) of this Section 2.7 shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations recorded
therein; PROVIDED, HOWEVER, that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligations of the Borrower to repay the Loans in accordance with
their terms.
(d) Notwithstanding any other provision of the Agreement, in the event
that any Lender requests that the Borrower execute and deliver a promissory note
or notes payable to such Lender in order to evidence the Indebtedness owing to
such Lender by the Borrower hereunder, the Borrower will promptly execute and
deliver a Note or Notes to such Lender evidencing any Term Loans and Revolving
Loans, as the case may be, of such Lender, substantially in the forms of Exhibit
▇-▇, ▇-▇ or B-3, respectively.
46
SECTION 2.8 OPTIONAL PREPAYMENTS.
(a) REVOLVING LOANS.
The Borrower may, upon at least (i) three Business Days' prior notice to
the Administrative Agent for any such Loan that is a LIBO Rate Dollar Loan, (ii)
four Business Days' prior notice to the Administrative Agent for any such Loan
that is a LIBO Rate Euro Loan or (iii) one Business Day's prior notice to the
Administrative Agent for any such Loan that is a Base Rate Loan, which notice
shall be substantially in the form of Exhibit J (a "NOTICE OF OPTIONAL
PREPAYMENT") and shall be given by 12:00 noon (New York City time) on the date
required and state the proposed date and aggregate principal amount and
Applicable Currency of the prepayment, prepay the outstanding principal amount
of the Revolving Loans or Swing Loans in whole or in part, without premium or
penalty (other than any amounts owing pursuant to Section 2.14(e)), in the
Applicable Currency, together with (except in the case of Base Rate Loans)
accrued interest to the date of such prepayment on the principal amount prepaid;
PROVIDED, HOWEVER, that if any prepayment of any LIBO Rate Loan is made by the
Borrower other than on the last day of an Interest Period for such Loan, the
Borrower shall also pay any amounts owing pursuant to Section 2.14(e); and,
PROVIDED, FURTHER, that each partial prepayment shall be in an aggregate
principal amount equal to (i) if a Dollar Loan, $1,000,000 or an integral
multiple in excess thereof or (ii) if a Euro Loan, EURO 1,000,000 or an integral
multiple in excess thereof. Any Notice of Optional Prepayment shall be
irrevocable and, upon the giving of any such Notice of Optional Prepayment, the
principal amount of Revolving Loans specified to be prepaid shall become due and
payable on the date specified for such prepayment.
(b) TERM LOANS.
The Borrower may, upon at least (i) three Business Days' prior notice to
the Administrative Agent for any such Loan that is a LIBO Rate Dollar Loan, (ii)
four Business Days' prior notice to the Administrative Agent for any such Loan
that is a LIBO Rate Euro Loan or (iii) one Business Day's prior notice to the
Administrative Agent for any such Loan that is a Base Rate Loan, which notice
shall be a Notice of Optional Prepayment and shall be given prior to 12:00 noon
(New York City time) on the date required and state the proposed date and
aggregate principal amount of the prepayment, prepay the outstanding principal
amount of a Tranche of the Term Loans, in whole or in part, in the Applicable
Currency, together with accrued interest to the date of such prepayment on the
principal amount prepaid; PROVIDED, HOWEVER, that if any prepayment of any LIBO
Rate Loan is made by the Borrower other than on the last day of an Interest
Period for such Loan, the Borrower shall also pay any amounts owing pursuant to
Section 2.14(e); and, PROVIDED, FURTHER, that (i) each partial prepayment shall
be in an aggregate principal amount equal to (A) if a Dollar Loan, $1,000,000 or
an integral multiple in excess thereof or (B) if a Euro Loan, EURO 1,000,000 or
an integral multiple in excess thereof and (ii) any such partial prepayment
shall be applied to reduce ratably the remaining installments of such
outstanding principal amount of the respective Tranche of Term Loans specified
by the Borrower to be so repaid on a pro rata basis. Any Notice of Optional
Prepayment shall be irrevocable and, upon the giving of any such Notice of
Optional Prepayment, the principal amount of the Term Loans specified to be
prepaid shall become due and payable on the date specified for such prepayment.
47
(c) The Borrower shall have no right to prepay the principal amount of any
Revolving Loan or any Term Loan other than as provided in this Section 2.8.
SECTION 2.9 MANDATORY PREPAYMENTS.
(a) Upon receipt by Holdings, the Borrower or any of its Subsidiaries of
(i) Net Cash Proceeds arising from an Asset Sale, Recovery Event or Debt
Issuance, the Borrower shall immediately prepay the Loans (or provide cash
collateral in respect of Letters of Credit) in an amount equal to 100% of such
Net Cash Proceeds; (ii) any payment on the SwissCo Intercompany Note, the
Borrower shall immediately prepay the Loans (or provide cash collateral in
respect of Letters of Credit) in an amount equal to 100% of such payment; or
(iii) Net Cash Proceeds arising from an Equity Issuance, the Borrower shall
immediately prepay the Loans (or provide cash collateral in respect of Letters
of Credit) in an amount equal to 50% of such Net Cash Proceeds; PROVIDED,
HOWEVER, that in the case of any Net Cash Proceeds constituting the Reinvestment
Deferred Amount with respect to a Reinvestment Event, the Borrower shall prepay
the Loans (or provide cash collateral in respect of Letters of Credit) in an
amount equal to the Reinvestment Prepayment Amount applicable to such
Reinvestment Event, if any, on the Reinvestment Prepayment Date with respect to
such Reinvestment Event; PROVIDED, HOWEVER, that the amount of Net Cash Proceeds
received in the same Fiscal Year from one or more Reinvestment Events that may
be specified as Reinvestment Deferred Amounts in one or more Reinvestment
Notices shall not exceed $20,000,000 in the aggregate for all such Net Cash
Proceeds so received. Any such mandatory prepayment shall be applied in
accordance with Section 2.9(c) below.
(b) If the Consolidated Leverage Ratio for the last day of any Fiscal Year
is greater than 2.5, the Borrower shall prepay the Loans, on a date no later
than 5 days after the earlier of (i) the date on the Financial Statements of the
Borrower referred to in Section 5.1(a) for such Fiscal Year are required to be
delivered to the Lenders and (ii) the date such financial statements are
actually delivered, in an amount equal to 50% of Excess Cash Flow for such
Fiscal Year. Any such mandatory prepayment shall be applied in accordance with
Section 2.9(c) below.
(c) Any prepayments made by the Borrower required to be applied in
accordance with this Section 2.9(c) shall be applied as follows: FIRST, to
prepay the outstanding principal balance of the Term Loans, until such Term
Loans shall have been prepaid in full; SECOND, to repay the outstanding
principal balance of the Swing Loans, until such Swing Loans shall have been
repaid in full; THIRD, to repay the outstanding principal balance of the
Revolving Loans, until such Revolving Loans shall have been paid in full; and
THEN, to provide cash collateral for any Letter of Credit Obligations in the
manner set forth in Section 7.3 until all such Letter of Credit Obligations have
been fully cash collateralized in the manner set forth therein. All prepayments
of the Term Loans made pursuant to this Section 2.9 shall be applied to reduce
ratably the remaining installments of such outstanding principal amounts of the
Term Loans of both Tranches on a pro rata basis, except that, so long as no
Event of Default is continuing at the time of prepayment, any prepayment of the
Term Loans arising pursuant to clause (ii) of Section 2.9(a), if the Borrower
elects by written notice delivered to the Administrative Agent, shall be
allocated between the Tranche A (Euro) Term Loan and Tranche B Term Loan as the
Borrower shall designate in such notice (which designation shall not allocate a
portion of such prepayment to a Tranche in excess of its then outstanding
principal amount) and then applied to each Tranche
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in the respective amounts so designated to reduce ratably the remaining
installments of such outstanding principal amount of such Tranche. All
repayments of Revolving Loans and Swing Loans required to be made pursuant to
Section 2.9(a) or (b) (or which would be required to be made had the outstanding
Revolving Loans and Swing Loans equaled the Revolving Credit Commitments then in
effect) shall result in a permanent reduction of the Revolving Credit
Commitments as provided in Section 2.5(b).
(d) If at any time the aggregate Revolving Credit Outstandings exceed the
aggregate Available Revolving Credit Commitments at such time, the Borrower
shall forthwith prepay the Swing Loans first and then the Revolving Loans then
outstanding in an amount equal to such excess. If any such excess remains after
repayment in full of the aggregate outstanding Swing Loans and Revolving Loans,
the Borrower shall provide cash collateral for the Letter of Credit Obligations
in the manner set forth in Section 7.3 in an amount equal to such excess.
(e) If at any time the aggregate Revolving Credit Euro Outstandings exceed
$15,000,000, the Borrower shall forthwith prepay the Revolving Euro Loans then
outstanding in an amount equal to such excess. If any such excess remains after
repayment in full of the aggregate outstanding Revolving Euro Loans, the
Borrower shall provide cash collateral for the Letter of Credit (Euro)
Obligations in the manner set forth in Section 7.3 in an amount equal to such
excess.
(f) Notwithstanding the foregoing provisions of this Section 2.9, if at
any time any prepayment of the Loans pursuant to Section 2.9(a) or (b) would
result, after giving effect to the procedures set forth in this Agreement, in
the Borrower owing amounts pursuant to Section 2.14(e)) as a result of LIBO Rate
Loans being prepaid other than on the last day of the then applicable Interest
Period with respect thereto, then, the Borrower may, so long as no Default or
Event of Default shall have occurred and be continuing, in its sole discretion,
deposit the amounts that otherwise would have been paid in respect of such
prepayment of such LIBO Rate Loans with the Administrative Agent (which deposit
must be in the Applicable Currency of such LIBO Rate Loans and in respect of
which deposit the Borrower shall not be entitled to, and shall not, receive any
interest or other investment return) to be held as security for the obligations
of the Borrower to make such prepayment on the last day of such Interest Period
(which deposit, in the Administrative Agent's sole discretion shall be pursuant
to a cash collateral agreement to be entered into on terms reasonably
satisfactory to the Administrative Agent), with such cash collateral to be
directly applied in prepayment of such LIBO Rate Loans upon the last day of such
Interest Period; PROVIDED, HOWEVER, that, such unpaid LIBO Rate Loans shall
continue to bear interest in accordance with the applicable provisions hereof
until such unpaid LIBO Rate Loans have been prepaid.
(g) No mandatory prepayment of the Tranche A (Euro) Term Loans will be
required as a result of any changes in the rate of exchange for Dollars and
euro.
(h) No later than the time at which the Borrower makes any mandatory
prepayment to the Administrative Agent pursuant to this Section 2.9, the
Borrower shall notify the Administrative Agent in writing of the amount of any
such mandatory prepayment and the reason therefor.
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SECTION 2.10 INTEREST.
(a) RATE OF INTEREST.
All Loans and the outstanding amount of all other Obligations shall bear
interest, in the case of Loans, on the unpaid principal amount thereof from the
date such Loans are made and, in the case of such other Obligations, from the
date such other Obligations become due and payable until, in all cases, paid in
full, except as otherwise provided in Section 2.10(c), as follows:
(i) in the case of a Base Rate Loan, at a rate per annum equal to
the sum of (A) the Base Rate as in effect from time to time PLUS (B) the
Applicable Margin in effect from time to time for such Loan;
(ii) in the case of a LIBO Rate Loan, at a rate per annum equal to
the sum of (A) the LIBO Rate determined for the applicable Interest Period
PLUS (B) the Applicable Margin in effect from time to time for such Loan
during such Interest Period; and
(iii) in the case of any Obligations (other than Loans) that have
become due and payable, (x) if such other Obligation constitutes interest
in respect of the Tranche B Term Loan, at a rate per annum equal to the sum
of (A) the Base Rate as in effect for time to time PLUS (B) the Applicable
Margin for the Tranche B Term Loan in effect from time to time PLUS (C) 2%
PER ANNUM or (y) otherwise, at a rate per annum equal to the sum of (A) the
Base Rate as in effect from time to time PLUS (B) the Applicable Margin for
Revolving Loans in effect from time to time PLUS (C) 2% PER ANNUM.
(b) INTEREST PAYMENTS.
(i) Interest accrued on each Base Rate Loan (including Swing
Loans) shall be due and payable in arrears (A) on the last Business Day of
each calendar quarter, commencing on the first such day following the
making of such Base Rate Loan, (B) in the case of Base Rate Loans that are
Term Loans, upon the payment or prepayment thereof in full or in part, and
(C) if not previously paid in full, at maturity (whether by acceleration or
otherwise) of such Base Rate Loan.
(ii) Interest accrued on each LIBO Rate Loan shall be due and
payable in arrears (A) on the last day of each Interest Period applicable
to such Loan and if such Interest Period has a duration of more than three
months, on each day during such Interest Period which occurs every three
months from the first day of such Interest Period, (B) upon the payment or
prepayment thereof in full or in part, and (C) if not previously paid in
full, at maturity (whether by acceleration or otherwise) of such LIBO Rate
Loan.
(iii) Interest accrued on the amount of all other Obligations shall
be due and payable on demand at any time and from time to time after such
Obligation becomes due and payable (whether by acceleration or otherwise).
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(c) INTEREST ON DEFAULTED PRINCIPAL.
Notwithstanding the rates of interest specified in Section 2.10(a) or
elsewhere herein, any principal of any Loan that has become due and payable
shall bear interest at a rate which is 2% per annum in excess of the rate of
interest otherwise applicable to such Loan from time to time.
(d) CURRENCY OF PAYMENT.
Interest on any Loan or other Obligation shall be payable in same currency
as the currency in which such Loan or other Obligation is payable.
SECTION 2.11 CONVERSION/CONTINUATION OPTION.
(a) The Borrower may elect (i) at any time to convert Base Rate Loans
(other than Swing Loans) or any portion thereof to LIBO Rate Dollar Loans in an
Applicable Currency Denomination, (ii) at any time to convert LIBO Rate Dollar
Loans or any portion thereof into Base Rate Loans in an Applicable Currency
Denomination, (iii) at the end of any applicable Interest Period to continue
LIBO Rate Loans or any portion thereof in an Applicable Currency Denomination
for an additional Interest Period in the same Applicable Currency, or (iv) at
the end of any Interest Period for any LIBO Loans comprising all or a portion of
the Tranche A (Euro) Term Loan, to continue such LIBO Loans or any portion
thereof that is at least EURO 5,000,000 (but is not in an Applicable Currency
Denomination) for an additional Interest Period, so long as all other LIBO Loans
comprising the Tranche A (Euro) Term Loan are in an Applicable Currency
Denomination; PROVIDED, HOWEVER, that, if any such conversion of any LIBO Rate
Dollar Loan is made pursuant to clause (ii) above other than on the last day of
an Interest Period for such Loan, the Borrower shall also pay any amounts owing
pursuant to Section 2.14(e). Each conversion or continuation shall be allocated
among the Loans of each Lender in accordance with its Ratable Portion. Each such
election shall be in substantially the form of Exhibit E hereto (a "NOTICE OF
CONVERSION OR CONTINUATION") and shall be made by giving the Administrative
Agent written notice no later than 12:00 noon (New York City time) on the date
three Business Days (other than in the case of a continuation of any Euro Loan)
or four Business Days (in the case of a continuation of any Euro Loan) in
advance of the relevant conversion or continuation, which notice shall specify
(A) the amount, type and Applicable Currency of Loan being converted or
continued, (B) in the case of a conversion to LIBO Rate Dollar Loans or a
continuation of LIBO Rate Loans, the applicable Interest Period, (C) in the case
of a conversion, the date of conversion (which date shall be a Business Day) and
(D) in the case of any conversion or continuation of any Revolving Loan, the
aggregate outstanding principal liability of the Borrower under any Foreign
Overdraft Guarantees on such date of conversion or continuation. In lieu of
giving a Notice of Conversion or Continuation for any conversion or
continuation, the Borrower may give the Administrative Agent telephonic notice
prior to the time required for giving a Notice of Conversion or Continuation;
PROVIDED, HOWEVER, that such telephonic notice shall be promptly confirmed in
writing by delivery of a duly executed Notice of Conversion or Continuation to
the Administrative Agent prior to the date of conversion or continuation.
(b) The Administrative Agent shall promptly notify each Lender of its
receipt of a Notice of Conversion or Continuation (or of telephonic notice duly
given in lieu thereof) and of
51
the options selected therein. Notwithstanding the foregoing, (i) Euro Loans may
not be converted into Base Rate Loans or into LIBO Rate Dollar Loans; (ii) no
conversion in whole or in part of Base Rate Loans to LIBO Rate Dollar Loans, and
no continuation in whole or in part of LIBO Rate Dollar Loans upon the
expiration of any applicable Interest Period, and no election of an Interest
Period in excess of one month in respect of any Euro Loans, shall be permitted
at any time at which a Default or an Event of Default shall have occurred and be
continuing; and (iii) no conversion in whole or in part of Base Rate Loans to
LIBO Rate Dollar Loans, and no continuation in whole or in part of LIBO Rate
Loans upon the expiration of any applicable Interest Period, shall be permitted
at any time at which such conversion into, or continuation of, would violate any
of the provisions of Section 2.14. If, within the time period required under the
terms of this Section 2.11, the Administrative Agent does not receive a Notice
of Conversion or Continuation from the Borrower containing a permitted election
to continue any LIBO Rate Loans for an additional Interest Period or to convert
any such Loans, then, upon the expiration of the applicable Interest Period, (i)
if such Loans are LIBO Rate Dollar Loans, such Loans will be automatically
converted to Base Rate Loans or (ii) if such Loans are Euro Loans, such Loans
shall be automatically continued as Euro Loans with an Interest Period of one
month. Each Notice of Conversion or Continuation shall be irrevocable.
SECTION 2.12 FEES.
(a) UNUSED COMMITMENT FEE.
The Borrower agrees to pay to each Revolving Credit Lender a commitment fee
in Dollars on the daily average amount by which the Revolving Credit Commitment
of such Lender exceeds such Lender's Ratable Portion of the excess of (x) the
Revolving Credit Outstandings over (y) the amount of any outstanding Swing Loans
(the "UNUSED COMMITMENT FEE") from the date hereof until the Revolving Credit
Termination Date at the Applicable Unused Commitment Fee Rate, payable in
arrears (i) on the last Business Day of each calendar quarter, commencing on the
first such Business Day following the Closing Date, and (ii) on the Revolving
Credit Termination Date.
(b) LETTER OF CREDIT FEES.
The Borrower agrees to pay the following amounts with respect to Letters of
Credit issued by any Issuer:
(i) to the Administrative Agent for the account of each Issuer of
a Letter of Credit, with respect to each Letter of Credit issued by such
Issuer, an issuance fee in the Applicable Currency equal to 0.25% per annum
of the maximum amount available from time to time to be drawn under such
Letter of Credit, payable in arrears (A) on the last Business Day of each
calendar quarter, commencing on the first such Business Day following the
issuance of such Letter of Credit and (B) on the Revolving Credit
Termination Date (or, if any cash collateral has been deposited with
respect to such Letter of Credit pursuant to clause (x)(B)(ii) or
(y)(B)(ii) of Section 2.4(b), the date of expiration of such Letter of
Credit);
52
(ii) to the Administrative Agent for the ratable benefit of the
Revolving Credit Lenders, with respect to each Letter of Credit, a fee in
the Applicable Currency accruing at a rate per annum equal to the
Applicable Margin for Revolving Loans that are LIBO Rate Loans, of the
maximum amount available from time to time to be drawn under such Letter of
Credit, payable in arrears on the last Business Day of each calendar
quarter, commencing on the first such Business Day following the issuance
of such Letter of Credit and (ii) on the Revolving Credit Termination Date
(or, if any cash collateral has been deposited with respect to such Letter
of Credit pursuant to clause (x)(B)(ii) or (y)(B)(ii) of Section 2.4(b),
the date of expiration of such Letter of Credit); PROVIDED, HOWEVER, that
during the continuance of an Event of Default under Section 7.1(a) in
respect of principal or interest, such fee shall be increased by 2.00% per
annum and shall be payable on demand; and
(iii) to the Issuer of any Letter of Credit, with respect to the
issuance, amendment or transfer of each Letter of Credit and each drawing
made thereunder, documentary and processing charges in accordance with such
Issuer's standard schedule for such charges in effect at the time of
issuance, amendment, transfer or drawing, as the case may be.
(c) ADDITIONAL FEES.
The Borrower has agreed to pay to the Arranger and the Lenders additional
fees, the amount and dates of payment of which are embodied in the Fee Letter.
SECTION 2.13 PAYMENTS AND COMPUTATIONS.
(a) The Borrower shall make each payment hereunder (including fees and
expenses) not later than 12:00 noon (New York City time) on the day when due, in
the Applicable Currency, to the Administrative Agent at an account designated
from time to time by the Administrative Agent at a bank in New York City (or, in
the case of payments in euro, at an account designated from time to time by the
Administrative Agent as the place for payments in euro) in immediately available
funds without set-off or counterclaim. The Administrative Agent will promptly
thereafter cause to be distributed immediately available funds relating to the
payment of principal or interest or fees to the Lenders, in accordance with the
application of payments set forth in clauses (e) and (f) of this Section 2.13,
as applicable, for the account of their respective Applicable Lending Offices;
PROVIDED, HOWEVER, that amounts payable pursuant to Section 2.14(c), Section
2.14(e), Section 2.15 or Section 2.16 shall be paid only to the affected Lender
or Lenders and amounts payable with respect to Swing Loans shall be paid only to
the Swing Loan Lender. Payments received by the Administrative Agent after 12:00
noon (New York City time) shall be deemed to be received on the next Business
Day.
(b) All computations of interest based on clause (a) of the definition of
Base Rate shall be made by the Administrative Agent on the basis of a year of
365 or 366 days, as the case may be, and all other computations of interest and
of fees shall be made by the Administrative Agent on the basis of a year of 360
days, in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest and fees
53
are payable. Each determination by the Administrative Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(c) Except as otherwise specified herein, whenever any payment hereunder
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or fees, as the
case may be; PROVIDED, HOWEVER, that if such extension would cause payment of
interest on or principal of any LIBO Rate Loan to be made in the next calendar
month, such payment shall be made on the immediately preceding Business Day. All
repayments of any Revolving Loans, Tranche A (Euro) Term Loans or Tranche B Term
Loans shall be applied as follows: FIRST to repay such Loans outstanding as Base
Rate Loans and THEN to repay such Loans outstanding as LIBO Rate Loans with
those LIBO Rate Loans which have earlier expiring Interest Periods being repaid
prior to those which have later expiring Interest Periods.
(d) Unless the Administrative Agent shall have received notice from the
Borrower to the Lenders prior to the date on which any payment is due hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent the Borrower
shall not have made such payment in full to the Administrative Agent, each
Lender shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with interest thereon at the Federal Funds
Effective Rate, for the first Business Day, and, thereafter, at the rate
applicable to Base Rate Loans, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent.
(e) Subject to the provisions of clause (f) of this Section 2.13 and
except as otherwise provided in Section 2.9, all payments and any other amounts
received by the Administrative Agent from or for the benefit of the Borrower
shall be applied FIRST, to pay all Obligations then due and payable; and SECOND,
as the Borrower so designates. Payments in respect of Swing Loans received by
the Administrative Agent shall be distributed to the Swing Loan Lender; payments
in respect of Revolving Loans received by the Administrative Agent shall be
distributed to each Revolving Credit Lender in accordance with such Lender's
Ratable Portion of the Revolving Credit Commitments; payments in respect of the
Tranche A (Euro) Term Loans received by the Administrative Agent shall be
distributed to each Tranche A (Euro) Term Loan Lender in accordance with such
Lender's Ratable Portion of the Tranche A (Euro) Term Loans; payments in respect
of the Tranche B Term Loans received by the Administrative Agent shall be
distributed to each Tranche B Term Loan Lender in accordance with such Lender's
Ratable Portion of the Tranche B Term Loans; and all payments of fees and all
other payments in respect of any other Obligation shall be allocated among such
of the Lenders and Issuers as are entitled thereto, and, if to the Lenders, in
proportion to their respective Ratable Portions.
(f) The Borrower hereby irrevocably waives the right to direct the
application of any and all payments in respect of the Obligations and any
proceeds of Collateral after the occurrence and during the continuance of an
Event of Default, and agrees that, if an Event of Default has occurred and is
continuing, the Administrative Agent may, and shall upon either (A)
54
the written direction of the Requisite Revolving Credit Lenders, the Requisite
Tranche A (Euro) Term Loan Lenders and the Requisite Tranche B Term Loan Lenders
or (B) the acceleration of the Obligations pursuant to Section 7.2, apply all
payments in respect of any Obligations and all funds on deposit in any Cash
Collateral Accounts (including all proceeds arising from any Reinvestment Event
that are held in a Cash Collateral Account pending application thereof as
specified in a Reinvestment Notice) and all other proceeds of Collateral in the
following order:
(i) FIRST, to pay Obligations in respect of any expense
reimbursements or indemnities then due the Administrative Agent;
(ii) SECOND, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Lenders and the Issuers;
(iii) THIRD, to pay Obligations in respect of any fees then due to
the Administrative Agent, the Lenders and the Issuers;
(iv) FOURTH, to pay interest then due and payable in respect of the
Loans and Reimbursement Obligations;
(v) FIFTH, to pay or prepay principal payments on the Loans and
Reimbursement Obligations and any Obligations owing with respect to Hedging
Contracts and to provide cash collateral for outstanding Letter of Credit
Undrawn Amounts in the manner described in Section 7.3, ratably to the
aggregate principal amount of such Loans, Reimbursement Obligations and
Letter of Credit Undrawn Amounts and Obligations owing with respect to
Hedging Contracts; and
(vi) SIXTH, to the ratable payment of all other Obligations;
PROVIDED, HOWEVER, that if sufficient funds are not available to fund all
payments to be made in respect of any of the Obligations described in any of
clauses FIRST through SIXTH, the available funds being applied with respect to
any such Obligation (unless otherwise specified in such clause) shall be
allocated to the payment of such Obligations ratably, based on the proportion of
the Administrative Agent's and each Lender's or Issuer's interest in the
aggregate outstanding Obligations described in such clauses. The order of
priority set forth in clauses FIRST through SIXTH of this Section 2.13(f) may at
any time and from time to time be changed by the agreement of the Requisite
Revolving Lenders and the Requisite Term Loan Lenders without necessity of
notice to or consent of or approval by the Borrower, any Secured Party that is
not a Lender or Issuer, or by any other Person that is not a Lender or Issuer.
The order of priority set forth in clauses FIRST through THIRD of this Section
2.13(f) may be changed only with the prior written consent of the Administrative
Agent in addition to the Requisite Revolving Credit Lenders, the Requisite
Tranche A (Euro) Term Loan Lenders and Requisite Tranche B Term Loan Lenders.
(g) The Administrative Agent reserves the right to apply against the
repayment of any Obligations owing in any currency, any repayment and other
amounts that may be applied in accordance with other provisions of this
Agreement to repay such Obligations, regardless of the currency in which such
repayments and amounts were received or are held.
55
SECTION 2.14 SPECIAL PROVISIONS GOVERNING LIBO RATE LOANS.
(a) DETERMINATION OF INTEREST RATE.
The LIBO Rate for each Interest Period for LIBO Rate Loans shall be
determined by the Administrative Agent pursuant to the procedures set forth in
the definition of "LIBO RATE." The Administrative Agent's determination shall be
presumed to be correct, absent manifest error, and shall be binding on the
Borrower.
(b) INTEREST RATE UNASCERTAINABLE, INADEQUATE OR UNFAIR.
In the event that: (x) the Administrative Agent determines that adequate
and fair means do not exist for ascertaining the applicable interest rates by
reference to which the LIBO Rate for any LIBO Rate Loan then being determined is
to be fixed; or (y) the Requisite Lenders notify the Administrative Agent that
the LIBO Rate for any Interest Period for any LIBO Rate Loan will not adequately
reflect the cost to the Lenders of making or maintaining such Loan for such
Interest Period, the Administrative Agent shall forthwith so notify the Borrower
and the Lenders, whereupon:
(i) if the affected Loans are LIBO Rate Dollar Loans, each LIBO
Rate Dollar Loan will automatically, on the last day of the current
Interest Period for such Loan, convert into a Base Rate Loan and the
obligations of the Lenders to make LIBO Rate Dollar Loans or to convert
Base Rate Loans into LIBO Rate Dollar Loans shall be suspended;
(ii) if the affected Loans are Revolving Euro Loans, each Revolving
Euro Loan will automatically on the last day of the current Interest Period
for such Loan, become due and payable and the obligations of the Lenders to
make Revolving Euro Loans shall be suspended; or
(iii) if the affected Loans are Tranche A (Euro) Term Loans, the
determination of the LIBO Rate for such Tranche A (Euro) Term Loans based
on the definition thereof in Article I will be suspended and the LIBO Rate
for each Tranche A (Euro) Term Loan from and after the last day of the
current Interest Period for such Loan will be equal to a rate reasonably
determined by the Administrative Agent as representing the cost to Lenders
generally holding such Tranche A (Euro) Term Loans of funding such Loans in
euro for such Interest Period;
in any case until the Administrative Agent shall notify the Borrower that the
Requisite Lenders have determined that the circumstances causing such suspension
no longer exist.
(c) INCREASED COSTS.
If at any time any Lender shall determine that because of the introduction
after the Closing Date of or any change after the Closing Date in or in the
interpretation of any law, treaty or governmental rule, regulation or order
(other than any change by way of imposition or increase of reserve requirements
included in determining the LIBO Rate) or the compliance by such Lender with any
guideline, request or directive promulgated or given after the Closing Date
56
by or on behalf of any central bank or other Governmental Authority (whether or
not having the force of law), there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining any LIBO Rate
Dollar Loans or Euro Loans, then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost; PROVIDED,
HOWEVER, that the Borrower shall not be required to compensate a Lender pursuant
to this paragraph for any amounts incurred more than 270 days prior to the date
that such Lender initially notifies the Borrower of such Lender's intention to
claim compensation therefor; and PROVIDED, FURTHER, that, if the circumstances
giving rise to such claim have a retroactive effect, then such 270 day period
shall be extended to include the period of such retroactive effect. A
certificate as to the amount of such increased cost and setting forth in
reasonable detail the basis of the calculation of such cost, submitted to the
Borrower and the Administrative Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(d) ILLEGALITY.
Notwithstanding any other provision of this Agreement, if any Lender
determines that the introduction after the Closing Date of or any change after
the Closing Date in or in the interpretation of any law, treaty or governmental
rule, regulation or order shall make it unlawful, or any central bank or other
Governmental Authority shall assert after the Closing Date that it is unlawful,
for any Lender or its LIBOR Lending Office to make LIBO Rate Dollar Loans or
Euro Loans or to continue to fund or maintain LIBO Rate Dollar Loans or Euro
Loans, then, on notice thereof and demand therefor by such Lender to the
Borrower through the Administrative Agent:
(i) if the affected Loans are LIBO Rate Dollar Loans, (x) the
obligation of such Lender to make or to continue LIBO Rate Dollar Loans and
to convert Base Rate Loans into LIBO Rate Dollar Loans shall be suspended,
and each such Lender shall make a Base Rate Dollar Loan as part of any
requested Borrowing of LIBO Rate Dollar Loans, and (y) if LIBO Rate Dollar
Loans are then outstanding, the Borrower shall immediately convert each
such Loan into a Base Rate Loan;
(ii) if the affected Loans are Revolving Euro Loans, (x) the
obligation of such Lender to make or to continue Revolving Euro Loans shall
be suspended and each such Lender shall make a Base Rate Loan as part of
any requested Borrowing of Revolving Euro Loans and (y) if Revolving Euro
Loans are then outstanding, the Borrower shall immediately repay each such
Loan; and
(iii) if the affected Loans are Tranche A (Euro) Term Loans, each
such Loan shall immediately become due and payable and the Borrower shall
immediately repay each such Loan.
If at any time after a Lender gives notice under this Section 2.14(d) such
Lender determines that it may lawfully make LIBO Rate Dollar Loans or Revolving
Euro Loans, as applicable, such Lender shall promptly give notice of that
determination to the Borrower and the Administrative Agent, and the
Administrative Agent shall promptly transmit the notice to each other Lender.
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The Borrower's right to request, and such Lender's obligation, if any, to make
LIBO Rate Dollar Loans or Revolving Euro Loans, as applicable, shall thereupon
be restored.
(e) BREAKAGE COSTS.
In addition to all amounts required to be paid by the Borrower pursuant to
Section 2.10, the Borrower shall compensate each Lender, upon demand, for all
losses, expenses and liabilities (including any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund or maintain such Lender's LIBO Rate Loans (including Euro
Loans) to the Borrower but excluding any loss of the Applicable Margin on the
relevant Loans) which that Lender may sustain (i) if for any reason a proposed
Borrowing, conversion into or continuation of LIBO Rate Loans does not occur on
a date specified therefor in a Notice of Borrowing or a Notice of Conversion or
Continuation given by a Borrower or in a telephonic request by it for borrowing
or conversion or continuation or a successive Interest Period does not commence
after notice therefor is given pursuant to Section 2.10(d), (ii) if for any
reason any LIBO Rate Loan is prepaid (including mandatorily pursuant to Section
2.9 or Section 2.14(d)) or any LIBO Rate Dollar Loan is converted pursuant to
Section 2.11 into a Base Rate Loan on a date which is not the last day of the
applicable Interest Period, (iii) as a consequence of a required conversion of a
LIBO Rate Dollar Loan to a Base Rate Loan as a result of any of the events
indicated in Section 2.14(d), or (iv) as a consequence of any failure by a
Borrower to repay LIBO Rate Loans when required by the terms hereof. The Lender
making demand for such compensation shall deliver to the Borrower concurrently
with such demand a written certificate as to such losses, expenses and
liabilities, setting forth in reasonable detail the basis of the calculation of
such losses, expenses and liabilities and this certificate shall be conclusive
as to the amount of compensation due to that Lender, absent manifest error.
SECTION 2.15 CAPITAL ADEQUACY. If at any time any Lender determines that
(a) the adoption of or any change in or in the interpretation of any law, treaty
or governmental rule, regulation or order after the date of this Agreement
regarding capital adequacy, (b) compliance with any such law, treaty, rule,
regulation, or order, or (c) compliance with any guideline or request or
directive from any central bank or other Governmental Authority (whether or not
having the force of law) shall have the effect of reducing the rate of return on
the capital of such Lender (or any corporation controlling such Lender) as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below the level that such Lender or such corporation could
have achieved but for such adoption, change, compliance or interpretation, then,
upon demand from time to time by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender for such reduction;
PROVIDED, HOWEVER, that the Borrower shall not be required to compensate a
Lender pursuant to this paragraph for any amounts incurred more than 270 days
prior to the date that such Lender initially notifies the Borrower of such
Lender's intention to claim compensation therefor; and PROVIDED, FURTHER, that,
if the circumstances giving rise to such claim have a retroactive effect, then
such 270 day period shall be extended to include the period of such retroactive
effect. A certificate as to such amounts, setting forth in reasonable detail the
basis of the calculation of such amounts, submitted to the Borrower and the
Administrative Agent by such Lender shall be conclusive and binding for all
purposes absent manifest error.
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SECTION 2.16 TAXES.
(a) Any and all payments by the Borrower under each Loan Document shall be
made free and clear of and without deduction for any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes, franchise taxes
(imposed in lieu of net income taxes), branch profits taxes, and other taxes
imposed on or measured by net income, imposed on the Administrative Agent or any
Lender as a result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein,
including as a result of a lending office, a fixed place of business, or a
permanent establishment maintained by such Administrative Agent or such Lender
(other than any such connection arising solely from the Administrative Agent or
such Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any other Loan Document) (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "TAXES"). If any Taxes shall be
required by law to be deducted from or in respect of any sum payable under any
Loan Document to any Lender or the Administrative Agent (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.16) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other authority in accordance with applicable law, and (iv) the Borrower shall
deliver to the Administrative Agent evidence of such payment.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document (collectively, "OTHER TAXES").
(c) The Borrower will indemnify each Lender and the Administrative Agent
for the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.16) paid by
such Lender or the Administrative Agent (as the case may be) and any liability
(including for penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within (and shall be due
and payable on the date) 30 days after the date such Lender or the
Administrative Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes or Other Taxes,
the Borrower will furnish to the Administrative Agent, at its address referred
to in Section 9.8, the original or a certified copy of a receipt evidencing
payment thereof (or, if such original or certified copy is not available, any
other proof of payment reasonably satisfactory to the Administrative Agent).
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(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.16 shall survive the payment in full of the Obligations.
(f) Prior to the Closing Date in the case of each Non-U.S. Lender that is
a signatory hereto, and on the date of the Assignment and Acceptance pursuant to
which it becomes a Lender in the case of each other Non-U.S. Lender and from
time to time thereafter if requested by the Borrower or the Administrative
Agent, each Non-U.S. Lender that is entitled at such time to an exemption from
United States withholding tax, or that is subject to such tax at a reduced rate
under an applicable tax treaty, shall provide the Administrative Agent and the
Borrower with two completed copies of: (i) Form W 8ECI (claiming exemption from
withholding because the income is effectively connected with a U.S. trade or
business) (or any successor form); (ii) Form W 8BEN (claiming exemption from, or
a reduction of, withholding tax under an income tax treaty) (or any successor
form); (iii) in the case of a Non-U.S. Lender claiming exemption under Sections
871(h) or 881(c) of the Code, a Form W 8BEN (claiming exemption from withholding
under the portfolio interest exemption)(or successor form); or (iv) any other
applicable form, certificate or document prescribed by the IRS certifying as to
such Non-U.S. Lender's entitlement to such exemption from United States
withholding tax or reduced rate with respect to all payments to be made to such
Non-U.S. Lender under the Loan Documents. Unless the Borrower and the
Administrative Agent have received forms or other documents satisfactory to them
indicating that payments under any Loan Document to or for a Non-U.S. Lender are
not subject to United States withholding tax or are subject to such tax at a
rate reduced by an applicable tax treaty, the Borrower or the Administrative
Agent shall withhold taxes from such payments at the applicable statutory rate.
(g) Any Lender claiming any additional amounts payable pursuant to this
Section 2.16 shall use its reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts which would be payable
or may thereafter accrue and would not, in the sole determination of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.17 SUBSTITUTION OF LENDERS. In the event that (a) (i) any Lender
makes a claim under Section 2.14(c) or Section 2.15, or (ii) it becomes illegal
for any Lender to continue to fund or make any LIBO Rate Loan or Revolving Euro
Loan and such Lender notifies the Borrower pursuant to Section 2.14(d), or (iii)
the Borrower is required to make any payment pursuant to Section 2.16 that is
attributable to any Lender, or (iv) any Lender is a Non-Funding Lender, (b) in
the case of clause (a)(i) above, as a consequence of increased costs in respect
of which such claim is made, the effective rate of interest payable to such
Lender under this Agreement with respect to its Loans materially exceeds the
effective average annual rate of interest payable to the Requisite Lenders under
this Agreement and (c) Lenders holding at least 75% of the Commitments are not
subject to such increased costs or illegality, payment or proceedings (any such
Lender, an "AFFECTED LENDER"), the Borrower may substitute another financial
institution for such Affected Lender hereunder, upon reasonable prior written
notice (which written notice must be given within 90 days following the
occurrence of any of the events described in clauses (a)(i), (ii), (iii) or
(iv)) by the Borrower to the Administrative Agent and the Affected Lender that
the Borrower intends to make such substitution, which substitute financial
60
institution must be, if not a Lender, reasonably acceptable to the
Administrative Agent; PROVIDED, HOWEVER, that if more than one Lender claims
increased costs, illegality or right to payment arising from the same act or
condition and such claims are received by the Borrower within 30 days of each
other then the Borrower may substitute all, but not (except to the extent the
Borrower has already substituted one of such Affected Lenders before the
Borrower's receipt of the other Affected Lenders' claim) less than all, Lenders
making such claims. In the event that the proposed substitute financial
institution or other entity is reasonably acceptable to the Administrative Agent
and the written notice was properly issued under this Section 2.17, the Affected
Lender shall sell and the substitute financial institution or other entity shall
purchase, pursuant to an Assignment and Acceptance, all rights and claims of
such Affected Lender under the Loan Documents and the substitute financial
institution or other entity shall assume and the Affected Lender shall be
relieved of its Commitments and all other prior unperformed obligations of the
Affected Lender under the Loan Documents (other than in respect of any damages
(other than exemplary or punitive damages, to the extent permitted by applicable
law) in respect of any such unperformed obligations). Upon the effectiveness of
such sale, purchase and assumption (that, in any event shall be conditioned upon
the payment in full by the Borrower to the Affected Lender in cash of all fees,
unreimbursed costs and expenses and indemnities accrued and unpaid through such
effective date), the substitute financial institution or other entity shall
become a "LENDER" hereunder for all purposes of this Agreement having a
Revolving Credit Commitment (if applicable) in the amount of such Affected
Lender's Revolving Credit Commitment assumed by it and such Revolving Credit
Commitment (if applicable) of the Affected Lender shall be terminated, PROVIDED,
HOWEVER, that all indemnities under the Loan Documents shall continue in favor
of such Affected Lender.
ARTICLE III
CONDITIONS TO LOANS AND LETTERS OF CREDIT
SECTION 3.1 CONDITIONS PRECEDENT TO INITIAL LOANS AND LETTERS OF CREDIT.
The obligation of each Lender to make the Loans requested to be made by it on
the Closing Date and the obligation of each Issuer to issue Letters of Credit on
the Closing Date is subject to the satisfaction of all of the following
conditions precedent:
(a) CERTAIN DOCUMENTS.
The Administrative Agent shall have received on the Closing Date each of
the following, each dated the Closing Date unless otherwise indicated or agreed
to by the Administrative Agent, in form and substance reasonably satisfactory to
the Administrative Agent and in sufficient copies for each Lender:
(i) this Agreement, duly executed and delivered by the Borrower
and, for the account of each Lender requesting the same, a Note or Notes of
the Borrower conforming to the requirements set forth herein;
(ii) the Guaranty, duly executed by Holdings and each Subsidiary
Guarantor;
(iii) the Security Agreement, duly executed by the Borrower,
Holdings and each Subsidiary Guarantor, together with:
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(A) evidence satisfactory to the Administrative Agent that
the Administrative Agent (for the benefit of the Secured Parties) has
a valid and perfected first priority security interest in the
Collateral, including (x) such documents duly executed by each Loan
Party as the Administrative Agent may reasonably request with respect
to the perfection of its security interests in the Collateral
(including evidence satisfactory to the Administrative Agent that
financing statements under the UCC, patent, trademark and copyright
security agreements and other applicable documents under the laws of
any jurisdiction have been appropriately filed with respect to the
perfection of Liens created by the Security Agreement) and (y) copies
of UCC search reports as of a recent date listing all effective
financing statements that name any Loan Party as debtor, together with
copies of such financing statements, none of which shall cover the
Collateral except for those which shall be terminated on the Closing
Date and those in respect of Liens permitted under Section 6.3);
(B) share certificates representing all of certificated
Pledged Stock being pledged pursuant to such Security Agreement and
stock powers for such share certificates executed in blank;
(C) all instruments representing Pledged Notes, including the
SwissCo Intercompany Note, being pledged pursuant to such Security
Agreement duly endorsed in favor of the Administrative Agent or in
blank;
(D) the SwissCo Original Intercompany Note, the SwissCo 2
Note Original Security Agreement and SwissCo 2 Note Security Agreement
Amendment, each duly executed by the Borrower (except in the case of
the SwissCo Original Intercompany Note) and SwissCo and certified as
being complete and correct by a Responsible Officer of the Borrower;
and
(E) Deed of Pledge, dated the Closing Date, duly executed by
Merisant Foreign Holdings I, Inc. in favor of the Administrative
Agent;
(iv) the Original Mortgage together with: (A) title insurance
policies, satisfactory in form and substance to the Administrative Agent,
in its sole discretion; (B) evidence that counterparts of the Original
Mortgage have been recorded in all places to the extent necessary or
desirable, in the reasonable judgment of the Administrative Agent, to
create a valid and enforceable first priority lien on property described
therein in favor of the Administrative Agent for the benefit of the Secured
Parties (or in favor of such other trustee as may be required or desired
under local law); and (C) an opinion of counsel in each state in which any
Mortgage is recorded in form and substance and from counsel reasonably
satisfactory to the Administrative Agent;
(v) (A) a favorable opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel to the Loan Parties, in substantially the form of Exhibit F, and
(B) a favorable opinion of counsel to the Loan Parties in the Republic of
Spain as to the validity and enforceability of the pledge of shares of
Merisant Spain, S.L. by the Borrower, in each case addressed to
62
the Administrative Agent and the Lenders and addressing such other matters
as any Lender through the Administrative Agent may reasonably request;
(vi) a copy of each Senior Subordinated Debt Document and each
Disclosure Document certified as being complete and correct by a
Responsible Officer of the Borrower;
(vii) a copy of the articles or certificate of incorporation (or
equivalent organizational documents) of each Loan Party, certified as of a
recent date by the Secretary of State of the state of incorporation of such
Loan Party, together with certificates of such official attesting to the
good standing of each such Loan Party;
(viii) a certificate of the Secretary or an Assistant Secretary of
each Loan Party certifying (A) the names and true signatures of each
officer of such Loan Party who has been authorized to execute and deliver
any Loan Document or other document required hereunder to be executed and
delivered by or on behalf of such Loan Party, (B) the by-laws (or
equivalent Constituent Document) of such Loan Party as in effect on the
date of such certification, (C) the resolutions of such Loan Party's Board
of Directors (or equivalent governing body) approving and authorizing the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party and (D) that there have been no changes in
the certificate of incorporation (or equivalent Constituent Document) of
such Loan Party from the certificate of incorporation (or equivalent
Constituent Document) delivered pursuant to the immediately preceding
clause;
(ix) a certificate of (A) the Chief Financial Officer of the
Borrower, stating that the Borrower and each Subsidiary Guarantor taken as
a whole is Solvent, and (B) the Chief Financial Officer of Holdings,
stating that Holdings together with the Borrower and each Subsidiary
Guarantor taken as a whole is Solvent, in each case after giving effect to
the initial Loans and Letters of Credit, the application of the proceeds
thereof to effect the Recapitalization and otherwise in accordance with
Section 4.16 and the payment of all estimated legal, accounting and other
fees related hereto and thereto;
(x) a certificate of a Responsible Officer to the effect that (A)
the condition set forth in Section 3.2(b) has been satisfied, (B) no
litigation shall have been commenced against any Loan Party or any of its
Subsidiaries which would reasonably be expected to have a Material Adverse
Effect or which restrains or imposes or can reasonably be expected to
impose materially adverse conditions upon the Recapitalization, the Senior
Subordinated Initial Notes, the Facilities or the transactions contemplated
thereby, (C) the Recapitalization has been completed and has been
consummated in accordance with all Requirements of Law, (D) substantially
concurrent with the funding of the Term Loans $225,000,000 principal amount
of the Senior Subordinated Initial Notes have been issued by the Borrower
and the proceeds thereof have been received in Dollars by the Borrower and
have been applied to the Recapitalization and related transaction costs,
and (E) the attached Corporate Chart is true, correct and complete in all
material respects as of the Closing Date;
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(xi) evidence satisfactory to the Administrative Agent that the
insurance policies required by Section 5.5(b) and any Collateral Document
are in full force and effect, together with endorsements naming the
Administrative Agent, on behalf of the Secured Parties, as an additional
insured or loss payee under all insurance policies to be maintained with
respect to the properties of Holdings, the Borrower and its Subsidiaries;
and
(xii) such other certificates, documents, agreements and information
respecting any Loan Party as the Administrative Agent may reasonably
request.
(b) FEE AND EXPENSES PAID.
There shall have been paid to the Administrative Agent, for the account of
the Administrative Agent and the Lenders, as applicable, all fees due and
payable on or before the Closing Date (including all such fees described in the
Fee Letter), and all reasonable expenses due and payable on or before the
Closing Date in respect of which the Borrower shall have received a request in
accordance with Section 9.3(c) on or prior to the Closing Date.
(c) MINIMUM OPERATING EBITDA.
The Operating EBITDA (as defined in the Disclosure Circular) for the twelve
month period ending March 31, 2003 shall not be less than $105,300,000.
(d) MINIMUM LOAN RATING.
The Loans shall have received a senior secured debt rating of at least B1
from ▇▇▇▇▇'▇ and at least B+ from S&P.
(e) FINANCIALS.
The Lenders shall have received and be reasonably satisfied with (i) a PRO
FORMA estimated balance sheet of the Borrower and its subsidiaries as of March
31, 2003 giving effect to the Recapitalization and the transactions contemplated
thereby as of such date, (ii) audited financial statements of the Borrower and
its subsidiaries for the fiscal period ending December 31, 2002 by
PricewaterhouseCoopers, L.L.P. which statements shall be unqualified and
accompanied by a signed auditor's report, (iii) interim unaudited monthly and
quarterly financial statements of the Borrower and its subsidiaries through the
fiscal month ending April 30, 2003 and (iv) the Borrower's quarterly budget for
Fiscal Year 2003 and financial projections for the Fiscal Years 2003 through
2008 prepared by the Borrower's management.
(f) EXISTING INDEBTEDNESS.
The Lenders shall be satisfied in their reasonable judgment that there
shall not occur as a result of the consummation of the Recapitalization and the
funding of the Facilities, a default (or any event which with the giving of
notice or lapse of time or both would be a default) under any of the Borrower's
or its subsidiaries' debt instruments and other material agreements (other than
the Prior Credit Facility which shall have been terminated substantially
concurrently with the funding of the Term Loans).
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(g) ERISA OBLIGATIONS.
The Lenders shall be reasonably satisfied that the Borrower and its
Subsidiaries will be able to meet their obligations under their respective
Plans, that all such Plans are in material compliance with ERISA, the Code,
their own terms, and other applicable law, that all Plans are, in all material
respects, funded in accordance with the minimum statutory requirements, that no
material Reportable Event has occurred as to any Single Employee Plan, and that
no termination of, or withdrawal from, any Single Employer Plan or Multiemployer
Plan has occurred or is contemplated.
(h) NO MATERIAL ADVERSE CHANGE.
There shall not have occurred or exist any event or condition that has
resulted or would reasonably be expected to result in a Material Adverse Effect.
(i) RELATED DOCUMENTS.
The Administrative Agent and the Lenders shall be reasonably satisfied
that: (i) the final material terms and conditions of the Recapitalization and of
the Senior Subordinated Debt Documents shall be in form and substance reasonably
satisfactory to the Administrative Agent and the Lenders, (ii) the
Recapitalization and the Senior Subordinated Debt Documents shall have been
approved by all necessary corporate action of the Borrower and each of the other
parties thereto, shall be in full force and effect and there shall not have
occurred and be continuing any material breach or default thereunder, (iii) all
conditions precedent to the consummation of the Recapitalization and the
issuance of the Senior Subordinated Initial Notes shall have been satisfied or
waived with the consent of the Administrative Agent, and (iv) the issuance of
the Senior Subordinated Initial Notes shall have been consummated in accordance
with the relevant documents and all applicable Requirements of Law.
(j) CONSENTS, ETC.
Each of the Borrower and its Subsidiaries shall have received all consents
and authorizations required pursuant to any material Contractual Obligation with
any other Person and shall have obtained all consents and authorizations of, and
effected all notices to and filings with, any Governmental Authority, in each
case, as may be necessary to allow each of the Borrower and its Subsidiaries
lawfully (A) to execute, deliver and perform, in all material respects, their
respective obligations hereunder, the Loan Documents and the Senior Subordinated
Debt Documents to which each of them, respectively, is, or shall be, a party and
each other agreement or instrument to be executed and delivered by each of them,
respectively, pursuant thereto or in connection therewith, (B) to create and
perfect the Liens on the Collateral to be owned by each of them in the manner
and for the purpose contemplated by the Loan Documents, and (C) to consummate
the Recapitalization and the issuance of the Senior Subordinated Initial Notes.
(k) ENVIRONMENTAL ASSESSMENTS.
For each material piece of real property owned, operated or leased by
Holdings, the Borrower or any of its Subsidiaries, the Administrative Agent
shall have received an
65
environmental site assessment report prepared by a consultant reasonably
acceptable to the Administrative Agent (or, if the Administrative Agent deems
sufficient in lieu thereof a questionnaire completed by a Responsible Officer of
the Borrower) in a form and scope reasonably satisfactory to the Administrative
Agent, that demonstrates, to the sole satisfaction of the Administrative Agent,
the absence of any event or condition that could give rise to liability under
Environmental Laws that would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect and no significant risk thereof.
(l) REPAYMENT OF PRIOR CREDIT FACILITY.
Substantially concurrently with the initial funding of the Term Loans, the
Prior Credit Facility shall have been paid in full, all commitments thereunder
shall have been terminated, and all Liens granted thereunder shall have been
terminated in form and substance reasonably satisfactory to the Administrative
Agent and the Administrative Agent shall have received reasonably satisfactory
written evidence thereof executed by the administrative agent thereunder.
SECTION 3.2 CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF CREDIT. The
obligation of each Lender on any date (including the Closing Date) to make any
Loan and of each Issuer on any date (including the Closing Date) to issue any
Letter of Credit is subject to the satisfaction of all of the following
conditions precedent:
(a) REQUEST FOR BORROWING OR ISSUANCE OF LETTER OF CREDIT.
With respect to any Loan, the Administrative Agent shall have received a
duly executed Notice of Borrowing or, in the case of Swing Loans, a duly
executed Swing Loan Request, and with respect to any Letter of Credit, the
Administrative Agent and the Issuer shall have received a duly executed Letter
of Credit Request.
(b) REPRESENTATIONS AND WARRANTIES; NO DEFAULTS.
The following statements shall be true on the date of such Loan or
issuance, both before and after giving effect thereto and, in the case of such
Loan, to the application of the proceeds therefrom:
(i) The representations and warranties set forth in Article IV and
in the other Loan Documents shall be true and correct on and as of the
Closing Date and shall be true and correct in all material respects on and
as of any such date after the Closing Date with the same effect as though
made on and as of such date (or, to the extent such representations and
warranties expressly relate to an earlier date, on and as of such earlier
date); and
(ii) No Default or Event of Default shall have occurred and be
continuing.
(c) NO LEGAL IMPEDIMENTS.
The making of the Loans or the issuance of such Letter of Credit on such
date does not violate any Requirement of Law on the date of or immediately
following such Loan or issuance and is not enjoined, temporarily, preliminarily
or permanently.
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Each submission by the Borrower to the Administrative Agent of a Notice of
Borrowing or a Swing Loan Request and the acceptance by the Borrower of the
proceeds of each Loan requested therein, and each submission by the Borrower to
an Issuer of a Letter of Credit Request and the issuance of each Letter of
Credit requested therein, shall be deemed to constitute a representation and
warranty by the Borrower as to the matters specified in Section 3.2(b) on the
date of the making of such Loan or the issuance of such Letter of Credit.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Issuers and the Lenders to enter
into this Agreement and to make the Loans and issue or participate in the
Letters of Credit, each of Holdings and the Borrower hereby jointly and
severally represents and warrants to the Administrative Agent, each Issuer and
each Lender that, on and as of the Closing Date, after giving effect to the
Recapitalization and the making of the Loans and other financial accommodations
on the Closing Date and on and as of each date as required by Section 3.2(b)(i):
SECTION 4.1 FINANCIAL CONDITION. The audited balance sheet of the Borrower
and its consolidated Subsidiaries as at December 31, 2002, and the related
audited statement of income for the Fiscal Year ended December 31, 2002,
reported on by and accompanied by an unqualified report from
PricewaterhouseCoopers LLP, copies of which have been furnished to each Lender,
present fairly in all material respects the financial condition of the Borrower
and its consolidated Subsidiaries as at such date, and the results of its
operations for the Fiscal Year then ended. The unaudited balance sheet of the
Borrower and its consolidated Subsidiaries as at March 31, 2003, and the related
unaudited statement of income for the three-month period ended on such date,
copies of which have been furnished to each Lender, present fairly in all
material respects the financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the results of its operations for the
three-month period then ended (subject to normal year end audit adjustments).
All such Financial Statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP specifically relating to
financial statements for a division of a large corporation applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). As of the Closing Date, none of Holdings,
the Borrower or any of their respective Subsidiaries has any material Guarantee
Obligations (other than guarantees by the Subsidiary Guarantors under the Senior
Subordinated Notes Indenture), contingent liabilities and liabilities for taxes,
or any long term leases or unusual forward or long term commitments, including
any interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not reflected in such March 31,
2003 financial statements. During the period from December 31, 2002 to and
including the date hereof there has been no Disposition by any of Holdings, the
Borrower or any of their respective Subsidiaries of any material part of its
business or property.
SECTION 4.2 NO CHANGE. Since December 31, 2002, there has been no
development or event that has had or would reasonably be expected to have a
Material Adverse Effect.
SECTION 4.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of Holdings,
the Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under
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the laws of the jurisdiction of its organization, (b) has the corporate power
and authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
except to the extent the failure to so qualify could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect, (d) is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect, (e) is in compliance with its Constituent Documents and (f) has
all necessary Permits from or by, has made all necessary filings with, and has
given all necessary notices to, each Governmental Authority having jurisdiction,
to the extent required for such ownership, operation, lease and conduct, except
for Permits, filings or notices the failure to obtain or make would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 4.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrower, to obtain extensions of credit hereunder. Each Loan Party has
taken all necessary corporate action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party and, in the case of the
Borrower, to authorize the extensions of credit on the terms and conditions of
this Agreement. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the extensions of credit hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents, except (a) consents, authorizations, filings and
notices which have been obtained or made and are in full force and effect and
(b) the filings referred to in Section 4.19. Each Loan Document has been duly
executed and delivered on behalf of each Loan Party party thereto. This
Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party party
thereto, enforceable against each such Loan Party 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 and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
SECTION 4.5 NO LEGAL BAR. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of Holdings, the Borrower or
any of its Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or any such Contractual Obligation (other
than the Liens created by the Collateral Documents). No Requirement of Law or
Contractual Obligation applicable to the Borrower or any of its Subsidiaries
would reasonably be expected to have a Material Adverse Effect. No performance
of an Contractual Obligation by the Borrower or any of its Subsidiaries, either
unconditionally or upon the happening of an event, would result in the creation
of a Lien (other than a Lien permitted under Section 6.3) on the property or
assets of any thereof.
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SECTION 4.6 LITIGATION. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the best
knowledge of Holdings or the Borrower, threatened by or against Holdings, the
Borrower or any of its Subsidiaries or against any of their respective
properties or revenues (a) with respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby, or (b) that would reasonably be
expected to have a Material Adverse Effect.
SECTION 4.7 NO DEFAULT. Neither Holdings, the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that would reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 4.8 OWNERSHIP OF PROPERTY; LIENS.
(a) Each of Holdings, the Borrower and its Subsidiaries has title in fee
simple to, or a valid leasehold interest in, all real property, and good title
to, or a valid leasehold interest in, all other property, purported to be owned
by it, including those reflected in the most recent Financial Statements
delivered pursuant to Section 4.3 or Section 5.1 (except to the extent the
disposition thereof is otherwise permitted under this Agreement and the other
Loan Documents), and none of such property is subject to any Lien except as
permitted by Section 6.3.
(b) All Permits required to have been issued or appropriate to enable all
real property owned or leased by the Borrower or any of its Subsidiaries to be
lawfully occupied and used for all of the purposes for which they are currently
occupied and used have been lawfully issued and are in full force and effect,
other than those that could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
SECTION 4.9 INTELLECTUAL PROPERTY. Holdings, the Borrower and each of its
Subsidiaries owns, is licensed to use all Intellectual Property necessary for
the conduct of its business as currently conducted. To the best knowledge of
Holdings or the Borrower, no material claim has been asserted and is pending by
any Person challenging or questioning the use of any Intellectual Property or
the validity or effectiveness of any Intellectual Property, nor does Holdings or
the Borrower know of any valid basis for any such claim. To the best knowledge
of Holdings or the Borrower, the use of Intellectual Property by Holdings, the
Borrower and its Subsidiaries does not infringe on the rights of any Person in
any material respect.
SECTION 4.10 TAXES. Each of Holdings, the Borrower and each of its
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns, reports and statements (collectively, "TAX RETURNS") that
are required to be filed by the Borrower or any of its Tax Affiliates with the
appropriate Governmental Authorities in all jurisdictions in which such Tax
Returns are required to be filed; all such Tax Returns are true and correct in
all material respects; each of Holdings, the Borrower and each of its
Subsidiaries has paid, prior to the date on which any fine, penalty, interest,
late charge or loss may be added thereto for non-payment thereof, all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed on
it or any of its property by or otherwise due and payable to any Governmental
Authority (other than any the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect
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to which reserves in conformity with GAAP have been provided on the books of
Holdings, the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed; and, to the best knowledge of Holdings and the Borrower, no claim is
being asserted, with respect to any such tax, fee or other charge. To the best
knowledge of Holdings and the Borrower, as of the Closing Date, except as set
forth on Schedule 4.10, no Tax Return is under audit or examination by any
Governmental Authority and no notice of such an audit or examination or any
assertion of any claim for taxes has been given or made by any Governmental
Authority. Proper and accurate amounts have been withheld by the Borrower and
each of its Tax Affiliates from their respective employees for all periods in
full and complete compliance with the tax, social security and unemployment
withholding provisions of applicable Requirements of Law and such withholdings
have been timely paid to the respective Governmental Authorities.
SECTION 4.11 FEDERAL REGULATIONS. No part of the proceeds of any Loans, and
no other extensions of credit hereunder, will be used for "buying" or
"carrying", or to extend credit to others for the purpose of purchasing or
carrying, any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U as now and from time to time hereafter in effect
or for any purpose that violates the provisions of the Regulations of the Board.
If requested by the Administrative Agent, the Borrower will furnish to the
Administrative Agent a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U 1, as applicable, referred to in
Regulation U.
SECTION 4.12 LABOR MATTERS. Except as would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect: (a) there are (i) no
strikes against Holdings, the Borrower or any of its Subsidiaries pending or, to
the best knowledge of Holdings or the Borrower, threatened or (ii) no other
labor disputes, to the best knowledge of Holdings or the Borrower, pending or
threatened against Holdings, the Borrower or its Subsidiaries; (b) hours worked
by and payment made to employees of Holdings, the Borrower and its Subsidiaries
have not been in violation of the Fair Labor Standards Act or any other
applicable Requirement of Law dealing with such matters; and (c) all payments
due from Holdings, the Borrower or any of its Subsidiaries on account of
employee health and welfare insurance have been paid or accrued as a liability
on the books of Holdings, the Borrower or the relevant Subsidiary.
SECTION 4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five year period prior to the date on which this
representation is made or deemed made with respect to any Single Employer Plan
and to the best knowledge of the Borrower, any Multiemployer Plan, and each Plan
and to the best knowledge of the Borrower, any Multiemployer Plan, has complied
in all material respects with the applicable provisions of ERISA and the Code.
No termination of a Single Employer Plan has occurred, and no Lien in favor of
the PBGC or a Plan has arisen, during such five-year period. The present value
of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by a material amount. Neither the Borrower nor any ERISA Affiliate has had a
complete or partial withdrawal from any Multiemployer Plan that has resulted or
could reasonably be expected to result in a material liability under ERISA, and
neither the Borrower nor any ERISA Affiliate would become subject to any
material liability under ERISA if the
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Borrower or any such ERISA Affiliate were to withdraw completely from any or all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made. No Multiemployer Plan is in
Reorganization or Insolvent.
SECTION 4.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Federal Reserve Board), including the Public Utility Holding
Company Act, that limits its ability to incur Indebtedness.
SECTION 4.15 OWNERSHIP OF BORROWER; SUBSIDIARIES.
(a) Holdings has no direct Subsidiary other than the Borrower. The
authorized capital stock of the Borrower consists of 100 shares of common stock,
$0.01 par value per share, of which 100 shares are issued and outstanding. All
of the outstanding capital stock of the Borrower has been validly issued, is
fully paid and non-assessable and is owned beneficially and of record by
Holdings, free and clear of all Liens other than the Lien in favor of the
Secured Parties created by the Security Agreement. There are no agreements or
understandings to which the Borrower is a party with respect to the voting, sale
or transfer of any shares of Capital Stock of the Borrower or any agreement
restricting the transfer or hypothecation of any such shares.
(b) Except as disclosed to the Administrative Agent by the Borrower in
writing from time to time after the Closing Date, (i) Schedule 4.15 sets forth
the name and jurisdiction of incorporation of each Subsidiary of the Borrower
and, as to each such Subsidiary, the number of shares of each class of Capital
Stock authorized (if applicable), the number outstanding and the number and
percentage of each class of Capital Stock owned by any Loan Party or any
Subsidiary thereof and (ii) there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock
options granted to employees or directors and directors' qualifying shares) of
any nature relating to any Capital Stock of the Borrower or any Subsidiary of
the Borrower, except as created by the Loan Documents. All of the outstanding
Capital Stock of each Subsidiary of the Borrower has been validly issued, is
fully paid and non-assessable and is owned by the Borrower or a Subsidiary of
the Borrower, free and clear of all Liens (other than the Lien in favor of the
Secured Parties created pursuant to the Security Agreement). Neither the
Borrower nor any Subsidiary of the Borrower is a party to, or has knowledge of,
any material agreement materially restricting the transfer or hypothecation of
any Stock of any such Subsidiary, other than the Loan Documents. Neither
Holdings, the Borrower nor any of its Subsidiaries owns or holds, directly or
indirectly, any Stock of any Person other than such Subsidiaries and Investments
permitted by Section 6.8. Each Subsidiary of the Borrower is a Wholly Owned
Subsidiary.
SECTION 4.16 USE OF PROCEEDS. The proceeds of the Term Loans shall be used
to (i) finance the payment of the Recapitalization, (ii) refinance the Prior
Credit Facility, all obligations under which have been paid in full (other than
surviving expense and indemnity reimbursement obligations) and all Liens
securing which Prior Credit Facility have been terminated and released, and
(iii) pay related transaction costs, fees and expenses. The proceeds
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of the Revolving Loans, the Swingline Loans, and the Letters of Credit, shall be
used (i) to provide working capital for the Borrower and its Subsidiaries and
(ii) for other general corporate purposes. The Recapitalization shall have been
consummated on or prior to July 14, 2003 in accordance with the relevant
documents and all applicable Requirements of Law.
SECTION 4.17 ENVIRONMENTAL MATTERS. Except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect:
(i) the facilities and properties owned, leased or operated by
Holdings, the Borrower or any of its Subsidiaries (the "PROPERTIES") do not
contain, and have not previously contained, any Materials of Environmental
Concern in amounts or concentrations or under circumstances that constitute
or constituted a violation of, or could give rise to liability under, any
Environmental Laws;
(ii) neither Holdings, the Borrower nor any of its Subsidiaries has
received or is aware of any violation, notice of violation, alleged
violation, non-compliance, demand, claim, pending investigation, allegation
that may lead to a claim or demand, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the business operated by Holdings, the
Borrower or any of its Subsidiaries (the "OPERATING BUSINESS"), nor does
Holdings or the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened;
(iii) Materials of Environmental Concern have not been transported
or disposed of from the Properties in violation of, or in a manner or to a
location that could give rise to liability under, any Environmental Laws,
nor have any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties or any other
property in violation of, or in a manner that could give rise to liability
under, any applicable Environmental Laws;
(iv) no judicial proceeding or governmental or administrative
action is pending or, to the knowledge of Holdings and the Borrower,
threatened, under any Environmental Laws to which Holdings, the Borrower or
any Subsidiary is or will be named as a party with respect to the
Properties or the Operating Business, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Laws with respect to the Properties or the Operating
Business;
(v) there has been no Release or threat of Release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of Holdings, the Borrower or any Subsidiary in connection
with the Properties or otherwise in connection with the Operating Business,
in violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws;
(vi) the Properties and all operations at the Properties are in
compliance, and to the best knowledge of Holdings and the Borrower in the
last five years have been in compliance, with all applicable Environmental
Laws;
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(vii) neither Holdings, the Borrower nor any of its Subsidiaries has
assumed any liability of any other Person under Environmental Laws;
(viii) neither Holdings, the Borrower, nor any of its Subsidiaries
are currently obligated under any existing Environmental Laws to incur any
material capital expenditure within the period of two years commencing on
the Closing Date to maintain compliance with Environmental Laws with
respect to current operations; and
(ix) Holdings, the Borrower, and any Subsidiaries, possess and are,
and have always possessed and been, in material compliance with the terms
and conditions of all Permits, licenses and like authorizations required by
applicable Environmental Laws.
SECTION 4.18 ACCURACY OF INFORMATION, ETC.
(a) No statement or information contained in:
(i) this Agreement, any other Loan Document, the Confidential
Information Memorandum, any material posted on Intralinks or any other
document, certificate or statement prepared or authorized to be furnished
to the Lenders by any Loan Party and furnished by or on behalf of any Loan
Party to the Lenders, or any of them, for use in connection with the
transactions contemplated by this Agreement or the other Loan Documents,
contained as of the date such statement, information, document, material or
certificate was so furnished (or, in the case of the Confidential
Information Memorandum, as of the Closing Date);
(ii) any document, certificate or statement (as such document,
certificate or statement may have been updated from time to time prior to
the Closing Date) furnished on or prior to the Closing Date by or on behalf
of any Loan Party to the Administrative Agent for use in connection with
the transactions contemplated by this Agreement and the other Loan
Documents, contained as of the date such document, certificate or statement
was so furnished (or so updated, as applicable); or
(iii) any document, certificate or statement furnished after the
Closing Date by or on behalf of any Loan Party to the Administrative Agent
for use in connection with the transactions contemplated by this Agreement
and the other Loan Documents, contained, as of the date such document,
certificate or statement was so furnished;
in each case, any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements contained herein or therein not
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. There is no fact known
to any Loan Party that would reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum or in any other documents,
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certificates and statements furnished to the Lenders for use in connection with
the transactions contemplated hereby and by the other Loan Documents.
(b) The Company has made available to each Lender a true, complete and
correct copy of each Disclosure Document.
SECTION 4.19 SECURITY DOCUMENTS.
(a) The Security Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof. In the case of the Pledged Stock described in the Security Agreement,
stock certificates representing such Pledged Stock having been delivered to the
Administrative Agent, and in the case of the other Collateral described in the
Security Agreement, financing statements and other filings specified on Schedule
4.19(a) in appropriate form having been filed in the offices specified on
Schedule 4.19(a), the Security Agreement constitutes a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in
such Collateral and the proceeds thereof, as security for the Obligations, in
each case prior and superior in right to any other Person (except, in the case
of Collateral other than Pledged Stock, Liens permitted by Section 6.3).
(b) The Original Mortgage is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable Lien on the Mortgaged Property described therein and proceeds
thereof, and when the Original Mortgage is filed in the office specified on
Schedule 4.19(b), the Original Mortgage shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in such Mortgaged Property and the proceeds thereof, as security for the
Obligations), in each case prior and superior in right to any other Person
(except as permitted by Section 6.3(v)). The only real property in the United
States owned in fee simple by the Borrower or any of its Subsidiaries as of the
Closing Date that, as of such date, has a value, in the reasonable opinion of
the Borrower, in excess of $1,000,000 is the real property subject to the Lien
of the Original Mortgage.
(c) Each Subsidiary of Holdings or the Borrower (other than any Excluded
Foreign Subsidiary or any Special Purpose Subsidiary) is a Wholly Owned
Subsidiary Guarantor and a party to each of the Security Agreement and the
Guaranty.
SECTION 4.20 SOLVENCY. Each of (a) Holdings, together with the Borrower and
the Subsidiary Guarantors taken as a whole, and (b) the Borrower, together with
the Subsidiary Guarantors taken as a whole, is, and after giving effect to (i)
the incurrence of all Indebtedness and obligations (including the Term Loans,
the initial Revolving Loans and the Senior Subordinated Initial Notes) being
incurred in connection herewith, (ii) the repayment of the Prior Credit Facility
and (iii) the Recapitalization, will be and will continue to be, Solvent.
SECTION 4.21 REGULATION H. No Mortgage encumbers improved real property
that is located in an area that has been identified by the Secretary of Housing
and Urban Development as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act of
1968.
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SECTION 4.22 SWISSCO INTERCOMPANY NOTE.
(a) Each of the SwissCo Intercompany Note and the SwissCo Note Security
Agreement is the legal, valid and binding obligation of SwissCo 2, enforceable
against SwissCo 2 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 and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
(b) Schedule 4.22 sets forth a true and complete list of each of the
Foreign Trademarks. The Liens created by SwissCo 2 pursuant to the SwissCo 2
Note Security Agreement in favor of the Borrower to secure SwissCo 2's
obligations under the SwissCo Intercompany Note (i) are legal, valid and
enforceable security interests in the Foreign Trademarks, (ii) have been duly
perfected under the Requirements of Law of the Foreign Trademarks Specified
Jurisdictions applicable to each of such Foreign Trademarks (subject only to the
recordation of such documents and taking of such other actions, if any, as are
necessary as specified in the last sentence of Section 6.16, each of which
documents will have been duly recorded and actions will have been duly taken on
or prior to the date 180 days (plus, upon the Administrative Agent's prior
written consent, up to an additional 180 days) after the Closing Date, and (iii)
to the best knowledge of Holdings and the Borrower, are prior and superior in
right to any other Person.
(c) The aggregate outstanding principal amount of the SwissCo Intercompany
Note is $106,356,297.13 on the Closing Date.
SECTION 4.23 INSURANCE. All policies of insurance of any kind or nature of
the Borrower or any of its Subsidiaries, including policies of life, fire,
theft, product liability, public liability, property damage, other casualty,
employee fidelity, workers' compensation and employee health and welfare
insurance, are in full force and effect and are of a nature and provide such
coverage as is sufficient and as is customarily carried by businesses of the
size and character of such Person. None of the Borrower or any of its
Subsidiaries has been refused insurance for any material coverage for which it
had applied or had any policy of insurance terminated (other than at its
request).
SECTION 4.24 SENIOR SUBORDINATED DEBT DOCUMENTS.
(a) The execution, delivery and performance by each Loan Party of the
Senior Subordinated Debt Documents to which it is a party and the consummation
of the transactions contemplated thereby by such Loan Party:
(i) are within such Loan Party's respective corporate, limited
liability company, partnership or other powers;
(ii) have been duly authorized by all necessary corporate or other
action, including the consent of stockholders where required;
(iii) do not and will not (A) contravene or violate any Loan Party's
or any of its Subsidiaries' respective Constituent Documents, (B) violate
any other Requirement of
75
Law applicable to any Loan Party, or any order or decree of any
Governmental Authority or arbitrator, (C) conflict with or result in the
breach of, or constitute a default under, or result in or permit the
termination or acceleration of, any Contractual Obligation of any Loan
Party or any of its Subsidiaries, except for those that would not, in the
aggregate reasonably be expected to have a Material Adverse Effect or (D)
result in the creation or imposition of any Lien upon any of the property
of any Loan Party or any of its Subsidiaries; and
(iv) do not require the consent of, authorization by, approval of,
notice to, or filing or registration with, any Governmental Authority or
any other Person, other than those which will have been obtained at the
Closing Date, each of which will be in full force and effect on the Closing
Date and none of which will on the Closing Date impose materially adverse
conditions upon the exercise of control by Holdings over the Borrower or
the Borrower over any of its Subsidiaries or those which would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Each of the Senior Subordinated Debt Documents has been or at the
Closing Date will have been duly executed and delivered by each Loan Party party
thereto and at the Closing Date will be the legal, valid and binding obligation
of each Loan Party party thereto, enforceable against such Loan Party 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 and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
(c) None of the Senior Subordinated Debt Documents has been amended or
modified in any respect and no provision therein has been waived, except in each
case to the extent permitted by Section 6.17.
(d) All of the Obligations of the Borrower do and at all times will
constitute "Senior Indebtedness" of the Borrower, and all of the obligations of
any Guarantor under the Guaranty and the other Loan Documents to which such
Guarantor is a party do and at all times will constitute "Senior Indebtedness"
of such Guarantor, in each case under and as defined in the Senior Subordinated
Notes Indenture.
(e) The Secured Obligations constitute the "Bank Indebtedness" and the
"Designated Senior Indebtedness" with respect to each Loan Party under and as
defined in the Senior Subordinated Notes Indenture.
ARTICLE V
AFFIRMATIVE COVENANTS
As long as any of the Obligations (other than indemnity or reimbursement
obligations not then payable) or the Commitments remain outstanding, unless the
Requisite Lenders otherwise consent in writing, each of the Borrower and
Holdings agrees with the Lenders, the Issuers and the Administrative Agent that:
SECTION 5.1 FINANCIAL STATEMENTS. Each of the Borrower and Holdings will,
and will cause its Subsidiaries to, furnish to the Administrative Agent and each
Lender:
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(a) as soon as available, but in any event within 90 days (or, upon the
Borrower becoming (or being required under the Senior Subordinated Notes
Indenture to file as if) an SEC-reporting company under applicable securities
laws, such other applicable period as may be required for filing an Annual
Report on Form 10-K (or successor form)) after the end of each Fiscal Year of
the Borrower, a copy of the audited consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at the end of such year and the related
audited consolidated statements of income and of cash flows for such year,
setting forth in each case in comparative form the figures for the previous
year, reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by
PricewaterhouseCoopers LLP or other independent certified public accountants of
nationally recognized standing;
(b) as soon as available, but in any event not later than 45 days (or,
upon the Borrower becoming (or being required under the Senior Subordinated
Notes Indenture to file as if) an SEC-reporting company under applicable
securities laws, such other applicable period as may be required for filing a
Quarterly Report on Form 10-Q (or successor form)) after the end of each of the
first three Fiscal Quarters of the Borrower, the unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the Fiscal Year through the end of
such Fiscal Quarter, setting forth in each case in comparative form the figures
for the previous year, certified by a Responsible Officer as being fairly stated
in all material respects (subject to normal year end audit adjustments); and
(c) as soon as available, but in any event not later than 45 days after
the end of each month occurring during each Fiscal Year of the Borrower (other
than the third, sixth, ninth and twelfth such month), the unaudited consolidated
balance sheets of the Borrower and its Subsidiaries as at the end of such month
and the related unaudited consolidated statements of income and of cash flows
for such month and the portion of the Fiscal Year through the end of such month,
setting forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
SECTION 5.2 CERTIFICATES; OTHER INFORMATION. Each of the Borrower and
Holdings will, and will cause its Subsidiaries to, furnish to the Administrative
Agent and each Lender :
(a) AUDITOR CERTIFICATE. Concurrently with the delivery of the Financial
Statements referred to in Section 5.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating that
in making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
77
(b) RESPONSIBLE OFFICER CERTIFICATE; COMPLIANCE CERTIFICATE; COLLATERAL
LISTING. Concurrently with the delivery of any financial statements pursuant to
Section 5.1:
(i) a certificate of a Responsible Officer stating that, to the
best of such Responsible Officer's knowledge, each Loan Party during such
period has observed or performed all of its covenants and other agreements,
and satisfied every condition, contained in this Agreement and the other
Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as specified in such
certificate; or
(ii) in the case of Financial Statements delivered pursuant to
Section 5.1(a) or (b), a Compliance Certificate (x) containing the
statements specified in clause (i) above; (y) containing (and certifying as
to) (A) all information and calculations necessary for determining the
Consolidated Leverage Ratio (for purposes of determining the Applicable
Margin and the Applicable Unused Commitment Fee Rate) and compliance by the
Borrower with each of the financial covenants contained in Section 6.1 as
of the last day of the Fiscal Quarter or Fiscal Year of the Borrower and
Section 6.7 for the Fiscal Year (or portion thereof) ending on such last
day; and (B) to the extent not previously disclosed to the Administrative
Agent, a listing of any county or state within the United States where any
Loan Party keeps inventory or equipment having a Fair Market Value of more
than $5,000,000 and of any Intellectual Property acquired by any Loan Party
since the date of the most recent list delivered pursuant to this clause
(y) (or, in the case of the first such list so delivered, since the Closing
Date); and (z) certifying that the Corporate Chart attached thereto (or the
last Corporate Chart delivered pursuant to this clause (z)) is true,
correct and complete as of such last day.
(c) PROJECTIONS. As soon as available, and in any event no later than 45
days after the end of each Fiscal Year of the Borrower, a detailed consolidated
budget for the following Fiscal Year (including a projected consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of the following Fiscal
Year, the related consolidated statements of projected cash flow, projected
changes in financial position and projected income and a description of the
underlying assumptions applicable thereto), and, as soon as available,
significant revisions, if any, of such budget and projections with respect to
such Fiscal Year (collectively, the "PROJECTIONS"), which Projections shall in
each case be accompanied by a certificate of a Responsible Officer stating that
such Projections are based on reasonable estimates, information and assumptions
and that such Responsible Officer has no reason to believe that such Projections
are incorrect or misleading in any material respect;
(d) FINANCIAL CONDITION ANALYSIS. Within 45 days after the end of each
Fiscal Quarter of the Borrower, a narrative discussion and analysis of the
financial condition and results of operations of the Borrower and its
Subsidiaries for such Fiscal Quarter and for the period from the beginning of
the then current Fiscal Year to the end of such Fiscal Quarter, as compared to
the portion of the Projections covering such periods and to the comparable
periods of the previous year;
(e) REPORTS. Within five days after the same are sent, copies of all
financial statements and reports that Holdings or the Borrower sends to the
holders of the Senior
78
Subordinated Notes or any other class of its debt securities or public equity
Securities and, within five days after the same are filed, copies of all
financial statements and reports that Holdings or the Borrower may make to, or
file with, the SEC;
(f) MANAGEMENT LETTERS. Within five Business Days after receipt thereof by
any Loan Party, copies of each final management letter, exception report or
similar letter or report received by such Loan Party from its independent
certified public accountants;
(g) ASSET SALES. Prior to any Asset Sale anticipated to generate in excess
of $500,000 (or its Dollar Equivalent) in Net Cash Proceeds, a notice (a)
describing such Asset Sale or the nature and material terms and conditions of
such transaction and (b) stating the estimated Net Cash Proceeds anticipated to
be received by the Borrower or any of its Subsidiaries;
(h) LABOR RELATIONS. Promptly after becoming aware of the same, written
notice of (i) any material labor dispute to which the Borrower or any of its
Subsidiaries is or may become a party, including any strikes, lockouts or other
disputes relating to any of such Person's plants and other facilities, and (ii)
any Worker Adjustment and Retraining Notification Act or related liability
incurred with respect to the closing of any plant or other facility of any of
such Person that would reasonably be expected to have a Material Adverse Effect;
(i) TAX RETURNS. Upon the written request of the Administrative Agent,
copies of all Tax Returns filed by the Borrower or any of its Subsidiaries in
respect of taxes measured by income (excluding sales, use and like taxes);
(j) INSURANCE. As soon as is practicable following the written request of
the Administrative Agent and in any event within 90 days after the end of each
Fiscal Year, (i) a report in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders outlining all material insurance coverage
maintained as of the date of such report by the Borrower and its Subsidiaries
and the duration of such coverage and (ii) an insurance broker's statement that
all premiums then due and payable with respect to such coverage have been paid
and confirming that the Administrative Agent has been named as loss payee or
additional insured, as applicable;
(k) ENVIRONMENTAL MATTERS. Promptly and in any event within 10 days of the
Borrower or any Subsidiary learning of any of the following, written notice of
any of the following:
(i) that any Loan Party is or may be liable to any Person as a
result of the release by any Loan Party or any other Person of any toxic or
hazardous waste or substance into the environment other than any such
release that would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect; and
(ii) the receipt by any Loan Party of any notice of violation of or
potential liability under, or knowledge by such Loan Party that there
exists a condition which could reasonably be expected to result in a
violation of or liability under any Environmental Law, except for
violations and liabilities the consequence of which would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
79
(l) HOLDINGS DOCUMENTS. Prior to the issuance thereof, copies of the
documents pursuant to which any Holdings Permitted Preferred Stock or Holdings
Permitted PIK Notes are to be issued; and
(m) ADDITIONAL INFORMATION. Promptly, such additional financial and other
information as the Administrative Agent or any Lender may from time to time
reasonably request.
SECTION 5.3 PAYMENT OF OBLIGATIONS AND TAXES. Each of the Borrower and
Holdings will, and will cause each of its Subsidiaries to, pay, discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all its material obligations of whatever nature, except where the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of Holdings, the Borrower or its
Subsidiaries, as the case may be. The Borrower shall, and shall cause each of
its Subsidiaries to, pay and discharge before the same shall become delinquent,
all lawful governmental claims, taxes, assessments, charges and levies, except
where contested in good faith, by proper proceedings and adequate reserves
therefor have been established on the books of the Borrower or the appropriate
Subsidiary in conformity with GAAP and except to the extent the failure to do so
would not, in the aggregate, be reasonably expected to have a Material Adverse
Effect.
SECTION 5.4 MAINTENANCE OF EXISTENCE; COMPLIANCE. Each of the Borrower and
Holdings will, and will cause each of its Subsidiaries to:
(a) (i) preserve, renew and keep in full force and effect its corporate
existence and (ii) take all reasonable action to maintain all rights, privileges
and franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 6.4 and except, in the
case of clause (ii) above, to the extent that failure to do so would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect; and
(b) comply with all Contractual Obligations, Requirements of Law and
Permits except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 5.5 MAINTENANCE OF PROPERTY; INSURANCE. Each of the Borrower and
Holdings will, and will cause each of its Subsidiaries to, (a) (i) keep all
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted, and (ii) maintain and preserve all
registered patents, trademarks, trade names, copyrights and service marks with
respect to its business, except where the failure to so maintain and preserve
would not, in the aggregate, reasonably be expected to have a Material Adverse
Effect, and (b) (i) maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks (but including in any event public liability, product liability
and business interruption) as are usually insured against in the same general
area by companies engaged in the same or a similar business, and (ii) cause all
such insurance to name the Administrative Agent on behalf of the Secured Parties
as additional insured or loss payee, as appropriate, and to provide that no
cancellation, material diminution in
80
amount of coverage or other material change in coverage shall be effective until
after 30 days' written notice thereof to the Administrative Agent.
SECTION 5.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Each
of the Borrower and Holdings will, and will cause each of its Subsidiaries to,
(a) keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and (b)
permit representatives of any Lender, at their own expense, to visit and inspect
any of its properties and examine and make abstracts from any of its books and
records at any reasonable time during regular business hours and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of Holdings, the Borrower and its Subsidiaries
with officers and employees of Holdings, the Borrower and its Subsidiaries and
with its independent certified public accountants.
SECTION 5.7 NOTICES. Each of the Borrower and Holdings will, and will
cause each of its Subsidiaries to, promptly give notice to the Administrative
Agent and each Lender of:
(i) the occurrence of any Default or Event of Default;
(ii) any (i) default or event of default under any Contractual
Obligation of Holdings, the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding that may exist at any time between
Holdings, the Borrower or any of its Subsidiaries and any Governmental
Authority, that in either case, if not cured or if adversely determined, as
the case may be, would reasonably be expected to have a Material Adverse
Effect;
(iii) any litigation or proceeding to which Holdings, the Borrower
or any of its Subsidiaries is a party (i) in which the claim against such
Person or Persons is $2,500,000 or more and not covered by insurance, (ii)
in which injunctive or similar relief is sought against such Person or
Persons or (iii) which relates to any Loan Document;
(iv) the following events, as soon as possible and in any event
within 30 days after the Borrower knows thereof: (i) the occurrence of any
Reportable Event with respect to any Plan or Multiemployer Plan, a failure
to make any required contribution to a Plan or Multiemployer Plan, the
creation of any Lien in favor of the PBGC or a Plan or Multiemployer Plan
or any withdrawal therefrom, or the termination, Reorganization or
Insolvency of, any Single Employer Plan or Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or
the Borrower or any ERISA Affiliate or any Multiemployer Plan with respect
to the withdrawal from, or the termination, Reorganization or Insolvency
of, any Single Employer Plan or Multiemployer Plan;
(v) any development or event that has had or would reasonably be
expected to have a Material Adverse Effect;
(vi) the occurrence or existence of any "Default" or "Event of
Default" under the Senior Subordinated Debt Indenture; and
81
(vii) the audit or examination of any Tax Return by any Governmental
Authority, the receipt by any Loan Party of notice of any such audit or
examination or the assertion of any claim for taxes against any Loan Party
by any Governmental Authority.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Holdings, the Borrower or the relevant
Subsidiary proposes to take with respect thereto.
SECTION 5.8 ENVIRONMENTAL LAWS. Each of the Borrower and Holdings will,
and will cause each of its Subsidiaries to:
(a) comply in all material respects with, and ensure compliance in all
material respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws, and obtain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain and comply in all
material respects with and maintain, any and all licenses, approvals,
notifications, registrations or Permits required by applicable Environmental
Laws.
(b) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws.
SECTION 5.9 RATINGS. Each of Borrower and Holdings will cause the Loans at
all times to have a publicly available senior secured debt rating from each of
▇▇▇▇▇'▇ and S&P.
SECTION 5.10 ADDITIONAL COLLATERAL AND GUARANTIES. Each of the Borrower and
Holdings will, and will cause each of its Subsidiaries to:
(a) with respect to any property acquired after the Closing Date by
Holdings, the Borrower or any of its Subsidiaries (other than (x) any property
described in paragraph (b), (c) or (d) below, (y) any property subject to a Lien
expressly permitted by Section 6.3(vi) and (z) property acquired by any Excluded
Foreign Subsidiary) as to which the Administrative Agent, for the benefit of the
Secured Parties, does not have a perfected Lien, promptly (i) execute and
deliver to the Administrative Agent such amendments to the Security Agreement or
such other documents as the Administrative Agent deems necessary or advisable to
grant to the Administrative Agent, for the benefit of the Secured Parties, a
security interest in such property and (ii) take all actions necessary or
advisable to grant to the Administrative Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in such property,
including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Security Agreement or by law or as may
be requested by the Administrative Agent;
(b) with respect to any fee interest in any real property having a value
(together with improvements thereof) of at least $1,000,000 acquired after the
Closing Date by Holdings, the Borrower or any of its Subsidiaries (other than
(y) any such real property subject to a Lien expressly permitted by Section
6.3(vi) and (z) real property acquired by any Excluded Foreign Subsidiary),
promptly (i) execute and deliver a first priority Mortgage, in favor of the
Administrative Agent, for the benefit of the Secured Parties, covering such real
property, (ii) if
82
requested by the Administrative Agent or the Requisite Lenders, provide the
Lenders with (x) title and extended coverage insurance covering such real
property in an amount at least equal to the purchase price of such real property
(or such other amount as shall be reasonably specified by the Administrative
Agent) as well as a current ALTA survey thereof, together with a surveyor's
certificate and (y) any consents or estoppels reasonably deemed necessary or
advisable by the Administrative Agent in connection with such Mortgage, each of
the foregoing in form and substance reasonably satisfactory to the
Administrative Agent and (iii) if requested by the Administrative Agent or the
Requisite Lenders, deliver to the Administrative Agent legal opinions relating
to the matters described above, which opinions shall be in form and substance,
and from counsel, reasonably satisfactory to the Administrative Agent;
(c) with respect to any new Subsidiary (other than an Excluded Foreign
Subsidiary or a Special Purpose Subsidiary) created or acquired after the
Closing Date by Holdings, the Borrower or any of its Subsidiaries (which, for
the purposes of this paragraph (c), shall include any existing Subsidiary that
ceases to be an Excluded Foreign Subsidiary or a Special Purpose Subsidiary),
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Security Agreement as the Administrative Agent deems necessary or advisable
to grant to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority security interest in the Capital Stock and any
Indebtedness of such new Subsidiary that is owned by Holdings, the Borrower or
any of its Subsidiaries, (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock and any Indebtedness, together with
undated stock or board powers, in blank, executed and delivered by a duly
authorized officer of Holdings, the Borrower or such Subsidiary, as the case may
be, as Pledged Stock or Pledged Notes, as applicable, under the Security
Agreement, (iii) cause such new Subsidiary (A) to become a party to the Security
Agreement and the Guaranty, (B) to take such actions necessary or advisable to
grant to the Administrative Agent for the benefit of the Secured Parties a
perfected first priority security interest in the Collateral described in the
Security Agreement with respect to such new Subsidiary, including the filing of
Uniform Commercial Code financing statements in such jurisdictions as may be
required by the Security Agreement or by law or as may be requested by the
Administrative Agent and (C) to deliver to the Administrative Agent a
certificate of such Subsidiary, substantially in the form of Exhibit I, with
appropriate insertions and attachments, and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent; and
(d) with respect to any new First-Tier Excluded Foreign Subsidiary created
or acquired after the Closing Date by Holdings, the Borrower or any of its
Subsidiaries (which, for the purposes of this paragraph (d), shall include any
existing Subsidiary that becomes a First-Tier Excluded Foreign Subsidiary),
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Security Agreement as the Administrative Agent deems necessary or advisable
to grant to the Administrative Agent, for the benefit of the Secured Parties, a
perfected first priority security interest in the Capital Stock and any
Indebtedness of such First-Tier Excluded Foreign Subsidiary that is owned by
Holdings, the Borrower or any of its Subsidiaries (provided that in no event
shall more than 65% of the total outstanding Capital Stock of any such new
First-Tier Excluded Foreign Subsidiary be required to be so pledged unless tax
laws change to permit an increased percentage without adverse tax consequences
to the Borrower), (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock and Indebtedness,
83
together with undated stock or board powers, in blank, executed and delivered by
a duly authorized officer of Holdings, the Borrower or such First-Tier Excluded
Foreign Subsidiary, as the case may be, as Pledged Stock or Pledged Notes, as
applicable, under the Security Agreement, (iii) take such other action as may be
necessary or, in the opinion of the Administrative Agent, desirable to perfect
the Administrative Agent's security interest therein, and (iv) if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
SECTION 5.11 LIENS SECURING EXCLUDED FOREIGN SUBSIDIARY INDEBTEDNESS. Each
of the Borrower and Holdings will, and will cause each of its Subsidiaries to,
within 60 days after the date any Indebtedness of an Excluded Foreign Subsidiary
is incurred pursuant to Section 6.2(ii)(z), cause such Excluded Foreign
Subsidiary to create a Lien on substantially all of its assets to secure such
Indebtedness except to the extent that the Borrower, in consultation with the
Administrative Agent, determines that the creation of such Lien would (i) result
in adverse tax consequences to the Borrower or such Excluded Foreign Subsidiary,
(ii) be prohibited by or impracticable under the laws of the relevant
jurisdiction or (iii) result in costs and expenses to the Borrower and/or such
Excluded Foreign Subsidiary that are excessive in relation to the value of the
collateral security that would be created thereby.
SECTION 5.12 APPLICATION OF PROCEEDS. Each of the Borrower and Holdings
will, and will cause each of its Subsidiaries to, use the entire amount of the
proceeds of the Loans as provided in Section 4.16.
ARTICLE VI
NEGATIVE COVENANTS
As long as any of the Obligations (other than indemnity or reimbursement
obligations not then payable) or the Commitments remain outstanding, unless the
Requisite Lenders otherwise consent in writing, each of the Borrower and
Holdings agrees with the Lenders, the Issuers and the Administrative Agent that:
SECTION 6.1 FINANCIAL CONDITION COVENANTS.
(a) CONSOLIDATED LEVERAGE RATIO. Each of the Borrower and Holdings will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
permit the Consolidated Leverage Ratio as at the last day of any period of four
consecutive Fiscal Quarters of the Borrower ending with any Fiscal Quarter set
forth below to exceed the ratio set forth below opposite such Fiscal Quarter:
Consolidated
Quarter-End Leverage
Date Ratio
------------------------------------
September 30, 2003 5.00x
December 31, 2003 5.00x
March 31, 2004 5.00x
June 30, 2004 5.00x
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Consolidated
Quarter-End Leverage
Date Ratio
-------------------------------------
September 30, 2004 5.00x
December 31, 2004 4.75x
March 31, 2005 4.75x
June 30, 2005 4.50x
September 30, 2005 4.50x
December 31, 2005 4.50x
March 31, 2006 4.25x
June 30, 2006 4.25x
September 30, 2006 4.25x
December 31, 2006 4.25x
March 31, 2007 4.00x
June 30, 2007 4.00x
September 30, 2007 4.00x
December 31, 2007 4.00x
March 31, 2008 3.75x
June 30, 2008 3.75x
September 30, 2008 3.75x
December 31, 2008 3.75x
March 31, 2009 3.75x
June 30, 2009 3.75x
September 30, 2009 3.75x
December 31, 2009 3.75x
Thereafter 3.75x
(b) CONSOLIDATED INTEREST COVERAGE RATIO. Each of the Borrower and
Holdings will not, and will not permit any of its Subsidiaries to, directly or
indirectly, permit the Consolidated Interest Coverage Ratio for any period of
four consecutive Fiscal Quarters of the Borrower ending with any Fiscal Quarter
set forth below to be less than the ratio set forth below opposite such Fiscal
Quarter:
Consolidated
Quarter-End Interest Coverage
Date Ratio
------------------------------------------
September 30, 2003 1.90x
December 31, 2003 1.90x
March 31, 2004 2.00x
June 30, 2004 2.00x
September 30, 2004 2.00x
December 31, 2004 2.00x
March 31, 2005 2.00x
June 30, 2005 2.25x
September 30, 2005 2.25x
85
Consolidated
Quarter-End Interest Coverage
Date Ratio
-----------------------------------------
December 31, 2005 2.25x
March 31, 2006 2.50x
June 30, 2006 2.50x
September 30, 2006 2.50x
December 31, 2006 2.50x
March 31, 2007 2.75x
June 30, 2007 2.75x
September 30, 2007 2.75x
December 31, 2007 2.75x
March 31, 2008 3.00x
June 30, 2008 3.00x
September 30, 2008 3.00x
December 31, 2008 3.00x
March 31, 2009 3.00x
June 30, 2009 3.00x
September 30, 2009 3.00x
December 31, 2009 3.00x
Thereafter 3.00x
(c) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Each of the Borrower and
Holdings will not, and will not permit any of its Subsidiaries to, directly or
indirectly, permit the Consolidated Fixed Charge Coverage Ratio for any period
of four consecutive Fiscal Quarters of the Borrower ending with any Fiscal
Quarter set forth below to be less than the ratio set forth below opposite such
Fiscal Quarter:
Consolidated
Quarter-End Fixed Charge Coverage
Date Ratio
---------------------------------------------
September 30, 2003 1.15x
December 31, 2003 1.15x
March 31, 2004 1.25x
June 30, 2004 1.25x
September 30, 2004 1.25x
December 31, 2004 1.25x
March 31, 2005 1.25x
June 30, 2005 1.25x
September 30, 2005 1.25x
December 31, 2005 1.25x
March 31, 2006 1.25x
June 30, 2006 1.25x
September 30, 2006 1.25x
December 31, 2006 1.25x
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Consolidated
Quarter-End Fixed Charge Coverage
Date Ratio
---------------------------------------------
March 31, 2007 1.25x
June 30, 2007 1.25x
September 30, 2007 1.25x
December 31, 2007 1.25x
March 31, 2008 1.25x
June 30, 2008 1.25x
September 30, 2008 1.25x
December 31, 2008 1.25x
March 31, 2009 1.25x
June 30, 2009 1.25x
September 30, 2009 1.25x
December 31, 2009 1.25x
Thereafter 1.25x
SECTION 6.2 INDEBTEDNESS. Each of the Borrower and Holdings will not, and
will not permit any of its Subsidiaries to, directly or indirectly, create,
issue, incur, assume, become liable in respect of or suffer to exist any
Indebtedness, except:
(i) Indebtedness of any Loan Party pursuant to any Loan Document;
(ii) Indebtedness (x) of the Borrower to any Wholly Owned
Subsidiary Guarantor or of any Wholly Owned Subsidiary Guarantor to the
Borrower or any Wholly Owned Subsidiary Guarantor, (y) of any Excluded
Foreign Subsidiary to any other Excluded Foreign Subsidiary or (z) of any
Excluded Foreign Subsidiary to the Borrower or any Subsidiary Guarantor
PROVIDED, HOWEVER, that the Investment in the intercompany loan to such
Excluded Foreign Subsidiary pursuant to this subclause (ii)(z) is permitted
under Section 6.8(vii)(z) or Section 6.8(xii);
(iii) Guarantee Obligations incurred in the ordinary course of
business by the Borrower or any of its Subsidiaries of obligations of any
Subsidiary; provided that the amount of any such obligation guaranteed by
the Borrower or any of its Subsidiaries shall not exceed $1,000,000 in the
aggregate for the Borrower and all of its Subsidiaries;
(iv) Indebtedness (other than Hedging Contracts or the Senior
Subordinated Initial Notes) outstanding on the date hereof and listed on
Schedule 6.2 and any refinancings, refundings, renewals or extensions
thereof (that does not shorten the maturity of, or increase the principal
amount of (other than to include any premium or fee payable in connection
with such refinancing, refunding, renewal or extension), and that otherwise
is on terms no less favorable to the Borrower or such Subsidiary (taken as
a whole) than, the Indebtedness being refinanced, refunded, renewed or
extended;
(v) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 6.3(vi) in an aggregate
principal amount not to exceed $2,000,000 at any one time outstanding;
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(vi) obligations of a Special Purpose Subsidiary incurred and
outstanding pursuant to a Receivable Financing Transaction permitted by
Section 6.5(v) that are not recourse to Holdings, the Borrower or any other
Subsidiary of the Borrower (other than pursuant to Standard Securitization
Undertakings);
(vii) Interest Rate Contracts outstanding on the date hereof and
listed on Schedule 6.2 in respect of Indebtedness that bears interest at a
floating rate, so long as such agreements are not entered into for
speculative purposes and are either (x) with a Lender as counterparty or
(y) are unsecured;
(viii) Foreign Overdraft Guarantees in an aggregate amount not to
exceed $10 million at any time outstanding, provided that no such Guarantee
Obligation shall be outstanding for more than two Business Days after the
date of incurrence thereof;
(ix) in addition to Indebtedness otherwise expressly permitted by
this Section 6.2, Indebtedness incurred by the Borrower or any of its
Subsidiaries in an aggregate amount not to exceed $5,000,000 at any one
time outstanding;
(x) Indebtedness of the Borrower and the Subsidiary Guarantors
consisting of the Senior Subordinated Initial Notes issued by the Borrower
(and guaranteed by the Subsidiary Guarantors) under the Senior Subordinated
Notes Indenture;
(xi) Indebtedness of the Borrower and the Subsidiary Guarantors
consisting of any "tack-on" or "add-on" senior subordinated notes issued by
the Borrower (and guaranteed by the Subsidiary Guarantors) after the
Closing Date having terms (other than non-material conforming changes)
identical to the Senior Subordinated Initial Notes and having an aggregate
principal amount not in excess of $25,000,000;
(xii) any Indebtedness of Holdings consisting of Holdings Permitted
PIK Notes the aggregate principal amount of which (excluding the principal
amount of any such Holdings Permitted PIK Notes duly issued as pay-in-kind
notes in lieu of payment of cash interest thereon), when added to the
liquidation preference of any Holdings Permitted Preferred Stock issued on
or after the Closing Date, does not exceed $100,000,000 in the aggregate
for all Holdings Permitted PIK Notes and Holdings Permitted Preferred Stock
issued on or after the Closing Date;
(xiii) Indebtedness of (x) the Borrower or any Subsidiary of the
Borrower assumed in connection with any acquisition of the assets of any
Person pursuant to an Investment permitted under Section 6.8(x) or (y) a
Person that becomes a direct or indirect Wholly Owned Subsidiary as a
result of any acquisition pursuant to an Investment permitted under Section
6.8(x), so long as, in the case of clause (x) or (y), such Indebtedness
existed immediately prior to such acquisition and was not created in
anticipation of such acquisition, and any refinancing, refunding, renewal
or extension thereof (that does not shorten the maturity of, or increase
the principal amount of (other than to include any customary premium or fee
payable in connection with such refinancing, refunding, renewal or
extension), and that otherwise is on terms no less favorable to the
Borrower or such Subsidiary (taken as a whole) than, the Indebtedness
88
being refinanced, refunded, renewed or extended; PROVIDED, HOWEVER, that
the aggregate amount of all such Indebtedness of the Borrower and its
Subsidiaries pursuant to this clause (xiii) does not exceed $30,000,000
outstanding at any time; and
(xiv) Guarantee Obligations (x) by any Loan Party of any
Indebtedness of any Loan Party incurred pursuant to Section 6.2(ix) or (y)
by any Excluded Foreign Subsidiary of any Indebtedness of any Excluded
Foreign Subsidiary incurred pursuant to clause Section 6.2(ix).
SECTION 6.3 LIENS. Each of the Borrower and Holdings will not, and will
not permit any of its Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien upon any of its property, whether now owned
or hereafter acquired, or assign any right to receive income, except for:
(i) Liens for taxes not yet due and payable or that are being
contested in good faith by appropriate proceedings, PROVIDED that adequate
reserves with respect thereto are maintained on the books of the Borrower
or its Subsidiaries, as the case may be, in conformity with GAAP;
(ii) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
that are not overdue for a period of more than 30 days or that are being
contested in good faith by appropriate proceedings;
(iii) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(iv) deposits to secure the performance of bids, trade contracts
(other than for the repayment of borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(v) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and that do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(vi) Liens securing Indebtedness of the Borrower or any of its
Subsidiaries incurred pursuant to Section 6.2(v) to finance the acquisition
of fixed or capital assets, PROVIDED that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and (iii) the principal amount
of Indebtedness secured thereby is not increased after its initial
occurrence;
(vii) Liens created pursuant to the Collateral Documents;
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(viii) any interest or title of a lessor under any operating lease
entered into by the Borrower or any Subsidiary in the ordinary course of
its business and covering only the assets so leased;
(ix) Liens on Foreign Trademarks granted in favor the Borrower to
secure the SwissCo Intercompany Note;
(x) Liens on Receivables Assets of a Special Purpose Subsidiary
subject to a Receivable Financing Transaction permitted by Section 6.5(v);
(xi) Liens that (v) secure Indebtedness permitted under Section
6.2(xiii) in connection with an acquisition pursuant to an Investment
permitted under Section 6.8(x) so long as such Liens (w) existed prior to
such acquisition, (x) encumber specific fixed assets acquired by the
Borrower or any Subsidiary of the Borrower, or owned by a Person that
becomes a Wholly Owned Subsidiary, pursuant to such acquisition, (y) were
not created in contemplation of such acquisition and (z) do not encumber
any property or assets other than such specific fixed assets and
improvements on or proceeds of such specific fixed assets; and
(xii) Liens in favor of depository and collection banks and other
regulated financial institutions consisting of statutory or contractual
setoff rights with respect to deposit accounts or securities accounts of
the Borrower or any Subsidiary thereof maintained with such bank or
financial institution to secure payment of customary maintenance fees or
other administrative charges associated with such accounts so long as such
Liens do not secure Indebtedness and are incurred in the ordinary course of
business for amounts that are not overdue for a period of more than 30 days
or that are being contested in good faith by appropriate proceedings.
SECTION 6.4 FUNDAMENTAL CHANGES. Each of the Borrower and Holdings will
not, and will not permit any of its Subsidiaries to, directly or indirectly, (a)
enter into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or Dispose of, all
or substantially all of its property or business, (b) acquire or create any
Subsidiary unless, after giving effect thereto, the Borrower and Holdings are in
compliance with Section 5.10 and the Investment in such Subsidiary is permitted
under Section 6.8, or (c) change its capital structure (including in the terms
of its outstanding Stock) or otherwise amend its Constituent Documents, except
for changes and amendments which do not materially affect the rights and
privileges of the Borrower or any of its Subsidiaries, or the interests of the
Administrative Agent, the Lenders and the Issuers under the Loan Documents or in
the Collateral and except that:
(i) any Subsidiary of the Borrower may be merged or consolidated
with or into (x) the Borrower (PROVIDED that the Borrower shall be the
continuing or surviving corporation) or (y) any Wholly Owned Subsidiary
Guarantor (PROVIDED that the Wholly Owned Subsidiary Guarantor shall be the
continuing or surviving corporation);
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(ii) any Subsidiary of the Borrower may Dispose of any or all of
its assets (upon voluntary liquidation or otherwise) to the Borrower or any
Wholly Owned Subsidiary Guarantor;
(iii) Capital Stock of any Excluded Foreign Subsidiary (other than a
First-Tier Excluded Subsidiary) may be transferred to the Borrower or any
Wholly Owned Subsidiary; and the Capital Stock of any Subsidiary of the
Borrower may be transferred to the Borrower or any Wholly Owned Subsidiary
Guarantor;
(iv) any Excluded Foreign Subsidiary may be merged or consolidated
with any other Wholly Owned Excluded Foreign Subsidiary or Dispose of any
or all of its assets (upon voluntary liquidation or otherwise) to any other
Wholly Owned Excluded Foreign Subsidiary;
(v) any Excluded Foreign Subsidiary may be merged or consolidated
with a third party in a Disposition permitted by Section 6.5(vii); and
(vi) Holdings may issue and sell, and amend its Constituent
Documents to permit the issuance and sale of, Holdings Permitted Preferred
Stock the aggregate principal amount of which (excluding the principal
amount of any such Holdings Permitted PIK Notes duly issued as pay-in-kind
notes in lieu of payment of cash interest thereon), when added to the
liquidation preference of any Holdings Permitted Preferred Stock issued on
or after the Closing Date, does not exceed $100,000,000 in the aggregate
for all Holdings Permitted PIK Notes and Holdings Permitted Preferred Stock
issued on or after the Closing Date.
SECTION 6.5 DISPOSITION OF PROPERTY. Each of the Borrower and Holdings
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, Dispose of any of its property (including any Capital Stock of the
Borrower or any of its Subsidiaries), whether now owned or hereafter acquired,
or, in the case of any Subsidiary of Holdings or the Borrower, issue or sell any
shares of such Subsidiary's Capital Stock (including pursuant to any merger,
consolidation, recapitalization or other transaction) to any Person, except:
(i) the Disposition of obsolete or worn out property in the
ordinary course of business;
(ii) the sale of inventory in the ordinary course of business,
including, without limitation, sales to Subsidiaries;
(iii) Dispositions permitted by Section 6.4(ii), (iii), or (iv);
(iv) the sale, transfer or issuance of any Capital Stock of any
Subsidiary of the Borrower (x) to the Borrower or any Wholly Owned
Subsidiary Guarantor or (y) as permitted by Section 6.4(i), (ii) or (iii);
(v) the sale, contribution, transfer or other Disposition of
Receivables Assets to a Special Purpose Subsidiary for the Fair Market
Value of those assets, less amounts required to be established as reserves
and customary discounts pursuant to contractual
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agreements with entities that are not Affiliates of the Borrower, entered
into as part of a Receivable Financing Transaction; PROVIDED that an amount
equal to at least 85% of the consideration for such Disposition is paid in
cash;
(vi) Disposition of Receivables Assets by a Special Purpose
Subsidiary in a Receivable Financing Transaction;
(vii) the Disposition of other property (other than (x) Capital
Stock of the Borrower or any Included Subsidiary or (y) the SwissCo
Intercompany Note or any collateral therefor) having a Fair Market Value
not to exceed $25,000,000 in the aggregate for all such Dispositions in any
Fiscal Year;
(viii) issuances of Stock by a Special Purpose Subsidiary to the
Borrower or a Wholly Owned Subsidiary Grantor in connection with a
Receivable Financing Transaction; and
(ix) the issue or sale by the Borrower of its Capital Stock to
Holdings.
SECTION 6.6 RESTRICTED PAYMENTS. Each of the Borrower and Holdings will
not, and will not permit any of its Subsidiaries to, directly or indirectly, (a)
declare or pay any dividend (other than dividends payable solely in capital
stock of the Person making such dividend) on, make any payment on account of, or
set apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any Stock of
Holdings, the Borrower or any Subsidiary, whether now or hereafter outstanding,
or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of Holdings, the
Borrower or any Subsidiary, or (b) make any payment or prepayment of principal,
premium (if any), interest, fees (including fees to obtain any waiver or consent
in connection with any Security) or other charges on, or redemption, purchase,
retirement, defeasance, sinking fund or similar payment with respect to, any
Indebtedness of Holdings, the Borrower or any of its Subsidiaries (other than
(w) payments on account of the Obligations, (x) any required payment,
prepayment, redemption, retirement, purchase or other payment, in each case to
the extent required to be made by the terms of such Indebtedness and permitted
by such terms after giving effect to any applicable subordination provisions,
(y) any repayment of Indebtedness (other than Holdings Permitted PIK Notes),
including any premium or fee payable as a result of such repayment, so long as
such repayment is effected solely with the proceeds of Indebtedness incurred
pursuant to Section 6.2 to refinance such repaid Indebtedness and (z) any
repayment of Indebtedness secured by a Lien expressly permitted pursuant to
Section 6.13(vi) or (xi) on any property Disposed of pursuant to Section
6.5(vii) that is effected with the proceeds of such Disposition (collectively,
"RESTRICTED PAYMENTS"), except that:
(i) any Subsidiary of the Borrower may make Restricted Payments
directly or indirectly to the Borrower or any Wholly Owned Subsidiary
Guarantor and any Subsidiary of the Borrower which is not a Wholly-Owned
Subsidiary may pay dividends to its shareholders generally so long as the
Borrower or its respective Subsidiary which owns the equity interest or
interests in such Subsidiary paying such dividends receives at least its
proportionate share thereof;
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(ii) the Borrower may pay dividends to Holdings to permit Holdings
to (x) purchase Holdings' common stock or common stock options from present
or former officers or employees of Holdings, the Borrower or any Subsidiary
upon the death, disability or termination of employment of such officer or
employee, provided that the aggregate amount of payments under this clause
(i) after the Closing Date (net of any proceeds received by Holdings and
contributed to the Borrower after the Closing Date in connection with
resales of any common stock or common stock options so purchased) shall not
exceed $5,000,000 and (y) pay management fees expressly permitted by the
last sentence of Section 6.10;
(iii) the Borrower may pay dividends to Holdings to permit Holdings
to (x) pay corporate overhead expenses incurred in the ordinary course of
business not to exceed $500,000 in any Fiscal Year and (y) pay any taxes
that are due and payable by Holdings and the Borrower as part of a
consolidated, combined or unitary group;
(iv) any Excluded Foreign Subsidiary may make Restricted Payments
directly or indirectly to any other Excluded Foreign Subsidiary;
(v) Holdings, the Borrower or any Subsidiary thereof may make
Restricted Payments of Indebtedness (other than any Holdings Permitted PIK
Notes) in any Fiscal Year in an aggregate amount not to exceed the lesser
of (A) 50% of Excess Cash Flow for the preceding Fiscal Year and (B)
$5,000,000;
(vi) the Borrower may on the Closing Date, or promptly thereafter,
repay an intercompany payable (in the approximate amount of $3,600,000)
owing to and pay a dividend to Holdings in the aggregate amount of up to
$197,000,000 and thereupon Holdings may pay on the Closing Date, or
promptly thereafter, a dividend to its equity owners in the same aggregate
amount; and
(vii) Holdings may pay dividends to its equity owners in the
aggregate amount of the Net Cash Proceeds of any issuance of Holdings
Permitted PIK Notes permitted to be issued pursuant to Section 6.2(xii) or
Holdings Permitted Preferred Stock not constituting an Equity Issuance
hereunder.
PROVIDED, HOWEVER, that the Restricted Payments described in clause (ii), (v),
(vi) or (vii) above shall not be permitted if a Default or Event of Default
shall have occurred and be continuing at the date of declaration or payment
thereof or would result therefrom.
SECTION 6.7 CAPITAL EXPENDITURES. Each of the Borrower and Holdings will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
make or commit to make any Capital Expenditure, except:
(a) Capital Expenditures of the Borrower and its Subsidiaries in the
ordinary course of business not exceeding $12,000,000 in any Fiscal Year of the
Borrower; provided that (i) up to $2,500,000 of any such amount referred to
above, if not so expended in the Fiscal Year for which it is permitted, may be
carried over for expenditure in the next succeeding Fiscal Year and (ii) Capital
Expenditures made pursuant to this clause (a) during any Fiscal Year shall be
deemed
93
made, FIRST, in respect of amounts permitted for such Fiscal Year as provided
above and, SECOND, in respect of amounts carried over from the prior Fiscal Year
pursuant to subclause (i) above; and
(b) additional Capital Expenditures not otherwise permitted under this
Section 6.7 not to exceed $8,000,000 in the aggregate.
SECTION 6.8 INVESTMENTS. Each of the Borrower and Holdings will not, and
will not permit any of its Subsidiaries to, directly or indirectly, make any
advance, loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase or otherwise acquire any Capital Stock, bonds,
notes, debentures or other Securities of, or any assets constituting a business
unit of, or make any other investment in, any Person (all of the foregoing,
"INVESTMENTS") except:
(i) extensions of trade credit in the ordinary course of business;
(ii) investments in Cash Equivalents;
(iii) Guarantee Obligations permitted by Section 6.2;
(iv) loans and advances to employees of Holdings, the Borrower or
any Subsidiary of the Borrower in the ordinary course of business
(including for travel, entertainment and relocation expenses) that are not
in violation of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act in an aggregate amount for Holdings,
the Borrower or any Subsidiary of the Borrower not to exceed $1,000,000 at
any one time outstanding;
(v) any Investment by the Borrower or a Subsidiary of the Borrower
in a Special Purpose Subsidiary, or any Investment by a Special Purpose
Subsidiary in any other Person, in each case in connection with a
Receivables Financing Transaction and in a manner, and for consideration,
customary for transactions of that type;
(vi) investments in assets useful in the business of the Borrower
and its Subsidiaries made by the Borrower or any of its Subsidiaries with
the proceeds of any Reinvestment Deferred Amount;
(vii) intercompany Investments by (x) Holdings, the Borrower or any
of its Subsidiaries in the Borrower or any Person that, prior to and
immediately after such Investment, is a Wholly Owned Subsidiary Guarantor;
(y) any Excluded Foreign Subsidiary in any other Excluded Foreign
Subsidiary; and (z) the Borrower or any Subsidiary Guarantor in any
Excluded Foreign Subsidiary, PROVIDED, HOWEVER, that the aggregate
outstanding amount of any Investments pursuant to this subclause (vii)(z)
shall not exceed $15,000,000 at any one time outstanding;
(viii) any Indebtedness permitted by Section 6.2(ii);
(ix) loans by the Borrower to be made to select management
personnel not to exceed $10,000,000 during the period beginning on the
Formation Date and ending on the Scheduled Maturity Date for the purpose of
purchasing Stock of Holdings to the extent such loans are not in violation
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act;
94
(x) in addition to Investments otherwise expressly permitted by
this Section, Investments by the Borrower or any of its Subsidiaries in an
aggregate amount (valued at cost) not to exceed $10,000,000 per Fiscal Year
and $30,000,000 in the aggregate during the period beginning on the Closing
Date and ending on the Tranche B Term Loan Maturity Date; PROVIDED,
HOWEVER, that in the case of any acquisition pursuant to an Investment
permitted under this Section 6.8(x), the cost of such Investment shall
include the amount of any Indebtedness permitted under Section 6.2(xiii)
that is assumed by the Borrower or any of its Subsidiaries in connection
with, or of any Person that becomes a Wholly Owned Subsidiary as a result
of, such acquisition;
(xi) loans made by the Borrower to members of its senior management
and evidenced by promissory notes in an aggregate amount not exceeding
$5,500,000 during the period beginning on the Formation Date and ending on
the Tranche B Term Loan Maturity Date to the extent such loans are not in
violation of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, PROVIDED that such promissory notes
shall be delivered to the Administrative Agent to be held in pledge for the
benefit of the Secured Parties as Collateral under the Security Agreement;
(xii) Investments existing on the Closing Date and disclosed on
Schedule 6.8 by the Borrower or any Subsidiary Guarantor in any Excluded
Foreign Subsidiary; and
(xiii) Investments by the Borrower or any Subsidiary thereof in the
Stock of any Person that has no equity owners immediately prior to such
Investment and is a Wholly Owned Subsidiary immediately after such
Investment in an aggregate amount to exceed $10,000 in the aggregate at any
one time outstanding for all such Investments.
SECTION 6.9 SPECIAL PURPOSE SUBSIDIARY. Each of the Borrower and Holdings
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, permit (a) any Special Purpose Subsidiary to engage in any business
other than Receivable Financing Transactions and activities directly related
thereto or (b) recourse at any time to Holdings, the Borrower or any of its
Subsidiaries (other than a Special Purpose Subsidiary) or any of their
respective assets for any liability, direct or indirect, contingent or
otherwise, in respect of any obligation of a Special Purpose Subsidiary whether
arising under or in connection with any Receivable Financing Transaction or
otherwise (other than pursuant to Standard Securitization Undertakings).
SECTION 6.10 TRANSACTIONS WITH AFFILIATES. Each of the Borrower and
Holdings will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into any transaction (including any purchase, sale, lease,
transfer, assignment, exchange or other disposition or acquisition of property,
any rendering of any service, any payment of any management, advisory or similar
fees, any merger or consolidation, any making of an Investment or any repayment
of any Indebtedness) with, or for the benefit of, any Affiliate of the Borrower
(other than Holdings, the Borrower, any Special Purpose Subsidiary or any Wholly
Owned Subsidiary Guarantor) unless such transaction is (a) otherwise permitted
under this Agreement, (b) in the ordinary course of business of Holdings, the
Borrower or such Subsidiary, as the case may be, and (c) upon fair and
reasonable terms no less favorable to Holdings, the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person that is not an Affiliate. Notwithstanding the
foregoing, (i) the Borrower and its Subsidiaries may
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pay to the Sponsor and its Control Investment Affiliates fees and expenses
approved by the board of directors of the Borrower in an aggregate amount not to
exceed $1,500,000 in any Fiscal Year of the Borrower, (ii) any Special Purpose
Subsidiary may enter into any transaction with any Person in which such Special
Purpose Subsidiary has an Investment in connection with a Receivable Financing
Transaction; and (iii) the Borrower may on the Closing Date, or promptly
thereafter, repay an intercompany payable (in the approximate amount of
$3,600,000) owing to and pay a dividend to Holdings in the aggregate amount of
up to $197,000,000 and thereupon Holdings may pay a dividend on the Closing
Date, or promptly thereafter, to its equity owners in the same aggregate amount.
SECTION 6.11 SALES AND LEASEBACKS. Each of the Borrower and Holdings will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
enter into any arrangement with any Person providing for the leasing by
Holdings, the Borrower or any Subsidiary of real or personal property that has
been or is to be sold or transferred by Holdings, the Borrower or such
Subsidiary to such Person or to any other Person to whom funds have been or are
to be advanced by such Person on the security of such property or rental
obligations of Holdings, the Borrower or such Subsidiary unless (i) the sale or
transfer is otherwise permitted under Section 6.5, (ii) the lease involved is
permitted under Section 6.2, (iii) any related Lien is permitted under Section
6.3, and (iv) any Investment related thereto is permitted under Section 6.8.
SECTION 6.12 CHANGES IN FISCAL PERIODS. Each of the Borrower and Holdings
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, (a) permit the Fiscal Year of the Borrower to end on a day other
than December 31 or (b) change in any material respect its accounting treatment
and reporting practices or tax reporting treatment, except as required or
permitted by GAAP or any Requirement of Law and disclosed to the Administrative
Agent.
SECTION 6.13 NEGATIVE PLEDGE CLAUSES. Each of the Borrower and Holdings
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into or suffer to exist or become effective any agreement that
prohibits or limits the ability of Holdings, the Borrower or any of its
Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of
its property or revenues, whether now owned or hereafter acquired, to secure its
obligations under the Loan Documents to which it is a party, including any
agreement which requires other Indebtedness or Contractual Obligation to be
equally and ratably secured with any lien securing the Obligations, other than
(a) this Agreement and the other Loan Documents, (b) any agreements governing
any purchase money Liens or Capital Lease Obligations otherwise permitted hereby
(in which case, any prohibition or limitation shall only be effective against
the assets financed thereby) and (c) any agreements evidencing a Receivable
Financing Transaction permitted by Section 6.5(v).
SECTION 6.14 CLAUSES RESTRICTING SUBSIDIARY DISTRIBUTIONS. Each of the
Borrower and Holdings will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into or suffer to exist or become effective any
consensual encumbrance or restriction on the ability of any Subsidiary of the
Borrower to (a) make Restricted Payments in respect of any Stock of such
Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any other
Subsidiary of the Borrower, (b) make loans or advances to, or other Investments
in, the Borrower or any other Subsidiary of the Borrower or (c) transfer any of
its assets to the Borrower or any other Subsidiary of the Borrower, except for
(x) such encumbrances or restrictions existing under or by reason of (i) any
restrictions existing under the Loan Documents and (ii) any customary
96
restrictions with respect to a Subsidiary imposed pursuant to an agreement that
has been entered into in connection with a Disposition of all or substantially
all of the Capital Stock or assets of such Subsidiary pending the closing of
such Disposition, so long as such restrictions apply only to the Subsidiary that
is to be sold (or whose assets are to be sold) and such Disposition is otherwise
permitted hereunder or (y) any restrictions on a Special Purpose Subsidiary that
arise pursuant to the terms of any agreement entered into in connection with any
Receivable Financing Transaction and apply only to such Special Purpose
Subsidiary.
SECTION 6.15 LINES OF BUSINESS. Each of the Borrower and Holdings will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into any business, either directly or through any Subsidiary, except for those
businesses in which the Borrower and its Subsidiaries are engaged on the date of
this Agreement or that are reasonably related thereto, including licensing of
intellectual property.
SECTION 6.16 AMENDMENTS TO THE SWISSCO INTERCOMPANY NOTE; PRINCIPAL AMOUNT.
Each of the Borrower and Holdings will not, and will not permit any of its
Subsidiaries to, directly or indirectly, (a) (i) permit SwissCo 2 to make or
offer to make any optional or voluntary payment, prepayment, repurchase or
redemption of or otherwise optionally or voluntarily defease or segregate funds
with respect to the SwissCo Intercompany Note except in connection with a
mandatory prepayment pursuant to Section 2.9(a)(ii) all the proceeds of which
payment are applied to the payment of the Loans (or provision of cash collateral
for Letters of Credit) as specified in Section 2.9(c) or (ii) demand payment of
the SwissCo Intercompany Note except in connection with a mandatory prepayment
pursuant to Section 2.9(a)(ii) all the proceeds of which payment are applied to
the payment of the Loans (or provision of cash collateral for Letters of Credit)
as specified in Section 2.9(c) (and the Borrower agrees to make such a demand
upon receipt of a written request that it do so delivered by the Administrative
Agent at any time when an Event of Default shall have occurred and be
continuing), (b) amend, modify, waive or otherwise change, or consent or agree
to any amendment, modification, waiver or other change to, any of the terms of
the SwissCo Intercompany Note or the collateral arrangements in respect thereof
(other than any such amendment, modification, waiver or other change that (i)
would solely increase the amount of any payment of principal thereof or increase
the rate for the payment of interest thereon or would solely provide for payment
thereunder in euro based on the Dollars/euro exchange rate at time of payment
and (ii) does not involve the payment of a consent fee), (c) notwithstanding
clause (b) above and except as permitted by clause (a) above, permit the
aggregate outstanding principal amount of the SwissCo Intercompany Note to be
less than $106,356,297.13 or (d) Dispose of the SwissCo Intercompany Note or the
collateral therefor (other than pursuant to a merger or consolidation permitted
pursuant to Section 6.4(i) or (iv)). Each of the Borrower and Holdings will not,
and will not permit any of its Subsidiaries to, directly or indirectly, fail to:
(i) no later than 180 days (plus, upon the Administrative Agent's
prior written consent, up to an additional 180 days) after the Closing
Date, record the SwissCo 2 Note Security Agreement Amendment, the SwissCo 2
Note Security Agreement or such other documents or take such other actions
as shall be necessary such that, at all times from and after the date 180
days (plus, upon the Administrative Agent's prior written consent, up to an
additional 180 days) after the Closing Date, in the case of any Lien on any
Foreign Trademark granted by SwissCo 2 to the Borrower under the SwissCo 2
Note Original
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Security Agreement that was perfected under the Requirements of Law of any
Foreign Trademarks Applicable Jurisdictions applicable to such Foreign
Trademark immediately prior to the Closing Date, the Lien granted by
SwissCo 2 to the Borrower under the SwissCo 2 Note Security Agreement in
such Foreign Trademark shall continue to be perfected under the
Requirements of Law of such jurisdiction; and
(ii) no later than the date 180 days (plus, upon the Administrative
Agent's prior written consent, up to an additional 180 days) after the
Closing Date, deliver to the Administrative Agent the following legal
opinions, dated within 180 days (plus, upon the Administrative Agent's
prior written consent, up to an additional 180 days) of the Closing Date,
addressed to the Administrative Agent and the Lenders and Issuers and in
form and substance reasonably satisfactory to the Administrative Agent and
substantially to the effect of the opinions delivered to the administrative
agent under the Prior Credit Facility (modified to relate to the SwissCo 2
Note Security Agreement):
(A) the legal opinions of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
Swiss counsel reasonably acceptable to the Administrative Agent and
Ladas & Parry, counsel to the Borrower and its Subsidiaries, which
legal opinions shall cover (1) the validity, enforceability, due
authorization and execution of the SwissCo Intercompany Note, (2) the
absence of conflicts with Contractual Obligations and Requirements of
Law of the Borrower and its Subsidiaries with respect to the SwissCo
Intercompany Note and the pledge of the Foreign Trademarks, (3) the
creation and enforceability of the Borrower's security interest under
the SwissCo 2 Note Security Agreement in the Foreign Trademarks, and
(4) the continuation of the creation and perfection of the
Administrative Agent's security interest in the Collateral; and
(B) the legal opinions of local counsel to the Borrower in
each of France, Germany, the United Kingdom, Italy, Benelux, Mexico
and Australia regarding the creation, perfection and enforceability of
the Borrower's security interest under the SwissCo 2 Note Security
Agreement in the Foreign Trademarks in the respective Foreign
Trademarks Specified Jurisdictions.
SECTION 6.17 MODIFICATION OF SUBORDINATED AGREEMENTS. Each of the Borrower
and Holdings will not, and will not permit any of its Subsidiaries to, directly
or indirectly, change or amend the terms of the Senior Subordinated Notes (or
the Senior Subordinated Notes Indenture or any other agreement in connection
therewith) if the effect of such amendment is to: (a) increase the interest rate
on such debt (other than to provide for the payment in kind in lieu of cash of
any portion of the interest or fees of such Indebtedness); (b) change the dates
upon which payments of principal or interest are due on such debt other than to
extend such dates; (c) change any default or event of default other than to
delete or make less restrictive any default provision therein or extend the
grace period related thereto; (d) change the redemption or prepayment provisions
of such debt other than to extend the dates therefor or to reduce the premiums
payable in connection therewith; (e) change the subordination provisions
thereof; or (f) change or amend any other term if such change or amendment,
together with all other changes and amendments made, would materially increase
the obligations of the obligor or confer additional material
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rights to the holder of such debt which would be adverse to Holdings, the
Borrower, any of its Subsidiaries, the Administrative Agent or any Lender.
SECTION 6.18 POST-CLOSING DELIVERIES. Each of Holdings and the Borrower
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, fail to (a) deliver to the Administrative Agent each item set forth
in Schedule 6.18, in form and substance reasonably satisfactory to the
Administrative Agent and together with each certificate or other document
ancillary thereto and reasonably requested by the Administrative Agent and (b)
perform each action set forth in Schedule 6.18 in a manner reasonably
satisfactory to the Administrative Agent and together with each ancillary action
reasonably requested by the Administrative Agent to be performed by any Loan
Party in connection therewith, in each case (x) within the periods set forth
opposite each such item or action on such Schedule and (y) unless otherwise
agreed by the Administrative Agent in respect of any such item or action.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.1 EVENTS OF DEFAULT. Each of the following events shall be an
Event of Default:
(a) the Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation,
or any other amount payable hereunder or under any other Loan Document, within
five days after any such interest or other amount becomes due in accordance with
the terms hereof or thereof (after giving effect to any grace period specified
herein or therein with respect thereto); or
(b) any representation or warranty made or deemed made by any Loan Party
herein or in any other Loan Document or that is contained in any certificate,
document or financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove to
have been inaccurate in any material respect on or as of the date made or deemed
made; or
(c) (i) any Loan Party shall default in the observance or performance of
any agreement contained in clause (i) or (ii) of Section 5.4(a) (with respect to
Holdings or the Borrower only), Section 5.7(i) or Article VI of this Agreement
or Section 4.3 or Section 4.4(c)of the Security Agreement or (ii) an "EVENT OF
DEFAULT" under and as defined in any Mortgage shall have occurred and be
continuing; or
(d) any Loan Party shall default in the observance or performance of any
other agreement contained in this Agreement or any other Loan Document (other
than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days after notice to the
Borrower from the Administrative Agent or any Lender; or
(e) Holdings, the Borrower or any of its Subsidiaries shall (i) default in
making any payment of any principal of any Indebtedness (including any Guarantee
Obligation, but excluding the Loans) on the due date with respect thereto (after
giving effect to any grace period with respect thereto); or (ii) default in
making any payment of any interest on any such
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Indebtedness beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or (iii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event or condition shall occur or
condition exist, if (in the case of this clause (iii)) the effect of such
default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder
or beneficiary) to cause, such Indebtedness to become due prior to its stated
maturity or (in the case of any such Indebtedness constituting a Guarantee
Obligation) to become payable; PROVIDED that a default, event or condition
described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any
time constitute an Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in clauses (i), (ii) and (iii) of
this paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the aggregate
$5,000,000; or
(f) (i) Holdings, the Borrower or any of its Significant Subsidiaries
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or Holdings, the Borrower or any of its Significant Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against Holdings, the Borrower or any of its Significant
Subsidiaries any case, proceeding or other action of a nature referred to in
clause (i) above that (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
Holdings, the Borrower or any of its Significant Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets that results in the entry of an order for any such relief that shall
not have been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) Holdings, the Borrower or any of its
Significant Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) Holdings, the Borrower or any of its
Significant Subsidiaries shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due; or
(g) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower or any ERISA
Affiliate, (iii) a Reportable Event shall occur with respect to, or proceedings
shall commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the reasonable
opinion of the Requisite Lenders, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the
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Borrower or any ERISA Affiliate shall, or in the reasonable opinion of the
Requisite Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan,
which event or condition specified in any of clauses (i) through (vi) above,
together with all other such events or conditions, if any, could, in the
reasonable judgment of the Requisite Lenders, reasonably be expected to have a
Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against Holdings,
the Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance as to which the relevant insurance
company has acknowledged coverage) of $5,000,000 or more, and all such judgments
or decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days after the entry thereof; or
(i) any of the Security Documents shall cease, for any reason, to be in
full force and effect, or any Loan Party or any Affiliate of any Loan Party
shall so assert, or any Lien created by any of the Security Documents shall
cease to be enforceable and of the same effect and priority purported to be
created thereby; or
(j) the guarantee of any Guarantor contained in the Guaranty shall cease,
for any reason, to be in full force and effect or any Loan Party or any
Affiliate of any Loan Party shall so assert; or
(k) either (A) so long as the LLC exists, (x) the Sponsor shall cease to
have the power to vote or direct the appointment of a majority of the board of
managers or other governing body of the LLC (determined on a fully diluted
basis), (y) the LLC shall cease to have the power to vote or direct the voting
of securities having a majority of the of the ordinary voting power for the
election of directors of Holdings (determined on a fully diluted basis), or (z)
the LLC shall cease to own and control, of record and beneficially at least
66-2/3% of each class of outstanding Capital Stock of Holdings free and clear of
all Liens (except Liens created by the Security Agreement) or (B) in any case
where the LLC no longer exists, the Permitted Investors shall cease to have the
power to vote or direct the voting of securities having a majority of the
ordinary voting power for the election of directors of Holdings (determined on a
fully diluted basis); or
(l) (i) the Permitted Investors shall cease to own of record and
beneficially, directly or indirectly, an amount of common stock of Holdings
equal to at least 66-2/3% of the amount of common stock of Holdings owned,
directly or indirectly, by the Permitted Investors as of the Formation Date;
(ii) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")),
excluding the LLC and Permitted Investors, shall become, or obtain rights
(whether by means or warrants, options or otherwise) to become, the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),
directly or indirectly, of more than 33-1/3% of the outstanding common stock of
Holdings; (iii) the board of directors of Holdings shall cease to consist of a
majority of Continuing Directors; (iv) Holdings shall cease to own and control,
of record and beneficially, directly, 100% of each class of outstanding Capital
Stock of the Borrower free and clear of all Liens (except Liens created by the
Security Agreement); or (v) any "Change of Control" as defined in the Senior
Subordinated Notes Indenture shall have occurred or exist; or
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(m) Holdings shall (i) conduct, transact or otherwise engage in, or commit
to conduct, transact or otherwise engage in, any business or operations other
than those incidental to its ownership of the Capital Stock of the Borrower,
(ii) incur, create, assume or suffer to exist any Indebtedness or other
liabilities or financial obligations, except (x) nonconsensual obligations
imposed by operation of law, (y) pursuant to the Loan Documents to which it is a
party and (z) obligations with respect to its Capital Stock or Holdings
Permitted PIK Notes issued pursuant to Section 6.2(xii), or (iii) own, lease,
manage or otherwise operate any properties or assets (including cash (other than
cash received in connection with dividends made by the Borrower in accordance
with Section 6.6 pending application in the manner contemplated by said Section)
and cash equivalents) other than the ownership of shares of Stock of the
Borrower.
SECTION 7.2 REMEDIES. During the continuance of any Event of Default, the
Administrative Agent (i) may, and shall at the request of the Requisite Lenders,
by notice to the Borrower declare that all or any portion of the Commitments be
terminated, whereupon the obligation of each Lender to make any Loan and each
Issuer to issue any Letter of Credit shall immediately terminate, or (ii) may
and shall at the request of the Requisite Lenders, by notice to the Borrower,
declare the Loans, all interest thereon and all other amounts and Obligations
payable under this Agreement or the other Loan Documents (other than any
Obligations with respect to Hedging Contracts) to be forthwith due and payable,
whereupon the Loans, all such interest and all such amounts and Obligations
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower; PROVIDED, HOWEVER, that upon the occurrence of the Event of
Default specified in Section 7.1(f) in connection with any Loan Party, (A) the
Commitments of each Lender to make Loans and of each Lender and Issuer to issue
or participate in Letters of Credit shall automatically be terminated and (B)
the Loans, all such interest and all such amounts and Obligations (other than
any Obligations with respect to Hedging Contracts) shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower. In addition
to the remedies set forth above, the Administrative Agent may exercise any
remedies provided for by the Collateral Documents in accordance with the terms
thereof or any other remedies provided by applicable law.
SECTION 7.3 ACTIONS IN RESPECT OF LETTERS OF CREDIT. Upon the Revolving
Credit Termination Date or as required by Section 2.9, the Borrower shall pay to
the Administrative Agent in immediately available funds at the Administrative
Agent's office referred to in Section 9.8, for deposit in a Cash Collateral
Account an amount, which when combined with any amounts therein previously
deposited in accordance with clause (x)(B)(ii) or clause (y)(B)(ii) of Section
2.4(b), equals the sum of all outstanding Letter of Credit Obligations. The
Administrative Agent may, from time to time after funds are so deposited in such
Cash Collateral Account, apply such funds then held in such Cash Collateral
Account to the payment of any amounts, in accordance with Section 2.13(f), as
shall have become or shall become due and payable by the Borrower to the Issuers
or Revolving Credit Lenders in respect of the Letter of Credit Obligations. The
Administrative Agent shall promptly give the Borrower written notice of any such
application; PROVIDED, HOWEVER, that the failure to give such written notice
shall not invalidate any such application; PROVIDED FURTHER that all amounts on
deposit in the Cash Collateral Account (other than those deposited in accordance
with clause (x)(B)(ii) or clause
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(y)(B)(ii) of Section 2.4(b) or Section 2.9(f)) at any time shall promptly be
paid to the Borrower if no Event of Default shall be continuing at such time.
SECTION 7.4 RESCISSION. If at any time after termination of the Revolving
Credit Commitments or acceleration of the maturity of the Loans, the Borrower
shall pay all arrears of interest and all payments on account of principal of
the Loans and Reimbursement Obligations which shall have become due otherwise
than by acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified herein) and all Events of
Default and Defaults (other than non-payment of principal of and accrued
interest on the Loans due and payable solely by virtue of acceleration) shall be
remedied or waived pursuant to Section 9.1, then upon the written consent of the
Requisite Lenders and written notice to the Borrower, the termination of the
Revolving Credit Commitments or the acceleration and their consequences may be
rescinded and annulled; but such action shall not affect any subsequent Event of
Default or Default or impair any right or remedy consequent thereon. The
provisions of the preceding sentence are intended merely to bind the Lenders and
the Issuers to a decision which may be made at the election of the Requisite
Lenders; they are not intended to benefit the Borrower and do not give the
Borrower the right to require the Lenders to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are met.
ARTICLE VIII
THE ADMINISTRATIVE AGENT; THE AGENTS
SECTION 8.1 AUTHORIZATION AND ACTION.
(a) Each Lender and each Issuer hereby appoints CSFB as the Administrative
Agent hereunder and each Lender and each Issuer authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement and the other Loan Documents as are delegated to the
Administrative Agent under such agreements and to exercise such powers as are
reasonably incidental thereto. Without limitation of the foregoing, each Lender
and each Issuer hereby authorizes the Administrative Agent to execute and
deliver, and to perform its obligations under, each of the Loan Documents to
which the Administrative Agent is a party and to exercise all rights, powers and
remedies that the Administrative Agent may have under such Loan Documents and
that under the Collateral Documents the Administrative Agent is acting as agent
for the Lenders, Issuers and the other Secured Parties.
(b) As to any matters not expressly provided for by this Agreement and the
other Loan Documents (including enforcement or collection), the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Requisite
Lenders, and such instructions shall be binding upon all Lenders and each
Issuer; PROVIDED, HOWEVER, that the Administrative Agent shall not be required
to take any action which (i) the Administrative Agent in good faith believes
exposes it to personal liability unless the Administrative Agent receives an
indemnification satisfactory to it from the Lenders and the Issuers with respect
to such action or (ii) is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender and each Issuer prompt notice
of each notice given to it by any Loan Party pursuant to the terms of this
Agreement or the other Loan Documents.
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(c) In performing its functions and duties hereunder and under the other
Loan Documents, the Administrative Agent is acting solely on behalf of the
Lenders and the Issuers and its duties are entirely administrative in nature.
The Administrative Agent does not assume and shall not be deemed to have assumed
any obligation other than as expressly set forth herein and in the other Loan
Documents or any other relationship as the agent, fiduciary or trustee of or for
any Lender, Issuer or holder of any other Obligation. The Administrative Agent
may perform any of its duties under any of the Loan Documents by or through its
agents or employees.
(d) Notwithstanding anything to the contrary contained in this Agreement,
the Arranger, the Syndication Agent and each Co-Documentation Agent is a Lender
designated as Sole Arranger and Book Manager, Syndication Agent or
Co-Documentation Agent, as applicable, for title purposes only and in such
capacity shall have no obligations or duties whatsoever under this Agreement or
any other Loan Document to any Loan Party, any Lender or any Issuer and shall
have no rights separate from its rights as a Lender except as expressly provided
in this Agreement.
SECTION 8.2 ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither the
Administrative Agent nor any of its Affiliates or any of the respective
directors, officers, agents or employees of the Administrative Agent or any such
Affiliate shall be liable for any action taken or omitted to be taken by it,
him, her or them under or in connection with this Agreement or the other Loan
Documents, except for its, his, her or their own gross negligence or willful
misconduct. Without limiting the foregoing, the Administrative Agent (a) may
treat the payee of any Note as its holder until such Note has been assigned in
accordance with Section 9.2; (b) may rely on the Register to the extent set
forth in Section 9.2(d); (c) may consult with legal counsel (including counsel
to the Borrower or any other Loan Party), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (d) makes no warranty or representation to any
Lender or Issuer and shall not be responsible to any Lender or Issuer for any
statements, warranties or representations made by or on behalf of the Borrower
or any of its Subsidiaries in or in connection with this Agreement or any of the
other Loan Documents; (e) shall not have any duty to ascertain or to inquire
either as to the performance or observance of any of the terms, covenants or
conditions of this Agreement or any of the other Loan Documents or the financial
condition of any Loan Party, or the existence or possible existence of any
Default or Event of Default; (f) shall not be responsible to any Lender or
Issuer for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the attachment, perfection or priority of any Lien
created or purported to be created under or in connection with, this Agreement
or any of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; and (g) shall incur no liability under or in respect
of this Agreement or any of the other Loan Documents by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopy or
electronic mail) or any telephone message believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 8.3 THE ADMINISTRATIVE AGENT INDIVIDUALLY. With respect to its
Ratable Portion, CSFB shall have and may exercise the same rights and powers
hereunder and is subject to the same obligations and liabilities as and to the
extent set forth herein for any other Lender. The terms "LENDERS" or "REQUISITE
LENDERS" or any similar terms shall, unless the context clearly otherwise
indicates, include the Administrative Agent in its individual capacity as a
Lender or as
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one of the Requisite Lenders. CSFB and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with any Loan Party as if it were not acting as the Administrative
Agent.
SECTION 8.4 LENDER CREDIT DECISION. Each Lender and each Issuer
acknowledges that it shall, independently and without reliance upon the
Administrative Agent or any other Lender conduct its own independent
investigation of the financial condition and affairs of the Borrower and each
other Loan Party in connection with the making and continuance of the Loans and
with the issuance of the Letters of Credit. Each Lender and each Issuer also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and other
Loan Documents.
SECTION 8.5 INDEMNIFICATION. Each Lender agrees to indemnify the
Administrative Agent and each of its Affiliates, and each of their respective
directors, officers, employees, agents and advisors (to the extent not
reimbursed by the Borrower), from and against such Lender's aggregate Ratable
Portion of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements (including
reasonable fees and disbursements of legal counsel) of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against, the
Administrative Agent or any of its Affiliates, directors, officers, employees,
agents and advisors in any way relating to or arising out of this Agreement or
the other Loan Documents or any action taken or omitted by the Administrative
Agent under this Agreement or the other Loan Documents; PROVIDED, HOWEVER, that
no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's or such Affiliate's
gross negligence or willful misconduct. Without limiting the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including reasonable fees and
disbursements of legal counsel) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of its rights or
responsibilities under, this Agreement or the other Loan Documents, to the
extent that the Administrative Agent is not reimbursed for such expenses by the
Borrower or any other Loan Party.
SECTION 8.6 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Requisite Lenders shall have the right
to appoint a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Requisite Lenders, and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent's giving of notice of resignation, then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent,
selected from among the Lenders. In either case, such appointment shall be
subject to the prior written approval of the Borrower (which approval may not be
unreasonably withheld and shall not be required upon the occurrence and during
the continuance of an Event of Default). Upon the acceptance of any appointment
as Administrative Agent by a successor Administrative Agent, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, privileges
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and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. Prior to any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the retiring Administrative Agent
shall take such action as may be reasonably necessary to assign to the successor
Administrative Agent its rights as Administrative Agent under the Loan
Documents. After such resignation, the retiring Administrative Agent shall
continue to have the benefit of this Article VIII as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this Agreement
and the other Loan Documents.
SECTION 8.7 CONCERNING THE COLLATERAL AND THE COLLATERAL DOCUMENTS.
(a) Each Lender and each Issuer agrees that any action taken by the
Administrative Agent or the Requisite Lenders (or, where required by the express
terms of this Agreement, a greater proportion of the Lenders) in accordance with
the provisions of this Agreement or of the other Loan Documents, and the
exercise by the Administrative Agent or the Requisite Lenders (or, where so
required, such greater proportion) of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders, Issuers and other Secured
Parties. Without limiting the generality of the foregoing, the Administrative
Agent shall have the sole and exclusive right and authority to (i) act as the
disbursing and collecting agent for the Lenders and the Issuers with respect to
all payments and collections arising in connection herewith and with the
Collateral Documents; (ii) execute and deliver each Collateral Document and
accept delivery of each such agreement delivered by the Borrower or any of its
Subsidiaries; (iii) act as collateral agent for the Lenders, the Issuers and the
other Secured Parties for purposes of the perfection of all security interests
and Liens created by such agreements and all other purposes stated therein;
PROVIDED, HOWEVER, that the Administrative Agent hereby appoints, authorizes and
directs each Lender and Issuer to act as collateral sub-agent for the
Administrative Agent, the Lenders and the Issuers for purposes of the perfection
of all security interests and Liens with respect to the Borrower's and its
Subsidiaries' respective deposit accounts maintained with, and cash and Cash
Equivalents held by, such Lender or such Issuer; (iv) manage, supervise and
otherwise deal with the Collateral; (v) take such action as is necessary or
desirable to maintain the perfection and priority of the security interests and
Liens created or purported to be created by the Collateral Documents; (vi) take
all such action as is necessary to release any Subsidiary Guarantor or Holdings
from its obligations under the Guaranty in connection with a sale or other
Disposition (other than to a Loan Party) permitted pursuant to a waiver or
consent of a transaction otherwise prohibited by this Agreement; and (vii)
except as may be otherwise specifically restricted by the terms hereof or of any
other Loan Document, exercise all remedies given to the Administrative Agent,
the Lenders, the Issuers and the other Secured Parties with respect to the
Collateral under the Loan Documents relating thereto, applicable law or
otherwise.
(b) Each of the Lenders and the Issuers hereby directs, in accordance with
the terms hereof, the Administrative Agent to release (or, in the case of clause
(ii) below, release or subordinate) any Lien held by the Administrative Agent
for the benefit of the Lenders and the Issuers:
(i) against all of the Collateral, upon termination of the
Commitments and payment and satisfaction in full of all Loans,
Reimbursement Obligations and all other
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matured Obligations that the Administrative Agent has been notified in
writing are then due and payable (and, in respect of contingent Letter of
Credit Obligations, with respect to which cash collateral has been
deposited or a back-up letter of credit has been issued, in either case on
terms reasonably satisfactory to the Administrative Agent and the
applicable Issuers);
(ii) against any assets that are subject to a Lien permitted by
Section 6.3(vi); and
(iii) against any part of the Collateral sold or disposed of by a
Loan Party (A) if such sale or disposition is permitted by this Agreement
(or permitted pursuant to a waiver or consent of a transaction otherwise
prohibited by this Agreement) or (B) if not pursuant to such sale or
disposition, (x) against Collateral with a book value of up to $1,000,000,
if such release is consented to by the Requisite Lenders or (y) any part of
the Collateral in excess of such amount, if such release is consented to by
all the Lenders.
Each of the Lenders and the Issuers hereby directs the Administrative Agent to
execute and deliver or file such termination and partial release statements and
do such other things as are necessary to release Liens to be released pursuant
to this Section 8.7 promptly upon the effectiveness of any such release.
SECTION 8.8 COLLATERAL MATTERS RELATING TO RELATED OBLIGATIONS. The
benefit of the Loan Documents and of the provisions of this Agreement relating
to the Collateral shall extend to and be available in respect of any Secured
Obligation arising under any Hedging Contract or which is otherwise owed to
Persons other than the Administrative Agent, the Arranger, the Lenders and the
Issuers (collectively, "RELATED OBLIGATIONS") solely on the condition and
understanding, as among the Administrative Agent and all Secured Parties, that
(i) the Related Obligations shall be entitled to the benefit of the Loan
Documents and the Collateral to the extent expressly set forth in this Agreement
and the other Loan Documents and to such extent the Administrative Agent shall
hold, and have the right and power to act with respect to, the Guaranty and the
Collateral on behalf of and as agent for the holders of the Related Obligations,
but the Administrative Agent is otherwise acting solely as agent for the Lenders
and the Issuers and shall have no fiduciary duty, duty of loyalty, duty of care,
duty of disclosure or other obligation whatsoever to any holder of Related
Obligations; (ii) all matters, acts and omissions relating in any manner to the
Guaranty, the Collateral, or the omission, creation, perfection, priority,
abandonment or release of any Lien, shall be governed solely by the provisions
of this Agreement and the other Loan Documents and no separate Lien, right,
power or remedy shall arise or exist in favor of any Secured Party under any
separate instrument or agreement or in respect of any Related Obligation; and
(iii) each Secured Party shall be bound by all actions taken or omitted, in
accordance with the provisions of this Agreement and the other Loan Documents,
by the Administrative Agent and the Requisite Lenders, each of whom shall be
entitled to act at its sole discretion and exclusively in its own interest given
its own Commitments and its own interest in the Loans, Letter of Credit
Obligations and other Obligations to it arising under this Agreement or the
other Loan Documents, without any duty or liability to any other Secured Party
or as to any Related Obligation and without regard to whether any Related
Obligation remains outstanding or is deprived of the benefit of the Collateral
or becomes unsecured or is otherwise affected or put in jeopardy thereby; and
(iv) no holder of
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Related Obligations and no other Secured Party (except the Administrative Agent,
the Arranger, the Lenders and the Issuers, to the extent set forth in this
Agreement) shall have any right to be notified of, or to direct, require or be
heard with respect to, any action taken or omitted in respect of the Collateral
or under this Agreement or the Loan Documents; and (v) no holder of any Related
Obligation shall exercise any right of setoff, banker's lien or similar right
except as expressly provided in Section 9.6.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 AMENDMENTS. WAIVERS. ETC.
(a) No amendment or waiver of any provision of this Agreement or any other
Loan Document (other than any Hedging Contract) nor consent to any departure by
any Loan Party therefrom shall in any event be effective unless the same shall
be in writing and signed by the Requisite Lenders, and then any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; PROVIDED, HOWEVER, that no amendment, waiver or consent
shall, unless in writing and signed by each Lender directly affected thereby, in
addition to the Requisite Lenders, do any of the following:
(i) waive any of the conditions specified in Section 3.1 or
Section 3.2 except with respect to a condition based upon another provision
hereof, the waiver of which requires only the concurrence of the Requisite
Lenders;
(ii) increase the Commitments of such Lender or subject such Lender
to any additional obligations; PROVIDED, HOWEVER, that any such increase
with respect to the Tranche A (Euro) Term Loan, Tranche B Term Loan or the
Revolving Loan Commitments shall require the consent of the Requisite
Tranche A (Euro) Term Loan Lenders, the Requisite Tranche B Term Loan
Lenders or the Requisite Revolving Credit Lenders, as the case may be;
(iii) extend the scheduled final maturity of any Loan due to such
Lender, or waive, reduce or postpone any scheduled date fixed for the
payment of principal on such Loan or reduction of the Commitments of such
Lender (it being understood that Section 2.9 does not provide for scheduled
dates fixed for payment or reduction);
(iv) reduce the principal amount of any Loan or Reimbursement
Obligation due to such Lender (other than by the payment or prepayment
thereof);
(v) reduce the rate of interest on any Loan or Reimbursement
Obligations outstanding to such Lender or any fee payable hereunder to such
Lender (other than a waiver of the application of any default rate of
interest or default fees in respect of Letters of Credit);
(vi) postpone any scheduled date fixed for payment of interest or
fees due to such Lender or amend the definition of "Interest Period" so as
to permit intervals greater than six months;
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(vii) change the aggregate Ratable Portions of the Lenders required
for any or all Lenders to take any action hereunder;
(viii) release the Administrative Agent's Lien on all or
substantially all of the Collateral except as provided in Section 8.7(b) or
release any Subsidiary Guarantor or Holdings from its obligations under the
Guaranty except in connection with any sale or other Disposition (other
than to a Loan Party) permitted pursuant to a waiver or consent of a
transaction otherwise prohibited by this Agreement; or
(ix) amend Section 8.7(b) or this Section 9.1 or the definition of
the terms "REQUISITE LENDERS", "REQUISITE REVOLVING CREDIT LENDERS",
"REQUISITE TRANCHE A (EURO) TERM LOAN LENDERS", "REQUISITE TRANCHE B TERM
LOAN LENDERS" or "RATABLE PORTION";
and PROVIDED, FURTHER, that (A) any waiver of or modification of the application
of payments of the Term Loans pursuant to Section 2.9 shall require the consent
of the Requisite Tranche A (Euro) Term Loan Lenders and the Requisite Tranche B
Term Loan Lenders and any such waiver of or modification of the application of
payments of the Revolving Loans pursuant to Section 2.9 or the reduction of the
Revolving Credit Commitments pursuant to Section 2.5(b) shall require the
consent of the Requisite Revolving Credit Lenders, (B) any amendment, waiver or
consent of any provision of this Agreement or any other Loan Document shall be
effective only in the specific instance and for the specific purpose for which
given, and (C) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the Administrative Agent under
this Agreement or the other Loan Documents.
(b) The Administrative Agent may, but shall have no obligation to, with
the written concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of that 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 the Borrower in any case shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances.
(c) If in connection with any proposed amendment, modification, waiver or
termination (a "PROPOSED CHANGE") requiring the consent of all affected Lenders,
the consent of Requisite Lenders is obtained, but the consent of other Lenders
whose consent is required is not obtained (any such Lender whose consent is not
obtained as described in this Section 9.1 being referred to as a "NON-CONSENTING
LENDER"), then, so long as the Lender that is acting as the Administrative Agent
is not a Non-Consenting Lender, at the Borrower's request, the Administrative
Agent or an potential assignee that is acceptable to the Administrative Agent
shall have the right with the Administrative Agent's consent and in the
Administrative Agent's sole discretion (but the Administrative Agent shall have
no obligation) to purchase from such Non-Consenting Lender, and such
Non-Consenting Lender agrees that it shall, upon the Administrative Agent's
request, sell and assign to the Lender that is acting as the Administrative
Agent or such potential assignee, all of the Commitments, Term Loans and
Revolving Credit Outstandings of such Non-Consenting Lender for an amount equal
to the principal balance of all Term Loans and Revolving Loans held by the
Non-Consenting Lender and all accrued and unpaid interest and fees with respect
thereto through the date of sale; PROVIDED, HOWEVER, that
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such purchase and sale shall not be effective until (x) the Administrative Agent
shall have received from such potential assignee an agreement in form and
substance satisfactory to the Administrative Agent and the Borrower whereby such
potential assignee shall agree to be bound by the terms hereof and (y) such
Non-Consenting Lender shall have received payments of all Loans held by it and
all accrued and unpaid interest and fees with respect thereto through the date
of the sale. Each Lender agrees that, if it becomes a Non-Consenting Lender, it
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance to evidence such sale and purchase and shall deliver to the
Administrative Agent any Note (if the assigning Lender's Loans are evidenced by
a Note) subject to such Assignment and Acceptance; PROVIDED, HOWEVER, that the
failure of any Non-Consenting Lender to execute an Assignment and Acceptance
shall not render such sale and purchase (and the corresponding assignment)
invalid.
(d) Each Lender and holder of any Note shall be bound by any amendment,
waiver or consent authorized by this Section 9.1 regardless of whether its Notes
shall be marked to make reference thereto, and any consent by any Lender or
holder of a Note pursuant to this Section shall bind any person subsequently
acquiring a Note from it, whether or not such Note shall be so marked.
SECTION 9.2 ASSIGNMENTS AND PARTICIPATIONS.
(a) Subject to the conditions set forth in Section 9.2(b), each Lender may
sell, transfer, negotiate or assign to one or more assignees all or a portion of
its rights and obligations hereunder (including all of its rights and
obligations with respect to the Term Loans, the Revolving Loans, the Swing Loans
and the Letters of Credit), with the prior written consent (such consent not to
be unreasonably withheld or delayed) of:
(i) the Borrower, PROVIDED, HOWEVER, that no consent of the
Borrower shall be required for an assignment to (x) a Lender or an
Affiliate or Approved Fund of a Lender or (y) if an Event of Default has
occurred and is continuing or such assignment is made in connection with
the primary syndication of the Revolving Credit Commitments or the Term
Loans by the Arranger, any other assignee;
(ii) the Administrative Agent; and
(iii) in the case of an assignment of all or a portion of the
Revolving Credit Commitment or Revolving Credit Outstandings of any Lender,
each Issuer and the Swing Loan Lender.
(b) Assignments shall be subject to the following conditions:
(i) except in the case of an assignment to a Lender or an
Affiliate or Approved Fund of a Lender:
(A) in the case of any Term Loan, the aggregate amount being
assigned pursuant to such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not (if less than the Assignor's
entire interest in such Term Loan) be
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less than $1,000,000 (if a Tranche B Term Loan) or EURO 1,000,000 (if
a Tranche A (Euro) Term Loan); or
(B) in the case of any Revolving Credit Commitment or
Revolving Credit Outstandings, the aggregate amount of the Revolving
Credit Commitment (or, if the Revolving Credit Commitments have been
reduced to zero, the Dollar Equivalent of the Revolving Credit
Outstandings) being assigned to such assignment (determined as of the
date the Assignment and Assumption with respect to such assignment if
delivered to the Administrative Agent) shall not (if less than the
Assignor's entire interest in the Revolving Credit Facility) be less
than $1,000,000
unless in any, such case, each of the Borrower and the Administrative Agent
otherwise consent, provided that no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing;
(ii) 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 Commitments assigned,
PROVIDED, HOWEVER, that this clause shall not be construed to prohibit any
Lender from assigning all or a portion of its rights and obligations among
separate Facilities on a non-pro rata basis;
(iii) if any such assignment shall be of the assigning Lender's
Revolving Credit Outstandings and Revolving Credit Commitment, such
assignment shall cover the same percentage of such Lender's Revolving
Credit Outstandings and Revolving Credit Commitment;
(iv) if any such assignment shall be of the assigning Lender's
Tranche A (Euro) Term Loans and Tranche A (Euro) Term Loan Commitment, such
assignment shall cover the same percentage of such Lender's Tranche A
(Euro) Term Loans and Tranche A (Euro) Term Loan Commitment;
(v) if any such assignment shall be of the assigning Lender's
Tranche B Term Loan and Tranche B Term Loan Commitment, such assignment
shall cover the same percentage of such Lender's Tranche B Term Loan and
Tranche B Term Loan Commitment;
(vi) the parties to each such assignment shall (A) electronically
execute and deliver to the Administrative Agent, for its acceptance and
recording, an Assignment and Acceptance via an electronic settlement system
acceptable to the Administrative Agent (which initially shall be ClearPar,
LLC) or (B) manually execute and deliver to the Administrative Agent, for
its acceptance and recording, an Assignment and Acceptance, together with
in the case of clause (B), a processing and recordation fee of US$3,500;
(vii) the assignee, if not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire and the applicable tax
forms, duly completed by such assignee; and
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(viii) if the assigning Lender's Loans are evidenced by a Note, the
Assignor shall deliver to the Administrative Agent any Note subject to such
assignment.
Any such assignment need not be ratable as among the Tranche A (Euro) Term Loan
Facility, the Tranche B Term Loan Facility or the Revolving Credit Facility. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with Section 9.2(a) and (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 9.2(h). If the consent of the Borrower to
an assignment is required hereunder (including a consent to an assignment which
does not meet the minimum assignment thresholds specified in Section 9.2(b)(i)),
the Borrower shall be deemed to have given its consent five Business Days after
the date written notice thereof has been delivered by the assigning Lender
(through the Administrative Agent or ClearPar) to the Borrower unless such
consent is expressly refused by the Borrower prior to such fifth Business Day.
(c) Upon such execution, delivery, acceptance and recording of an
Assignment and Acceptance, from and after the effective date specified in such
Assignment and Acceptance, (i) the assignee thereunder shall become a party
hereto and, to the extent that rights and obligations under the Loan Documents
have been assigned to such assignee pursuant to such Assignment and Acceptance,
have the rights and obligations of a Lender, and if such Lender were an Issuer,
of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall,
to the extent that rights and obligations under this Agreement have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(except those which survive the payment in full of the Obligations) and be
released from its obligations under the Loan Documents, other than those
relating to events or circumstances occurring prior to such assignment (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under the Loan Documents, such
Lender shall cease to be a party hereto).
(d) The Administrative Agent shall maintain at its address referred to in
Section 9.8 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recording of the names and addresses of the Lenders
and the Commitments of and principal amount of the Loans and Letter of Credit
Obligations owing to each Lender from time to time (the "REGISTER"). Any
assignment pursuant to this Section 9.2 shall not be effective until such
assignment is recorded in the Register. The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Loan
Parties, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender for all purposes of this Agreement.
The entries in the Register shall be available for inspection by the Borrower,
the Administrative Agent or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee required by paragraph
(b)(vi) above (if any), the applicable tax forms completed in respect of the
assignee (unless the assignee shall already be a Lender hereunder) and, if
required, the written consent of the Borrower, the Administrative Agent, each
Issuer and the Swing Loan Lender to such assignment, the Administrative Agent
shall (i) accept such
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Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower. Within five
Business Days after its receipt of such notice, the Borrower, at its own
expense, shall, if requested by such assignee, execute and deliver to the
Administrative Agent, new Notes to the order of such assignee in an amount equal
to the Commitments and Loans assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has surrendered any Note for exchange in
connection with the assignment and has retained Commitments or Loans hereunder,
new Notes to the order of the assigning Lender in an amount equal to the
Commitments and Loans retained by it hereunder. Such new Notes shall be dated
the same date as the surrendered Notes and be in substantially the form of
Exhibit ▇-▇, ▇-▇ or B-3 hereto, as applicable.
(f) Notwithstanding anything to the contrary contained herein, any Lender
(a "GRANTING LENDER") may grant to a special purpose funding vehicle (a "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; PROVIDED, HOWEVER, that (i)
nothing herein shall constitute a commitment by any SPC to make any Loan, and
(ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the related Commitment of the Granting Lender to the same extent,
and as if, such Loan were made by such Granting Lender. Each party hereto hereby
agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the
Granting Lender). In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC, such party
will not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
9.2, any SPC may (i) with notice to, but without the prior written consent of,
the Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Borrower and
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC. This Section 9.2(f)
may not be amended without the written consent of each SPC.
(g) In addition to the other assignment rights provided in this Section
9.2, each Lender may assign, as collateral or otherwise, a security interest in
any of its rights under this Agreement (including rights to payments of
principal or interest on the Loans) to (i) any Federal Reserve Bank pursuant to
Regulation A of the Federal Reserve Board without notice to or consent of the
Borrower or the Administrative Agent and (ii) any trustee for the benefit of the
holders of such Lender's Securities; PROVIDED, HOWEVER, that no such assignment
shall release the assigning Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
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(h) Each Lender may sell participations to one or more Persons in or to
all or a portion of its rights and obligations under the Loan Documents
(including all its rights and obligations with respect to the Term Loans,
Revolving Loans and Letters of Credit). The terms of such participation shall
not, in any event, require the participant's consent to any amendments, waivers
or other modifications of any provision of any Loan Documents, the consent to
any departure by any Loan Party therefrom, or to the exercising or refraining
from exercising any powers or rights which such Lender may have under or in
respect of the Loan Documents (including the right to enforce the obligations of
the Loan Parties), except if any such amendment, waiver or other modification or
consent would (i) reduce the amount, or postpone any date fixed for, any amount
(whether of principal, interest or fees) payable to such participant under the
Loan Documents, to which such participant would otherwise be entitled under such
participation or (ii) result in the release of the Administrative Agent's Lien
on all or substantially all of the Collateral other than in accordance with
Section 8.7(b). In the event of the sale of any participation by any Lender, (A)
such Lender's obligations under the Loan Documents shall remain unchanged, (B)
such Lender shall remain solely responsible to the other parties for the
performance of such obligations, (C) such Lender shall remain the holder of such
Obligations for all purposes of this Agreement, and (D) the Borrower, the
Administrative Agent 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. Each participant shall be entitled to the
benefits of Section 2.14(d), Section 2.15 and Section 2.16 as if it were a
Lender; PROVIDED, HOWEVER, that anything herein to the contrary notwithstanding,
the Borrower shall not, at any time, be obligated to pay to any participant of
any interest of any Lender, under Section 2.14(d), Section 2.15 or Section 2.16
any sum in excess of the sum which the Borrower would have been obligated to pay
to such Lender in respect of such interest had such participation not been sold.
(i) Any Issuer may at any time assign its rights and obligations hereunder
to any other Lender by an instrument in form and substance satisfactory to the
Borrower, the Administrative Agent, such Issuer and such Lender. If any Issuer
ceases to be a Lender hereunder by virtue of any assignment made pursuant to
this Section 9.2, then, as of the effective date of such cessation, such
Issuer's obligations to issue Letters of Credit pursuant to Section 2.4 shall
terminate and such Issuer shall be an Issuer hereunder only with respect to
outstanding Letters of Credit issued prior to such date.
SECTION 9.3 COSTS AND EXPENSES.
(a) The Borrower agrees to pay, or reimburse the Administrative Agent for,
all of the Administrative Agent's reasonable and documented internal and
external audit, legal, appraisal, valuation, filing, syndication, document
duplication and reproduction and investigation expenses and for all other
reasonable out-of-pocket costs and expenses of every type and nature (including
the reasonable fees, expenses and disbursements of the Administrative Agent's
counsel, Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, LLP, and any other local and special
legal counsel, auditors, accountants, appraisers, printers, insurance and
environmental advisers, and other consultants and agents) incurred by the
Administrative Agent in connection with (i) the Administrative Agent's audit and
investigation of the Borrower and its Subsidiaries in connection with the
preparation, negotiation and execution of the Loan Documents and the
Administrative Agent's periodic audits of the Borrower and its Subsidiaries, as
the case may be; PROVIDED, HOWEVER, that, except during such time as a Default
or Event of Default shall have occurred and be continuing,
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the Borrower shall have to pay or reimburse the Administrative Agent for costs
and expenses in respect of only one such periodic audit during any Fiscal Year;
(ii) the preparation, negotiation, execution and interpretation of this
Agreement (including the satisfaction or attempted satisfaction of any of the
conditions set forth in Article III), the Loan Documents and any proposal letter
or commitment letter issued in connection therewith and the making of the Loans
hereunder; (iii) the creation, perfection or protection of the Liens under the
Loan Documents (including any reasonable fees and expenses for local and special
counsel in various jurisdictions); (iv) the ongoing administration of this
Agreement and the Loans (other than ordinary overhead expenses of the
Administrative Agent in connection with such administration), including
consultation with attorneys in connection therewith and with respect to the
Administrative Agent's rights and responsibilities hereunder and under the other
Loan Documents; (v) the protection, collection or enforcement of any of the
Obligations or the enforcement of any of the Loan Documents; (vi) the
commencement, defense or intervention in any court proceeding relating in any
way to the Obligations, any Loan Party, any of the Borrower's Subsidiaries, the
Recapitalization, this Agreement or any of the other Loan Documents; (vii) the
response to, and preparation for, any subpoena or request for document
production with which the Administrative Agent is served or deposition or other
proceeding in which the Administrative Agent is called to testify, in each case,
relating in any way to the Obligations, any Loan Party, any of the Borrower's
Subsidiaries, the Recapitalization, this Agreement or any of the other Loan
Documents; and (viii) any amendments, consents, waivers, assignments,
restatements, or supplements to any of the Loan Documents and the preparation,
negotiation, and execution of the same.
(b) The Borrower further agrees to pay or reimburse the Administrative
Agent and each of the Lenders and Issuers for all reasonable out-of-pocket costs
and expenses, including, without limitation, reasonable attorneys' fees
(including allocated costs of internal counsel and costs of settlement),
incurred by the Administrative Agent, such Lenders or Issuers (i) in enforcing
any Loan Document or Obligation or any security therefor or exercising or
enforcing any other right or remedy available by reason of an Event of Default;
(ii) in connection with any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a "WORK-OUT" or in any
insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to the Obligations, any Loan
Party, any of the Borrower's Subsidiaries and related to or arising out of the
transactions contemplated hereby or by any of the other Loan Documents; and (iv)
in taking any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise) described in clauses (i) through (iii) above.
(c) All amounts payable under this Section 9.3 shall become due and
payable on the Closing Date (with respect to costs and expenses incurred on or
prior to the Closing Date for which the Borrower shall have received a request
on or prior to the Closing Date) or on the date 30 days after written demand
therefor (with respect to any other costs and expenses). Any such request or
demand shall be accompanied by invoices or other documentation containing
reasonably sufficient detail as to all such amounts so payable (except that
privileged or confidential information may be excluded therefrom).
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SECTION 9.4 INDEMNITIES.
(a) The Borrower agrees to indemnify and hold harmless the Administrative
Agent, the Arranger, each Lender and each Issuer and each of their respective
Affiliates, and each of the directors, officers, employees, agents,
representative, attorneys, trustees, consultants and advisors of or to any of
the foregoing (including those retained in connection with the satisfaction or
attempted satisfaction of any of the conditions set forth in Article III) (each
such Person being an "INDEMNITEE") from and against any and all claims, damages,
liabilities, obligations, losses, penalties, actions, judgments, suits, costs,
disbursements and expenses of any kind or nature whatsoever (including fees and
disbursements of counsel to any such Indemnitee), joint or several, which may be
imposed on, incurred by, or asserted or awarded against any such Indemnitee in
connection with or arising out of any investigation, litigation or proceeding or
the preparation of any defense in connection therewith, regardless of whether
any such investigation, litigation or proceeding is brought by any Loan Party,
any of its directors, securityholders or creditors, an Indemnitee or any other
Person, whether any such Indemnitee is otherwise a party thereto, whether
direct, indirect, or consequential and whether based on any federal, state or
local law or other statutory regulation, securities or commercial law or
regulation, or under common law or in equity, or on contract, tort or otherwise,
in any manner relating to or arising out of this Agreement, any other Loan
Document, any Obligation, any Letter of Credit, the Confidential Information
Memorandum, or any act, event or transaction related or attendant to any
thereof, or the use or intended use of the proceeds of the Loans or Letters of
Credit or in connection with any investigation of any potential matter covered
hereby (collectively, the "INDEMNIFIED MATTERS"); PROVIDED, HOWEVER, that the
Borrower shall not have any obligation under this Section 9.4 to an Indemnitee
with respect to any Indemnified Matter (x) caused by or resulting from the gross
negligence or willful misconduct of that Indemnitee or (y) arising from the
unexcused breach of any contractual commitment of such Indemnitee to the
Borrower, if (in the case of (y)) a court of competent jurisdiction in a final
non-appealable judgment or order establishes that such unexcused breach has
occurred. Without limiting the foregoing, Indemnified Matters include (i) all
Environmental Liabilities and Costs arising from or connected with the past,
present or future operations of the Borrower or any of its Subsidiaries or
damage to real or personal property or natural resources or harm or injury
alleged to have resulted from any Release of Materials of Environmental Concern
on, upon or into such property or any contiguous real estate; (ii) any costs or
liabilities incurred in connection with any Remedial Action concerning the
Borrower or any of its Subsidiaries; (iii) any costs or liabilities incurred in
connection with any Environmental Lien; and (iv) any costs or liabilities
incurred in connection with any other matter under any Environmental Law,
including the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 49 U.S.C. Sections 9601 et seq. and applicable state property
transfer laws, whether, with respect to any of such matters, such Indemnitee is
a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the
successor in interest to the Borrower or any of its Subsidiaries, or the owner,
lessee or operator of any property of the Borrower or any of its Subsidiaries by
virtue of foreclosure, except, with respect to those matters referred to in
clauses (i), (ii), (iii) and (iv) above, to the extent incurred following (A)
foreclosure by the Administrative Agent, any Lender or any Issuer, or the
Administrative Agent, any Lender or any Issuer having become the successor in
interest to the Borrower or any of its Subsidiaries, and (B) attributable to
acts of the Administrative Agent, such Lender or such Issuer or any agent on
behalf of the Administrative Agent or such Lender.
116
(b) The Borrower shall indemnify the Administrative Agent, the Lenders and
each Issuer for, and hold the Administrative Agent, the Lenders and each Issuer
harmless from and against, any and all claims for brokerage commissions, fees
and other compensation made against the Administrative Agent, the Lenders and
the Issuers for any broker, finder or consultant with respect to any agreement,
arrangement or understanding made by or on behalf of any Loan Party or any of
its Subsidiaries in connection with the transactions contemplated by this
Agreement.
(c) The Administrative Agent, each Lender and each Issuer agree that in
the event that any such investigation, litigation or proceeding set forth in
subparagraph (a) above is asserted or threatened in writing or instituted
against it or any other Indemnitee, or any Remedial Action, is requested of it
or any of its officers, directors, agents and employees, for which any
Indemnitee may desire indemnity or defense hereunder, such Indemnitee shall
notify the Borrower in writing promptly after such Indemnitee first has actual
knowledge of such investigation, litigation, proceeding or Remedial Action;
PROVIDED, HOWEVER, that the failure of such Indemnitee to promptly provide such
notice shall not reduce or eliminate the Borrower's obligations under
subparagraph (a) of this Section 9.4 except that, to the extent any rights or
defenses of Borrower therein are irrevocably forfeited solely as a result of
such failure, the Borrower's obligations under subparagraph (a) of this Section
9.4 shall exclude any obligation arising solely as a result of (and that would
not exist absent) such forfeiture of such rights or defenses.
(d) The Borrower, at the request of any Indemnitee, shall have the
obligation to defend against such investigation, litigation or proceeding or
requested Remedial Action and the Borrower, in any event, may participate in the
defense thereof with legal counsel of the Borrower's choice. In the event that
such Indemnitee requests the Borrower to defend against such investigation,
litigation or proceeding or requested Remedial Action, the Borrower shall
promptly do so and such Indemnitee shall have the right to have legal counsel of
its choice participate in such defense. No action taken by legal counsel chosen
by such Indemnitee in defending against any such investigation, litigation or
proceeding or requested Remedial Action, shall vitiate or in any way impair the
Borrower's obligation and duty hereunder to indemnify and hold harmless such
Indemnitee. The Borrower shall not be liable in respect of any settlement of any
such investigation, litigation or proceeding or requested Remedial Action
without its written consent (which consent shall not be unreasonably withheld or
delayed). The Borrower shall not, without the prior written consent of such
Indemnitee (which consent shall not be unreasonably withheld or delayed), effect
any settlement of any such investigation, litigation or proceeding or requested
Remedial Action.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the Borrower agrees that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement (including
pursuant to this Section 9.4) or any other Loan Document and any obligations of
the Borrower under Section 9.3 shall (i) survive and remain operative and in
full force and effect regardless of the occurrence of the Scheduled Termination
Date, the Tranche B Term Loan Maturity Date, the termination of any Commitments
hereunder, the consummation of (or the failure to consummate) the transactions
contemplated hereby, the repayment of any of the Loans, the invalidity or
unenforceability of any term or provision of this Agreement or the Notes, any
investigation made by or on behalf of the Administrative Agent or
117
any Lender and the payment in full of the Obligations and (ii) inure to the
benefit of any Person who was at any time an Indemnitee under this Agreement or
any other Loan Document.
(f) All amounts payable under this Section 9.4 shall become due and
payable on the date 30 days after written demand therefor which demand shall be
accompanied by invoices or other documentation containing reasonably sufficient
detail as to all such amounts so payable (except that privileged or confidential
information may be excluded therefrom). Statements payable by the Borrower
pursuant to this Section 9.4 shall be submitted to the attention of Chief
Financial Officer (Telephone No. ▇▇▇-▇▇▇-▇▇▇▇) (Telecopy No. 312-840-5101), at
the address of the Borrower in Illinois set forth in Section 9.8, with a copy to
Holdings to the attention of ▇▇▇▇▇ ▇. Uri (Telephone No. ▇▇▇-▇▇▇-▇▇▇▇) (Telecopy
No. 203-869-6940), at the address of Holdings set forth in Section 9.8 and a
copy to the Borrower to the attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telephone No.
▇▇▇-▇▇▇-▇▇▇▇) (Telecopy No. 314-657-1024) at the address of the Borrower in
Missouri set forth in Section 9.8, or to such other Person or address as may be
hereafter designated by the Borrower in a written notice to the Administrative
Agent.
SECTION 9.5 LIMITATION OF LIABILITY. Each of Holdings and the Borrower
hereby irrevocably and unconditionally waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal action
or proceeding relating to any Loan Document any special, exemplary, punitive or
consequential damages.
SECTION 9.6 RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, each Lender and each Affiliate of a Lender
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or its Affiliates to or for the credit or the
account of the Borrower against any and all of the Obligations now or hereafter
existing whether or not such Lender shall have made any demand under this
Agreement or any other Loan Document and although such Obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender or its Affiliates; PROVIDED,
HOWEVER, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender under this Section 9.6
are in addition to the other rights and remedies (including other rights of
set-off) which such Lender may have.
SECTION 9.7 SHARING OF PAYMENTS. ETC.
(a) If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off or otherwise) of the
Loans owing to it, any interest thereon, fees in respect thereof or amounts due
pursuant to Section 9.3 or Section 9.4 (other than payments pursuant to Section
2.14, Section 2.15 or Section 2.16) in excess of its Ratable Portion of all
payments of such Obligations obtained by all the Lenders, such Lender (a
"PURCHASING LENDER") shall forthwith purchase from the other Lenders (each, a
"SELLING LENDER") such participations in their Loans or other Obligations as
shall be necessary to cause such Purchasing Lender to share the excess payment
ratably with each of them.
(b) If all or any portion of any payment received by a Purchasing Lender
is thereafter recovered from such Purchasing Lender, such purchase from each
Selling Lender shall be
118
rescinded and such Selling Lender shall repay to the Purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Selling Lender's ratable share (according to the proportion of (i) the
amount of such Selling Lender's required repayment to (ii) the total amount so
recovered from the Purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
(c) The Borrower agrees that any Purchasing Lender so purchasing a
participation from a Selling Lender pursuant to this Section 9.7 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 9.8 NOTICES, ETC.
(a) All notices, demands, requests and other communications provided for
in this Agreement shall be given in writing, unless otherwise specifically
provided herein, or by any telecommunication device capable of creating a
written record (including electronic mail), and addressed to the party to be
notified as follows:
(i) if to Holdings:
c/o Pegasus Partners
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Uri
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Borrower:
Merisant Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
119
with copies to:
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
Bank One Plaza
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and: Tabletop Holdings, Inc.
c/o Pegasus Partners
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Uri
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and: Merisant Company
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to any Lender, at its Domestic Lending Office specified
opposite its name on Schedule II or on the signature page of any applicable
Assignment and Acceptance;
(iv) if to any Issuer, at the address set forth under its name on
the signature page hereof; and
(v) if to the Administrative Agent:
Credit Suisse First ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
120
with a copy to:
Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
Pennzoil Place - South Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as shall be notified in writing (i) in the case of the
Borrower and the Administrative Agent, to the other parties and (ii) in the case
of all other parties, to the Borrower and the Administrative Agent. All such
notices and communications shall be effective upon personal delivery (if
delivered by hand, including any overnight courier service), when deposited in
the mails (if sent by mail), or when properly transmitted (if sent by a
telecommunications device or through the Internet); PROVIDED, HOWEVER, that
notices and communications to the Administrative Agent pursuant to Article II or
Article X shall not be effective until received by the Administrative Agent.
SECTION 9.9 NO WAIVER; REMEDIES. No failure on the part of any Lender,
Issuer or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.10 BINDING EFFECT. This Agreement shall become effective when it
shall have been executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Lender and Issuer that
such Lender or Issuer has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and each Lender
and Issuer and, in each case, its respective successors and assigns, except that
neither Holdings nor the Borrower shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO, INCLUDING THE INTERPRETATION, CONSTRUCTION, VALIDITY AND
ENFORCEABILITY THEREOF, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 9.12 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS.
(a) Each of Holdings and the Borrower hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any other Loan Document to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general
121
jurisdiction of the courts of the State of New York, the courts of the
United States for the Southern District of New York, and appellate courts
from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to Holdings or the Borrower, as the case may be, at its address
specified in Section 9.8; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction.
(b) If for the purposes of obtaining judgment in any court it is necessary
to convert a sum due hereunder in an Applicable Currency into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the Applicable
Currency with such other currency at the spot rate of exchange quoted by the
Administrative Agent at 11:00 a.m. (New York City time) on the Business Day
preceding that on which final judgment is given, for the purchase of the
Applicable Currency, for delivery two Business Days thereafter. The obligation
of the Borrower in respect of any such sum due to any Lender or other Secured
Party (the "APPLICABLE LENDER") shall, notwithstanding any judgment in a
currency (the "JUDGMENT CURRENCY") other than the Applicable Currency in which
such is stated to be due under such Loan Document (the "AGREEMENT CURRENCY"), be
discharged only to the extent that on the Business Day following receipt by the
Applicable Lender of any sum adjudged to be so due in the Judgment Currency, the
Applicable Lender may in accordance with normal banking procedures in the
relevant jurisdiction 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 Applicable Lender in the Agreement Currency, the
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify the Applicable Lender against such loss. The obligations of the
Borrower contained in this Section 9.12(b) shall survive the termination of this
Agreement and the payment of all other amounts owing hereunder.
SECTION 9.13 WAIVER OF JURY TRIAL. EACH OF THE ADMINISTRATIVE AGENT, THE
LENDERS, THE ISSUERS, HOLDINGS AND THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY
IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT.
SECTION 9.14 MARSHALING; PAYMENTS SET ASIDE. None of the Administrative
Agent, any Lender or any Issuer shall be under any obligation to marshal any
assets in favor of the Borrower or any other party or against or in payment of
any or all of the Obligations. To the extent that the Borrower makes a payment
or payments to the Administrative Agent, the Lenders
122
or the Issuers or any of such Persons receives payment from the proceeds of the
Collateral or exercise their rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, receiver or any other party, then to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, right and remedies therefor, 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.
SECTION 9.15 SECTION TITLES. The Section titles contained in this Agreement
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
SECTION 9.16 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties in separate counterparts,
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. Signature
pages may be detached from multiple separate counterparts and attached to a
single counterpart so that all signature pages are attached to the same
document. Delivery of an executed signature page of this Agreement by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all parties
shall be lodged with the Borrower and the Administrative Agent.
SECTION 9.17 ENTIRE AGREEMENT. This Agreement, together with the third,
fourth, fifth, seventh, tenth and eleventh paragraphs of the Fee Letter, all of
the other Loan Documents and all certificates and documents delivered hereunder
or thereunder, embodies the entire agreement of the parties and supersedes all
prior agreements and understandings relating to the subject matter hereof. In
the event of any conflict between the terms of this Agreement and any other Loan
Document, the terms of this Agreement shall govern.
SECTION 9.18 CONFIDENTIALITY. Each Lender and the Administrative Agent
agree to keep information obtained by it pursuant hereto and the other Loan
Documents confidential in accordance with such Lender's or the Administrative
Agent's, as the case may be, customary practices and agrees that it will use
such information only in connection with the transactions contemplated by this
Agreement and not disclose any of such information other than (a) to such
Lender's or the Administrative Agent's, as the case may be, employees,
representatives and agents who are or are expected to be involved in the
evaluation of such information in connection with the transactions contemplated
by this Agreement and who are advised of the confidential nature of such
information, (b) to the extent such information presently is or hereafter
becomes available to such Lender or the Administrative Agent, as the case may
be, on a non-confidential basis from a source other than the Borrower, (c) to
the extent disclosure is required by law, regulation or judicial order or
requested or required by bank regulators or auditors, or (d) to assignees or
participants or potential assignees or participants or a Lender's secured
creditor, in each case who agree to be bound by the provisions of this Section
9.18. Notwithstanding any other provision in this Agreement, the Borrower,
Holdings, each Lender, each Issuer and the Administrative Agent hereby agree
that each of the Lenders, the Issuers and the Administrative Agent (and each of
their respective officers, directors, employees, accountants, attorneys and
other advisors) may disclose to any and all Persons, without limitation
123
of any kind, the U.S. tax treatment and U.S. tax structure of the transaction
and all materials of any kind (including opinions and other tax analyses) that
are provided to each of them relating to such U.S. tax treatment and U.S. tax
structure.
SECTION 9.19 WAIVER OF USURY DEFENSE. To the extent permitted by applicable
law, each of Holdings and the Borrowers agrees that it will not assert, plead
(as a defense or otherwise) or in any manner whatsoever claim (and will actively
resist any attempt to compel it to assert, plead or claim) in any action, suit
or proceeding that the effective interest rate on any Loan violates present or
future usury or other laws relating to the interest payable on any Obligations
and will not otherwise avail itself (and will actively resist any attempt to
compel it to avail itself) of the benefits or advantages of any such laws.
SECTION 9.20 SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Borrower, any other Loan Party or any
of their respective subsidiaries herein or in the certificates or other
instruments prepared or delivered in connection with this Agreement, any of the
Collateral Documents or any other Loan Document shall be considered to have been
relied upon by the Lenders and the Administrative Agent shall survive the making
by the Lenders of the Loans and the execution and delivery to the Lenders of the
Notes, notwithstanding any investigation heretofore or hereafter made (or any
prior or future participation in the preparation or delivery of any such
documents or schedules thereto) by any of them (or by any employees, agents,
attorneys, consultants and advisors thereof or thereto).
[SIGNATURE PAGES FOLLOW]
124
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
MERISANT COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
-------------------------------------------
Name:
-------------------------------------------
Title:
-------------------------------------------
TABLETOP HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
-------------------------------------------
Name:
-------------------------------------------
Title:
-------------------------------------------
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent, Sole Arranger
and Book Manager, a Lender and an Issuer
By: /s/ S. ▇▇▇▇▇▇▇ ▇▇▇
-------------------------------------------
Name: S. ▇▇▇▇▇▇▇ ▇▇▇
-------------------------------------------
Title: Director
-------------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Title: Vice President
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WACHOVIA BANK, NATIONAL
ASSOCIATION
as Syndication Agent, and as a Lender
By: /s/ ▇▇▇▇▇ Silauder
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Name: ▇▇▇▇▇ Silauder
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Title: Director
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BANK ONE, NA,
as Co-Documentation Agent, and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Director, Capital Markets
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FORTIS CAPITAL CORP.,
as Co-Documentation Agent, and as a Lender
By: /s/ ▇▇▇▇▇▇▇ Riahl
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Name: ▇▇▇▇▇▇▇ Riahl
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Title: Vice President
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By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇
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Title: AVP
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HSH NORDBANK AG, NEW YORK BRANCH,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ Mailath
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Mailath
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Title: AVP AVP
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NATEXIS BANQUES POPULAIRE,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Associate
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SCHEDULE I
COMMITMENTS
TRANCHE A (EURO) TERM
--------------------------- TRANCHE B REVOLVING
LENDER EURO DOLLARS* TERM CREDIT TOTAL
---------------------------------------------------------------------------------------------------------
Bank One, NA 6,183,199.36 $ 7,000,000 $ 4,000,000 $ 7,500,000 $ 18,500,000
Credit Suisse First Boston 14,133,027.13 $ 16,000,000 $ 209,000,000 $ 7,500,000 $ 232,500,000
Fortis Capital Corp. 6,183,199.36 $ 7,000,000 $ 3,000,000 $ 7,500,000 $ 17,500,000
HSH Nordbank AG, New York Branch 6,183,199.36 $ 7,000,000 $ 3,000,000 $ 5,000,000 $ 15,000,000
Natexis Banques Populaire 5,299,885.17 $ 6,000,000 $ 3,000,000 N/A $ 9,000,000
Wachovia Bank, National Association 6,183,199.36 $ 7,000,000 $ 3,000,000 $ 7,500,000 $ 17,500,000
TOTAL 44,165,709.74 $ 50,000,000 $ 225,000,000 $ 35,000,000 $ 310,000,000
------------- ------------ ------------- ------------ -------------
* 1.1321 Conversion Rate
SCHEDULE I
SCHEDULE II
APPLICABLE LENDING OFFICES AND ADDRESSES FOR NOTICES
APPLICABLE LENDING OFFICES
LENDER AND ADDRESSES FOR NOTICES
------ --------------------------
Bank One, NA ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Suisse First ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇'▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Natexis Banques Populaires ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
HSH Nordbank AG, New York Branch ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Wachovia Bank, National Association ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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