EXECUTION COPY
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Published CUSIP Number: ▇▇▇▇▇▇▇▇▇
CREDIT AGREEMENT
Dated as of December 5, 2005
among
TUPPERWARE CORPORATION
(to be renamed TUPPERWARE BRANDS CORPORATION),
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and
L/C Issuer,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC
and
JPMORGAN SECURITIES INC.,
as Joint Lead Arrangers and Joint Book Managers
$975,000,000
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.........................................................1
1.02 Other Interpretive Provisions........................................37
1.03 Accounting Terms.....................................................38
1.04 Rounding.............................................................38
1.05 Times of Day.........................................................38
1.06 Letter of Credit Amounts.............................................38
1.07 Currency Equivalents Generally.......................................38
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 The Loans............................................................39
2.02 Borrowings, Conversions and Continuations of Loans...................39
2.03 Letters of Credit....................................................41
2.04 Swing Line Loans.....................................................49
2.05 Prepayments..........................................................52
2.06 Termination or Reduction of Commitments..............................55
2.07 Repayment of Loans...................................................56
2.08 Interest.............................................................58
2.09 Fees.................................................................58
2.10 Computation of Interest and Fees.....................................59
2.11 Evidence of Debt.....................................................59
2.12 Payments Generally; Administrative Agent's Clawback..................59
2.13 Sharing of Payments by Lenders.......................................61
2.14 Increase in Term B Commitments.......................................62
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes................................................................63
3.02 Illegality...........................................................65
3.03 Inability to Determine Rates.........................................66
3.04 Increased Costs; Reserves on Eurodollar Rate Loans...................66
3.05 Compensation for Losses..............................................68
3.06 Mitigation Obligations; Replacement of Lenders.......................68
3.07 Survival.............................................................69
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension...............................69
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4.02 Conditions to all Credit Extensions..................................73
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with Laws.............74
5.02 Authorization; No Contravention......................................75
5.03 Governmental Authorization; Other Consents...........................75
5.04 Binding Effect.......................................................75
5.05 Financial Statements; No Material Adverse Effect.....................76
5.06 Litigation...........................................................76
5.07 No Default...........................................................77
5.08 Ownership of Property; Liens; Investments............................77
5.09 Environmental Compliance.............................................78
5.10 Insurance............................................................79
5.11 Taxes................................................................79
5.12 ERISA Compliance.....................................................79
5.13 Subsidiaries; Equity Interests; Loan Parties.........................80
5.14 Margin Regulations; Investment Company Act...........................80
5.15 Disclosure...........................................................81
5.16 Compliance with Laws.................................................81
5.17 Intellectual Property; Licenses, Etc.................................81
5.18 Solvency.............................................................82
5.19 Casualty, Etc........................................................82
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Financial Statements.................................................82
6.02 Certificates; Other Information......................................83
6.03 Notices..............................................................86
6.04 Payment of Obligations...............................................87
6.05 Preservation of Existence, Etc.......................................87
6.06 Maintenance of Properties............................................87
6.07 Maintenance of Insurance.............................................87
6.08 Compliance with Laws.................................................88
6.09 Books and Records....................................................88
6.10 Inspection Rights....................................................88
6.11 Use of Proceeds......................................................88
6.12 Covenant to Guarantee Obligations and Give Security..................88
6.13 Compliance with Environmental Laws...................................93
6.14 Preparation of Environmental Reports.................................93
6.15 Further Assurances...................................................93
6.16 Interest Rate Hedging................................................93
6.17 Compliance with Material Contracts...................................94
6.18 Protected Subsidiaries and Financing Subsidiaries....................94
6.19 Post-Closing Requirements............................................94
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ARTICLE VII
NEGATIVE COVENANTS
7.01 Liens................................................................95
7.02 Indebtedness.........................................................97
7.03 Investments..........................................................99
7.04 Fundamental Changes.................................................102
7.05 Dispositions........................................................102
7.06 Restricted Payments.................................................104
7.07 Change in Nature of Business........................................104
7.08 Transactions with Affiliates........................................105
7.09 Burdensome Agreements...............................................105
7.10 Use of Proceeds.....................................................105
7.11 Financial Covenants.................................................106
7.12 Amendments of Organization Documents................................106
7.13 Accounting Changes..................................................107
7.14 Prepayments, Etc. of Indebtedness...................................107
7.15 Amendment, Etc. of Related Documents and Indebtedness...............107
7.16 Wholly Owned Subsidiaries...........................................107
7.17 Speculative Transactions............................................107
7.18 Formation of Subsidiaries...........................................107
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default...................................................107
8.02 Remedies upon Event of Default......................................110
8.03 Application of Funds................................................111
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authority...........................................112
9.02 Rights as a Lender..................................................112
9.03 Exculpatory Provisions..............................................113
9.04 Reliance by Administrative Agent....................................114
9.05 Delegation of Duties................................................114
9.06 Resignation of Administrative Agent.................................114
9.07 Non-Reliance on Administrative Agent and Other Lenders..............115
9.08 No Other Duties, Etc................................................115
9.09 Administrative Agent May File Proofs of Claim.......................115
9.10 Collateral and Guaranty Matters.....................................116
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc.....................................................117
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10.02 Notices and Other Communications; Facsimile Copies..................119
10.03 No Waiver; Cumulative Remedies......................................120
10.04 Expenses; Indemnity; Damage Waiver..................................121
10.05 Payments Set Aside..................................................122
10.06 Successors and Assigns..............................................123
10.07 Treatment of Certain Information; Confidentiality...................127
10.08 Right of Setoff.....................................................127
10.09 Interest Rate Limitation............................................128
10.10 Counterparts; Integration; Effectiveness............................128
10.11 Survival of Representations and Warranties..........................128
10.12 Severability........................................................129
10.13 Replacement of Lenders..............................................129
10.14 Governing Law; Jurisdiction; Etc....................................130
10.15 Waiver of Jury Trial................................................130
10.16 USA PATRIOT Act Notice..............................................131
SIGNATURES................................................................S-1
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ANNEXES
I Assignment Fees
SCHEDULES
1.01(a) Existing Letters of Credit
1.01(b) Significant Foreign Subsidiaries
2.01 Commitments and Applicable Percentages
5.03 Governmental Authorizations and Other Consents
5.05 Supplement to Interim Financial Statements
5.08(b) Existing Liens
5.08(c) Owned Real Property
5.08(d) Leased Real Property
5.08(e) Existing Investments
5.11 Tax Sharing Agreements
5.13 Subsidiaries and Other Equity Investments; Loan Parties
6.12 Guarantors
6.19 Initial Mortgaged Properties
7.02(d) Existing Indebtedness
7.02(m) Secured Foreign Credit Lines
10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A Committed Loan Notice
B Swing Line Loan Notice
C-1 Term B Note
C-2 Revolving Credit Note
D Compliance Certificate
E Assignment and Assumption
F Guaranty
G Security Agreement
H Mortgage
I-1 Opinion Matters - New York Counsel to Loan Parties
I-2 Opinion Matters - Delaware Counsel to Loan Parties
I-3 Opinion Matters - General Counsel to Loan Parties
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("AGREEMENT") is entered into as of December 5,
2005, among TUPPERWARE CORPORATION, a Delaware corporation (the "BORROWER"),
each lender from time to time party hereto (collectively, the "LENDERS" and
individually, a "LENDER"), and BANK OF AMERICA, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer, JPMorgan Securities Inc. as Syndication Agent
(the "SYNDICATION AGENT"), and Key Bank, National Association and Calyon
Corporate and Investment Bank and Mizuho, Corporate Bank, Ltd., as
Co-Documentation Agents (collectively, the "DOCUMENTATION AGENTS").
PRELIMINARY STATEMENTS:
Pursuant to a Securities and Asset Purchase Agreement dated as of
August 10, 2005 (as amended, supplemented or otherwise modified in accordance
with its terms, to the extent permitted in accordance with the Loan Documents
(as hereinafter defined), the "PURCHASE AGREEMENT") between the Borrower and
▇▇▇▇ ▇▇▇ Corporation, a Maryland corporation (the "SELLER"), the Borrower has
agreed to consummate the acquisition (the "ACQUISITION") of the Business (as
defined in the Purchase Agreement).
The Borrower has requested that (a) immediately upon the consummation
of the Acquisition, the Lenders lend to the Borrower $775,000,000 to (i) finance
the Acquisition, (ii) refinance certain existing indebtedness of the Borrower
and its subsidiaries and (iii) pay fees and expenses incurred in connection with
the Transaction (as hereinafter defined) and (b) from time to time, the Lenders
lend to the Borrower and the L/C Issuer (as hereinafter defined) issue Letters
of Credit (as hereinafter defined) for the account of the Borrower to provide a
revolving credit facility of $200,000,000 for the Borrower.
The Lenders have indicated their willingness to lend and the L/C
Issuer has indicated its willingness to so issue Letters of Credit, in each
case, on the terms and subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"ACQUISITION" has the meaning specified in the Preliminary Statements
to this Agreement.
"ADMINISTRATIVE AGENT" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's
address and, as appropriate, account as set forth on SCHEDULE 10.02, or such
other address or account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with such Person.
"AGENTS" means, collectively, the Administrative Agent (including in
its capacity as collateral agent), the Syndication Agents, the Documentation
Agents and any other agent appointed pursuant to the provisions of any
Collateral Document.
"AGGREGATE COMMITMENTS" means the Commitments of all the Lenders.
"AGGREGATE CREDIT EXPOSURES" means, at any time, in respect of (a)
the Term B Facility, the aggregate amount of the Term B Loans outstanding at
such time and (b) in respect of the Revolving Credit Facility, the sum of (x)
the unused portion of the Revolving Credit Facility at such time and (y) the
Total Revolving Credit Outstandings at such time.
"AGREEMENT" means this Credit Agreement.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, at any time, in respect
of the Revolving Credit Facility, (a) for the first two fiscal quarters of the
Borrower ended following the Closing Date, 0.50% per annum and (b) thereafter, a
percentage per annum determined by reference to the Consolidated Leverage Ratio
as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to SECTION 6.02(B):
-----------------------------------------
Applicable Commitment Fee Percentage
-----------------------------------------
Pricing Consolidated Commitment
Level Leverage Ratio Fee
-----------------------------------------
1 >2.00:1.00 0.50%
-----------------------------------------
2 <2.00:1.00 0.375%
-
-----------------------------------------
Any increase or decrease in the Applicable Commitment Fee Percentage
resulting from a change in the Consolidated Leverage Ratio shall become
effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to SECTION 6.02(B); PROVIDED,
HOWEVER, that if a Compliance Certificate is not delivered when due in
accordance with SECTION 6.02(B), then Pricing Level 1 shall apply as of the
first Business Day after the date on which such Compliance Certificate was
required to have been delivered until the date that such Compliance Certificate
is delivered, after which time, the Applicable Commitment Fee Percentage shall
again be determined by the Consolidated Leverage Ratio as set forth in such
Compliance Certificate.
"APPLICABLE PERCENTAGE" means (a) in respect of the Term B Facility,
with respect to any Term B Lender at any time, the percentage (carried out to
the ninth decimal place) of the
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Term B Facility represented by (i) on or prior to the Closing Date, such Term B
Lender's Term B Commitment at such time and (ii) thereafter, the principal
amount of such Term B Lender's Term B Loans at such time and (b) in respect of
the Revolving Credit Facility, with respect to any Revolving Credit Lender at
any time, the percentage (carried out to the ninth decimal place) of the
Revolving Credit Facility represented by such Revolving Credit Lender's
Revolving Credit Commitment at such time. If the Revolving Credit Commitment of
each Revolving Credit Lender to make Revolving Credit Loans and the obligation
of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
SECTION 8.02, or if the Revolving Credit Commitments have expired, then the
Applicable Percentage of each Revolving Credit Lender in respect of the
Revolving Credit Facility shall be determined based on the Applicable Percentage
of such Revolving Credit Lender in respect of the Revolving Credit Facility most
recently in effect, giving effect to any subsequent assignments. The initial
Applicable Percentage of each Lender in respect of each Facility is set forth
opposite the name of such Lender on SCHEDULE 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"APPLICABLE RATE" means (a) in respect of the Revolving Credit
Facility, (i) for the first two fiscal quarters of the Borrower ended following
the Closing Date, 0.50% per annum for Base Rate Loans and 1.50% per annum for
Eurodollar Rate Loans and (ii) thereafter, a percentage per annum determined by
reference to the Consolidated Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to SECTION
6.02(B):
---------------------------------------------
Applicable Rate
---------------------------------------------
Eurodollar
Rate
(Letters
Pricing Consolidated of Base
Level Leverage Ratio Credit) Rate
---------------------------------------------
1 >3.50:1 1.75% 0.75%
---------------------------------------------
2 >3.00:1 but 1.50% 0.50%
< to 3.50:1
-
---------------------------------------------
3 >2.50:1 but 1.25% 0.25%
< 3.0:1
-
---------------------------------------------
4 >2.00:1 but 1.00% 0.00%
< 2.50:1
-
---------------------------------------------
5 <2.00:1 0.75% 0.00%
---------------------------------------------
and (b) in respect of the Term B Facility, 0.50% per annum for Base Rate Loans
and 1.50% per annum for Eurodollar Rate Loans.
Any increase or decrease in the Applicable Rate resulting from a
change in the Consolidated Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is
delivered pursuant to SECTION 6.02(B); PROVIDED, HOWEVER, if a Compliance
Certificate is not delivered when due in accordance with SECTION 6.02(B), then
Pricing Level 1 shall apply in respect of the Revolving Credit Facility as of
the first Business Day after the date on which such Compliance Certificate was
required to have been delivered until the date that such Compliance Certificate
is delivered, after which time, the Applicable Rate in respect of the Revolving
Credit Facility shall again be determined by the Consolidated Leverage Ratio as
set forth in such Compliance Certificate.
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"APPLICABLE REVOLVING CREDIT PERCENTAGE" means with respect to any
Revolving Credit Lender at any time, such Revolving Credit Lender's Applicable
Percentage in respect of the Revolving Credit Facility at such time.
"APPROPRIATE LENDER" means, at any time, (a) with respect to either
the Term B Facility or the Revolving Credit Facility, a Lender that has a
Commitment with respect to such Facility at such time, (b) with respect to the
Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit
have been issued pursuant to SECTION 2.03(A), the Revolving Credit Lenders and
(c) with respect to the Swing Line Facility, (i) the Swing Line Lender and (ii)
if any Swing Line Loans are outstanding pursuant to SECTION 2.04(A), the
Revolving Credit Lenders.
"APPROVED FUND" means any Fund that is administered, advised or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers, advises or manages a Lender.
"ARRANGER" means Banc of America Securities LLC and JPMorgan
Securities Inc., in their respective capacities as joint lead arranger and joint
book manager.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption
entered into by a Lender and an Eligible Assignee (with the consent of any party
whose consent is required by SECTION 10.06(b)), and accepted by the
Administrative Agent, in substantially the form of EXHIBIT E or any other form
approved by the Administrative Agent.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, (a) in respect of any
Capitalized Lease of any Person, the capitalized amount thereof that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized
amount of the remaining lease or similar payments under the relevant lease or
other applicable agreement or instrument that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP if such lease or
other agreement or instrument were accounted for as a Capitalized Lease and (c)
all Synthetic Debt of such Person.
"AUDITED FINANCIAL STATEMENTS" means, collectively, (a) the audited
consolidated balance sheet of the Borrower and its then Subsidiaries for the
fiscal year ended December 25, 2004, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for such fiscal year
of the Borrower and its then Subsidiaries, including the notes thereto and (b)
the audited consolidated balance sheet of the Business for the fiscal year ended
July 2, 2005, and the related consolidated statements of income or operations,
shareholders' equity and cash flow for such fiscal year of the Business,
including the notes thereto.
"AVAILABILITY PERIOD" means in respect of the Revolving Credit
Facility, the period from and including the Closing Date to the earliest of (i)
the Maturity Date for the Revolving Credit Facility, (ii) the date of
termination in whole of the Revolving Credit Commitments pursuant to SECTION
2.06, and (iii) the date of termination of the commitment of each Revolving
Credit Lender to make Revolving Credit Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to SECTION 8.02.
"BANK OF AMERICA" means Bank of America, N.A. and its successors.
4
"BASE RATE" means for any day a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate PLUS 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." The "prime rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"BASE RATE LOAN" means a Revolving Credit Loan or a Term B Loan that
bears interest based on the Base Rate.
"BCICIS" means BC International Cosmetic & Image Services, Inc., a
Delaware corporation.
"BORROWER" has the meaning specified in the introductory paragraph
hereto.
"BORROWER MATERIALS" has the meaning specified in SECTION 6.02.
"BORROWING" means a Revolving Credit Borrowing, a Swing Line
Borrowing or a Term B Borrowing, as the context may require.
"BUSINESS" has the meaning specified in the Purchase Agreement.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"CAPITAL EXPENDITURES" means, with respect to any Person for any
period, any and all expenditures made by such Person in such period for assets
that are, or should be, set forth as "additions to plant, property and
equipment" on the financial statement prepared in accordance with GAAP;
PROVIDED, that Capital Expenditures shall not include, except for purposes of
determining Excess Cash Flow, any such expenditures (a) made prior to December
31, 2008 in respect of the construction of a manufacturing, distribution and
office facility in Aalst, Belgium, adjacent to the existing warehouse facility
in an aggregate amount not to exceed $20,000,000, (b) in respect of the
development of the Specified Florida Properties in aggregate amount not to
exceed $25,000,000, and (c) made prior to December 31, 2007 in connection with
the leasing of a new manufacturing facility for BeautiControl North America in
an aggregate amount not to exceed $8,000,000.
"CAPITALIZED LEASES" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"CASH COLLATERALIZE" has the meaning specified in SECTION 2.03(G).
5
"CASH DISTRIBUTIONS" means, with respect to any Person for any
period, all dividends and other distributions on any of the outstanding Equity
Interests in such Person, all purchases, redemptions, retirements, defeasances
or other acquisitions of any of the outstanding Equity Interests in such Person
and all returns of capital to the stockholders, partners or members (or the
equivalent persons) of such Person, in each case to the extent paid in cash by
or on behalf of such Person during such period.
"CASH EQUIVALENTS" means any of the following types of Investments,
to the extent owned by the Borrower or any of its Subsidiaries free and clear of
all Liens (other than Liens created under the Collateral Documents and customary
setoff and similar rights of banks and securities intermediaries in the ordinary
course):
(a) readily marketable obligations issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof having maturities of not more than one year from
the date of acquisition thereof; PROVIDED that the full faith and credit of
the United States of America is pledged in support thereof;
(b) time deposits with, or insured certificates of deposit or
bankers' acceptances of, any commercial bank that (i) (A) is a Lender or
(B) is organized under the laws of the United States of America, any state
thereof or the District of Columbia or is the principal banking subsidiary
of a bank holding company organized under the laws of the United States of
America, any state thereof or the District of Columbia, and is a member of
the Federal Reserve System, (ii) issues (or the parent of which issues)
commercial paper rated as described in clause (c) of this definition and
(iii) has combined capital and surplus of at least $1,000,000,000, in each
case with maturities of not more than six months from the date of
acquisition thereof;
(c) commercial paper issued by any Person organized under the
laws of any state of the United States of America and rated at least
"Prime-1" (or the then equivalent grade) by ▇▇▇▇▇'▇ or at least "A-1" (or
the then equivalent grade) by S&P, in each case with maturities of not more
than six months from the date of acquisition thereof;
(d) Investments, classified in accordance with GAAP as Current
Assets of the Borrower or any of its Subsidiaries, in money market
investment programs registered under the Investment Company Act of 1940, as
amended, which are administered by financial institutions that have the
highest rating obtainable from either ▇▇▇▇▇'▇ or S&P, and the portfolios of
which are limited solely to Investments of the character, quality and
maturity described in CLAUSES (A), (B), (C) and (E) of this definition;
(e) repurchase obligations of any Lender or of any commercial
bank satisfying the requirements of CLAUSE (B) of this definition or any
recognized securities dealer having capital and surplus in excess of
$1,000,000,000 having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government;
6
(f) money market mutual or similar funds that invest solely in
assets satisfying the requirements of CLAUSES (A) through (E) of this
definition;
(g) money market funds that (i) comply with the criteria set
forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as
amended, (ii) are rated "AAA" by S&P and "Aaa" by ▇▇▇▇▇'▇ and (iii) have
portfolio assets of at least $1,000,000,000;
(h) with respect to any Foreign Subsidiary, time deposits with,
or insured certificates of deposit or bankers' acceptances of, (i) any
commercial bank that is a Lender or an Affiliate of a Lender and is
domiciled or organized outside of the United States of America, or (ii) any
commercial bank controlled or operated by the government of, or any agency
or instrumentality thereof, the jurisdiction in which such Foreign
Subsidiary conducts its operations, in each case, (A) having combined
capital and surplus in excess of $500,000,000 or the foreign currency
equivalent thereof, and (B) whose long-term debt is rated "A" by S&P and
"A2" by ▇▇▇▇▇'▇ or the equivalent thereof by an internationally recognized
credit rating agency, in each case, with maturities of not more than 60
days from the date of acquisition thereof;
(i) with respect to any Foreign Subsidiary, money market mutual
or similar funds that invest solely in assets satisfying the requirements
of CLAUSE (h) above; and
(j) with respect to any Foreign Subsidiary, other Investments not
made for speculative purposes (including, without limitation, with respect
to currency exchange rates) of substantially the same type, maturity and
liquidity and issued by comparable governmental and obligors having at
least the same creditworthiness as the Investments and obligors listed in
CLAUSES(A) through (G) above denominated in the currency of any
jurisdiction in which such Foreign Subsidiary conducts its operations.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980.
"CHANGE IN LAW" means the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking effect of any
law, rule, regulation or treaty, (b) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, guideline
or directive (whether or not having the force of law) by any Governmental
Authority.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such
right,
7
an "OPTION RIGHT"), whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of 35% or more of the
equity securities of the Borrower entitled to vote for members of the board
of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that such
"person" or "group" has the right to acquire pursuant to any option right);
or
(b) during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of the
Borrower cease to be composed of individuals (i) who were members of that
board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of that board or equivalent
governing body; or
(c) any "change of control" (or, if no such term is used, any
event or condition similar to a Change of Control hereunder) shall occur
under any Permitted Financing.
"CLOSING DATE" means the first date all the conditions precedent in
SECTION 4.01 are satisfied or waived in accordance with SECTION 10.01.
"CODE" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations in effect at any time thereunder.
"COLLATERAL" means all property and assets intended to be subject to
Liens in favor of the Administrative Agent for the benefit of the Secured
Parties pursuant to the granting clauses of the Collateral Documents, including
all "COLLATERAL" referred to in the Security Agreement and the Initial Mortgaged
Properties.
"COLLATERAL DOCUMENTS" means, collectively, the Security Agreement,
the Intellectual Property Security Agreement, the Local Law Collateral
Documents, the Mortgages, each of the mortgages, collateral assignments,
Security Agreement Supplements, IP Security Agreement Supplements, security
agreements, pledge agreements or other similar agreements delivered to the
Administrative Agent and the Lenders pursuant to SECTION 6.12, and each of the
other agreements, instruments or documents that creates or purports to create a
Lien in favor of the Administrative Agent for the benefit of the Secured
Parties.
"COMMITMENT" means a Term B Commitment or a Revolving Credit
Commitment or both, as the context may require.
"COMMITTED LOAN NOTICE" means a notice of (a) a Term B Borrowing, (b)
a Revolving Credit Borrowing, (c) a conversion of Loans from one Type to the
other, or (d) a continuation of Eurodollar Rate Loans, pursuant to SECTION
2.02(A), which, if in writing, shall be substantially in the form of EXHIBIT A.
8
"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form of EXHIBIT D, including, among other things, (a) a determination as to the
compliance with the covenants set forth in ARTICLE VII, and SECTION 7.11 in
particular, calculation of any definitions used in financial ratios, and (b) a
listing of, and calculations in determining, each (i) Material Subsidiary, (ii)
Significant Foreign Subsidiary, (iii) Key Foreign Operating Jurisdiction, and
(iv) Key Foreign Pledge Jurisdiction.
"CONSOLIDATED EBITDA" means, with respect to any Measurement Period
(or other specified period), an amount equal to Consolidated Net Income of the
Borrower and its Subsidiaries for such Measurement Period (or other specified
period) PLUS, without duplication, (a) the following to the extent deducted in
calculating such Consolidated Net Income (other than in respect of CLAUSE (VI)):
(i) Consolidated Interest Charges; (ii) the provision for Federal, state, local
and foreign income taxes payable (including franchise and similar taxes based on
net income); (iii) depreciation and amortization expense; (iv) extraordinary,
unusual or non-recurring non-cash charges, expenses or losses (including
non-cash reengineering and impairment charges, write-off of goodwill and
non-cash charges for deferred tax asset valuation allowances); (v) (A) fees,
expenses or charges related to the Acquisition in an aggregate amount not to
exceed $30,000,000 (including restructuring fees, expenses and charges incurred
within one year after the Closing Date) and (B) any cash payments required to be
made in connection with the prepayment of the 2011 Notes on or prior to the
Closing Date in an aggregate amount not to exceed $25,000,000; (vi) amounts
received in cash from the ITW Settlement in an aggregate amount not to exceed
$15,000,000; (vii) any non-cash impairment charges or asset write-off resulting
from the application of Statement of Financial Accounting Standards No. 142;
(viii) any non-cash expense realized or resulting from any employee benefit
plans, post-employment benefit plans, deferred stock compensation plan or grants
of stock appreciation or similar rights, stock options, restricted stock or
other rights to officers, directors and employees of such Person or any of its
Subsidiaries; and (ix) non-cash losses or expenses resulting from fair-value
accounting required by Statement of Financial Accounting Standards No. 133; in
each case, of or by the Borrower and its Subsidiaries for such Measurement
Period (or other specified period), and MINUS, without duplication, (b) (i) to
the extent included in calculating such Consolidated Net Income, Federal, state,
local and foreign income tax credits; (ii) any amounts paid or payable in cash
in any fiscal period during such Measurement Period (or such other specified
period) in respect of any non-cash charges, expenses or losses taken in any
prior fiscal period (regardless of whether in such Measurement Period (or such
other specified period)); and (iii) to the extent included in calculating such
Consolidated Net Income, all extraordinary, unusual or non-recurring items
increasing Consolidated Net Income, in each case of or by the Borrower and its
Subsidiaries for such Measurement Period. For the purposes of calculating
Consolidated EBITDA for any Measurement Period (or other specified period), (A)
if at any time during such Measurement Period (or other specified period) the
Borrower or any Subsidiary shall have made any Material Disposition (as defined
below), the Consolidated EBITDA for such Measurement Period (or other specified
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 Measurement Period (or other specified period) or increased
by an amount equal to the Consolidated EBITDA (if negative) attributable thereto
for such Measurement Period (or other specified period) and (B) if during such
Measurement Period (or other specified period) the Borrower or any Subsidiary
shall have made a Material Acquisition (as defined below), Consolidated EBITDA
for such Measurement Period (or other specified
9
period) shall be calculated after giving Pro Forma Effect thereto. As used in
this definition, "MATERIAL ACQUISITION" means any acquisition of property or
series of related acquisitions of property that (x) 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 (y)
involves the payment of consideration by the Borrower and its Subsidiaries in
excess of $15,000,000; and "MATERIAL DISPOSITION" means any Disposition of
property or series of related Dispositions of property that has a fair market
value of, or yields gross proceeds to the Borrower or any of its Subsidiaries,
in excess of $15,000,000.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, at any date of
determination, the ratio of (a) (i) Consolidated EBITDA, LESS (ii) the aggregate
amount of all cash Capital Expenditures, LESS (iii) cash payments in respect of
Federal, state, local and foreign taxes (net of any cash refunds in respect of
prior cash payments in respect of Federal, state, local and foreign taxes other
than in respect of the ITW Settlement) excluding Covered SLE Taxes to (b) the
sum of (i) Consolidated Interest Charges to the extent paid, or required to be
paid, in cash in such period (including any amounts paid or payable in cash in
any fiscal period in respect of any non-cash interest expense accrued in any
prior fiscal period), (ii) the aggregate principal amount of all regularly
scheduled principal payments or scheduled redemptions of outstanding debt for
borrowed money, and (iii) the aggregate amount of all Restricted Payments to the
extent paid, or required to be paid, in cash in such period (other than pursuant
to SECTION 7.06(D) or to the Borrower or a Subsidiary), in each case, of or by
the Borrower and its Subsidiaries for the most recently completed Measurement
Period.
"CONSOLIDATED FUNDED INDEBTEDNESS" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis,
the sum, in each case, without duplication, of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money
(including Obligations hereunder) and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar instruments, (b) all
purchase money Indebtedness, (c) all direct obligations arising under letters of
credit (including standby and commercial letters of credit, but excluding
cash-collateralized letters of credit to the extent such cash collateral is
permitted under SECTION 7.01), bankers' acceptances, bank guaranties and similar
instruments, (d) all obligations in respect of the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course
of business and any obligation in respect of an Employee Benefit Arrangement),
(e) the capitalized amount of any Capitalized Lease that would appear on a
consolidated balance sheet of the Borrower prepared as of such date in
accordance with GAAP and, in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease or similar payments under the relevant
lease or other applicable agreement or instrument that would appear on a
consolidated balance sheet of the Borrower prepared as of such date in
accordance with GAAP if such lease or other agreement or instrument were
accounted for as a Capitalized Lease, (f) all Synthetic Debt, (g) all Guarantees
with respect to outstanding Indebtedness of the types specified in clauses (a)
through (f) above of Persons other than the Borrower or any Subsidiary, and (h)
all Indebtedness of the types referred to in clauses (a) through (g) above of
any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Borrower or a Subsidiary
is a general partner or joint venturer to the extent that the Borrower or such
Subsidiary is legally liable therefor as a result of its ownership interest in
such entity or is contractually liable therefor
10
by operation of its charter or other governing documents, unless such
Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.
"CONSOLIDATED INTEREST CHARGES" means, for any Measurement Period,
the sum, without duplication, of (a) all interest, premium payments, debt
discount, fees, charges and related expenses in connection with borrowed money,
or Swap Contracts, or in connection with the deferred purchase price of assets,
in each case to the extent treated as interest in accordance with GAAP and (b)
the portion of rent expense under Capitalized Leases that is treated as interest
in such measurement period in accordance with GAAP, in each case, of or by the
Borrower and its Subsidiaries.
"CONSOLIDATED LEVERAGE RATIO" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA of the Borrower and its Subsidiaries for the most recently
completed Measurement Period.
"CONSOLIDATED NET INCOME" means, at any date of determination, the
net income of the Borrower and its Subsidiaries on a consolidated basis for the
most recently completed Measurement Period.
"CONSOLIDATED NET WORTH" means, as of any date of determination, for
the Borrower and its Subsidiaries on a consolidated basis, Shareholders' Equity
of the Borrower and its Subsidiaries on such date PLUS any decrease or MINUS any
increase in (a) the "Accumulated Other Comprehensive Income (Loss)" account (the
"Accumulated Account") resulting from changes in the "Foreign Currency
Translation Adjustment" and/or "Net Equity ▇▇▇▇▇▇" subaccounts of the
Accumulated Account and (b) any amounts recorded relating to minimum pension
liabilities resulting from the application of Statement of Financial Accounting
Standards No. 87, in each case, from the amount reflected in the Borrower's
audited consolidated balance sheet dated December 31, 2005.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"COVERED SLE TAXES" means taxes of the Business required to be paid
in Mexico, accrued prior to the Closing Date, solely to the extent that the
Seller has caused the Business to retain, and after giving effect to the
Acquisition, the Borrower and its Subsidiaries have, cash specifically reserved
and designated for the payment of such taxes in accordance with the Purchase
Agreement.
"CREDIT EXTENSION" means each of the following: (a) a Borrowing and
(b) an L/C Credit Extension.
11
"CURRENT ASSETS" means, with respect to any Person, all assets (other
than cash and Cash Equivalents) of such Person that, in accordance with GAAP,
would be classified as current assets (or like caption) on the balance sheet of
a company conducting a business the same as or similar to that of such Person,
after deducting appropriate and adequate reserves therefrom in each case in
which a reserve is proper in accordance with GAAP.
"DART" means Dart Industries Inc., a Delaware corporation and a
Subsidiary of the Borrower.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"DEFAULT" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"DEFAULT RATE" means (a) when used with respect to Obligations other
than Letter of Credit Fees, an interest rate equal to (i) the Base Rate PLUS
(ii) the Applicable Rate applicable to Base Rate Loans PLUS (iii) 2% per annum;
PROVIDED, HOWEVER, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan PLUS 2.0% per annum and (b) when used
with respect to Letter of Credit Fees, a rate equal to the Applicable Rate PLUS
2.0% per annum.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund any
portion of the Term B Loans, Revolving Credit Loans, participations in L/C
Obligations or participations in Swing Line Loans required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.
"DISPOSITION" or "DISPOSE" means the sale, transfer, license, lease
or other disposition (including pursuant to a sale and leaseback transaction) of
any property (including without limitation, the Equity Interests of a
Subsidiary) of any Person by such Person.
"DOCUMENTATION AGENTS" has the meaning specified in the introductory
paragraph hereto.
"DOLLAR" and "$" mean lawful money of the United States.
"DOMESTIC SUBSIDIARY" means a Subsidiary organized under the laws of
any State of the United States or the District of Columbia.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, (ii) in the case of any assignment of
a Revolving Commitment, the L/C
12
Issuer and the Swing Line Lender, and (iii) unless an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); PROVIDED that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Borrower or any of the Borrower's
Affiliates or Subsidiaries.
"EMPLOYEE BENEFIT ARRANGEMENT" means any employee benefit plan,
program, policy, practices or other arrangement providing benefits to any
current or former employee, officer or director of the Borrower or any of its
Subsidiaries or any beneficiary or dependent thereof that is sponsored or
maintained by the Borrower of any of its Subsidiaries or to which the Borrower
or any of its Subsidiaries contributes or is obligated to contribute, including
without limitation any employee welfare benefit plan within the meaning of
Section 3(1) of ERISA, any employee pension benefit plan within the meaning of
Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any
bonus, incentive, deferred compensation, vacation, stock purchase, stock option,
restricted stock, severance, employment, change of control or fringe benefit
plan, agreement, program or policy.
"ENVIRONMENTAL ACTION" means any and all written claims, actions,
suits, arbitrations, governmental inquiries, proceedings, investigations,
demands, demand letters, liens, notices of non-compliance or violation, notices
of liability or potential liability, consent orders or consent agreements
relating in any way to, resulting from or based upon any violation or alleged
violation of any Environmental Law, or Environmental Permit, or relating to any
Environmental Liability or the presence of or exposure to any Hazardous
Materials.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower, any other Loan
Party or any of their respective Subsidiaries directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"EQUITY INTERESTS" means, with respect to any Person, all of the
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the warrants, options or other rights for the purchase or
acquisition from such Person of shares of capital stock of (or other ownership
or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person
13
or warrants, rights or options for the purchase or acquisition from such Person
of such shares (or such other interests), and all of the other ownership or
profit interests in such Person (including partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are outstanding on any date of
determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA or routine claims
for benefits, upon the Borrower or any ERISA Affiliate.
"ESCROW AGREEMENT" means the Escrow Agreement dated as of December 5,
2005 among the Seller, the Borrower and JPMorgan Chase Bank, as escrow agent
(together with any successor escrow agents, the "ESCROW AGENT"), (a) executed
and delivered in connection with the portion of the Acquisition in respect of
the Business in the Philippines (the "PHILIPPINES BUSINESS") to be consummated
pursuant to the Purchase Agreement after the Closing Date (such consummation,
the "PHILIPPINES CLOSING"), with (i) the Philippines Closing to occur upon the
receipt of the approvals and consents of the Governmental Authorities of the
Philippines contemplated by SCHEDULE 5.03 hereto in accordance with, or as
otherwise contemplated by, the Purchase Agreement, and (ii) until the
Philippines Closing, the Philippines Business to be operated by the Seller and
its Subsidiaries at the direction of the Borrower and its Subsidiaries for the
economic benefit of the Borrower, and (b) pursuant to which, among other things,
(i) the initial amount of the Escrowed Funds and certain documents required in
connection with the Philippines Closing are required to be deposited with the
Escrow Agent on the Closing Date, (ii) such of the Escrowed Funds contemplated
by the Escrow Agreement shall be delivered and paid to the Seller upon the
consummation of the Philippines Closing, and (iii) such of the Escrowed Funds
contemplated by the Escrow Agreement shall be delivered and paid to the Borrower
if the Philippines Closing will not be consummated.
14
"ESCROWED FUNDS" means approximately $39,000,000 initially deposited
with the Escrow Agent (as defined in definition of Escrow Agreement), together
with any other moneys and funds from time to time deposited with, or delivered
to, or deliverable or payable by the Escrow Agent or deposited in, or credited
to, any account established in connection with the Escrow Agreement, and all
investments (including reinvestments) thereof, all amounts received in respect
of any such investments, all financial assets and entitlements relating to any
of the foregoing or arising under the Escrow Agreement, and proceeds of all of
the foregoing, and all rights, interests and claims of the Borrower and its
Subsidiaries with respect to any of the foregoing arising under, or in
connection with, the Escrow Agreement.
"EURODOLLAR RATE" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"EURODOLLAR RATE LOAN" means a Revolving Credit Loan or a Term B Loan
that bears interest at a rate based on the Eurodollar Rate.
"EVENT OF DEFAULT" has the meaning specified in SECTION 8.01.
"EXCESS CASH FLOW" means, for any period (without duplication), (a)
net operating cash flow (to be the item "net cash provided by operating
activities" as set forth in the Borrower's consolidated statement of cash flows
as prepared in accordance with GAAP), LESS (b) an amount equal to the aggregate
amount of all cash payments made by the Borrower and its Subsidiaries during
such period in respect of Capital Expenditures, LESS (c) an amount equal to the
aggregate amount of all Required Principal Payments made by the Borrower and its
Subsidiaries during such period, LESS (d) an amount equal to the aggregate
amount of all Cash Distributions permitted to be paid by the Borrower pursuant
to SECTION 7.06(E) in an amount not to exceed $60,000,000 during such period,
LESS (e) the aggregate amount actually paid by the Borrower and its Subsidiaries
in cash during such fiscal period as consideration of Investments permitted
under SECTION 7.03(H), LESS (f) to the extent included in Consolidated Net
Income and not deducted in determining such net operating cash flow, the income
(if any) of any Person (other than a Subsidiary of the Borrower) 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, LESS (g)
15
investments in non-wholly owned Subsidiaries pursuant to SECTION 7.03(N), LESS
(h) the net operating cash flow (if any) 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, LESS (i) net payments made in respect
of Swap Contracts to the extent not included in determining net operating cash
flow, LESS (j) Extraordinary Receipts and Net Cash Proceeds of any Disposition,
in each case, to the extent included in determining net operating cash flow,
PLUS (k) net payments received in respect of Swap Contracts to the extent not
included in determining net operating cash flow.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under SECTION 10.13), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
SECTION 3.01(E), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to SECTION 3.01(A).
"EXISTING CEO AGREEMENT" means the agreements dated as of November
30, 1998 pursuant to which the Borrower agreed to advance, and advanced, funds
to ▇.▇. ▇▇▇▇▇▇ to enable him to purchase 400,000 shares of the common stock of
the Borrower, together with the promissory note and the stock pledge agreement
executed by ▇.▇. ▇▇▇▇▇▇ in connection therewith, together with any refinancing,
refunding, renewal or extension thereof permitted by this Agreement, in each
case, to the extent disclosed in public filings with the SEC made by the
Borrower.
"EXISTING CREDIT AGREEMENT" means that certain Credit Agreement dated
as of November 5, 2004 among the Borrower, Bank of America, N.A., as
administrative agent, swingline lender and letter of credit issuer, and a
syndicate of lenders.
"EXISTING LETTERS OF CREDIT" means the Letters of Credit described on
SCHEDULE 1.01(A) attached hereto.
"EXTRAORDINARY RECEIPT" means any cash received by, or paid to, the
Borrower or any of its Subsidiaries in respect of (a) extraordinary tax refunds
and pension plan reversions, (b) proceeds of insurance (other than proceeds of
business interruption insurance to the extent such proceeds constitute
compensation for lost earnings, but including, without limitation, all proceeds
in respect of any loss, damage or casualty in respect of any assets), (c)
condemnation awards (and indemnity and other payments in lieu thereof), (d)
commercial tort claims, (e)
16
purchase price adjustments, indemnities and other payments in respect of
post-closing contingent obligations relating to Dispositions and Investments;
PROVIDED, HOWEVER, that an Extraordinary Receipt shall not include (i) cash
receipts received from proceeds of insurance, condemnation awards (or payments
in lieu thereof) or indemnity payments to the extent that such proceeds, awards
or payments are received by any Person in respect of any third party claim
against such Person and applied to pay (or to reimburse such Person for its
prior payment of) such claim and the costs and expenses of such Person with
respect thereto, and (ii) up to $25,000,000 received from the ITW Settlement.
"FACILITY" means the Term B Facility, the Revolving Credit Facility,
the Swing Line Sublimit or the Letter of Credit Sublimit, as the context may
require.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; PROVIDED that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"FEE LETTER" means the letter agreement, dated August 10, 2005, among
the Borrower, the Administrative Agent and the Arranger.
"FIRST-TIER FOREIGN SUBSIDIARY" means a direct Foreign Subsidiary of
the Borrower or of any Guarantor.
"FOREIGN CREDIT LINE BANK" means any Person that is a Lender or an
Affiliate of a Lender, in its capacity as provider of a Secured Foreign Credit
Line.
"FOREIGN FINANCING SUBSIDIARY" means, collectively, (a) TICL, and (b)
each Subsidiary of the Borrower established as a special purpose financing
vehicle to finance the operating activities of Foreign Subsidiaries of the
Borrower through intercompany Investments (which may in turn be financed through
Investments made in such Foreign Financing Subsidiary by the Borrower and its
Subsidiaries) and that does not own any assets other than such Investments and
assets incidental thereto.
"FOREIGN GOVERNMENT SCHEME OR ARRANGEMENT" has the meaning specified
in SECTION 5.12(D).
"FOREIGN LENDER" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is resident for tax
purposes. For purposes of this definition, the United States, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FOREIGN PLAN" has the meaning specified in SECTION 5.12(D).
17
"FOREIGN SUBSIDIARY" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of
the United States.
"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" of any Person means Indebtedness of such Person that by
its terms matures more than one year after 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 after 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 after such date.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY" means the government of the United States or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"GRANTING LENDER" has the meaning specified in SECTION 10.06(H).
"GUARANTEE" means, as to any Person, without duplication, (a) any
obligation, contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation payable or
performable by another Person (the "PRIMARY OBLIGOR") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into for
the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any
18
such Lien) up to the value of such assets. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "GUARANTEE" as a verb has a corresponding meaning.
"GUARANTORS" means, collectively, (a) the Domestic Subsidiaries of
the Borrower listed on SCHEDULE 6.12, (b) the Foreign Subsidiaries listed on
SCHEDULE 6.12, (c) each Foreign Subsidiary of the Borrower that has entered into
a Guarantee of any Funded Debt in an aggregate principal amount in excess of the
Threshold Amount of any Loan Party, (d) each other Domestic Subsidiary of the
Borrower that shall be required to execute and deliver a guaranty or guaranty
supplement pursuant to SECTION 6.12, (e) each other Foreign Subsidiary of the
Borrower that shall be required to execute and deliver a guaranty or guaranty
supplement pursuant to Section 6.12, and (f) solely in respect of Obligations in
respect of Secured Swap Contracts, treasury management services and Secured
Foreign Credit Lines of Subsidiaries of the Borrower, the Borrower; PROVIDED
that, solely for purposes of ARTICLE VII, those Guarantors described in CLAUSES
(B) and (E) of this definition shall not be deemed to be Guarantors.
"GUARANTY" means, collectively, the Guaranty made by the Guarantors
in favor of the Secured Parties, substantially in the form of EXHIBIT F (subject
to limitations on recourse in the case of certain Foreign Subsidiaries listed on
SCHEDULE 6.12 as limited recourse Guarantors and restrictions imposed by
requirements of local laws), including the U.S. Guaranty, the Mexico Guaranty
and the Australia Guaranty made on the Closing Date, together with each other
guaranty and guaranty supplement delivered pursuant to SECTION 6.12 (subject, in
the case of Foreign Subsidiaries, to limitation on recourse if full recourse
would result in a Section 956 Deemed Dividend and restrictions imposed by
requirements of local laws).
"HAZARDOUS MATERIALS" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, mold, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
"HEDGE BANK" means any Person that is a Lender or an Affiliate of a
Lender, in its capacity as a party to a Secured Swap Contract.
"IDLE PROPERTIES" means the following properties as of the date
hereof: (a) real estate located in Halls, Lauderdale County, Tennessee, together
with the manufacturing and warehouse improvements thereon, (b) the unimproved
real estate located in Ferntree ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Australia, (c) the real estate
located in Rio de Janeiro, Brazil, together with the building, warehouse, office
space and improvements thereon, (d) the unimproved real estate located in
Jerome, Idaho, and (e) the unimproved real estate located in Neshanic Station,
New Jersey.
"IMMATERIAL SUBSIDIARY" means, at any date of determination, any
Subsidiary of the Borrower that is not a Material Subsidiary.
19
"INACTIVE SUBSIDIARY" means, at any date of determination, any
Subsidiary of the Borrower that is dormant or inactive and that has
substantially no assets and income.
"INDEBTEDNESS" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) the maximum amount of all direct or contingent obligations of
such Person arising under letters of credit (including standby and
commercial letters of credit, but excluding cash-collateralized letters of
credit to the extent such cash collateral is permitted under SECTION 7.01),
bankers' acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the
ordinary course of business and not past due for more than 90 days after
the date on which such trade account was by its terms due);
(e) indebtedness (excluding prepaid interest thereon) secured by
a Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) all Attributable Indebtedness;
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity Interest in
such Person or any other Person or any warrant, right or option to acquire
such Equity Interest, valued, in the case of a redeemable preferred
interest, at the greater of its voluntary or involuntary liquidation
preference PLUS accrued and unpaid dividends;
(h) all lines of credit (which, solely for purposes of SECTION
7.01 and SECTION 7.02, shall include uncommitted lines of credit, but
exclude availability under credit cards); and
(i) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer to the extent that the Borrower or such
Person is legally liable therefor as a result of its ownership interest in such
entity or is contractually liable therefor by operation of its charter or
20
other governing documents, unless such Indebtedness is expressly made
non-recourse to such Person. The amount of any net obligation under any Swap
Contract on any date shall be deemed to be the Swap Termination Value thereof as
of such date.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEES" has the meaning specified in SECTION 10.04(B).
"INFORMATION MEMORANDUM" means the information memorandum dated
October 2005 used by the Arranger in connection with the syndication of the
Commitments.
"INITIAL MORTGAGED PROPERTIES" has the meaning specified in SECTION
6.19.
"INTELLECTUAL PROPERTY" has the meaning specified in the Security
Agreement.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" has the meaning specified
in SECTION 4.01(A)(IV).
"INTEREST PAYMENT DATE" means, (a) as to any Eurodollar Rate Loan,
the last day of each Interest Period applicable to such Loan and the Maturity
Date of the Facility under which such Loan was made; PROVIDED, HOWEVER, that if
any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan), the date of each quarterly principal
repayment installment date set forth in SECTION 2.07(A), commencing with the
first such date to occur after the Closing Date, and on the Maturity Date.
"INTEREST PERIOD" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter (or, for the first 30 days after the Closing Date, seven
days thereafter) as selected by the Borrower in its Committed Loan Notice;
PROVIDED that:
(a) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(c) no Interest Period shall extend beyond the Maturity Date of
the Facility under which such Loan was made.
21
"INTERNAL CONTROL EVENT" means a material weakness in, or fraud that
involves management or other employees who have a significant role in the
Borrower's internal controls over financial reporting, in each case as described
in the Securities Laws.
"INVESTMENT" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of Equity Interests of another Person, (b) the purchase,
redemption or other acquisition of such Person's Equity Interests from another
Person, (c) a loan, advance or capital contribution to, Guarantee or assumption
of debt of, or purchase or other acquisition of any other debt or interest in,
another Person, or (d) the purchase or other acquisition (in one transaction or
a series of transactions) of assets of another Person that constitute a business
unit or all or a substantial part of the business of, such Person. For purposes
of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in
the value of such Investment.
"IP RIGHTS" has the meaning specified in SECTION 5.17.
"IP SECURITY AGREEMENT SUPPLEMENT" has the meaning specified in the
Security Agreement.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"ISSUER DOCUMENTS" means with respect to any Letter of Credit, the
Letter of Credit Application, and any other document, agreement and instrument
entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor
the L/C Issuer and relating to any such Letter of Credit.
"ITW SETTLEMENT" means any amounts received from Illinois Tool Works
Inc. related to the settlement of IRS audits for the period prior to the May
1996 spin-off of the Borrower from Premark International, Inc.
"KEY FOREIGN OPERATING JURISDICTIONS" means, collectively, (a) as of
the Closing Date, Germany, Mexico, France, Italy, Switzerland, Austria, Belgium,
South Africa, Australia, and Canada, PLUS (b) after the Closing Date, each other
foreign jurisdiction in which sales of the Borrower and its Subsidiaries equal
or exceed 5% of the consolidated sales of the Borrower and its Subsidiaries
worldwide, as determined for the most recently completed fiscal year for which
the Lenders have received financial statements of the Borrower and its
Subsidiaries pursuant to SECTION 6.01(A), commencing with the fiscal year ending
December 2006; PROVIDED, in the case of CLAUSE (B), if (i) the Borrower shall
notify the Administrative Agent in writing, together with the delivery of the
Compliance Certificate listing additional Key Foreign Operating Jurisdictions,
that the expense and burden to the Borrower and its Subsidiaries of perfecting a
security interest in such jurisdiction is unreasonably excessive or that the
perfection of a security interest is not provided for under the laws of such
jurisdiction, and (ii) the Administrative Agent shall determine, in its
reasonable discretion, that the cost and expense of obtaining or perfecting such
22
security interest are excessive in relation to the benefit to the Secured
Parties of the security afforded thereby, or that the perfection of a security
interest is not provided for under the laws of such foreign jurisdiction shall
not constitute a Key Foreign Operating Jurisdiction.
"KEY FOREIGN PLEDGE JURISDICTIONS" means, collectively, (a) as of the
Closing Date, the Netherlands, Ireland, Mexico and Australia, PLUS (b) after the
Closing Date, each other foreign jurisdiction in which any Significant Foreign
Subsidiary or Foreign Financing Subsidiary is organized; PROVIDED, in the case
of CLAUSE (B), if (i) the Borrower shall notify the Administrative Agent in
writing, together with the delivery of the Compliance Certificate listing
additional Key Foreign Pledge Jurisdictions, that the expense and burden to the
Borrower and its Subsidiaries of perfecting a security interest in such
jurisdiction in such other foreign jurisdiction is unreasonably excessive, and
(ii) the Administrative Agent shall determine, in its reasonable discretion,
that the cost and expense of obtaining or perfecting such security interest are
excessive in relation to the benefit to the Secured Parties of the security
afforded thereby, such other foreign jurisdiction shall not constitute a Key
Foreign Pledge Jurisdiction.
"LAWS" means, collectively, all international, foreign, Federal,
state and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C ADVANCE" means, with respect to each Revolving Credit Lender,
such Lender's funding of its participation in any L/C Borrowing in accordance
with its Applicable Percentage.
"L/C BORROWING" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Credit Borrowing.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit,
the issuance thereof or extension of the expiry date thereof, or the increase of
the amount thereof.
"L/C ISSUER" means with respect to any Letters of Credit to be issued
on or after the Closing Date, Bank of America in its capacity as issuer of
Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder, with respect to certain Existing Letters of Credit, ABN Amro Bank
N.V., and with respect to Letters of Credit generally, the foregoing
collectively.
"L/C OBLIGATIONS" means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding Letters of Credit
PLUS the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.
For purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with SECTION 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn
23
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of
Credit shall be deemed to be "outstanding" in the amount so remaining available
to be drawn.
"LENDER" has the meaning specified in the introductory paragraph
hereto and, as the context requires, includes the Swing Line Lender.
"LENDING OFFICE" means, as to any Lender, the office or offices of
such Lender described as such in such Lender's Administrative Questionnaire, or
such other office or offices of which a Lender may from time to time notify the
Borrower and the Administrative Agent.
"LETTER OF CREDIT" means any standby letter of credit issued
hereunder and shall include the Existing Letters of Credit.
"LETTER OF CREDIT APPLICATION" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to time in
use by the L/C Issuer.
"LETTER OF CREDIT EXPIRATION DATE" means the day that is seven days
prior to the Maturity Date then in effect for the Revolving Credit Facility (or,
if such day is not a Business Day, the next preceding Business Day).
"LETTER OF CREDIT FEE" has the meaning specified in SECTION 2.03(I).
"LETTER OF CREDIT SUBLIMIT" means an amount equal to $50,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Revolving
Credit Facility.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"LOAN" means an extension of credit by a Lender to the Borrower under
ARTICLE II in the form of a Term B Loan, a Revolving Credit Loan or a Swing Line
Loan.
"LOAN DOCUMENTS" means, collectively, (a) this Agreement, (b) the
Notes, (c) the Guaranty, (d) the Collateral Documents, (e) the Fee Letter, (f)
each Issuer Document, (g) each Secured Swap Contract, and (h) each agreement
governing the Secured Foreign Credit Lines; PROVIDED that for purposes of
ARTICLES IV through VIII, SECTION 10.01, the PROVISO to SECTION 10.04(B) and the
definition of "Material Adverse Effect" in the Credit Agreement, SECTIONS 6, 7,
8 and 18 of the Guaranty (as determined with respect to the form thereof
attached as EXHIBIT F hereto and the analogous provisions (including any
representation, warranty and covenant) in any other Guaranty), and SECTIONS 11,
12, the PROVISO to SECTION 21(A) and 25 of the Security Agreement (and the
analogous provisions (including any representation, warranty and covenant) in
any Collateral Document), "Loan Documents" shall not include Secured Swap
Contracts and agreements governing the Secured Foreign Credit Lines.
24
"LOAN PARTIES" means, collectively, the Borrower and each Guarantor
PROVIDED that, solely for purposes of Article VII, those Guarantors described in
subparts (b) and (e) of the definition of Guarantors shall not be deemed to be
Loan Parties.
"LOCAL LAW COLLATERAL DOCUMENTS" means, in respect of (a) the Equity
Interests in any First-Tier Foreign Subsidiaries and (b) any IP Rights
registered in a jurisdiction outside the United States that are owned by the
Borrower or any other Loan Party, in each case contemplated to be pledged by the
terms of the Loan Documents for the benefit of the Secured Parties, all
documents reasonably necessary to grant and perfect, under the laws of the
jurisdiction of organization of such First-Tier Foreign Subsidiary or the
jurisdiction of registration of such IP Rights, as applicable, the security
interest granted or contemplated to be granted, pursuant to the Loan Documents,
in the Equity Interests of such First-Tier Foreign Subsidiary, which shall in no
event extend to more than 66% of the Equity Interests of any such Subsidiary, or
in such registered IP Rights, as applicable, together with an opinion of local
counsel qualified in such jurisdiction of organization or registration, as
applicable, in form and substance reasonably satisfactory to the Administrative
Agent.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or
a material adverse effect upon, the business, assets, properties, results of
operations or financial condition of, on or prior to the Closing Date, (A) the
Business taken as a whole or (B) the Borrower and its Subsidiaries, taken as a
whole; after the Closing Date, the Borrower and its Subsidiaries, taken as a
whole; (b) a material impairment of the rights and remedies of any Agent or of
the Lenders, taken as a whole, under any material Loan Document; or (c) a
material impairment of the ability of any Loan Party (excluding any Guarantors
that are Immaterial Subsidiaries) to perform its obligations under any Loan
Document to which it is a party.
"MATERIAL CONTRACT" means, with respect to any Person, each contract
to which such Person is a party involving aggregate consideration payable to or
by such Person of $10,000,000 or more in any year or otherwise material to the
business, condition (financial or otherwise), results of operations or assets of
the Borrower and its Subsidiaries, taken as a whole.
"MATERIAL MARKS" means all Intellectual Property consisting of
Trademarks and Service Marks (other than Significant Marks) for products sold or
distributed as a principal product line associated with, or marketed under, any
Significant ▇▇▇▇ other than those that are no longer of material value or
utility to the Borrower or its Subsidiaries.
"MATERIAL SUBSIDIARY" means, at any date of determination, any
Subsidiary of the Borrower that together with its Subsidiaries (a) has revenues
in an amount equal to at least 5% of the consolidated revenues of the Borrower
and its Subsidiaries, or (b) has operating profits in an amount equal to at
least 5% of the consolidated operating profits of the Borrower and its
Subsidiaries, or (c) has assets in an amount equal to at least 5% of the
consolidated total assets of the Borrower and its Subsidiaries, in each case, as
determined for the most recently completed fiscal year for which the Lenders
have received financial statements of the Borrower and its Subsidiaries pursuant
to SECTION 6.01(A), commencing with the fiscal year ending December 2006;
PROVIDED, that, notwithstanding anything to the contrary, Material Subsidiary
shall in any event include any Subsidiary that constitutes a "Significant
Subsidiary" (or similar term) under the documents governing any Permitted
Financing.
25
"MATURITY DATE" means (a) with respect to the Revolving Credit
Facility, the earlier of (i) December 5, 2010 and (ii) the date of termination
in whole of the Revolving Credit Commitments pursuant to SECTION 2.06 or 8.02,
and (b) with respect to the Term B Facility, December 5, 2012 (the "STATED
MATURITY DATE").
"MEASUREMENT PERIOD" means, at any date of determination, the most
recently completed four fiscal quarters of the Borrower or, if less than four
consecutive fiscal quarters of the Borrower have been completed since the
Closing Date, the fiscal quarters of the Borrower that have been completed since
the Closing Date; PROVIDED that for purposes of the calculation of any financial
ratio or financial covenant, (a) Consolidated EBITDA and the items included in
CLAUSE (A) of the definition of "Consolidated Fixed Charge Coverage Ratio" shall
be determined for any portion of such four-fiscal quarter period prior to the
Closing Date on a combined basis, and (b) the items included in CLAUSE (B) of
the definition of "Consolidated Fixed Charge Coverage Ratio" shall be determined
for the fiscal quarter ended: (i) April 1, 2006, by MULTIPLYING the amount of
such items for the most recent fiscal quarter ended in the Measurement Period by
4; (ii) July 1, 2006, by MULTIPLYING the amount of such items for the two most
recent fiscal quarters ended in the Measurement Period by 2; and (c) September
30, 2006, by MULTIPLYING the amount of such items for the three most recent
fiscal quarters ended in the Measurement Period by 4/3.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"MORTGAGE" has the meaning specified in SECTION 6.19.
"MORTGAGE POLICY" has the meaning specified in SECTION 6.19.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"NET CASH PROCEEDS" means:
(a) with respect to any Disposition by the Borrower or any of its
Subsidiaries, or any Extraordinary Receipt received or paid to the account
of the Borrower or any of its Subsidiaries, the excess, if any, of (i) the
sum of cash and Cash Equivalents received in connection with such
transaction (including any cash or Cash Equivalents received by way of
deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) over (ii) the sum of (A) the
outstanding amount of any Indebtedness that is secured by the applicable
asset and that is required to be repaid in connection with such transaction
(other than Indebtedness under the Loan Documents), (B) the out-of-pocket
fees and expenses incurred by the Borrower or such Subsidiary in connection
with such transaction actually paid or (C) all taxes paid or reasonably
estimated to be actually payable, within two years of the date of the
relevant transaction, as a result of such transaction, and (D) the amount
of contingent liabilities directly attributable to such Disposition or
Extraordinary Receipt solely to the extent that reserves have been provided
therefor in accordance with GAAP; PROVIDED, that (x) in the
26
case of CLAUSE (C) above, with respect to any amount of taxes estimated to
be paid and not paid within two years of the date of the relevant
transaction, and (y) in the case of CLAUSE (D) above, with respect to any
contingent liabilities for which reserves have been provided, which
reserves have, in whole or in part, been reversed, the Borrower will
promptly notify the Administrative Agent thereof and the Borrower shall be
deemed to have received Net Cash Proceeds equal to such amounts not paid or
such amounts reversed; and
(b) with respect to the sale or issuance of any Equity Interest
by the Borrower or any of its Subsidiaries to any Person other than to the
Borrower or any Subsidiary, or the incurrence or issuance of any
Indebtedness by the Borrower or any of its Subsidiaries owing to any Person
other than to the Borrower or any Subsidiary, the excess of (i) the sum of
the cash and Cash Equivalents received in connection with such transaction
over (ii) the underwriting discounts and commissions, and other
out-of-pocket fees and expenses, incurred by the Borrower or such
Subsidiary in connection therewith.
"NOTE" means a Term B Note or a Revolving Credit Note, as the context
may require.
"NPL" means the National Priorities List under CERCLA.
"OBLIGATIONS" means (a) all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, (b) the
obligations of the Borrower under any Secured Swap Contract, (c) the obligations
of the Borrower or any of its Subsidiaries under any Secured Foreign Credit
Line, and (d) the obligations of any Foreign Subsidiaries of the Borrower in
favor of any Person that is a Lender or an Affiliate of a Lender, in its
capacity as provider of any treasury management services, in each case whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"OTHER TAXES" means all present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies arising from
any payment made
27
hereunder or under any other Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other Loan
Document.
"OUTSTANDING AMOUNT" means (a) with respect to Term B Loans,
Revolving Credit Loans and Swing Line Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of Term B Loans, Revolving Credit Loans and Swing Line
Loans, as the case may be, occurring on such date; and (b) with respect to any
L/C Obligations on any date, the amount of such L/C Obligations on such date
after giving effect to any L/C Credit Extension occurring on such date and any
other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by the Borrower of Unreimbursed
Amounts.
"PARTICIPANT" has the meaning specified in SECTION 10.06(D).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PENSION PLAN" means any "employee pension benefit plan" (as such
term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that
is subject to Title IV of ERISA and is sponsored or maintained by the Borrower
or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.
"PERMITTED ENCUMBRANCES" has the meaning specified in the Mortgages.
"PERMITTING FINANCING" means any unsecured Indebtedness of the
Borrower that (a) will not mature prior to the date that is six months after the
Stated Maturity Date (as defined in the definition of Maturity Date); (b) has no
scheduled amortization or payments of principal prior to the Stated Maturity
Date; (c) has covenant, default and remedy provisions no more restrictive, or
mandatory prepayment, repurchase or redemption provisions no more onerous or
expansive in scope, than those applicable for publicly traded high yield senior
or senior subordinated, as applicable, debt securities in light of then
prevailing market conditions as determined in the reasonable judgment of the
Administrative Agent in consultation with the investment bank acting as lead
underwriter, lead initial purchasers, lead bookrunning arranger and lead
bookrunning managers or lead placement agent with respect to such Indebtedness;
(d) will not be Guaranteed by any Subsidiaries unless such Subsidiaries are
Guarantors; (e) if senior subordinated, is expressly subordinated to the prior
payment in full in cash of the Obligations on terms and conditions applicable
for publicly traded high yield senior subordinated debt securities in light of
then prevailing market conditions as determined in the reasonable judgment of
the Administrative Agent in consultation with the investment bank acting as lead
underwriter, lead initial purchasers, lead bookrunning arranger and lead
bookrunning managers or lead placement agent with respect to such Indebtedness;
and (f) at the time of incurrence or issuance thereof, no Default or Event of
Default shall have occurred and be continuing or would result therefrom.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
28
"PLAN" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"PLATFORM" has the meaning specified in SECTION 6.02.
"PLEDGED DEBT" has the meaning specified in the Security Agreement.
"PLEDGED EQUITY" has the meaning specified in the Security Agreement.
"PRO FORMA EFFECT" means, with respect to any acquisition,
investment, dividend, distribution, sale, disposition, merger or similar event
consummated subsequent to the commencement of a period for which the financial
effect of any such event is to be included on a PRO FORMA basis, the computation
of any financial ratio or definition used in the computation thereof giving
effect to such events as if such events occurred on the first day of the
applicable period, which (a) shall reflect, to the extent applicable, (i) the
historical earnings and cash flows associated with the assets acquired or
disposed of and any related incurrence, assumption or reduction of Indebtedness,
and (ii) any projected synergies or similar benefits expected to be realized as
a result of such event to the extent such synergies or similar benefits would be
permitted to be reflected in financial statements prepared in compliance with
Regulation S-X under the Securities Act of 1933, as amended, and (b) be
determined on the basis of the financial information most recently delivered to
the Administrative Agent and the Lenders pursuant to SECTION 6.01(A) or (B).
"PROTECTED SUBSIDIARY" means, collectively, (a) Dart, (b) BCICIS, and
(c) each Subsidiary of the Borrower that owns, or licenses from a Person other
than the Borrower or any Subsidiary, any Material Marks.
"PURCHASE AGREEMENT" has the meaning specified in the Preliminary
Statements to this Agreement.
"QUALIFIED NON-WHOLLY OWNED SUBSIDIARY" means any Foreign Subsidiary
that is a non-wholly owned Subsidiary so long as 100% of the Equity Interests
issued by such Subsidiary (other than directors' qualifying shares and
investments by foreign nationals to the extent mandated by the Laws of such
jurisdiction) is beneficially owned, directly or indirectly, by the Borrower and
its wholly owned Subsidiaries, and the economic interests in such Foreign
Subsidiary are, directly or indirectly, owned for the benefit of the Borrower
and its wholly owned Subsidiaries.
"REAL PROPERTIES" means, at any time, a collective reference to each
of the facilities and parcels of real properties owned, leased or operated by
the Borrower or any Subsidiary at such time.
"REDUCTION AMOUNT" has the meaning set forth in SECTION
2.05(B)(VIII).
"REGISTER" has the meaning specified in SECTION 10.06(C).
29
"REGISTERED PUBLIC ACCOUNTING FIRM" has the meaning specified by the
Securities Laws and shall be independent of the Borrower as prescribed by the
Securities Laws.
"RELATED DOCUMENTS" means the Purchase Agreement and the other
documents, agreements and instruments attached to, or delivered in connection
with, the Purchase Agreement, including, without limitation, the Escrow
Agreement.
"RELATED PARTIES" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"REPORTABLE EVENT" means any of the events set forth in Section
4043(c) of ERISA, other than events for which the 30-day notice period has been
waived.
"REQUEST FOR CREDIT EXTENSION" means (a) with respect to a Borrowing,
conversion or continuation of Term B Loans or Revolving Credit Loans, a
Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of
Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan
Notice.
"REQUIRED FINANCIAL STATEMENTS" has the meaning specified in SECTION
4.01(E).
"REQUIRED LENDERS" means, as of any date of determination, Lenders
holding more than 50% of the sum of the (a) Total Outstandings (with the
aggregate amount of each Revolving Credit Lender's risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed "held" by
such Revolving Credit Lender for purposes of this definition) and (b) aggregate
unused Revolving Credit Commitments; PROVIDED that the unused Revolving Credit
Commitment of, and the portion of the Total Outstandings held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.
"REQUIRED PRINCIPAL PAYMENTS" means, with respect to any Person for
any period, the sum of all regularly scheduled principal payments or redemptions
of outstanding Funded Debt made during such period.
"REQUIRED REVOLVING LENDERS" means, as of any date of determination,
Revolving Credit Lenders holding more than 50% of the sum of the (a) Total
Revolving Credit Outstandings (with the aggregate amount of each Revolving
Credit Lender's risk participation and funded participation in L/C Obligations
and Swing Line Loans being deemed "held" by such Revolving Credit Lender for
purposes of this definition) and (b) aggregate unused Revolving Credit
Commitments; PROVIDED that the unused Revolving Credit Commitment of, and the
portion of the Total Revolving Credit Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Revolving Lenders.
"REQUIRED TERM B LENDERS" means, as of any date of determination,
Term B Lenders holding more than 50% of the aggregate principal amount of the
Term B Loans outstanding on such date; PROVIDED that the Term B Loans held by
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Term B Lenders.
30
"RESPONSIBLE OFFICER" means the chief executive officer, president,
chief financial officer, treasurer or assistant treasurer, chief legal officer
or controller of a U.S. Loan Party; the foreign equivalents of such officers of
any Loan Party that is a Foreign Subsidiary; and, in respect of BeautiControl
International Services, Inc. and Eventus International, Inc., any Vice
President. Any document delivered hereunder that is signed by a Responsible
Officer of a Loan Party shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on the part of such
Loan Party and such Responsible Officer shall be conclusively presumed to have
acted on behalf of such Loan Party.
"RESTRICTED PAYMENT" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any capital
stock or other Equity Interest of any Person or any of its Subsidiaries or on
account of any return of capital to any Person's stockholders, partners or
members (or the equivalent of any thereof), or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, defeasance, acquisition,
cancellation or termination of any such capital stock or other Equity Interest
or any option, warrant or other right to acquire any such dividend or other
distribution or payment.
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Loans of the same Type and, in the case of
Eurodollar Rate Loans, having the same Interest Period made by each of the
Revolving Credit Lenders pursuant to SECTION 2.01(B).
"REVOLVING CREDIT COMMITMENT" means, as to each Revolving Credit
Lender, its obligation to (a) make Revolving Credit Loans to the Borrower
pursuant to SECTION 2.01(B), (b) purchase participations in L/C Obligations, and
(c) purchase participations in Swing Line Loans, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite
such Lender's name on SCHEDULE 2.01 under the caption "Revolving Credit
Commitment" or opposite such caption in the Assignment and Assumption pursuant
to which such Lender becomes a party hereto, as applicable, as such amount may
be adjusted from time to time in accordance with this Agreement.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate amount
of the Revolving Credit Lenders' Revolving Credit Commitments at such time.
"REVOLVING CREDIT LENDER" means, at any time, any Lender that has a
Revolving Credit Commitment at such time.
"REVOLVING CREDIT LOAN" has the meaning specified in SECTION 2.01(B).
"REVOLVING CREDIT NOTE" means a promissory note made by the Borrower
in favor of a Revolving Credit Lender evidencing Revolving Credit Loans or Swing
Line Loans, as the case may be, made by such Revolving Credit Lender, in
substantially the form of EXHIBIT C-2.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
31
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"SECTION 956 DEEMED DIVIDEND" shall mean a deemed dividend pursuant
to Section 956 of the Code to the extent resulting from the creation of a pledge
or other security interest or the execution of a guarantee by a Foreign
Subsidiary; PROVIDED, that a Section 956 Deemed Dividend shall be treated as
resulting from such pledge or guarantee if (i) the Borrower shall notify the
Administrative Agent in writing that it has been advised that it cannot obtain a
"should" opinion from its auditors to the effect that such result should not
occur in a particular circumstance, and (ii) the Administrative Agent concurs.
In the event of disagreement between the Borrower and the Administrative Agent,
a Section 956 Deemed Dividend shall be considered to exist unless Ernst & Young
(or a successor national accounting firm mutually acceptable to Borrower and the
Administrative Agent) delivers to the Borrower a written "should" opinion in
form and substance reasonably satisfactory to the Administrative Agent, to the
effect that no Section 956 Deemed Dividend should result, such opinion to be
procured at Borrower's sole expense.
"SECURED FOREIGN CREDIT LINE" means any committed or uncommitted line
of credit in favor of any Foreign Subsidiary of the Borrower permitted under
SECTION 7.02(M) that is entered into by and between any such Foreign Subsidiary
and any Foreign Credit Line Bank; PROVIDED, that (a) each such line of credit
(whether committed or uncommitted) shall be set forth on SCHEDULE 7.02(M), and
(b) the maximum aggregate amount of credit under all such lines (including,
without limitation, all uncommitted lines of credit) shall not at any time
exceed $150,000,000.
"SECURED OBLIGATIONS" has the meaning specified in the Security
Agreement.
"SECURED PARTIES" means, collectively, the Administrative Agent, the
Lenders, the L/C Issuer, the Hedge Banks, the Foreign Credit Line Banks, each
co-agent or sub-agent appointed by the Administrative Agent from time to time
pursuant to SECTION 9.05, and the other Persons the Secured Obligations owing to
which are or are purported to be secured by the Collateral under the terms of
the Collateral Documents.
"SECURED SWAP CONTRACT" means any Swap Contract in respect of any
interest protection or other hedging arrangements required or permitted under
ARTICLE VI or VII that is entered into by and between the Borrower and any Hedge
Bank.
"SECURITIES LAWS" means the Securities Act of 1933, the Securities
Exchange Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇, and, in each case, the rules and
regulations of the SEC promulgated thereunder, and the applicable accounting and
auditing principles, rules, standards and practices promulgated, approved or
incorporated by the SEC or the Public Company Accounting Oversight Board, as
each of the foregoing may be amended and in effect on any applicable date under
this Agreement.
"SECURITY AGREEMENT" has the meaning specified in SECTION
4.01(A)(III).
"SECURITY AGREEMENT SUPPLEMENT" has the meaning specified in the
Security Agreement.
32
"SELLER" has the meaning specified in the Preliminary Statements to
this Agreement.
"SHAREHOLDERS' EQUITY" means, as of any date of determination,
consolidated shareholders' equity of the Borrower and its Subsidiaries as of
that date determined in accordance with GAAP.
"SIGNIFICANT FOREIGN SUBSIDIARY" means, (a) as of the Closing Date,
each First Tier Foreign Subsidiary listed on SCHEDULE 1.01(B) hereto, PLUS (b)
after the Closing Date, each First Tier Foreign Subsidiary of the Borrower that
together with its Subsidiaries (i) has revenues in an amount equal to at least
5% of the consolidated revenues of the Borrower and its Subsidiaries, or (ii)
has operating profits in an amount equal to at least 5% of the consolidated
operating profits of the Borrower and its Subsidiaries, or (iii) has assets in
an amount equal to at least 5% of the consolidated total assets of the Borrower
and its Subsidiaries, in each case, as determined for the most recently
completed fiscal year for which the Lenders have received financial statements
of the Borrower and its Subsidiaries pursuant to SECTION 6.01(A), commencing
with the fiscal year ending December 2006.
"SIGNIFICANT ▇▇▇▇" means the "Tupperware" and "BeautiControl"
Trademarks and Service Marks.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on any date
of determination, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay such debts and
liabilities as they mature and (d) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction, for
which such Person's property would constitute unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"SPC" has the meaning specified in SECTION 10.06(H).
"SPECIFIED FLORIDA PROPERTIES" means the unimproved Real Properties
located in Orange and/or Osceola Counties, Florida owned by the Borrower or any
of its Subsidiaries as of the Closing Date.
"SUBSIDIARY" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares or securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person.
33
Unless otherwise specified, all references herein to a "SUBSIDIARY" or to
"SUBSIDIARIES" shall refer to a Subsidiary or Subsidiaries of the Borrower.
"SWAP CONTRACT" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "MASTER AGREEMENT"), including
any such obligations or liabilities under any Master Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"SWING LINE" means the revolving credit facility made available by
the Swing Line Lender pursuant to SECTION 2.04.
"SWING LINE BORROWING" means a borrowing of a Swing Line Loan
pursuant to SECTION 2.04.
"SWING LINE LENDER" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
"SWING LINE LOAN" has the meaning specified in SECTION 2.04(A).
"SWING LINE LOAN NOTICE" means a notice of a Swing Line Borrowing
pursuant to SECTION 2.04(B), which, if in writing, shall be substantially in the
form of EXHIBIT B.
"SWING LINE SUBLIMIT" means an amount equal to the lesser of (a)
$25,000,000 and (b) the Revolving Credit Facility. The Swing Line Sublimit is
part of, and not in addition to, the Revolving Credit Facility.
"SYNDICATION AGENT" has the meaning specified in the introductory
paragraph hereto.
34
"SYNTHETIC DEBT" means, with respect to any Person as of any date of
determination thereof, all Obligations of such Person in respect of transactions
entered into by such Person that are intended to function primarily as a
borrowing of funds (including any minority interest transactions that function
primarily as a borrowing) but are not otherwise included in the definition of
"INDEBTEDNESS" or as a liability on the consolidated balance sheet of such
Person and its Subsidiaries in accordance with GAAP.
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of a
Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property (including sale
and leaseback transactions), in each case, creating obligations that do not
appear on the balance sheet of such Person but which, upon the application of
any Debtor Relief Laws to such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).
"TAXES" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"TERM B BORROWING" means a borrowing consisting of simultaneous Term
B Loans of the same Type and, in the case of Eurodollar Rate Loans, having the
same Interest Period made by each of the Term B Lenders pursuant to SECTION
2.01(A).
"TERM B COMMITMENT" means, as to each Term B Lender, its obligation
to make Term B Loans to the Borrower pursuant to SECTION 2.01(A) in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lender's name on SCHEDULE 2.01 under the caption "Term B
Commitment" or opposite such caption in the Assignment and Assumption pursuant
to which such Term B Lender becomes a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement.
"TERM B FACILITY" means, at any time, (a) on or prior to the Closing
Date, the aggregate amount of the Term B Commitments at such time and (b)
thereafter the aggregate principal amount of the Term B Loans of all Term B
Lenders outstanding at such time.
"TERM B INCREASE EFFECTIVE DATE" has the meaning specified in SECTION
2.14(D).
"TERM B LENDER" means at any time, (a) on or prior to the Closing
Date, any Lender that has a Term B Commitment at such time and (b) at any time
after the Closing Date, any Lender that holds Term B Loans at such time.
"TERM B LOAN" means an advance made by any Term B Lender under the
Term B Facility.
"TERM B NOTE" means a promissory note made by the Borrower in favor
of a Term B Lender, evidencing Term B Loans made by such Term B Lender, in
substantially the form of EXHIBIT C-1.
"THRESHOLD AMOUNT" means $10,000,000.
35
"TICL" means Tupperware International Capital Ltd., a company
organized under the laws of Ireland and a Subsidiary of the Borrower.
"TOTAL OUTSTANDINGS" means the aggregate Outstanding Amount of all
Loans and all L/C Obligations.
"TOTAL REVOLVING CREDIT OUTSTANDINGS" means the aggregate Outstanding
Amount of all Revolving Credit Loans, Swing Line Loans and L/C Obligations.
"TRADEMARKS AND SERVICE MARKS" has the meaning specified in the
Security Agreement.
"TRANSACTION" means, collectively, (a) the entering into by the
Borrower and its applicable Subsidiaries of the Related Documents to which they
are or are intended to be a party and the consummation of the Acquisition and
the other transactions contemplated by the Related Documents (except those that
by the terms of the Purchase Agreement and the Escrow Agreement are expressly
contemplated to be consummated after the Closing Date), (b) the entering into by
the Loan Parties and their applicable Subsidiaries of the Loan Documents, (c)
the refinancing of certain outstanding Indebtedness of the Borrower and its
Subsidiaries and the termination of all commitments with respect thereto,
including, without limitation, as to the Existing Credit Agreement, the
discharge of the 2006 Notes and the prepayment of the 2011 Notes, and (d) the
payment of the fees and expenses incurred in connection with the consummation of
the foregoing.
"2006 NOTES" means the 7.25% unsecured notes of Tupperware BV due
2006 in an aggregate principal amount of $100,000,000 issued and sold pursuant
to the 2006 Notes Documents.
"2006 NOTES DOCUMENTS" means the Indenture dated as of October 1,
1996 entered into by and among Tupperware BV, as issuer, the Borrower, as
guarantor and ▇▇ ▇▇▇▇▇▇ Trust Company, National Association, as successor in
interest to the trustee, the 2006 Notes and all other agreements, instruments
and other documents pursuant to which the 2006 Notes have been issued or
otherwise setting forth the terms of the 2006 Notes.
"2011 NOTES" means the 7.91% unsecured notes of Tupperware BV due
2011 in an aggregate principal amount of $150,000,000 issued and sold pursuant
to the 2011 Notes Documents.
"2011 NOTES DOCUMENTS" means the Notes Purchase Agreement dated as of
July 15, 2001 by and between Tupperware BV and the purchasers party thereto, the
Guaranty Agreement dated as of July 15, 2001 by the Borrower, as guarantor, the
2011 Notes Amendments, the 2011 Notes and all other agreements, investments and
other documents pursuant to which the 2011 Notes have been or will be issued or
otherwise setting forth the terms of the 2011 Notes.
"TYPE" means, with respect to a Loan, its character as a Base Rate
Loan or a Eurodollar Rate Loan.
36
"UCC" means the Uniform Commercial Code as in effect in the State of
New York; PROVIDED that, if perfection or the effect of perfection or
non-perfection or the priority of any security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, "UCC" means the Uniform Commercial Code as in effect
from time to time in such other jurisdiction for purposes of the provisions
hereof relating to such perfection, effect of perfection or non-perfection or
priority.
"UNFUNDED PENSION LIABILITY" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"UNITED STATES" and "U.S." mean the United States of America.
"UNREIMBURSED AMOUNT" has the meaning specified in SECTION
2.03(C)(I).
"U.S. LOAN PARTY" means any Loan Party that is organized under the
laws of one of the states of the United States or the laws of the District of
Columbia.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement
and each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "INCLUDE," "INCLUDES" and "INCLUDING" shall be
deemed to be followed by the phrase "without limitation." The word "WILL"
shall be construed to have the same meaning and effect as the word "SHALL."
Unless the context requires otherwise, (i) any definition of or reference
to any agreement, instrument or other document (including any Organization
Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein or in any other Loan Document), (ii) any
reference herein to any Person shall be construed to include such Person's
successors and assigns, (iii) the words "HEREIN," "HEREOF" and "HEREUNDER,"
and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document
in which such references appear, (v) any reference to any law shall include
all statutory and regulatory provisions consolidating, amending replacing
or interpreting such law and any reference to any law or regulation shall,
unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words "ASSET" and
"PROPERTY" shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
37
(b) In the computation of periods of time from a specified date to a
later specified date, the word "FROM" means "FROM AND INCLUDING"; the words
"TO" and "UNTIL" each mean "TO BUT EXCLUDING"; and the word "THROUGH" means
"TO AND INCLUDING."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) GENERALLY. All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed
herein.
(b) CHANGES IN GAAP. If at any time any change in GAAP would affect
the computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
PROVIDED that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 TIMES OF DAY. Unless otherwise specified, all references herein
to times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; PROVIDED, HOWEVER, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
1.07 CURRENCY EQUIVALENTS GENERALLY. Any amount specified in this
Agreement (other than in ARTICLES II, IX and X) or any of the other Loan
Documents to be in Dollars shall also include the equivalent of such amount in
any currency other than Dollars, such equivalent
38
amount thereof in the applicable currency to be determined by the Administrative
Agent at such time on the basis of the Spot Rate (as defined below) for the
purchase of such currency with Dollars. For purposes of this SECTION 1.07, the
"SPOT RATE" for a currency means the rate determined by the Administrative Agent
to be the rate quoted by the Person acting in such capacity as the spot rate for
the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the
date two Business Days prior to the date of such determination; PROVIDED that
the Administrative Agent may obtain such spot rate from another financial
institution designated by the Administrative Agent if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for
any such currency.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 THE LOANS. (a) THE TERM B BORROWING. Subject to the terms and
conditions set forth herein, each Term B Lender severally agrees to make a
single loan to the Borrower on the Closing Date in an amount not to exceed such
Term B Lender's Term B Commitment. The Term B Borrowing shall consist of Term B
Loans made simultaneously by the Term B Lenders in accordance with their
respective Term B Commitments. Amounts borrowed under this SECTION 2.01(A) and
repaid or prepaid may not be reborrowed. Term B Loans may be Base Rate Loans or
Eurodollar Rate Loans as further provided herein.
(b) THE REVOLVING CREDIT BORROWINGS. Subject to the terms and
conditions set forth herein, each Revolving Credit Lender severally agrees to
make loans (each such loan, a "REVOLVING CREDIT LOAN") to the Borrower from time
to time, on any Business Day during the Availability Period, in an aggregate
amount not to exceed at any time outstanding the amount of such Lender's
Revolving Credit Commitment; PROVIDED, HOWEVER, that after giving effect to any
Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings at such
time shall not exceed the Revolving Credit Facility at such time, and (ii) the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, PLUS
such Revolving Credit Lender's Applicable Revolving Credit Percentage of the
Outstanding Amount of all L/C Obligations, PLUS such Revolving Credit Lender's
Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Revolving Credit Lender's Revolving Credit
Commitment. Within the limits of each Revolving Credit Lender's Revolving Credit
Commitment, and subject to the other terms and conditions hereof, the Borrower
may borrow under this SECTION 2.01(B), prepay under SECTION 2.05, and reborrow
under this SECTION 2.01(B). Revolving Credit Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS. (a) Each Term
B Borrowing, each Revolving Credit Borrowing, each conversion of Term B Loans or
Revolving Credit Loans from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon the Borrower's irrevocable notice to
the Administrative Agent, which may be given by telephone. Each such notice must
be received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of
Base Rate Loans.
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Each telephonic notice by the Borrower pursuant to this SECTION 2.02(A) must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in SECTIONS 2.03(C)
and 2.04(C), each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $100,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Term B Borrowing, a Revolving
Credit Borrowing, a conversion of Term B Loans or Revolving Credit Loans from
one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Term B Loans or Revolving Credit Loans are to be converted, and
(v) if applicable, the duration of the Interest Period with respect thereto. If
the Borrower fails to specify a Type of Loan in a Committed Loan Notice or if
the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Term B Loans or Revolving Credit Loans shall
be made as, or converted to, Base Rate Loans. Any such automatic conversion to
Base Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurodollar Rate Loans. If the
Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar
Rate Loans in any such Committed Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.
Notwithstanding anything to the contrary herein, a Swing Line Loan shall only be
a Base Rate Loan and may not be converted to a Eurodollar Rate Loan.
(b) Following receipt of a Committed Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Applicable
Percentage under the applicable Facility of the applicable Term B Loans or
Revolving Credit Loans, and if no timely notice of a conversion or continuation
is provided by the Borrower, the Administrative Agent shall notify each Lender
of the details of any automatic conversion to Base Rate Loans described in
SECTION 2.02(A). In the case of a Term B Borrowing or a Revolving Credit
Borrowing, each Appropriate Lender shall make the amount of its Loan available
to the Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in SECTION 4.02 (and, if such Borrowing is the initial Credit
Extension, SECTION 4.01), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; PROVIDED,
HOWEVER, that if, on the date a Committed Loan Notice with respect to a
Revolving Credit Borrowing is given by the Borrower, there are L/C Borrowings
outstanding, then the proceeds of such Revolving Credit Borrowing, FIRST, shall
be applied to the payment in full of any such L/C Borrowings, and SECOND, shall
be made available to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan.
40
During the existence of a Default, no Loans may be requested as, converted to or
continued as Eurodollar Rate Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and
the Lenders of the interest rate applicable to any Interest Period for
Eurodollar Rate Loans upon determination of such interest rate. At any time that
Base Rate Loans are outstanding, the Administrative Agent shall notify the
Borrower and the Lenders of any change in Bank of America's prime rate used in
determining the Base Rate promptly following the public announcement of such
change.
(e) After giving effect to all Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than ten Interest Periods in effect in respect of the
Facilities.
(f) Anything in this SECTION 2.02 to the contrary notwithstanding, the
Borrower may not select Interest Periods for Eurodollar Rate Loans for the
initial Credit Extension or any Credit Extension within the first five Business
Days after the Closing Date that have a duration of more than seven days.
2.03 LETTERS OF CREDIT. (a) THE LETTER OF CREDIT COMMITMENT. (i)
Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees,
in reliance upon the agreements of the Revolving Credit Lenders set forth in
this SECTION 2.03, (1) from time to time on any Business Day during the period
from the Closing Date until the Letter of Credit Expiration Date, to issue
Letters of Credit for the account of the Borrower, and to amend Letters of
Credit previously issued by it, in accordance with SECTION 2.03(B), and (2) to
honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders
severally agree to participate in Letters of Credit issued for the account of
the Borrower and any drawings thereunder; PROVIDED that after giving effect to
any L/C Credit Extension with respect to any Letter of Credit, (x) the Total
Revolving Credit Outstandings at such time shall not exceed the Revolving Credit
Facility at such time, (y) the aggregate Outstanding Amount of the Revolving
Credit Loans of any Revolving Credit Lender, PLUS such Lender's Applicable
Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations,
PLUS such Lender's Applicable Revolving Credit Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender's Revolving Credit
Commitment, and (z) the Outstanding Amount of the L/C Obligations at such time
shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for
the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to the terms and conditions hereof, the
Borrower's ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. All Existing Letters of Credit shall be deemed to have been
issued pursuant hereto, and from and after the Closing Date shall be subject to
and governed by the terms and conditions hereof.
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(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) the expiry date of such requested Letter of Credit would
occur more than twelve months after the date of issuance, unless
the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Revolving Credit Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue
any Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or
any Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit,
or request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon the L/C Issuer with respect to
such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which
the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one
or more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent
and the L/C Issuer, such Letter of Credit is in an initial stated
amount less than $100,000;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars;
(E) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
(F) a default of any Lender's obligations to fund under
Section 2.03(c) exists or any Lender is at such time a Defaulting
Lender hereunder, unless the L/C Issuer has entered into
satisfactory arrangements with the Borrower or such Lender to
eliminate the L/C Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the
L/C Issuer would not be permitted at such time to issue such Letter of
Credit in its amended form under the terms hereof.
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(v) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at
such time to issue such Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Credit
Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and the L/C Issuer shall have all of
the benefits and immunities (A) provided to the Administrative Agent
in ARTICLE IX with respect to any acts taken or omissions suffered by
the L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term "Administrative Agent" as
used in ARTICLE IX included the L/C Issuer with respect to such acts
or omissions, and (B) as additionally provided herein with respect to
the L/C Issuer.
(b) PROCEDURES FOR ISSUANCE AND AMENDMENT OF LETTERS OF CREDIT. (i)
Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Borrower.
Such Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business Days (or
such later date and time as the Administrative Agent and the L/C Issuer may
agree in a particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a request
for an initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A)
the proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the L/C Issuer may reasonably require.
In the case of a request for an amendment of any outstanding Letter of Credit,
such Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the L/C Issuer (1) the Letter of Credit to be amended; (2) the
proposed date of amendment thereof (which shall be a Business Day); (3) the
nature of the proposed amendment; and (4) such other matters as the L/C Issuer
may require. Additionally, the Borrower shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to such
requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Unless the L/C Issuer
has received written notice from any Revolving Credit Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior to
the requested date of issuance or amendment of the applicable Letter of
Credit, that one or more applicable conditions contained in ARTICLE IV
shall not then be satisfied, then,
43
subject to the terms and conditions hereof, the L/C Issuer shall, on the
requested date, issue a Letter of Credit for the account of the Borrower or
enter into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer's usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Revolving
Credit Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of
such Revolving Credit Lender's Applicable Revolving Credit Percentage TIMES
the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) DRAWINGS AND REIMBURSEMENTS; FUNDING OF PARTICIPATIONS. (i) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the
Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on
the date of any payment by the L/C Issuer under a Letter of Credit (each
such date, an "HONOR DATE"), the Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such
drawing; PROVIDED, that if Borrower received notice of such draw after 1:00
p.m. on the Honor Date or if the Honor Date was not a Business Day on which
Swing Line Loans could be made, the Borrower shall make such reimbursement
not later than 11:00 a.m. on the first Business Day following such Honor
Date. If the Borrower fails to so reimburse the L/C Issuer by such time,
the Administrative Agent shall promptly notify each Revolving Credit Lender
of the Honor Date, the amount of the unreimbursed drawing (the
"UNREIMBURSED AMOUNT"), and the amount of such Revolving Credit Lender's
Applicable Revolving Credit Percentage thereof. In such event, the Borrower
shall be deemed to have requested a Revolving Credit Borrowing of Base Rate
Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified
in SECTION 2.02 for the principal amount of Base Rate Loans, but subject to
the amount of the unutilized portion of the Revolving Credit Commitments
and the conditions set forth in SECTION 4.02 (other than the delivery of a
Committed Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this SECTION 2.03(C)(I) may be given by
telephone if immediately confirmed in writing; PROVIDED that the lack of
such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Revolving Credit Lender shall upon any notice pursuant to
SECTION 2.03(C)(I) make funds available to the Administrative Agent for the
account of the L/C Issuer at the Administrative Agent's Office in an amount
equal to its Applicable Revolving Credit Percentage of the Unreimbursed
Amount not later than 1:00 p.m. on the Business Day specified in such
notice by the Administrative Agent, whereupon, subject to the provisions of
SECTION 2.03(C)(III), each Revolving Credit Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received to
the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Revolving Credit Borrowing of Base Rate Loans because the
conditions set forth in
44
SECTION 4.02 cannot be satisfied or for any other reason, the Borrower
shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in
the amount of the Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with interest) and
shall bear interest at the Default Rate. In such event, each Revolving
Credit Lender's payment to the Administrative Agent for the account of the
L/C Issuer pursuant to SECTION 2.03(C)(II) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall constitute an
L/C Advance from such Lender in satisfaction of its participation
obligation under this SECTION 2.03.
(iv) Until each Revolving Credit Lender funds its Revolving Credit
Loan or L/C Advance pursuant to this SECTION 2.03(C) to reimburse the L/C
Issuer for any amount drawn under any Letter of Credit, interest in respect
of such Lender's Applicable Revolving Credit Percentage of such amount
shall be solely for the account of the L/C Issuer.
(v) Each Revolving Credit Lender's obligation to make Revolving Credit
Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this SECTION 2.03(C), shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any
other Person for any reason whatsoever; (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; PROVIDED, HOWEVER, that each Revolving
Credit Lender's obligation to make Revolving Credit Loans pursuant to this
SECTION 2.03(C) is subject to the conditions set forth in SECTION 4.02
(other than delivery by the Borrower of a Committed Loan Notice ). No such
making of an L/C Advance shall relieve or otherwise impair the obligation
of the Borrower to reimburse the L/C Issuer for the amount of any payment
made by the L/C Issuer under any Letter of Credit, together with interest
as provided herein.
(vi) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required
to be paid by such Lender pursuant to the foregoing provisions of this
SECTION 2.03(C) by the time specified in SECTION 2.03(C)(II), the L/C
Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the L/C Issuer at a rate per annum
equal to the greater of the Federal Funds Rate and a rate determined by the
L/C Issuer in accordance with banking industry rules on interbank
compensation. A certificate of the L/C Issuer submitted to any Revolving
Credit Lender (through the Administrative Agent) with respect to any
amounts owing under this SECTION 2.03(C)(VI) shall be conclusive absent
manifest error.
(d) REPAYMENT OF PARTICIPATIONS. (i) At any time after the L/C Issuer
has made a payment under any Letter of Credit and has received from any
Revolving Credit Lender such Lender's L/C Advance in respect of such
payment in accordance with SECTION 2.03(C), if the Administrative Agent
receives for the account of the L/C Issuer any payment in respect of the
45
related Unreimbursed Amount or interest thereon (whether directly from the
Borrower or otherwise, including proceeds of Cash Collateral applied thereto by
the Administrative Agent), the Administrative Agent will distribute to such
Lender its Applicable Revolving Credit Percentage thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Lender's L/C Advance was outstanding) in the same funds as those
received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to SECTION 2.03(C)(I) is required to be
returned under any of the circumstances described in SECTION 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Revolving Credit Lender shall pay to the Administrative
Agent for the account of the L/C Issuer its Applicable Revolving Credit
Percentage thereof on demand of the Administrative Agent, PLUS interest
thereon from the date of such demand to the date such amount is returned by
such Lender, at a rate per annum equal to the Federal Funds Rate from time
to time in effect. The obligations of the Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this
Agreement.
(e) OBLIGATIONS ABSOLUTE. The obligation of the Borrower to reimburse
the L/C Issuer for each drawing under each Letter of Credit and to repay
each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under
all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or
any Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect; or any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under
such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by
the L/C Issuer under such Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of such Letter
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of Credit, including any arising in connection with any proceeding
under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the Borrower or any of its Subsidiaries.
The Borrower shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to it and, in the event of any
claim of noncompliance with the Borrower's instructions or other irregularity,
the Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) ROLE OF L/C ISSUER. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Revolving Credit Lenders or the Required Revolving
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any Letter
of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; PROVIDED, HOWEVER, that this assumption is not intended to,
and shall not, preclude the Borrower's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of the
L/C Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (v) of SECTION 2.03(E); PROVIDED, HOWEVER, that anything in
such clauses to the contrary notwithstanding, the Borrower may have a claim
against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Borrower which the Borrower proves were
caused by the L/C Issuer's willful misconduct or gross negligence or the L/C
Issuer's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
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(g) CASH COLLATERAL. Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, the Borrower
shall immediately Cash Collateralize the such L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrower shall immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations. SECTIONS 2.05 and 8.02(C) set forth
certain additional requirements to deliver Cash Collateral hereunder. For
purposes of this SECTION 2.03, SECTION 2.05 and SECTION 8.02(C), "CASH
COLLATERALIZE" means, with respect to any L/C Obligations, to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for such L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance reasonably satisfactory
to the Administrative Agent and the L/C Issuer (which documents are hereby
consented to by the Lenders). Derivatives of such term have corresponding
meanings. The Borrower hereby grants to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, a security interest in all such cash,
deposit accounts and all balances therein and all proceeds of the foregoing.
Cash Collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America. If at any time the Administrative Agent reasonably
determines that any funds held as Cash Collateral are subject to any right or
claim of any Person other than the Administrative Agent or that the total amount
of such funds is less than the aggregate Outstanding Amount of all L/C
Obligations, the Borrower will, forthwith upon demand by the Administrative
Agent, pay to the Administrative Agent, as additional funds to be deposited as
Cash Collateral, an amount equal to the excess of (x) such aggregate Outstanding
Amount over (y) the total amount of funds, if any, then held as Cash Collateral
that the Administrative Agent reasonably determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds
are on deposit as Cash Collateral, such funds shall be applied, to the extent
permitted under applicable law, to reimburse the L/C Issuer.
(h) APPLICABILITY OF ISP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP
shall apply to each Letter of Credit.
(i) LETTER OF CREDIT FEES. The Borrower shall pay to the
Administrative Agent for the account of each Revolving Credit Lender in
accordance with its Applicable Revolving Credit Percentage a Letter of Credit
fee (the "LETTER OF CREDIT FEE") for each Letter of Credit equal to the
Applicable Rate TIMES the daily amount available to be drawn under such Letter
of Credit. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with SECTION 1.06. Letter of Credit Fees shall be (A)
computed on a quarterly basis in arrears and (B) due and payable on the date of
each quarterly principal repayment installment date set forth in SECTION
2.07(A), commencing with the first such date to occur after the issuance of such
Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. If there is any change in the Applicable Rate during any quarter, the
daily amount available to be drawn under each Letter of Credit shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required Revolving Lenders,
while any Event of Default is continuing, all Letter of Credit Fees shall accrue
at the Default Rate.
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(j) FRONTING FEE AND DOCUMENTARY AND PROCESSING CHARGES PAYABLE TO L/C
ISSUER. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit, at a rate of 0.125% per
annum, computed on the daily amount available to be drawn under such Letter of
Credit on a quarterly basis in arrears, and due and payable on the date of each
quarterly principal repayment installment date set forth in SECTION 2.07(A),
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with SECTION 1.06. In addition, the Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
(k) CONFLICT WITH ISSUER DOCUMENTS. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
2.04 SWING LINE LOANS. (a) THE SWING LINE. Subject to the terms and
conditions set forth herein, the Swing Line Lender agrees, in reliance upon the
agreements of the other Lenders set forth in this Section 2.04, to make loans
(each such loan, a "SWING LINE LOAN") to the Borrower from time to time on any
Business Day during the Availability Period in an aggregate amount not to exceed
at any time outstanding the amount of the Swing Line Sublimit, notwithstanding
the fact that such Swing Line Loans, when aggregated with the Applicable
Revolving Credit Percentage of the Outstanding Amount of Revolving Credit Loans
and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the
amount of such Lender's Revolving Credit Commitment; PROVIDED, HOWEVER, that
after giving effect to any Swing Line Loan, (i) the Total Revolving Credit
Outstandings shall not exceed the Revolving Credit Facility at such time, and
(ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any
Revolving Credit Lender at such time, PLUS such Revolving Credit Lender's
Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C
Obligations at such time, plus such Revolving Credit Lender's Applicable
Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans at
such time shall not exceed such Lender's Revolving Credit Commitment, and
PROVIDED FURTHER that the Borrower shall not use the proceeds of any Swing Line
Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits,
and subject to the other terms and conditions hereof, the Borrower may borrow
under this SECTION 2.04, prepay under SECTION 2.05, and reborrow under this
SECTION 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon
the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the
Swing Line Lender a risk participation in such Swing Line Loan in an amount
equal to the product of such Revolving Credit Lender's Applicable Revolving
Credit Percentage times the amount of such Swing Line Loan.
(b) BORROWING PROCEDURES. Each Swing Line Borrowing shall be made
upon the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $1,000,000 or a whole
49
multiple of $100,000 in excess thereof, and (ii) the requested borrowing date,
which shall be a Business Day. Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Revolving Credit Lender) prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of SECTION 2.04(A), or (B) that one or more of the
applicable conditions specified in ARTICLE IV is not then satisfied, then,
subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Borrower at its
office by crediting the account of the Borrower on the books of the Swing Line
Lender in immediately available funds.
(c) REFINANCING OF SWING LINE LOANS. (i) The Swing Line Lender at any
time in its sole and absolute discretion may request, on behalf of the Borrower
(which hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Revolving Credit Lender make a Base Rate Loan in an amount
equal to such Lender's Applicable Revolving Credit Percentage of the amount of
Swing Line Loans then outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Committed Loan Notice for purposes
hereof) and in accordance with the requirements of SECTION 2.02, without regard
to the minimum and multiples specified therein for the principal amount of Base
Rate Loans, but subject to the unutilized portion of the Revolving Credit
Facility and the conditions set forth in SECTION 4.02. The Swing Line Lender
shall furnish the Borrower with a copy of the applicable Committed Loan Notice
promptly after delivering such notice to the Administrative Agent. Each
Revolving Credit Lender shall make an amount equal to its Applicable Revolving
Credit Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in immediately available funds for the
account of the Swing Line Lender at the Administrative Agent's Office not later
than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon,
subject to SECTION 2.04(C)(II), each Revolving Credit Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the Swing
Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Revolving Credit Borrowing in accordance with SECTION 2.04(C)(I),
the request for Base Rate Loans submitted by the Swing Line Lender as set
forth herein shall be deemed to be a request by the Swing Line Lender that
each of the Revolving Credit Lenders fund its risk participation in the
relevant Swing Line Loan and each Revolving Credit Lender's payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to
SECTION 2.04(C)(I) shall be deemed payment in respect of such
participation.
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(iii) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of
this SECTION 2.04(C) by the time specified in SECTION 2.04(C)(I), the Swing
Line Lender shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per
annum equal to the greater of the Federal Funds Rate and a rate determined
by the Swing Line Lender in accordance with banking industry rules on
interbank compensation. A certificate of the Swing Line Lender submitted to
any Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Revolving Credit Lender's obligation to make Revolving
Credit Loans or to purchase and fund risk participations in Swing Line
Loans pursuant to this SECTION 2.04(C) shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C)
any other occurrence, event or condition, whether or not similar to any of
the foregoing; PROVIDED, HOWEVER, that each Revolving Credit Lender's
obligation to make Revolving Credit Loans pursuant to this SECTION 2.04(C)
is subject to the conditions set forth in SECTION 4.02. No such funding of
risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided
herein.
(d) REPAYMENT OF PARTICIPATIONS. (i) At any time after any Revolving
Credit Lender has purchased and funded a risk participation in a Swing Line
Loan, if the Swing Line Lender receives any payment on account of such Swing
Line Loan, the Swing Line Lender will distribute to such Revolving Credit Lender
its Applicable Revolving Credit Percentage of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Lender's risk participation was funded) in the same funds as those
received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by the
Swing Line Lender under any of the circumstances described in SECTION 10.05
(including pursuant to any settlement entered into by the Swing Line Lender in
its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender
its Applicable Revolving Credit Percentage thereof on demand of the
Administrative Agent, PLUS interest thereon from the date of such demand to the
date such amount is returned, at a rate per annum equal to the Federal Funds
Rate. The Administrative Agent will make such demand upon the request of the
Swing Line Lender. The obligations of the Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this
Agreement.
(e) INTEREST FOR ACCOUNT OF SWING LINE LENDER. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line
Loans. Until each
51
Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant
to this SECTION 2.04 to refinance such Revolving Credit Lender's Applicable
Revolving Credit Percentage of any Swing Line Loan, interest in respect of such
Applicable Revolving Credit Percentage shall be solely for the account of the
Swing Line Lender.
(f) PAYMENTS DIRECTLY TO SWING LINE LENDER. The Borrower shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
2.05 PREPAYMENTS.
(a) OPTIONAL. (i) The Borrower may, upon notice to the Administrative
Agent, at any time or from time to time voluntarily prepay Loans in whole or in
part without premium or penalty; provided that (A) such notice must be received
by the Administrative Agent not later than 11:00 a.m. (1) three Business Days
prior to any date of prepayment of Eurodollar Rate Loans and (2) on the date of
prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall
be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof; and (C) any prepayment of Base Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof
or, in each case, if less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such prepayment and the
Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount of such
Lender's ratable portion of such prepayment (based on such Lender's Applicable
Percentage in respect of the relevant Facility). If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to
SECTION 3.05. Each prepayment of the outstanding Term B Loans pursuant to this
SECTION 2.05(A) shall be applied to the next four quarterly principal repayment
installments thereof in direct order of maturity and thereafter ratably to the
remaining principal repayment installments thereof, and each such prepayment
shall be paid to the Lenders in accordance with their respective Applicable
Percentages in respect of each of the relevant Facilities.
(ii) The Borrower may, upon notice to the Swing Line Lender (with a
copy to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; PROVIDED
that (A) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and
(B) any such prepayment shall be in a minimum principal amount of $1,000,000.
Each such notice shall specify the date and amount of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein.
(b) MANDATORY. (i) Beginning with the fiscal year ending December
2006, within two Business Days after the Compliance Certificate related to the
financial statements delivered pursuant to SECTION 6.01(A) has been delivered
pursuant to SECTION 6.02(B), the Borrower shall prepay an aggregate principal
amount of Loans equal to 50% of Excess Cash Flow for the fiscal year covered by
such financial statements; provided, that to the extent (x) the
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Consolidated Leverage Ratio for the Measurement Period then ended shall be less
than 2.50:1.00, the amount of such prepayment shall be equal to 25% of Excess
Cash Flow for the fiscal year covered by such financial statements, and (y) the
Consolidated Leveraged Ratio for the Measurement Period then ended shall be less
than 1.50:1.00, the amount of such prepayment shall be equal to zero; provided
further that to the extent the Borrower shall have made any optional prepayments
of Term B Loans or Revolving Credit Loans accompanying a corresponding reduction
in the Revolving Credit Commitment pursuant to SECTION 2.05(A) in the fiscal
year with respect to which such Excess Cash Flow is calculated, the amount of
such optional prepayments shall be credited against the foregoing mandatory
prepayment.
(ii) If the Borrower or any of its Subsidiaries makes any Disposition
of any property or assets (other than any Disposition of any property or assets
permitted by SECTION 7.05(A), (B), (C), (D), (E), (H), (I) or (J)) which results
in the realization by the Borrower or such Subsidiary of Net Cash Proceeds, the
Borrower shall prepay an aggregate principal amount of Loans equal to 100% of
all Net Cash Proceeds received therefrom promptly upon receipt of such Net Cash
Proceeds by the Borrower or such Subsidiary; PROVIDED, HOWEVER, that (A) Net
Cash Proceeds realized under a Disposition or a series of related Dispositions
described in this SECTION 2.05(B)(II) shall not be required to be applied to the
prepayment of the Loans as set forth in this SECTION 2.05 unless the fair market
value of the property or assets subject thereto exceeds $250,000, (B) Net Cash
Proceeds realized under a Disposition described in this SECTION 2.05(B)(II)
shall not be required to be applied to the prepayment of the Loans as set forth
in this SECTION 2.05 until the aggregate amount of such Net Cash Proceeds,
together with the Net Cash Proceeds of other such Dispositions, in the aggregate
not so prepaid or reinvested exceeds $3,000,000 in any fiscal year, in which
case, all such aggregate Net Cash Proceeds shall also be applied to the
prepayment of the Loans as set forth in this SECTION 2.05; and (C) the Net Cash
Proceeds of any Disposition in the ordinary course of business of car fleets
used by employees or consultants of the Borrower and its Subsidiaries shall not
be subject to this SECTION 2.05(B)(II); PROVIDED, FURTHER, that, with respect to
any Net Cash Proceeds realized under a Disposition described in this SECTION
2.05(B)(II), (x) at the option of the Borrower (as elected by the Borrower in
writing to the Administrative Agent on or prior to the date of such Disposition
or the receipt of such Net Cash Proceeds), and so long as no Default shall have
occurred and be continuing, the Borrower or such Subsidiary may reinvest all or
any portion of such Net Cash Proceeds in operating assets so long as within 365
days after the receipt of such Net Cash Proceeds (or, if earlier, the date on
which such Net Cash Proceeds would be required to be applied, or to be offered
to be applied, to prepay, redeem or defease any Indebtedness of the Borrower or
any of its Subsidiaries under any Permitted Financing), such purchase shall have
been consummated (as certified by the Borrower in writing to the Administrative
Agent), and (y) any Net Cash Proceeds not so reinvested shall be immediately
applied to the prepayment of the Loans as set forth in this SECTION 2.05.
Notwithstanding the foregoing, with respect to any Net Cash Proceeds realized
from a Disposition of any Specified Florida Properties, any legally binding
agreement to make expenditures in respect of such Specified Florida Properties
at the time of such Disposition shall be deemed to constitute a reinvestment of
the Net Cash Proceeds of such Disposition in an aggregate amount equal to such
committed expenditures so long as no Permitted Financing is outstanding or such
agreement constitutes a reinvestment of such Net Cash Proceeds under any
Permitted Financing; PROVIDED, that if such legally binding agreement terminates
or expires prior to the completion of such expenditures or all or a portion of
such expenditures are no longer required pursuant to such legally binding
agreement or if such Net
53
Cash Proceeds would be required to be applied, or to be offered to be applied,
to prepay, redeem or defease any Indebtedness of the Borrower or any of its
Subsidiaries under any Permitted Financing, then Net Cash Proceeds in an amount
equal to any such expenditures not completed or no longer required to be so
applied or offered shall be immediately applied to the prepayment of the Loans
as set forth in this SECTION 2.05.
(iii) Upon the sale or issuance by the Borrower or any of its
Subsidiaries of any of its Equity Interests (other than (x) any sales or
issuances of Equity Interests by any Subsidiary of the Borrower to the Borrower
or to any Loan Party or by any Subsidiary of the Borrower that is not a
Guarantor to any other Subsidiary of the Borrower that is not a Guarantor or (y)
Equity Interests issued in connection with an Employee Benefit Arrangement or
with a stock incentive plan, stock option plan or other equity based
compensation plan or arrangement), the Borrower shall prepay an aggregate
principal amount of Loans equal to 50% of all Net Cash Proceeds received
therefrom promptly upon receipt thereof by the Borrower or such Subsidiary;
PROVIDED, HOWEVER, that (A) no prepayments shall be required from the Net Cash
Proceeds realized from any exercise of any option, warrant, or other right to
acquire capital stock in the Borrower to the extent the Borrower uses such Net
Cash Proceeds to purchase, redeem or otherwise acquire shares of its common
stock within 180 days after the receipt of such Net Cash Proceeds, and (B) the
foregoing percentage shall be reduced to zero in the event that the Consolidated
Leverage Ratio at the end of most recently completed fiscal quarter was not
greater than 1.0 to 1.0.
(iv) Upon the incurrence or issuance by the Borrower or any of its
Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to
be incurred or issued pursuant to SECTION 7.02), the Borrower shall prepay an
aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds
received therefrom immediately upon receipt thereof by the Borrower or such
Subsidiary.
(v) Upon any Extraordinary Receipt received by or paid to or for the
account of the Borrower or any of its Subsidiaries, and not otherwise included
in CLAUSE (II), (III), or (IV) of this SECTION 2.05(B), the Borrower shall
prepay an aggregate principal amount of Loans equal to 100% of all Net Cash
Proceeds received therefrom promptly upon receipt thereof by the Borrower or
such Subsidiary; PROVIDED, HOWEVER, that with respect to any Extraordinary
Receipt, (x) at the option of the Borrower (as elected by the Borrower in
writing to the Administrative Agent on or prior to the date of the receipt of
such Extraordinary Receipt), and so long as no Default shall have occurred and
be continuing, the Borrower or such Subsidiary may apply such Extraordinary
Receipt to replace or repair the equipment, fixed assets or real property in
respect of which such Extraordinary Receipt was received or, as applicable,
reinvest all or any portion of any other such Extraordinary Receipt in operating
assets so long as within 365 days after the receipt of such Extraordinary
Receipt (or, if earlier, the date on which such amounts would be required to be
applied, or to be offered to be applied, to prepay, redeem or defease any
Indebtedness of the Borrower or any of its Subsidiaries under any Permitted
Financing), such replacement, repair or purchase shall have been consummated or
the Borrower or such Subsidiary shall have entered into a legally binding
agreement to consummate such replacement, repair or purchase (each as certified
by the Borrower in writing to the Administrative Agent), and, in the case of any
such agreement to replace, repair or purchase, such replacement, repair or
purchase shall have been consummated within 540 days (or, if earlier, the date
on which such amounts would be required to be applied, or to be offered to be
applied, to prepay, redeem or
54
defease any Indebtedness of the Borrower or any of its Subsidiaries under any
Permitted Financing) after such certification of agreement to replace, repair or
purchase (as certified by the Borrower in writing to the Administrative Agent),
and (y) any Extraordinary Receipt not so applied shall be immediately applied to
the prepayment of the Loans as set forth in this SECTION 2.05.
(vi) If for any reason the Total Revolving Credit Outstandings at any
time exceed the Revolving Credit Facility at such time, the Borrower shall
immediately prepay Revolving Credit Loans and Swing Line Loans and Unreimbursed
Amounts and/or Cash Collateralize the L/C Obligations in an aggregate amount
equal to such excess; PROVIDED, HOWEVER, that the Borrower shall not be required
to Cash Collateralize the L/C Obligations pursuant to this SECTION 2.05(B)(VI)
unless after the prepayment in full of the Revolving Credit Loans and Swing Line
Loans the Total Revolving Credit Outstandings exceed the Revolving Credit
Facility at such time.
(vii) Each prepayment of Loans pursuant to this SECTION 2.05(B) shall
be applied, FIRST, to the Term B Facility and to the principal repayment
installments thereof on a pro-rata basis and, SECOND, to the Revolving Credit
Facility in the manner set forth in CLAUSE (VIII) of this SECTION 2.05(B).
(viii) Prepayments of the Revolving Credit Facility made pursuant to
CLAUSE (I), (II), (III), (IV), (V), or (VI) of this SECTION 2.05(B), FIRST,
shall be applied ratably to the Unreimbursed Amounts and the Swing Line Loans,
SECOND, shall be applied ratably to the outstanding Revolving Credit Loans, and,
THIRD, shall be used to Cash Collateralize the remaining L/C Obligations; and,
in the case of prepayments of the Revolving Credit Facility required pursuant to
CLAUSE (I), (II), (III), (IV) or (V) of this SECTION 2.05(B), the amount
remaining, if any, after the prepayment in full of all Unreimbursed Amounts,
Swing Line Loans and Revolving Credit Loans outstanding at such time and the
Cash Collateralization of the remaining L/C Obligations in full (the sum of such
prepayment amounts, cash collateralization amounts and remaining amount being,
collectively, the "REDUCTION AMOUNT") may be retained by the Borrower for use in
the ordinary course of its business, and the Revolving Credit Facility shall be
automatically and permanently reduced by the Reduction Amount as set forth in
SECTION 2.06(B)(II). Upon the drawing of any Letter of Credit that has been Cash
Collateralized, the funds held as Cash Collateral shall be applied (without any
further action by or notice to or from the Borrower or any other Loan Party) to
reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(c) ESCROWED FUNDS. Upon delivery of the Escrowed Funds to the
Borrower or any of its Subsidiaries as provided in the Escrow Agreement, or upon
receipt of any cash, cash equivalents and any other amounts in respect of the
Escrowed Funds or under the Escrow Agreement by the Borrower or any of its
Subsidiaries, the Borrower shall prepay an aggregate principal amount of Loans
equal to 100% of the Escrowed Funds, such cash, cash equivalents and other
amounts, which prepayment shall be made promptly and as would otherwise be
permitted under SECTION 2.05(A).
2.06 TERMINATION OR REDUCTION OF COMMITMENTS. (a) Optional. The
Borrower may, upon notice to the Administrative Agent, terminate the unused
portions of the Letter of
55
Credit Sublimit or the unused Revolving Credit Commitments, or from time to time
permanently reduce the unused portions of the Letter of Credit Sublimit or the
unused Revolving Credit Commitments; PROVIDED that (i) any such notice shall be
received by the Administrative Agent not later than 11:00 a.m. five Business
Days prior to the date of termination or reduction, (ii) any such partial
reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of
$1,000,000 in excess thereof and (iii) the Borrower shall not terminate or
reduce the unused portions of the Letter of Credit Sublimit or the unused
Revolving Credit Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total Revolving Credit Outstandings would
exceed the Revolving Credit Facility.
(b) MANDATORY. (i) The aggregate Term B Commitments shall be
automatically and permanently reduced to zero on the date of the Term B
Borrowing.
(ii) The Revolving Credit Facility shall be automatically and
permanently reduced on each date on which the prepayment of Revolving Credit
Loans outstanding thereunder is required to be made pursuant to SECTION
2.05(B)(I), (II), (III), (IV) or (V) by an amount equal to the applicable
Reduction Amount.
(iii) If after giving effect to any reduction or termination of
unused Revolving Credit Commitments under this SECTION 2.06, the Letter of
Credit Sublimit or the Swing Line Sublimit exceeds the Revolving Credit Facility
at such time, the Letter of Credit Sublimit or the Swing Line Sublimit, as the
case may be, shall be automatically reduced by the amount of such excess.
(c) APPLICATION OF COMMITMENT REDUCTIONS; PAYMENT OF FEES. The
Administrative Agent will promptly notify the Lenders of any termination or
reduction of unused portions of the Letter of Credit Sublimit or the unused
Revolving Credit Commitment under this SECTION 2.06. Upon any reduction of the
unused Revolving Credit Commitments, the Revolving Credit Commitment of each
Revolving Credit Lender shall be reduced by such Lender's Applicable Revolving
Credit Percentage of such reduction amount. All fees accrued until the effective
date of any termination of the Commitments shall be paid on the effective date
of such termination.
2.07 REPAYMENT OF LOANS. (a) TERM B LOANS. The Borrower shall repay to
the Administrative Agent for the ratable account of the Term B Lenders the
aggregate principal amount of all Term B Loans outstanding on the following
dates in the respective amounts set forth opposite such dates (which amounts
shall be reduced as a result of the application of prepayments in accordance
with the order of priority set forth in SECTION 2.06):
56
---------------------------------------
DATE AMOUNT
---------------------------------------
---------------------------------------
April 2, 2006 $1,937,500.00
---------------------------------------
July 2, 2006 $1,937,500.00
---------------------------------------
October 1, 2006 $1,937,500.00
---------------------------------------
---------------------------------------
January 2, 2007 $1,937,500.00
---------------------------------------
April 1, 2007 $1,937,500.00
---------------------------------------
July 1, 2007 $1,937,500.00
---------------------------------------
October 1, 2007 $1,937,500.00
---------------------------------------
---------------------------------------
January 2, 2008 $1,937,500.00
---------------------------------------
April 1, 2008 $1,937,500.00
---------------------------------------
July 1, 2008 $1,937,500.00
---------------------------------------
October 1, 2008 $1,937,500.00
---------------------------------------
---------------------------------------
January 2, 2009 $1,937,500.00
---------------------------------------
April 1, 2009 $1,937,500.00
---------------------------------------
July 1, 2009 $1,937,500.00
---------------------------------------
October 1, 2009 $1,937,500.00
---------------------------------------
---------------------------------------
January 2, 2010 $1,937,500.00
---------------------------------------
April 1, 2010 $1,937,500.00
---------------------------------------
July 1, 2010 $1,937,500.00
---------------------------------------
October 1, 2010 $1,937,500.00
---------------------------------------
---------------------------------------
January 2, 2011 $1,937,500.00
---------------------------------------
April 1, 2011 $1,937,500.00
---------------------------------------
July 1, 2011 $1,937,500.00
---------------------------------------
October 1, 2011 $1,937,500.00
---------------------------------------
---------------------------------------
January 2, 2012 $1,937,500.00
---------------------------------------
April 1, 2012 $1,937,500.00
---------------------------------------
July 1, 2012 $1,937,500.00
---------------------------------------
October 1, 2012 $1,937,500.00
---------------------------------------
December 5, 2012 $722,687,500.00
---------------------------------------
---------------------------------------
PROVIDED, HOWEVER, that the final principal repayment installment of the Term B
Loans shall be repaid on the Maturity Date for the Term B Facility and in any
event shall be in an amount equal to the aggregate principal amount of all Term
B Loans outstanding on such date.
(b) REVOLVING CREDIT LOANS. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Maturity Date for the
57
Revolving Credit Facility the aggregate principal amount of all Revolving Credit
Loans outstanding on such date.
(c) SWING LINE LOANS. The Borrower shall repay each Swing Line Loan
on the earlier to occur of (i) the date ten Business Days after such Loan is
made and (ii) the Maturity Date for the Revolving Credit Facility.
2.08 INTEREST. (a) Subject to the provisions of SECTION 2.08(B), (i)
each Eurodollar Rate Loan under a Facility shall bear interest on the
outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period PLUS the Applicable
Rate for such Facility; (ii) each Base Rate Loan under a Facility shall bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate PLUS the Applicable
Rate for such Facility; and (iii) each Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate PLUS the Applicable Rate for the Revolving
Credit Facility.
(b) Upon the occurrence and during the continuance of a Default under
any of SECTIONS 8.01(A), (F) OR (G) or any Event of Default, the Borrower shall
pay interest on all Obligations due and payable hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 FEES. In addition to certain fees described in SECTIONS 2.03(I)
and (J):
(a) COMMITMENT FEE. The Borrower shall pay to the Administrative
Agent for the account of each Revolving Credit Lender in accordance with
its Applicable Revolving Credit Percentage, a commitment fee equal to the
Applicable Commitment Fee Percentage TIMES the actual daily amount by which
the aggregate Revolving Credit Commitments exceed the sum of (i) the
Outstanding Amount of Revolving Credit Loans PLUS (ii) the Outstanding
Amount of L/C Obligations. The commitment fee shall accrue at all times
during the Availability Period, including at any time during which one or
more of the conditions in ARTICLE IV is not met, and shall be due and
payable quarterly in arrears on the date of each quarterly principal
repayment installment date set forth in SECTION 2.07(A), commencing with
the first such date to occur after the Closing Date, and on the Maturity
Date for the Revolving Credit Facility. The commitment fee shall be
calculated quarterly in arrears, and if there is any change in the
Applicable Commitment Fee Percentage during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Commitment Fee
Percentage separately for each period during such quarter that such
Applicable Commitment Fee Percentage was in effect.
58
(b) OTHER FEES. The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts
and at the times specified in the Fee Letter. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES. All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, PROVIDED that any Loan that is
repaid on the same day on which it is made shall, subject to SECTION 2.12(A),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.11 EVIDENCE OF DEBT. (a) The Credit Extensions made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of business. The accounts
or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrower and the interest and payments thereon. Any failure
to so record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrower hereunder to pay any amount owing with
respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent (set forth in the Register) shall control in the absence of
manifest error. Upon the request of any Lender made through the Administrative
Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender's Loans in
addition to such accounts or records. Each Lender may attach schedules to its
Note and endorse thereon the date, Type (if applicable), amount and maturity of
its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in SECTION
2.11(A), each Lender and the Administrative Agent shall maintain in accordance
with its usual practice accounts or records evidencing the purchases and sales
by such Lender of participations in Letters of Credit and Swing Line Loans. In
the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.12 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK. (a) GENERAL.
All payments to be made by the Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent's Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified
59
herein. The Administrative Agent will promptly distribute to each Lender its
Applicable Percentage in respect of the relevant Facility (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender's Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue. If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be included in computing interest or fees, as
the case may be.
(b) (i) FUNDING BY LENDERS; PRESUMPTION BY ADMINISTRATIVE AGENT.
Unless the Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Borrowing that such Lender will not make available
to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with SECTION 2.02 and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount in immediately available funds with interest thereon,
for each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(A) in the case of a payment to be made by such Lender, the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation and (B) in the
case of a payment to be made by the Borrower, the interest rate applicable to
Base Rate Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative
Agent shall promptly remit to the Borrower the amount of such interest paid by
the Borrower for such period. If such Lender pays its share of the applicable
Borrowing to the Administrative Agent, then the amount so paid shall constitute
such Lender's Loan included in such Borrowing. Any payment by the Borrower shall
be without prejudice to any claim the Borrower may have against a Lender that
shall have failed to make such payment to the Administrative Agent.
(ii) PAYMENTS BY BORROWER; PRESUMPTIONS BY ADMINISTRATIVE AGENT.
Unless the Administrative Agent shall have received notice from the Borrower
prior to the time at which any payment is due to the Administrative Agent for
the account of the Lenders or the L/C Issuer hereunder that the Borrower will
not make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Appropriate Lenders or the L/C Issuer, as the
case may be, the amount due. In such event, if the Borrower has not in fact made
such payment, then each of the Appropriate Lenders or the L/C Issuer, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or the L/C Issuer, in
immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower
with respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
60
(c) FAILURE TO SATISFY CONDITIONS PRECEDENT. If any Lender makes
available to the Administrative Agent funds for any Loan to be made by such
Lender as provided in the foregoing provisions of this ARTICLE II, and such
funds are not made available to the Borrower by the Administrative Agent because
the conditions to the applicable Credit Extension set forth in ARTICLE IV are
not satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d) OBLIGATIONS OF LENDERS SEVERAL. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and Swing
Line Loans and to make payments pursuant to SECTION 10.04(C) are several and not
joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any payment under SECTION 10.04(C) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Loan, to purchase its participation or to make its
payment under SECTION 10.04(C).
(e) FUNDING SOURCE. Nothing herein shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
(f) INSUFFICIENT PAYMENT. Whenever any payment received by the
Administrative Agent under this Agreement or any of the other Loan Documents is
insufficient to pay in full all amounts due and payable to the Administrative
Agent and the Lenders under or in respect of this Agreement and the other Loan
Documents on any date, such payment shall be distributed by the Administrative
Agent and applied by the Administrative Agent and the Lenders in the order of
priority set forth in SECTION 8.03.
2.13 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of the Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in
such Lender's receiving payment of a proportion of the aggregate amount of such
Loans or participations and accrued interest thereon greater than its PRO RATA
share thereof of the applicable Facility as provided herein, then the Lender
receiving such greater proportion shall (a) notify the Administrative Agent of
such fact, and (b) purchase (for cash at face value) participations in the Loans
and subparticipations in L/C Obligations and Swing Line Loans of the other
Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them under the applicable
Facility, PROVIDED that:
(i) if any such participations or subparticipations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
61
(ii) the provisions of this Section shall not be construed to apply to
(A) any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or (B) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Loans or subparticipations in L/C Obligations or Swing Line Loans to
any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).
The Borrower consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
2.14 INCREASE IN TERM B COMMITMENTS. (a) REQUEST FOR INCREASE.
Provided there exists no Default, upon notice to the Administrative Agent (which
shall promptly notify the Term B Lenders), the Borrower may from time to time,
request an increase in the Term B Commitments by an amount (for all such
requests) not exceeding $150,000,000; PROVIDED that (i) any such request for an
increase shall be in a minimum amount of $50,000,000, and (ii) the Borrower may
make a maximum of three such requests. At the time of sending such notice, the
Borrower (in consultation with the Administrative Agent) shall specify the time
period within which each Term B Lender is requested to respond (which shall in
no event be less than ten Business Days from the date of delivery of such notice
to the Term B Lenders).
(b) LENDER ELECTIONS TO INCREASE. Each Term B Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Term B Commitment and, if so, whether by an amount equal to,
greater than, or less than its ratable portion (based on such Term B Lender's
Applicable Percentage in respect of the Term B Facility) of such requested
increase. Any Term B Lender not responding within such time period shall be
deemed to have declined to increase its Term B Commitment.
(c) NOTIFICATION BY ADMINISTRATIVE AGENT; ADDITIONAL TERM B LENDERS.
The Administrative Agent shall notify the Borrower and each Term B Lender of the
Term B Lenders' responses to each request made hereunder. To achieve the full
amount of a requested increase, and subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld), the
Borrower may also invite additional Eligible Assignees to become Term B Lenders
pursuant to a joinder agreement in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) EFFECTIVE DATE AND ALLOCATIONS. If the Term B Commitments are
increased in accordance with this Section, the Administrative Agent and the
Borrower shall determine the effective date (the "TERM B INCREASE EFFECTIVE
DATE") and the final allocation of such increase. The Administrative Agent shall
promptly notify the Borrower and the Term B Lenders of the final allocation of
such increase and the Term B Increase Effective Date.
(e) CONDITIONS TO EFFECTIVENESS OF INCREASE. As a condition precedent
to such increase, the Borrower shall deliver to the Administrative Agent a
certificate of each Loan Party
62
dated as of the Term B Increase Effective Date (in sufficient copies for each
Lender) signed by a Responsible Officer of such Loan Party (i) certifying and
attaching the resolutions adopted by such Loan Party approving or consenting to
such increase, and (ii) in the case of the Borrower, certifying that, before and
after giving effect to such increase, (A) the representations and warranties
contained in ARTICLE V and the other Loan Documents are true and correct on and
as of the Term B Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct as of such earlier date, and except that for
purposes of this SECTION 2.14 the representations and warranties contained in
SECTIONS 5.05(A)(I) AND (II) and the first sentence of SECTION 5.05(B) shall be
deemed to refer to the most recent statements furnished pursuant to SECTIONS
6.01(A) and (B), respectively, and (B) no Default exists. The Borrower shall
prepay any Term B Loans outstanding on the Term B Increase Effective Date (and
pay any additional amounts required pursuant to SECTION 3.05) to the extent
necessary to keep the outstanding Term B Loans ratable with any revised
Applicable Percentages in respect of the Term B Facility arising from any
nonratable increase in the Term B Commitments under this Section.
(f) CONFLICTING PROVISIONS. This SECTION 2.14 shall supersede any
provisions in SECTION 2.13 or 10.01 to the contrary.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES. (a) PAYMENTS FREE OF TAXES. Any and all payments by or on
account of any obligation of the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes, PROVIDED that if the Borrower shall be
required by applicable law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, any Lender or the L/C Issuer, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall timely pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) PAYMENT OF OTHER TAXES BY THE BORROWER. Without limiting the
provisions of subsection (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) INDEMNIFICATION BY THE BORROWER. The Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant
63
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy
to the Administrative Agent), or by the Administrative Agent on its own behalf
or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest
error.
(d) EVIDENCE OF PAYMENTS. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) STATUS OF LENDERS. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, if the Borrower is resident
for tax purposes in the United States, any Foreign Lender shall deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
request of the Borrower or the Administrative Agent, but only if such Foreign
Lender is legally entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form
W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under section 881(c) of the Code,
(A) a certificate to the effect that such Foreign Lender is not (1) a
"bank" within the meaning of section 881(c)(3)(A) of the Code, (2) a
"10 percent shareholder" of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (3) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (B) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly
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completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower to determine the
withholding or deduction required to be made.
Each Lender agrees to deliver to the Administrative Agent or to the Company, as
the Administrative Agent or the Company shall reasonably request, such other
documents and forms required by any relevant taxing authorities under the Laws
of any other jurisdiction, duly executed and completed by such Lender, as are
required under such Laws to confirm such Lender's entitlement to any available
exemption from, or reduction of, applicable withholding taxes in respect of all
payments to be made to such Lender outside of the U.S. by the Borrower or any
Guarantor pursuant to this Agreement or otherwise to establish such Lender's
status for withholding tax purposes in such other jurisdiction.
(f) TREATMENT OF CERTAIN REFUNDS. If the Administrative Agent, any
Lender or the L/C Issuer determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section, it shall pay to the Borrower an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the L/C Issuer, as the case
may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), PROVIDED that the Borrower,
upon the request of the Administrative Agent, such Lender or the L/C Issuer,
agrees to repay the amount paid over to the Borrower (PLUS any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer if the Administrative Agent,
such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the
Administrative Agent, any Lender or the L/C Issuer to make available its tax
returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender
to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted.
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3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine
that for any reason in connection with any request for a Eurodollar Rate Loan or
a conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
(c) the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COSTS; RESERVES ON EURODOLLAR RATE LOANS. (a) INCREASED
COSTS GENERALLY. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve
requirement contemplated by SECTION 3.04(E)) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Rate Loan made
by it, or change the basis of taxation of payments to such Lender or
the L/C Issuer in respect thereof (except for Indemnified Taxes or
Other Taxes covered by SECTION 3.01 and the imposition of, or any
change in the rate of, any Excluded Tax payable by such Lender or the
L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London
interbank market any other condition, cost or expense affecting this
Agreement or Eurodollar Rate Loans made by such Lender or any Letter
of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
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(b) CAPITAL REQUIREMENTS. If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender's or the L/C Issuer's holding company, if
any, regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the L/C Issuer's capital or on the capital of
such Lender's or the L/C Issuer's holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit or Swing Line Loans held by, such Lender, or
the Letters of Credit issued by the L/C Issuer, to a level below that which such
Lender or the L/C Issuer or such Lender's or the L/C Issuer's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or the L/C Issuer's policies and the policies of such Lender's or the
L/C Issuer's holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender or the L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or the L/C
Issuer or such Lender's or the L/C Issuer's holding company for any such
reduction suffered.
(c) CERTIFICATES FOR REIMBURSEMENT. A certificate of a Lender or the
L/C Issuer setting forth the amount or amounts necessary to compensate such
Lender or the L/C Issuer or its holding company, as the case may be, as
specified in subsection (a) or (b) of this Section and delivered to the Borrower
shall be conclusive absent manifest error. The Borrower shall pay such Lender or
the L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) DELAY IN REQUESTS. Failure or delay on the part of any Lender or
the L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender's or the L/C Issuer's
right to demand such compensation, PROVIDED that the Borrower shall not be
required to compensate a Lender or the L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions
suffered more than nine months prior to the date that such Lender or the L/C
Issuer, as the case may be, notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's or the L/C
Issuer's intention to claim compensation therefor (except that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of
retroactive effect thereof).
(e) RESERVES ON EURODOLLAR RATE LOANS. The Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall
be due and payable on each date on which interest is payable on such Loan,
PROVIDED the Borrower shall have received at least 10 days' prior notice (with a
copy to the Administrative Agent) of such additional interest from such Lender.
If a Lender fails to give notice 10 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 10 days from receipt of
such notice.
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3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy
to the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by
the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to SECTION 10.13;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this SECTION 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) DESIGNATION
OF A DIFFERENT LENDING OFFICE. If any Lender requests compensation under SECTION
3.04, or the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to SECTION
3.01, or if any Lender gives a notice pursuant to SECTION 3.02, then such Lender
shall use reasonable efforts to designate a different Lending Office for funding
or booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to SECTION 3.01 or 3.04, as the case may be, in the future, or
eliminate the need for the notice pursuant to SECTION 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) REPLACEMENT OF LENDERS. If any Lender requests compensation under
SECTION 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
SECTION 3.01, the Borrower may replace such Lender in accordance with SECTION
10.13.
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3.07 SURVIVAL. All of the Borrower's obligations under this ARTICLE
III shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing
Date) and each in form and substance reasonably satisfactory to the
Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty,
sufficient in number for distribution to the Administrative Agent,
each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) a security agreement, in substantially the form of EXHIBIT
G (together with each other security agreement and security agreement
supplement delivered pursuant to SECTION 6.12, in each case as
amended, the "SECURITY AGREEMENT"), duly executed by each Loan Party
(excluding certain Foreign Subsidiaries listed on SCHEDULE 6.12 as
limited recourse Guarantors), together with:
(A) to the extent (x) the applicable Equity Interests are
certificated, certificates representing the Pledged Equity
referred to therein accompanied by undated stock powers executed
in blank and to the extent such instruments exist, instruments
evidencing the Pledged Debt indorsed in blank, and (y) such
Equity Interests are of Significant Foreign Subsidiaries, Local
Law Collateral Documents with respect to the Pledged Equity in
the applicable Key Foreign Pledge Jurisdiction;
(B) (x) proper Financing Statements in form appropriate for
filing under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may reasonably deem necessary in
order to perfect the Liens created under the Security Agreement,
covering the Collateral described in the Security Agreement, and
(y) in the case of any Local Law Collateral Documents with
respect to Equity Interests of Significant Foreign Subsidiaries,
evidence of the completion of all actions, recordings and filings
as may be necessary in order to perfect the Liens created under
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such Local Law Collateral Documents in the applicable Key Foreign
Pledge Jurisdiction,
(C) completed requests for information, dated on or before
the date of the initial Credit Extension, listing all effective
financing statements filed in the jurisdictions referred to in
clause (B) above that name any Loan Party as debtor, together
with copies of such other financing statements,
(D) evidence of the completion of all other actions,
recordings and filings of or with respect to the Security
Agreement and the Local Law Collateral Documents that the
Administrative Agent may deem necessary or desirable in order to
perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative
Agent may reasonably deem necessary in order to perfect the Liens
created under the Security Agreement has been taken (including
receipt of duly executed payoff letters and UCC-3 termination
statements);
(iv) an intellectual property security agreement, in
substantially the form of EXHIBIT A to the Security Agreement
(together with each other intellectual property security agreement and
intellectual property security agreement supplement delivered pursuant
to SECTION 6.12, in each case as amended, the "INTELLECTUAL PROPERTY
SECURITY AGREEMENT"), duly executed by each Loan Party, together with
evidence that all action that the Administrative Agent may deem
necessary or desirable in order to perfect the Liens created under the
Intellectual Property Security Agreement has been taken (including,
without limitation, as to Significant Marks in Key Foreign Operating
Jurisdictions);
(v) (A) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may require
evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which
such Loan Party is a party or is to be a party and (B) a copy of a
Certificate of the Secretary of State of the jurisdiction of
incorporation of each Loan Party certifying (1) as to a true and
correct copy of the charter of such Loan Party and each amendment
thereto on file in such Secretary's office and (2) that such
amendments are the only amendments to such Loan Party's charter on
file in such Secretary's office;
(vi) such documents and certifications as the Administrative
Agent may reasonably require to evidence that each Loan Party is duly
organized or formed, and that each Loan Party is validly existing, in
good standing and qualified to engage in business in each jurisdiction
where its ownership, lease or operation of properties or the conduct
of its business requires such qualification,
70
except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect;
(vii) a favorable opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, New
York counsel to the Loan Parties, addressed to the Administrative
Agent and each Lender, as to the matters set forth in EXHIBIT I-1;
(viii) a favorable opinion of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇,
Delaware counsel to the Loan Parties, addressed to the Administrative
Agent and each Lender, as to the matters set forth in EXHIBIT I-2;
(ix) a favorable opinion of the General Counsel to the Borrower,
addressed to the Administrative Agent and each Lender, as to the
matters set forth in EXHIBIT I-3;
(x) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all material consents, licenses and
approvals required in connection with the execution, delivery and
performance by such Loan Party and the validity against such Loan
Party of the Loan Documents to which it is a party, and such consents,
licenses and approvals shall be in full force and effect, or (B)
stating that no such consents, licenses or approvals are so required;
(xi) a certificate signed by a Responsible Officer of the
Borrower certifying (A) that the conditions specified in SECTIONS
4.02(A) and (B) have been satisfied, and (B) that there has been no
event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have,
either individually or in the aggregate, a Material Adverse Effect;
(xii) a certificate from the Chief Financial Officer of the
Borrower attesting that, both before and after the execution and
delivery of the Loan Documents and the consummation of the
transactions contemplated thereby, each of (A) the Borrower, Dart and
BCICIS is and will be Solvent, (B) after excluding all Indebtedness
owed to Loan Parties, Tupperware International Holdings Corporation,
Premiere Products, Mexico S de ▇.▇. and ▇▇▇▇ ▇▇▇ Mexicana Holdings S
de ▇.▇. de C.V. is and will be Solvent, and (C) the Borrower and its
Subsidiaries, on a consolidated basis, are and will be Solvent;
(xiii) evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in effect,
together with the certificates of insurance, naming the Administrative
Agent, on behalf of the Lenders, as an additional insured or loss
payee, as the case may be, under all insurance policies maintained
with respect to the assets and properties of the Loan Parties that
constitutes Collateral;
(xiv) certified copies of each of the Related Documents, duly
executed by the parties thereto;
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(xv) evidence that the Existing Credit Agreement has been or
concurrently with the Closing Date is being terminated;
(xvi) evidence that on or prior to the Closing Date all
obligations of the Borrower and its Subsidiaries in respect of the
2006 Notes shall have been discharged in full, as a result of which
the covenants, defaults and other provisions under the 2006 Notes
Documents are no longer in effect, in accordance with the terms of the
2006 Notes Documents; and
(xvii) evidence that on or prior to the Closing Date the 2011
Notes shall have been repaid in full and all other amounts in respect
thereof, including all accrued interest and any make-whole premium, or
otherwise owing under the 2011 Notes Documents shall have been paid in
full and that the 2011 Notes Documents are no longer in effect, in
accordance with the terms of the 2011 Notes Documents.
(b) All fees required to be paid to the Administrative Agent, the
Arranger and the Lenders on or before the Closing Date shall have been
paid.
(c) Unless waived by the Administrative Agent solely in respect of
this SECTION 4.01(c), the Borrower shall have paid all reasonable fees,
charges and disbursements of counsel to the Administrative Agent to the
extent invoiced prior to or on the Closing Date, plus such additional
amounts of such reasonable fees, charges and disbursements as shall
constitute its reasonable estimate of such fees, charges and disbursements
incurred or to be incurred by it through the closing proceedings (provided
that such estimate shall not thereafter preclude a final settling of
accounts between the Borrower and the Administrative Agent).
(d) The Acquisition to be consummated on the Closing Date and each
other aspect of the Transaction (other than the funding of the Facilities)
shall have been consummated in accordance with the terms and conditions of
the Related Documents in all material respects and in compliance with
applicable law and regulatory approvals in all material respects.
(e) The Arranger, on behalf of the Lenders, shall have received, in
form and substance reasonably satisfactory to the Arranger, audited
consolidated balance sheets of the Business, and the related audited
consolidated statements of income or operations, shareholders' equity and
cash flows, for each of the three fiscal years ended on and prior to July
2, 2005, and a report of PriceWaterhouseCoopers LLP or another accounting
firm of international recognition reasonably acceptable to the Arranger
(all such audited financial statements, adjustments and reports,
collectively, the "REQUIRED FINANCIAL STATEMENTS"), such Required Financial
Statements to be in reasonable detail and prepared in accordance with GAAP.
(f) All governmental, shareholder and third party consents (including
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ clearance) and approvals necessary in connection with the
Acquisition to be consummated on the Closing Date and the other aspects of
the Transaction,
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including the related financings and other transactions contemplated
hereby, shall have been obtained and shall be in full force and effect, and
all applicable waiting periods shall have expired without any action being
taken by any authority that could reasonably be expected to have a Material
Adverse Effect, and no law or regulation shall be applicable that would
restrain, prevent or impose any material adverse conditions on the
Transaction.
(g) The Lenders shall have received (i) the PRO FORMA consolidated
financial statements referred to in SECTION 5.05(d) and (ii) forecasts
prepared by management of the Borrower, in form and substance reasonably
satisfactory to the Arranger, of consolidated balance sheets and statements
of income or operations and cash flow statements of the Borrower and its
Subsidiaries on a quarterly basis for the year following the Closing Date
and on an annual basis for each year thereafter until the Maturity Date for
the Term B Facility.
(h) After giving effect to the Transaction, including all Credit
Extensions made in connection therewith, the amount by which (i) the sum of
the aggregate Revolving Credit Commitments and unrestricted cash and Cash
Equivalents of the Borrower and its Subsidiaries exceeds (ii) the sum of
(A) the Outstanding Amount of Revolving Credit Loans and Swing Line Loans
and (B) the Outstanding Amount of L/C Obligations shall be no less than
$125,000,000.
(i) The Borrower and its Subsidiaries shall have a ratio of (i)
Consolidated Funded Indebtedness (net of unrestricted cash and cash
equivalents) of the Borrower and its Subsidiaries as of the Closing Date
after giving effect to the Transaction to (ii) PRO FORMA Consolidated
EBITDA for the twelve-month period ended July 2, 2005 (calculated as if the
Transaction had occurred on the first day of such twelve-month period), of
not greater than 3.50:1.00.
(j) The Facilities shall have received a debt rating from each of
▇▇▇▇▇'▇ and S&P.
Without limiting the generality of the provisions of SECTION 9.04, for purposes
of determining compliance with the conditions specified in this SECTION 4.01,
each Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender and the L/C Issuer to honor any Request for Credit Extension (other than
a Committed Loan Notice requesting only a conversion of Loans to the other Type,
or a continuation of Eurodollar Rate Loans) is subject to the following
conditions precedent:
(a) The representations and warranties of the Borrower and each other
Loan Party contained in ARTICLE V, each other Loan Document, and in any
document furnished in connection with such Request for Credit Extension
shall be true and correct in all
73
material respects (other than in respect of representations and warranties
that are subject to a Material Adverse Effect qualifier, in which case such
representations and warranties will be true and correct) on and as of the
date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct in all material respects (other
than in respect of representations and warranties that are subject to a
Material Adverse Effect qualifier, in which case such representations and
warranties will be true and correct) as of such earlier date, and except
that for purposes of this SECTION 4.02, the representations and warranties
contained in SECTIONS 5.05(A)(I) and (II) and the first sentence of 5.05(B)
shall be deemed to refer to the most recent statements furnished pursuant
to SECTIONS 6.01(A) and (B), respectively.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Loans to the other Type or a continuation of
Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in SECTIONS 4.02(a)
and (b) have been satisfied on and as of the date of the applicable Credit
Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Set
forth in PART (C) of SCHEDULE 5.13 hereto is a complete and accurate list as of
the date hereof of all Loan Parties, showing as of the date hereof (as to each
Loan Party) the jurisdiction of its incorporation, the address of its principal
place of business and its U.S. taxpayer identification number or, in the case of
any Guarantor that does not have a U.S. taxpayer identification number, its
unique identification number issued to it by the jurisdiction of its
incorporation (if any). The copy of the Organization Documents of each Loan
Party and each amendment thereto provided pursuant to SECTION 4.01(A)(V)(B) is a
true and correct copy of each such document as in effect on the date hereof,
each of which is valid and in full force and effect. Each Loan Party and each of
its Subsidiaries (a) is duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or
lease its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents and Related Documents to which it is a
party and consummate the Transaction, (c) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of
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its business requires such qualification or license, and (d) is in compliance
with all Laws; except in each case referred to in (A) clause (a), in respect of
any Inactive Subsidiary, and (B) clause (b)(i), (c) or (d), to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document and Related Document to
which such Person is or is to be a party have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person's Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, or require any payment to be made under (i) any material
Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any material Law
in any material respect. Each Loan Party and each Subsidiary thereof is in
compliance with all Contractual Obligations referred to in clause (b)(i), except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. Other than as set
forth in SCHEDULE 5.03, no approval, consent, exemption, authorization, or other
action by, or notice to, or filing with, any Governmental Authority or any other
Person which has not already been obtained is necessary or required in
connection with (a) the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document or Related
Document, or for the consummation of the Transaction, (b) the grant by any Loan
Party of the Liens granted by it pursuant to the Collateral Documents or (c) the
perfection or maintenance of the Liens created under the Collateral Documents,
including the first priority nature thereof (excluding any as may be required
pursuant to the applicable foreign laws of foreign jurisdictions in which any
Collateral may be situated other than in Key Foreign Operating Jurisdictions and
Key Foreign Pledge Jurisdictions). All applicable waiting periods in connection
with the Transaction have expired without any action having been taken by any
Governmental Authority restraining, preventing or imposing materially adverse
conditions upon the Transaction or the rights of the Loan Parties or their
Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien
on, any properties now owned or hereafter acquired by any of them. The
Acquisition has been consummated in accordance with the Purchase Agreement and
applicable Law.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms except as such enforceability may
be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforceability of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
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5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT. (a) The Audited
Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present the financial condition of the Borrower and
its Subsidiaries or the Business, as applicable, as of the date thereof and
their results of operations for the period covered thereby in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (iii) show all material indebtedness and
other liabilities, direct or contingent, of the Borrower and its Subsidiaries or
the Business, as applicable, as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.
(b) The unaudited consolidated balance sheet of the Borrower and its
Subsidiaries dated October 1, 2005, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for the fiscal quarter
ended on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present in all material respects the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), to the absence of footnotes and to normal year-end audit
adjustments. SCHEDULE 5.05 sets forth all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the date hereof that are not specified in such financial
statements, including liabilities for taxes, material commitments and
Indebtedness.
(c) Since the date of the Audited Financial Statements, there has been
no event or circumstance, either individually or in the aggregate, that has had
or could reasonably be expected to have a Material Adverse Effect. Since the
date of the Audited Financial Statements, no Internal Control Event has
occurred.
(d) The consolidated PRO FORMA balance sheet of the Borrower and its
Subsidiaries as at July 2, 2005, and the related consolidated PRO FORMA
statements of income and cash flows of the Borrower and its Subsidiaries for the
twelve months then ended, certified by the chief financial officer or treasurer
of the Borrower, copies of which have been furnished to each Lender, fairly
present in all material respects on a PRO FORMA basis the consolidated PRO FORMA
financial condition of the Borrower and its Subsidiaries as at such date and the
consolidated PRO FORMA results of operations of the Borrower and its
Subsidiaries for the period ended on such date, in each case giving effect to
the Transaction, all in accordance with GAAP.
(e) The consolidated forecasted balance sheet, statements of income
and cash flows of the Borrower and its Subsidiaries delivered pursuant to
SECTION 4.01 or 6.01(C) were prepared in good faith on the basis of the
assumptions stated therein, which assumptions the Borrower believed to be fair
and reasonable in light of the conditions existing at the time of delivery of
such forecasts, and represented, at the time of delivery, the Borrower's best
estimate of its future financial performance (it being understood that actual
financial performance may vary from such forecasts).
5.06 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Borrower or the Business after due
and diligent investigation, threatened in writing at law, in equity, in
arbitration or before any Governmental
76
Authority, by or against the Borrower or any of its Subsidiaries or the Business
or against any of their properties or revenues that (a) as of the Closing Date,
purport to affect or pertain to any Related Document or the consummation of the
Transaction, (b) purport to affect or pertain to this Agreement or any material
Loan Document, or (c) either individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in default
under, or with respect to, any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS; INVESTMENTS. (a) Each Loan Party
and each of its Subsidiaries has good record and marketable title in fee simple
to, or valid leasehold interests in, all real property used in the ordinary
conduct of its business that have an individual fair market value in excess of
$2,500,000, except for such defects in title or interests as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(b) SCHEDULE 5.08(B) sets forth as of the date hereof a complete and
accurate list of all Liens on the property or assets of each Loan Party and each
of its Subsidiaries, showing as of the date hereof the lienholder thereof, the
principal amount of the obligations secured thereby and the property or assets
of such Loan Party or such Subsidiary subject thereto. The property of each Loan
Party and each of its Subsidiaries is subject to no Liens, other than Liens set
forth on SCHEDULE 5.08(B), and as otherwise permitted by SECTION 7.01.
(c) SCHEDULE 5.08(c) sets forth a complete and accurate list of all
real property owned by each Loan Party with an individual fair market value in
excess of $2,500,000, showing as of the date hereof, where applicable, the
street address, county or other relevant jurisdiction, state, record owner and
book and fair value thereof. Each Loan Party and each of its Subsidiaries has
good, marketable and insurable fee simple title to the real property owned by
such Loan Party or such Subsidiary, free and clear of all Liens, other than
Liens created or permitted by the Loan Documents.
(d) SCHEDULE 5.08(D) sets forth a complete and accurate list of all
leases of real property under which any Loan Party or any Subsidiary of a Loan
Party is the lessee which have a remaining term (disregarding any option on the
part of the tenant to renew) of three years or more and under which the annual
rent is $2,500,000 or more, showing as of the date hereof the street address,
county or other relevant jurisdiction, state, lessor, lessee, expiration date
and annual rental cost thereof. Each such lease is the legal, valid and binding
obligation of the lessor thereof, enforceable in accordance with its terms,
except insofar as would not result in a Material Adverse Effect.
(e) SCHEDULE 5.08(E) sets forth a complete and accurate list of all
Investments held by any Loan Party or any Subsidiary of a Loan Party on the date
hereof (other than Investments in the Borrower, wholly owned Subsidiaries of the
Borrower and Qualified Non-Wholly Owned Subsidiaries of the Borrower and
Investments in Cash Equivalents permitted by
77
SECTION 7.03(a)), showing as of the date hereof the amount, obligor or issuer
and maturity, if any, thereof.
5.09 ENVIRONMENTAL COMPLIANCE. Except where failure to comply with
any of the following could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect:
(a) Each of the Real Properties and all operations at the Real
Properties are and, for the past 3 years, have been in compliance with all
applicable Environmental Laws and permits, there is no violation of any
Environmental Law or permit with respect to the Real Properties or the
businesses of the Borrower and its Subsidiaries, and there are no conditions
relating to the Real Properties or the Businesses that could give rise to
liability under any applicable Environmental Laws.
(b) None of the Real Properties contains, or to the Borrower's
knowledge has previously contained, any Hazardous Materials at, on or under the
Real Properties in amounts or concentrations that constitute or constituted a
violation of, or could give rise to liability under, Environmental Laws and none
of the properties currently or formerly owned or operated by the Loan Party or
any of its Subsidiaries is listed or proposed for listing on the NPL.
(c) Neither any Loan Party nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together with other
potentially responsible parties, any investigation or assessment or remedial or
response action relating to any actual or threatened release, discharge or
disposal of Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any Governmental Authority or the
requirements of any Environmental Law. Neither the Borrower nor any Subsidiary
has received any written or verbal notice of, or inquiry from any Governmental
Authority regarding any violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Real Properties or the Businesses,
nor does any Responsible Officer of the Borrower have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of from
the Real Properties, or generated, treated, stored or disposed of at, on or
under any of the Real Properties or any other location, in violation of, or in a
manner that could give rise to liability under, any applicable Environmental
Law.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the best knowledge of the Responsible Officers of the
Borrower, threatened, under any Environmental Law to which the Borrower or any
Subsidiary is or will be named as a party, 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 Law
with respect to the Borrower or any Subsidiary, the Real Properties, or the
businesses of the Borrower and its Subsidiaries.
(f) There has been no release or threat of release of Hazardous
Materials at or from the Real Properties, or arising from or related to the
operations (including, without
78
limitation, disposal) of the Borrower or any Subsidiary in connection with the
Real Properties or otherwise in connection with the businesses of the Borrower
and its Subsidiaries, in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws.
5.10 INSURANCE. The properties of the Borrower and its Subsidiaries
are insured with insurance companies the Loan Parties reasonably believe to be
financially sound and reputable, in such amounts (after giving effect to
self-insurance compatible with the following standards), with such deductibles
and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the
Borrower or the applicable Subsidiary operates.
5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except (a) those which are being contested in
good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP or (b) to the
extent that the failure to make any such filings and payments, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. There is no proposed tax assessment against the
Borrower or any Subsidiary that could be reasonably expected to have a Material
Adverse Effect. Neither any Loan Party nor any of its Subsidiaries is party to
any tax sharing agreement except as set forth on SCHEDULE 5.11 hereto. The
Acquisition will not be taxable to the Borrower, any of its Subsidiaries or
Affiliates, or the Business.
5.12 ERISA COMPLIANCE. (a) Except as could not reasonably be expected
to have a Material Adverse Effect, each Plan is in compliance with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or reasonably is expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability in excess of
$40,000,000; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect
to any Pension Plan (other than premiums due and not delinquent under Section
4007 of ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any liability (and no event has occurred which,
with the
79
giving of notice under Section 4219 of ERISA, would result in such liability)
under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction
that could reasonably be expected to be subject to Sections 4069 or 4212(c) of
ERISA, except for an event described in CLAUSE (i), (iii) or (iv) of this
SECTION 5.12(c), which individually, or in the aggregate with all other such
events, could not reasonably be expected to have a Material Adverse Effect.
(d) Except where such event individually, or in the aggregate with all
other events in this SECTION 5.12(d), could not reasonably be expected to have a
Material Adverse Effect, with respect to each scheme or arrangement mandated by
a government other than the United States (a "FOREIGN GOVERNMENT SCHEME OR
ARRANGEMENT") and with respect to each employee benefit plan maintained or
contributed to by any Loan Party or any Subsidiary of any Loan Party that is not
subject to United States law (a "FOREIGN PLAN"):
(i) any employer and employee contributions required by law or by
the terms of any Foreign Government Scheme or Arrangement or any
Foreign Plan have been made, or, if applicable, accrued, in accordance
with normal accounting practices;
(ii) the fair market value of the assets of each funded Foreign
Plan, the liability of each insurer for any Foreign Plan funded
through insurance or the book reserve established for any Foreign
Plan, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations, with respect
to all current and former participants in such Foreign Plan according
to the actuarial assumptions and valuations most recently used to
account for such obligations in accordance with applicable generally
accepted accounting principles; and
(iii) each Foreign Plan required to be registered has been
registered and has been maintained in good standing with applicable
regulatory authorities.
5.13 SUBSIDIARIES; EQUITY INTERESTS; LOAN PARTIES. Each Loan Party has
no Subsidiaries other than those specifically disclosed in PART (A) of SCHEDULE
5.13, and all of the outstanding Equity Interests in such Subsidiaries have been
validly issued, are fully paid and non-assessable and are in the amounts
specified on PART (A) of SCHEDULE 5.13 free and clear of all Liens except those
created under the Collateral Documents and those permitted by SECTION 7.01 or
the Collateral Documents. Each Loan Party has no equity Investments in any other
corporation or entity other than those specifically disclosed in PART (B) of
SCHEDULE 5.13. Set forth on PART (C) of SCHEDULE 5.13 is a complete and accurate
list of all Loan Parties, showing (as to each Loan Party) the jurisdiction of
its incorporation, the address of its principal place of business and its U.S.
taxpayer identification number or, in the case of any non-U.S. Guarantor that
does not have a U.S. taxpayer identification number, its unique identification
number issued to it by the jurisdiction of its incorporation (if any).
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT. (a) The Borrower is
not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB).
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No proceeds of any Borrowings or drawings under any Letter of Credit will be
used to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock other than common stock of
the Borrower to the extent permitted under SECTION 7.06(D).
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary is or is required to be registered as an "investment company" under
the Investment Company Act of 1940.
5.15 DISCLOSURE. The Borrower has disclosed to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries or any other Loan Party is
subject, and all other matters known to it, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.
No report, financial statement, certificate or other information furnished by or
on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder or under any other Loan Document (in each case
as modified or supplemented by other information so furnished), taken as a
whole, contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not materially misleading; PROVIDED that, with
respect to projected and PRO FORMA financial information, the Borrower
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time such projected and PRO FORMA
financial information was prepared, it being recognized by the Administrative
Agent and 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.
5.16 COMPLIANCE WITH LAWS. Each Loan Party and each of its
Subsidiaries is in compliance in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to
its properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. Each Loan Party and each of
its Subsidiaries owns, or possesses the right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises,
licenses and other intellectual property rights (collectively, "IP RIGHTS") that
are reasonably necessary for the operation of their respective businesses,
except for IP Rights (other than the Significant Marks) that are not material to
the conduct of the business of the Borrower and its Subsidiaries, taken as a
whole. Each of Dart and BCICIS is the owner of all right, title and interest in
and to the Significant Marks owned by it, no Liens exist on the Significant
Marks other than Liens created under the Loan Documents and no other parties
have any right, title and interest in and to the Significant Marks other than
non-exclusive licensing and rights arrangements with the Borrower and its
Subsidiaries. No slogan or other advertising device, product, process, method,
substance, part or
81
other material now employed, or now contemplated to be employed, by any Loan
Party or any of its Subsidiaries infringes upon any proprietary rights held by
any other Person and no claim or litigation regarding any of the foregoing is
pending or threatened in writing, in any of the foregoing cases, which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.18 SOLVENCY. Before and after the execution and delivery of the Loan
Documents and the consummation of the transactions contemplated thereby, each of
(a) the Borrower, Dart and BCICIS is and will be Solvent, (b) after excluding
all Indebtedness owed to Loan Parties, Tupperware International Holdings
Corporation, Premiere Products, Mexico S de ▇.▇. and ▇▇▇▇ ▇▇▇ Mexicana Holdings
S de ▇.▇. de C.V. is and will be Solvent, and (c) the Borrower and its
Subsidiaries, on a consolidated basis, are and will be Solvent.
5.19 CASUALTY, ETC. Neither the businesses nor the properties of any
Loan Party or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance) that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan
or other Obligation hereunder (other than contingent indemnification
obligations) shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, the Borrower shall, and shall (except in the case of the
covenants set forth in SECTIONS 6.01, 6.02, 6.03 and 6.11) cause each Subsidiary
to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent and
each Lender, in form and detail reasonably satisfactory to the Administrative
Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower (or, if earlier, 15 days after the
date required to be filed with the SEC, without giving effect to any
extension), a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' equity and
cash flows for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, such consolidated statements to be
audited and accompanied by (i) a report and opinion of a Registered Public
Accounting Firm of nationally recognized standing to which the Required
Lenders have not reasonably objected, which report and opinion shall be
prepared in accordance with generally accepted auditing standards and (ii)
an attestation report of such Registered Public Accounting Firm as to the
Borrower's internal controls to the extent required pursuant to Section 404
of ▇▇▇▇▇▇▇▇-▇▇▇▇▇, in each case expressing a conclusion to which the
Required Lenders have not reasonably objected;
82
(b) as soon as available, but in any event within 45 days after the
end of each of the first three fiscal quarters of each fiscal year of the
Borrower (or, if earlier, 5 days after the date required to be filed with
the SEC, without giving effect to any extension), a consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal quarter and for the
portion of the Borrower's fiscal year then ended, setting forth in each
case in comparative form the figures for the corresponding fiscal quarter
of the previous fiscal year and the corresponding portion of the previous
fiscal year, all in reasonable detail, certified by the chief executive
officer, chief financial officer, controller or the treasurer of the
Borrower as fairly presenting the financial condition, results of
operations, shareholders' equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes;
(c) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, forecasts prepared by management
of the Borrower, in form reasonably satisfactory to the Administrative
Agent and the Required Lenders, of consolidated balance sheets and
statements of income or operations and cash flow statements of the Borrower
and its Subsidiaries on a quarterly basis for the fiscal year following
such fiscal year and on an annual basis for the next three fiscal years.
As to any information contained in materials furnished pursuant to SECTION
6.02(D), the Borrower shall not be separately required to furnish such
information under SECTION 6.01(A) or (B) above, but the foregoing shall not be
in derogation of the obligation of the Borrower to furnish the information and
materials described in SECTIONS 6.01(A) and (B) above at the times specified
therein.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative Agent
and each Lender:
(a) concurrently with the delivery of the financial statements
referred to in SECTION 6.01(A), a certificate of its independent certified
public accountants, in form and detail reasonably satisfactory to the
Administrative Agent and the Required Lenders, certifying such financial
statements and stating that in making the examination necessary therefor no
knowledge was obtained of any Default under the financial covenants set
forth herein or, if any such Default shall exist, stating the nature and
status of such event;
(b) within ten days of the earlier of (i) filing the financial
statements referred to in SECTIONS 6.01(A) and (B) with the SEC, and (ii)
delivery of such financial statements to the Lenders, a duly completed
Compliance Certificate, in form and detail reasonably satisfactory to the
Administrative Agent, signed by a Responsible Officer of the Borrower;
(c) promptly after any request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters and, to
the extent permitted by the independent accountants, recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of any Loan Party by independent accountants
83
in connection with the accounts or books of any Loan Party or any of its
Subsidiaries, or any audit of any of them;
(d) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent
to the stockholders of the Borrower, and copies of all annual, regular,
periodic and special reports and registration statements which the Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of
the Securities Exchange Act of 1934, or with any national securities
exchange, and in any case not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(e) promptly after the furnishing thereof, copies of any statement or
report furnished to any holder of securities constituting a Permitted
Financing and not otherwise required to be furnished to the Lenders
pursuant to any other clause of this SECTION 6.02;
(f) as soon as available and in any event within 45 days after the end
of each fiscal year, a report, in form and detail reasonably satisfactory
to the Administrative Agent, summarizing the insurance coverage (specifying
type, amount and carrier) in effect for each Loan Party and its
Subsidiaries and containing such additional information with respect to
insurance coverage as the Administrative Agent, or any Lender through the
Administrative Agent, may reasonably specify;
(g) promptly and in any event within five Business Days after receipt
thereof by any Loan Party or any of its Subsidiaries, copies of each notice
or other correspondence received from the SEC (or comparable agency in any
Key Foreign Operating Jurisdiction) concerning any formal investigation or
formal inquiry by such agency regarding financial or other operational
results of any Loan Party or any of its Subsidiaries;
(h) (i) promptly upon receipt thereof, copies of all notices as to
material matters, requests for any material information and any material
documents (A) received by any Loan Party or any of its Subsidiaries under
or pursuant to any Related Document or (B) delivered by any Loan Party or
any of its Subsidiaries under or pursuant to any Permitted Financing, and
(ii) from time to time upon request by the Administrative Agent, such
information and reports regarding the Related Documents and such Permitted
Financing as the Administrative Agent may reasonably request;
(i) promptly after the assertion or occurrence thereof, notice of any
Environmental Action against or of any noncompliance by any Loan Party or
any of its Subsidiaries with any Environmental Law or Environmental Permit
that (i) could reasonably be expected to have a Material Adverse Effect or
(ii) cause any property described in the Mortgages to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law;
(j) (i) concurrently with the delivery of the Compliance Certificate
corresponding to the financial statements delivered pursuant to SECTION
6.01(A), a report supplementing SCHEDULES 5.08(C), 5.08(D), 5.08(E), 5.11
and 5.13, including an
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identification of all owned and leased real property disposed of by any
Loan Party or any of its Subsidiaries during such fiscal year (to the
extent any such properties were, or would have been, required to be listed
on such Schedules), a list and description (including the street address,
county or other relevant jurisdiction, state, record owner, book value
thereof and, in the case of leases of property under which Borrower or any
Subsidiary is lessor, the lessee, expiration date and annual rental cost
thereof) of all material owned real property acquired or leased during such
fiscal year and a description of such other material changes in the
information included in such Schedules as may be necessary for such
Schedules to be accurate and complete in all material respects, and (ii)
concurrently with the delivery of the Compliance Certificate corresponding
to the financial statements delivered pursuant to SECTIONS 6.01(A) and
6.01(B), and from time to time between such deliveries in the event of any
material changes of the information set forth in SCHEDULE 7.02(M), a report
updating SCHEDULE 7.02(M), including identification of all of lines of
credit (including identification of those that are Secured Foreign Credit
Lines), the applicable borrower or beneficiary thereof, the maximum
permitted amount thereunder (including the respective amounts thereof that
are committed and uncommitted), the bank or financial institution providing
such line of credit (including whether such bank or financial institution
is a Foreign Credit Line Bank), the expiration or termination date thereof,
whether such line of credit is secured (and if so, a description of the
applicable collateral), the aggregate potential amount of all lines of
credit that are secured, and a description of such other material
information as may be necessary for such Schedule to be accurate and
complete in all material respects; and
(k) promptly, such additional information as the Administrative Agent
or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to SECTION 6.01 or
SECTION 6.02 may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Borrower posts such
documents, or provides a link thereto on the Borrower's website on the Internet
at the website address listed on SCHEDULE 10.02; or (ii) on which such documents
are posted on the Borrower's behalf on an Internet or intranet website, if any,
to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); PROVIDED that: (i) the Borrower shall deliver paper copies of such
documents to the Administrative Agent or any Lender that requests the Borrower
to deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify the Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (I.E., soft copies)
of such documents. Notwithstanding anything contained herein, in every instance
the Borrower shall be required to provide paper copies of the Compliance
Certificates required by SECTION 6.02(B) to the Administrative Agent. Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
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The Borrower hereby acknowledges that (a) the Administrative Agent
and/or the Arranger will make available to the Lenders and the L/C Issuer
materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, "BORROWER MATERIALS") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "PLATFORM") and (b) certain
of the Lenders may be "public-side" Lenders (I.E., Lenders that do not wish to
receive material non-public information with respect to the Borrower or its
securities) (each, a "PUBLIC LENDER"). The Borrower hereby agrees that (w) it
will use commercially reasonable efforts to identify that portion of the
Borrower Materials that may be distributed to the Public Lenders, it will
include in such Borrower Materials a reasonably detailed term sheet and all such
Borrower Materials shall be clearly and conspicuously marked "PUBLIC" which, at
a minimum, shall mean that the word "PUBLIC" shall appear prominently on the
first page thereof; (x) by marking Borrower Materials "PUBLIC," the Borrower
shall be deemed to have authorized the Administrative Agent, the Arranger, the
L/C Issuer and the Lenders to treat such Borrower Materials as either publicly
available information or not material information (although it may be sensitive
and proprietary) with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws; (y) all Borrower Materials
marked "PUBLIC" are permitted to be made available through a portion of the
Platform designated "Public Investor;" and (z) the Administrative Agent and the
Arranger shall be entitled to treat any Borrower Materials that are not marked
"PUBLIC" as being suitable only for posting on a portion of the Platform not
designated "Public Investor."
6.03 NOTICES. Promptly notify the Administrative Agent and each
Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of any
Loan Party or any Subsidiary thereof; (ii) any dispute, litigation,
investigation, proceeding or suspension between any Loan Party or any
Subsidiary thereof and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or
proceeding affecting any Loan Party or any Subsidiary thereof, including
pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial
reporting practices by any Loan Party or any Material Subsidiary thereof;
and
(e) of the (A) occurrence of any Disposition of property or assets for
which the Borrower is required to make a mandatory prepayment pursuant to
SECTION 2.05(B)(II), (B) occurrence of any sale of capital stock or other
Equity Interests for which the Borrower is required to make a mandatory
prepayment pursuant to SECTION 2.05(B)(III), (C) incurrence or issuance of
any Indebtedness for which the Borrower is required to make a mandatory
prepayment pursuant to SECTION 2.05(B)(IV) and (D) receipt of any
Extraordinary Receipt for which the Borrower is required to make a
mandatory prepayment pursuant to SECTION 2.05(B)(V).
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Each notice pursuant to SECTION 6.03(A), (B), (C) or (D) shall be
accompaCied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action the
Borrower or relevant Subsidiary has taken and proposes to take with respect
thereto. Each notice pursuant to SECTION 6.03(A) shall describe with
particularity any and all provisions of this Agreement and any other Loan
Document that have been breached (if any).
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall
become due and payable, all its obligations and liabilities, including (a) all
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets unless (i) the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Borrower or such Subsidiary or (ii) the
failure to pay and discharge such tax liabilities, assessments and governmental
charges or levies could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; (b) all lawful claims which, if
unpaid, would by law become a Lien upon its property not permitted hereunder
unless such claims are being contested in good faith by appropriate proceedings
diligently conducted and adequate reserves in accordance with GAAP are being
maintained by the Borrower or such Subsidiary; and (c) all Indebtedness, as and
when due and payable, but subject to any subordination provisions contained in
any instrument or agreement evidencing such Indebtedness except to the extent
that a default with respect to such Indebtedness would not result in a Default
or Event of Default.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain
in full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
SECTION 7.04 or 7.05, except with respect to Inactive Subsidiaries where failure
to do so could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; provided, however, that the Borrower and its
Subsidiaries may consummate the Acquisition; (b) take all reasonable action to
maintain all rights, privileges, permits, licenses and franchises necessary or
desirable in the normal conduct of its business, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted; provided
that nothing in this SECTION 6.06 shall prevent the Borrower or any Subsidiary
from discontinuing the operation and maintenance of any of its properties if
such discontinuance is, in the reasonable commercial judgment of the Borrower,
desirable in the conduct of its business and could not, individually or in the
aggregate, have a Material Adverse Effect.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts (after giving effect to self insurance
compatible with the following standards) and with such deductibles as are
customarily
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carried under similar circumstances by such other Persons and providing for not
less than 30 days' prior notice to the Administrative Agent of termination,
lapse or cancellation of such insurance.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
6.09 BOOKS AND RECORDS. Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower or such Subsidiary, as the case may be;
PROVIDED, that such books of record and account, and entries therein in, of
Foreign Subsidiaries shall conform with the generally accepted (or customary)
financial practices and statutory requirements of its jurisdiction.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of each Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
abstracts therefrom, and to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants, all at the expense of
the Borrower (unless a Default is then continuing, to the extent such expenses
are out-of-pocket and reasonable) and at such reasonable times during normal
business hours and as often as may be reasonably desired, but not more than 2
times in any calendar year unless a Default shall have occurred and be
continuing, upon reasonable advance notice to the Borrower.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions under
the Term B Facility and Revolving Credit Facility, as follows:
(a) to finance the Acquisition and any obligations of the Borrower or
its Subsidiaries arising from or in connection with the Acquisition,
(b) to refinance, as of the Closing Date, certain existing
Indebtedness of the Borrower and its Subsidiaries including the payment of
any applicable premiums or penalties associated therewith (including,
without limitation, the Existing Credit Agreement and the 2006 Notes and
2011 Notes),
(c) to pay fees and expenses incurred in connection with the
Transaction, and
(d) otherwise for general corporate purposes.
6.12 COVENANT TO GUARANTEE OBLIGATIONS AND GIVE SECURITY. (a) Upon the
formation or acquisition of any new direct or indirect Subsidiaries by any Loan
Party, then the Borrower shall, at the Borrower's expense:
(i) within 30 days after such formation or acquisition, cause
such Subsidiary, and cause each direct and indirect parent of such
Subsidiary (if it has
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not already done so), to duly execute and deliver to the
Administrative Agent a guaranty or guaranty supplement, in form and
substance reasonably satisfactory to the Administrative Agent,
guaranteeing the other Loan Parties' obligations under the Loan
Documents; PROVIDED, HOWEVER, that if for any new direct or indirect
Foreign Subsidiary or parent that is a Foreign Subsidiary, as
applicable, compliance with this SECTION 6.12(A)(I) would result in a
Section 956 Deemed Dividend, the Borrower will not be required to
comply with this SECTION 6.12(A)(I) to the extent that doing so would
result in such Section 956 Deemed Dividend,
(ii) within 5 days after such formation or acquisition, furnish
to the Administrative Agent a description of the real and personal
properties of such Subsidiary, in reasonably sufficient detail to
enable the Administrative Agent to take and perfect Liens thereon to
the extent required by this Agreement and the Collateral Documents,
(iii) within 30 days after such formation or acquisition, cause
such Subsidiary and each direct and indirect parent of such Subsidiary
(if it has not already done so) except to the extent provided in
CLAUSE (I) above to duly execute and deliver, to the Administrative
Agent deeds of trust, trust deeds, mortgages, Security Agreement
Supplements, IP Security Agreement Supplements and other security and
pledge agreements, as specified by and in form and substance
reasonably satisfactory to the Administrative Agent (including
delivery of all Pledged Equity in and of such Subsidiary, and other
instruments of the type specified in SECTION 4.01(A)(III)), securing
payment of all the Obligations of such Subsidiary or such parent, as
the case may be, under the Loan Documents and constituting Liens on
all such real and personal properties (which, in the case of Real
Properties, shall be limited to, Real Property with a fair market
value in excess of $2,500,000 at the time of such formation or
acquisition) other than property as to which the granting of a Lien is
otherwise excused by the terms of this Agreement or the Collateral
Documents; PROVIDED, HOWEVER, that if for any new direct or indirect
Foreign Subsidiary or parent thereof that is a Foreign Subsidiary, as
applicable, compliance with this SECTION 6.12(A)(III) would result in
a Section 956 Deemed Dividend, the Borrower will not be required to
comply with this SECTION 6.12(A)(III) to the extent that doing so
would result in such Section 956 Deemed Dividend,
(iv) within 30 days after such formation or acquisition, cause
such Subsidiary and each direct and indirect parent of such Subsidiary
(if it has not already done so) to take whatever action (including the
recording of mortgages, the filing of Uniform Commercial Code
financing statements, the giving of notices and the endorsement of
notices on title documents) may be necessary in the opinion of the
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the
deeds of trust, trust deeds, mortgages, leasehold mortgages, leasehold
deeds of trust, Security Agreement Supplements, IP Security Agreement
Supplements and security and
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pledge agreements delivered pursuant to this SECTION 6.12, enforceable
against all third parties in accordance with their terms,
(v) within 30 days after such formation or acquisition, deliver
to the Administrative Agent, upon the request of the Administrative
Agent in its reasonable discretion, a signed copy of a favorable
opinion, addressed to the Administrative Agent and the other Secured
Parties, of counsel for the Loan Parties reasonably acceptable to the
Administrative Agent as to the matters contained in CLAUSES (I), (III)
and (IV) above, and as to such other matters as the Administrative
Agent may reasonably request,
(vi) as soon as practicable after such formation or acquisition,
deliver to the Administrative Agent with respect to the Real Property
owned or held by the entity that is the subject of such formation or
acquisition title insurance policies, surveys and any available
engineering, soils and other reports (including, without limitation,
any environmental reports) generated within the 3 years prior to such
formation or acquisition to the extent required to be subject to deeds
of trust, trust deeds or mortgages pursuant to CLAUSE (III) above, and
(vii) as soon as practicable after such formation or acquisition,
deliver to the Administrative Agent with respect to any Real Property
owned or held by the entity that is the subject of such formation or
acquisition and required to be subject to deeds of trust, trust deeds
or mortgages pursuant to CLAUSE (III) above, a Phase I environmental
site assessment report prepared in accordance with the standards
promulgated by the American Society for Testing and Materials in form
and substance and from a professional firm reasonably acceptable to
the Administrative Agent.
(b) Upon the acquisition of any property by any Loan Party, and such
property, in the judgment of the Administrative Agent, shall not already be
subject to a perfected first priority security interest in favor of the
Administrative Agent for the benefit of the Secured Parties, which, in the case
of Real Properties, shall be limited to, Real Property with a fair market value
in excess of $2,500,000 at the time of such acquisition by any Loan Party other
than property excluded from Collateral by this Agreement or any of the
Collateral Documents (including as a result of such property being subject to a
Lien permitted by SECTION 7.01), then, other than where compliance with this
SECTION 6.12(B) would result in a Section 956 Deemed Dividend, the Borrower
shall, at the Borrower's expense:
(i) within 15 days after such acquisition, furnish to the
Administrative Agent a description of the property so acquired in
detail satisfactory to the Administrative Agent,
(ii) within 30 days after such acquisition, cause the applicable
Loan Party to duly execute and deliver to the Administrative Agent
deeds of trust, trust deeds, mortgages, Security Agreement
Supplements, IP Security Agreement Supplements and other security and
pledge agreements, as specified by and in form and substance
reasonably satisfactory to the Administrative Agent, securing
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payment of all the Obligations of the applicable Loan Party under the
Loan Documents and constituting Liens on all such properties,
(iii) within 30 days after such acquisition, cause the applicable
Loan Party to take whatever action (including the recording of
mortgages, the filing of Uniform Commercial Code financing statements,
the giving of notices and the endorsement of notices on title
documents) may be necessary in the reasonable opinion of the
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on such property, enforceable against all third
parties,
(iv) within 30 days after such acquisition, deliver to the
Administrative Agent, upon the request of the Administrative Agent in
its reasonable discretion, a signed copy of a favorable opinion,
addressed to the Administrative Agent and the other Secured Parties,
of counsel for the Loan Parties reasonably acceptable to the
Administrative Agent as to the matters contained in clauses (ii) and
(iii) above and as to such other matters as the Administrative Agent
may reasonably request,
(v) as soon as practicable after any acquisition of a real
property, deliver to the Administrative Agent with respect to such
Real Property title insurance policies, surveys and any available
engineering, soils and other reports (including, without limitation,
any environmental reports) generated within the 3 years prior to such
formation or acquisition to the extent required to be subject to deeds
of trust, trust deeds or mortgages, and
(vi) as soon as practicable after any acquisition of any Real
Property, deliver to the Administrative Agent with respect to such
Real Property required to be subject to deeds of trust, trust deeds or
mortgages, a Phase I environmental site assessment report prepared in
accordance with the standards promulgated by the American Society for
Testing and Materials in form and substance and from a professional
firm reasonably acceptable to the Administrative Agent.
(c) At any time any Foreign Subsidiary of the Borrower that is not a
Guarantor has entered into a Guarantee of any Funded Debt of any Loan Party with
a principal amount in excess of the Threshold Amount, then the Borrower shall,
at the Borrower's expense:
(i) within 30 days after entering into such Guarantee, cause such
Subsidiary (if it has not already done so), to duly execute and
deliver to the Administrative Agent a guaranty, in form and substance
reasonably satisfactory to the Administrative Agent, guaranteeing the
Loan Parties' obligations under the Loan Documents, and
(ii) within 30 days after entering into such Guarantee, deliver
to the Administrative Agent, upon the request of the Administrative
Agent in its reasonable discretion, a signed copy of a favorable
opinion, addressed to the Administrative Agent and the other Secured
Parties, of counsel for the Loan Parties reasonably acceptable to the
Administrative Agent as to the matters
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contained in CLAUSE (i) above, and as to such other matters as the
Administrative Agent may reasonably request.
(d) Notwithstanding anything provided in this SECTION 6.12, no Local
Law Collateral Documents shall be required to be delivered in respect of the
Equity Interests in any First-Tier Foreign Subsidiary for so long as such
First-Tier Foreign Subsidiary shall not be a Significant Foreign Subsidiary.
Upon any First-Tier Foreign Subsidiary becoming a Significant Foreign
Subsidiary, the Borrower shall deliver, or shall cause to be delivered, to the
Administrative Agent the Local Law Collateral Documents in respect of 66% of the
Equity Interests in such First-Tier Foreign Subsidiary within 30 days after the
date the determination is made that such First-Tier Foreign Subsidiary is a
Significant Foreign Subsidiary other than where compliance with this SECTION
6.12(D) would result in a Section 956 Deemed Dividend.
(e) Within 30 days (which may be extended in the reasonable discretion
of the Administrative Agent by up to an additional 30 days) after delivery of
any Compliance Certificate listing any Key Foreign Operating Jurisdiction with
respect to which Local Law Collateral Documents in respect of the Significant
Marks have not been executed and delivered and all actions required to perfect
the security interests in respect of the Significant Marks created pursuant to
the Security Agreement or any Local Law Collateral Documents taken, the Borrower
and the applicable Loan Parties shall (i) execute and deliver Local Law
Collateral Documents in respect of the Significant Marks, (ii) take all actions
required to perfect the security interests in respect of the Significant Marks
created pursuant to the Security Agreement or any Local Law Collateral Documents
and otherwise reasonably requested by the Administrative Agent pursuant to the
Loan Documents, and (iii) deliver to the Administrative Agent, upon the request
of the Administrative Agent in its reasonable discretion, a signed copy of a
favorable opinion, addressed to the Administrative Agent and the other Secured
Parties, of counsel for the Loan Parties in such Key Foreign Operating
Jurisdiction reasonably acceptable to the Administrative Agent as to the matters
contained in clauses (i) and (ii) above and as to such other matters as the
Administrative Agent may reasonably request. Notwithstanding anything provided
in this SECTION 6.12, no Local Law Collateral Documents shall be required to be
delivered in respect of any IP Rights registered in a jurisdiction outside of
the United States, except for Local Law Collateral Documents in respect of
Significant Marks registered in Key Foreign Operating Jurisdictions.
(f) Notwithstanding anything provided in this SECTION 6.12, the
Administrative Agent shall not take or perfect a security interest in any
property or assets if Administrative Agent shall determine, in its reasonable
discretion, that the cost of obtaining or perfecting such interest (including
any mortgage, stamp, intangibles or other tax) are excessive in relation to the
benefit to the Secured Parties of the security afforded thereby.
(g) At any time upon request of the Administrative Agent, promptly
execute and deliver any and all further instruments and documents and take all
such other action as the Administrative Agent may reasonably deem necessary in
obtaining the full benefits of, or in perfecting and preserving the Liens of,
such guaranties, deeds of trust, trust deeds, mortgages, Security Agreement
Supplements, IP Security Agreement Supplements and other security and pledge
agreements, in each case solely to the extent not inconsistent with the
provisions of this Agreement or any other Loan Document.
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6.13 COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and cause all lessees
and other Persons operating or occupying its properties to comply, in all
material respects, with all applicable Environmental Laws and Environmental
Permits; obtain and renew all Environmental Permits necessary for its operations
and properties; and conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove and
clean up all Hazardous Materials from any of its properties, in accordance with
the requirements of all Environmental Laws; PROVIDED, HOWEVER, that neither the
Borrower nor any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
6.14 PREPARATION OF ENVIRONMENTAL REPORTS. In the event that the
Administrative Agent or the Required Lenders has reason to believe that (a)
there is an Environmental Liability affecting any Real Property that could
reasonably be expected to have a Material Adverse Effect, (b) there is any
Environmental Action or any Environmental Liability that could reasonably be
expected to cause any property described in the Mortgages to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law, or (c) there is an Environmental Liability that could
reasonably be expected to result in a litigation or a proceeding affecting any
Loan Party or Subsidiary that would involve amounts exceeding the Threshold
Amount, then, at the request of the Administrative Agent or the Required
Lenders, provide to the Lenders within 90 days after such request or such longer
period of time as may be reasonably necessary to conduct any assessment as is
reasonably determined by the environmental consulting firm conducting such
assessment, at the expense of the Borrower, an environmental site assessment
report for any of its properties described in such request, prepared by an
environmental consulting firm reasonably acceptable to the Administrative Agent,
indicating the presence or absence of Hazardous Materials and the estimated cost
of any compliance, removal or remedial action in connection with any Hazardous
Materials on such properties.
6.15 FURTHER ASSURANCES. Promptly upon request by the Administrative
Agent, or any Lender through the Administrative Agent, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any and all
such further acts, deeds, certificates, assurances and other instruments as the
Administrative Agent, may reasonably require from time to time in order to (a)
to the fullest extent permitted by applicable law, subject any Loan Party's or
any of its Subsidiaries' properties, assets, rights or interests to the Liens
now or hereafter intended to be covered by any of the Collateral Documents, (b)
perfect and maintain the validity, effectiveness and priority of any of the
Collateral Documents and any of the Liens intended to be created thereunder and
(c) assure, convey, grant, assign, transfer, preserve, protect and confirm more
effectively unto the Secured Parties the rights granted or now or hereafter
intended to be granted to the Secured Parties under any Loan Document or under
any other instrument executed in connection with any Loan Document to which any
Loan Party or any of its Subsidiaries is or is to be a party, and cause each of
its Subsidiaries to do so.
6.16 INTEREST RATE HEDGING. Enter into no later than 90 days after the
Closing Date, and maintain at all times thereafter, interest rate Swap Contracts
with Persons reasonably acceptable to the Administrative Agent and having terms
and conditions reasonably satisfactory to the Administrative Agent, to the
extent necessary to provide that at least 40% of the aggregate
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principal amount of all Funded Debt of the Borrower and its Subsidiaries on a
consolidated basis is subject to either a fixed interest rate or interest rate
protection for a period of the lesser of three years and the remaining period of
time to the Maturity Date.
6.17 COMPLIANCE WITH MATERIAL CONTRACTS. Perform and observe all the
terms and provisions of each Material Contract to be performed or observed by
it, maintain each such Material Contract in full force and effect, enforce each
such Material Contract in accordance with its terms, except, in any case, where
the failure to do so, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
6.18 PROTECTED SUBSIDIARIES AND FINANCING SUBSIDIARIES. (a) Maintain
at all times Dart or BCICIS, as applicable, as the legal, beneficial and
registered and record owner of all Significant Marks owned by it as of the date
hereof and one of the Protected Subsidiaries as the legal, beneficial and, as
applicable, registered or record owner or licensee from a Person other than the
Borrower or any Subsidiary of all Material Marks; PROVIDED, that neither Dart
nor BCICIS shall transfer or otherwise Dispose of any Significant ▇▇▇▇ to any
Person, except as permitted pursuant to Section 7.05(i) to Borrower and its
Subsidiaries and (b) cause TICL or another Financing Subsidiary identified to
the Administrative Agent at all times (i) to continue to operate as a principal
finance vehicle for the operations of the Borrower and its Subsidiaries located
outside of the United States, (ii) to be a First Tier Foreign Subsidiary, at
least 66% of whose Equity Interests have been or shall be, concurrently with
such subsidiary becoming a Financing Subsidiary, pledged pursuant to Local Law
Collateral Documents, and (iii) to maintain such pledge to be a valid, perfected
first priority interest pursuant to the laws of the applicable Key Foreign
Pledge Jurisdiction.
6.19 POST-CLOSING REQUIREMENTS.
No later than 90 days after the Closing Date (which 90-day period may
be extended for an additional 60 days in the reasonable discretion of the
Administrative Agent), the Loan Parties shall deliver deeds of trust, trust
deeds and mortgages (together with the assignments of leases and rents referred
to therein and each other deeds of trust, trust deeds and mortgages delivered
pursuant to SECTION 6.12, in each case as amended, the "Mortgages"), in
substantially the form of EXHIBIT H (with such changes as may be reasonably
satisfactory to the Administrative Agent and its counsel to account for local
law matters) and covering the properties listed on SCHEDULE 6.19 (collectively,
the "INITIAL MORTGAGED PROPERTIES"), duly executed by the appropriate Loan
Party, together with: (a) evidence that counterparts of the Mortgages have been
duly executed, acknowledged and delivered and are in form suitable for filing or
recording in all filing or recording offices that the Administrative Agent may
reasonably deem necessary in order to create a valid first and subsisting Lien
on the property described therein in favor of the Administrative Agent for the
benefit of the Secured Parties and that all filing and recording taxes and fees
have been paid; (b) fully paid American Land Title Association Lender's (or to
the extent available in the applicable jurisdiction, Extended Coverage) title
insurance policies (the "MORTGAGE POLICIES") in form and substance, with
endorsements and in amounts reasonably acceptable to the Administrative Agent,
issued, coinsured and reinsured by title insurers selected by, or otherwise
reasonably acceptable to, the Administrative Agent, insuring the Mortgages to be
valid first and subsisting Liens on the property described therein, free and
clear of all material defects (including, but not limited to,
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mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted
Encumbrances and other Liens permitted under the Loan Documents, and providing
for such other affirmative insurance (including endorsements for future advances
under the Loan Documents and for mechanics' and materialmen's Liens) and such
coinsurance and direct access reinsurance as the Administrative Agent may
reasonably deem necessary; (c) American Land Title Association/American Congress
on Surveying and Mapping form surveys, for which all necessary fees (where
applicable) have been paid, and dated a date reasonably satisfactory to the
Administrative Agent, certified to the Administrative Agent and the issuer of
the Mortgage Policies in a manner reasonably satisfactory to the Administrative
Agent by a land surveyor duly registered and licensed in the States in which the
property described in such surveys is located and reasonably acceptable to the
Administrative Agent, showing all buildings and other improvements, any off-site
improvements, the location of any easements, parking spaces, rights of way,
building set-back lines and other dimensional regulations and the absence of
encroachments, either by such improvements or on to such property, and other
defects, other than encroachments and other defects reasonably acceptable to the
Administrative Agent; (d) any available engineering, soils and other reports
(including, without limitation, any environmental reports) generated within the
3 years prior to the Closing Date as to the properties described in the
Mortgages; (e) Phase I environmental site assessment reports prepared in
accordance with the standards promulgated by the American Society for Testing
and Materials for each of the properties described in the Mortgages, in form and
substance and from a professional firm reasonably acceptable to the
Administrative Agent; (f) evidence of the insurance required by the terms of the
Mortgages; (g) to the extent requested by the Administrative Agent, an appraisal
of each of the properties described in the Mortgages complying with the
requirements of the Federal Financial Institutions Reform, Recovery and
Enforcement Act of 1989, which appraisals shall be from a Person reasonably
acceptable to the Administrative Agent and otherwise in form and substance
reasonably satisfactory to the Administrative Agent; (h) favorable opinions of
local counsel to the Loan Parties in form and substance reasonably satisfactory
to the Administrative Agent, and (i) evidence that all other action that the
Administrative Agent may reasonably deem necessary in order to create valid
first and subsisting Liens on the property described in the Mortgages has been
taken.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan
or other Obligation hereunder (other than contingent indemnification
obligations) shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, the Borrower shall not, nor shall it permit any Subsidiary
to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon any
of its property or assets, whether now owned or hereafter acquired, or sign or
file or suffer to exist under the Uniform Commercial Code of any jurisdiction a
financing statement that names the Borrower or any of its Subsidiaries as
debtor, or sign or suffer to exist any security agreement authorizing any
secured party thereunder to file such financing statement, other than the
following:
(a) Liens pursuant to any Loan Document;
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(b) Liens existing on the date hereof (other than Liens securing lines
of credit and amounts outstanding under lines of credit) and listed on
SCHEDULE 5.08(B) and any renewals or extensions thereof, PROVIDED that (i)
the property covered thereby is not broadened or increased, (ii) the amount
secured or benefited thereby is not increased, (iii) the direct or any
contingent obligor with respect thereto is not changed, and (iv) any
renewal or extension of the obligations secured or benefited thereby is
permitted by SECTION 7.02(D);
(c) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person in accordance with GAAP;
(d) carriers', warehousemen's, landlords', mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 60 days or which are being
contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety bonds
(other than bonds related to judgments or litigation), performance bonds
and other obligations of a like nature incurred in the ordinary course of
business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property or other minor irregularities in title
which, in the aggregate, are not substantial in amount, and which 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
applicable Person;
(h) Liens securing judgments for the payment of money not constituting
an Event of Default under SECTION 8.01(H) or securing appeal or other
surety bonds related to such judgments;
(i) Liens securing Indebtedness permitted under SECTION 7.02(F);
PROVIDED that (i) such Liens do not at any time encumber any property other
than the property whose acquisition, construction or improvement was
financed by such Indebtedness or, if applicable, subject to such
Capitalized Lease and (ii) the Indebtedness secured thereby does not exceed
the cost or fair market value, whichever is lower, of the property being
acquired, constructed or improved on the date of acquisition, construction
or improvement;
(j) Liens in the form of leases or subleases granted or created by the
Borrower or any Subsidiary of Real Properties that do not interfere,
individually or in the
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aggregate, in any material respect with the business of the Borrower and
its Subsidiaries (taken as a whole);
(k) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for sale of goods entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business;
(l) Liens arising from precautionary UCC financing statement filings
regarding operating leases entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business;
(m) Liens securing lines of credit for Foreign Subsidiaries in an
aggregate potential amount at any time (such amount being the maximum
potential amount of credit under any secured line of credit, whether or not
committed and whether or not then available) not to exceed $35,000,000; and
(n) other Liens securing Indebtedness (other than Liens securing lines
of credit for Foreign Subsidiaries and amounts outstanding under lines of
credit for Foreign Subsidiaries) outstanding in an aggregate principal
amount not to exceed $10,000,000.
Notwithstanding anything to the contrary herein or in any other Loan Document,
the Borrower shall not, nor shall it permit any Subsidiary to, directly or
indirectly, create, incur, assume or suffer to exist any Lien in respect of (x)
any property or assets of Dart or BCICIS, including, without limitation, the
Significant Marks, (y) any Material ▇▇▇▇, and (z) the Equity Interests of Dart,
BCICIS, any Protected Subsidiary or any Financing Subsidiary, in each case,
except for Liens thereon created by the Loan Documents.
7.02 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness in respect of Swap Contracts designed to hedge
against fluctuations in interest rates or foreign exchange rates required
hereby or otherwise incurred in the ordinary course of business and
consistent with prior practices and prudent business practice and not for
speculative purposes;
(b) Indebtedness owed to the Borrower, a wholly owned Subsidiary of
the Borrower or a Qualified Non-Wholly Owned Subsidiary of the Borrower,
which Indebtedness shall (i) in the case of Indebtedness owed to a Loan
Party, constitute "Pledged Debt" under the Security Agreement, (ii) be
otherwise permitted under the provisions of SECTION 7.03, (iii) if any Loan
Party is the obligor on such Indebtedness, be unsecured and expressly
subordinated in right of payment to all Obligations, and (iv) in the case
of Indebtedness owed to any Loan Party by any Subsidiary that is not a Loan
Party, (A) be evidenced by a promissory note, (B) not be subordinated, and
(C) be payable upon demand and without restrictions on prepayments;
(c) Indebtedness under the Loan Documents;
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(d) Indebtedness, excluding lines of credit and Indebtedness in
respect of lines of credit, outstanding on the date hereof and listed on
SCHEDULE 7.02(D) and any refinancings, refundings, renewals or extensions
thereof; PROVIDED that the amount of such Indebtedness is not increased at
the time of such refinancing, refunding, renewal or extension except by an
amount equal to a reasonable premium or other reasonable amount paid, and
fees and expenses reasonably incurred, in connection with such refinancing
and by an amount equal to any existing commitments unutilized thereunder
and the direct or any contingent obligor with respect thereto is not
changed, as a result of or in connection with such refinancing, refunding,
renewal or extension; PROVIDED FURTHER that the terms relating to principal
amount, amortization, maturity, collateral (if any) and subordination (if
any), and other material terms taken as a whole, of any such refinancing,
refunding, renewing or extending Indebtedness, and of any agreement entered
into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the Loan Parties or the Lenders than
the terms of any agreement or instrument governing the Indebtedness being
refinanced, refunded, renewed or extended and the interest rate applicable
to any such refinancing, refunding, renewing or extending Indebtedness does
not exceed the then applicable market interest rate;
(e) Guarantees of (i) the Borrower or any Guarantor in respect of
Indebtedness of any Loan Party otherwise permitted hereunder, and (ii) of
the Borrower on an unsecured basis in respect of Indebtedness of any
Subsidiary that is not a Loan Party otherwise permitted hereunder;
(f) Indebtedness in respect of Capitalized Leases, Synthetic Lease
Obligations and obligations for acquisition, construction or improvement of
fixed or capital assets; PROVIDED, that (i) the aggregate amount of all
such Indebtedness at any one time outstanding (other than in respect of the
construction of a manufacturing, distribution and office facility in Aalst,
Belgium, adjacent to the existing warehouse facility) shall not exceed
$20,000,000, and (ii) the aggregate amount of all such Indebtedness in
respect of the construction of a manufacturing, distribution and office
facility in Aalst, Belgium, adjacent to the existing warehouse facility,
shall not exceed $20,000,000 so long as such Indebtedness is owed to Fortis
Capital and its affiliates and partners (including any refinancings,
refundings, renewals or extensions thereof with Fortis Capital and its
affiliates and partners so long as the amount of such Indebtedness is not
increased, the direct or any contingent obligor with respect thereto is not
changed and any property securing such Indebtedness is not broadened or
increased);
(g) other than pursuant to a line of credit, Indebtedness arising from
the honoring by a bank or other financial institution of a check, draft or
similar instrument drawn against insufficient funds in the ordinary course
of business; provided that such Indebtedness is extinguished within five
Business Days of its incurrence;
(h) Indebtedness owed to (including obligations in respect of letters
of credit for the benefit of) any Person providing workers' compensation,
health, disability or other employee benefits or property, casualty or
liability insurance to the Borrower or any Subsidiary, pursuant to
reimbursement or indemnification obligations to such Person in the ordinary
course of business;
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(i) Indebtedness representing deferred compensation to employees of
Borrower and its Subsidiaries in the ordinary course of business;
(j) Indebtedness incurred in the ordinary course of business of the
Borrower and its Subsidiaries in respect of accounts extended by suppliers
on normal trade terms in connection with purchases of goods and services;
(k) Indebtedness incurred pursuant to the terms of any Plan or
Employee Benefit Arrangement in the ordinary course of business;
(l) Permitting Financings in an aggregate amount not to exceed
$300,000,000 so long as the Net Cash Proceeds thereof are applied to prepay
the Loans;
(m) lines of credit (including, without limitation, overdraft
facilities, working capital facilities, letter of credit facilities and
similar lines of credit and credit facilities, but excluding factoring
facilities and trade letter of credit facilities in the ordinary course of
business) listed on SCHEDULE 7.02(M), as updated in accordance with SECTION
6.02(J)(II) and as updated between fiscal periods otherwise in accordance
with SECTION 6.02(J)(II), in an aggregate amount not to exceed $150,000,000
(including, without limitation, all committed and uncommitted lines of
credit); PROVIDED, that (i) the aggregate amount outstanding under all
lines of credit shall not exceed $75,000,000 outstanding at any time, and
(ii) any such lines of credit may be secured only as permitted under
SECTION 7.01(M);
(n) trade letter of credit facilities; and
(o) other Indebtedness in an aggregate principal amount not to exceed
$10,000,000 at any time outstanding.
Notwithstanding anything to the contrary herein or in any other Loan Document,
(x) neither Dart nor BCICIS nor any Protected Subsidiary that has any right,
title or interest in any Material ▇▇▇▇ ▇▇▇ create, incur, assume or suffer to
exist any Indebtedness other than Indebtedness under the Loan Documents and
unsecured Indebtedness under SECTIONS 7.02(B) and (L), and (y) lines of credit
for Foreign Subsidiaries and all Indebtedness in respect of lines of credit for
Foreign Subsidiaries shall only be permitted under SECTION 7.02(M).
7.03 INVESTMENTS. Make or hold any Investments, except:
(a) Investments held by the Borrower and its Subsidiaries in the form
of Cash Equivalents;
(b) Loans and advances to officers, directors and employees of the
Borrower and Subsidiaries for payroll advances, travel, entertainment,
relocation and other corporate purposes in an amount not to exceed
$2,500,000 at any time outstanding, for travel, entertainment, relocation
and analogous ordinary business purposes;
(c) (i) Investments by the Borrower and its Subsidiaries in their
respective Subsidiaries outstanding on the date hereof, and (ii) additional
Investments by the Borrower and its Subsidiaries in wholly owned
Subsidiaries and Qualified Non-Wholly
99
owned Subsidiaries; PROVIDED, that proceeds of any such additional
Investments in Subsidiaries that are not Loan Parties shall not be used to
(A) finance any further Investments other than additional Investments under
this SECTION 7.03(C) or (B) finance any Restricted Payments other than
Restricted Payments permitted under SECTION 7.06(A);
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the trade debt
granted, or deposits made in connection with the purchase of goods or
services, in each case in the ordinary course of business, and Investments
received in satisfaction or partial satisfaction thereof from financially
troubled account debtors, customers or suppliers or in settlement of
disputes in the ordinary course of business to the extent reasonably
necessary in the circumstances;
(e) Guarantees permitted by SECTION 7.02;
(f) Investments existing or in respect of which a legally binding
commitment to make such Investment exists on the date hereof and set forth
on SCHEDULE 5.08(E);
(g) Investments by the Borrower in Swap Contracts permitted under
SECTION 7.02(a);
(h) the purchase or other acquisition by any Loan Party of all of the
Equity Interests in, or all or substantially all of the property and assets
of, or a business unit or product line of, any Person that, upon the
consummation thereof, will be wholly owned directly by the Borrower or one
or more of its wholly owned Subsidiaries (including as a result of a merger
or consolidation); PROVIDED that, with respect to each purchase or other
acquisition made pursuant to this SECTION 7.03(H):
(i) to the extent applicable, any such newly-created or acquired
Subsidiary resulting from such purchase or acquisition shall comply
with the requirements of SECTION 6.12;
(ii) the lines of business of the Person to be (or the property
and assets of which are to be) so purchased or otherwise acquired
shall be substantially the same or substantially related to and
complementary to lines of business as one or more of the principal
businesses of the Borrower and its Subsidiaries;
(iii) the total cash and noncash consideration (including the
fair market value of all Equity Interests issued or transferred to the
sellers thereof, all indemnities, earnouts and other contingent
payment obligations to, and the aggregate amounts paid or to be paid
under noncompete, consulting and other affiliated agreements with, the
sellers thereof, all write-downs of property and assets and reserves
for liabilities with respect thereto and all assumptions of debt,
liabilities and other obligations in connection therewith) paid or
assumed by or on behalf of the Borrower and its Subsidiaries for any
such purchase or other acquisition, when aggregated with the total
cash and noncash consideration paid or assumed by or on behalf of the
Borrower and its Subsidiaries for all other purchases and other
acquisitions made by the Borrower and its Subsidiaries
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pursuant to this SECTION 7.03(h), shall not exceed $150,000,000 in the
aggregate; PROVIDED, that (A) if the Consolidated Leverage Ratio is
greater than 2.75 to 1.00 immediately after giving Pro Forma Effect to
any such purchases or acquisitions and any related transactions, the
total cash and noncash consideration paid or assumed by or on behalf
of the Borrower and its Subsidiaries for all such purchases and other
acquisitions shall not exceed $20,000,000 in any fiscal year, and (B)
any amounts not used in such fiscal year may be carried over into the
next fiscal year (but not into any subsequent fiscal year);
(iv) (A) immediately before and immediately after giving Pro
Forma Effect to any such purchase or other acquisition, no Default
shall have occurred and be continuing and (B) immediately after giving
Pro Forma Effect to such purchase or other acquisition, the Borrower
and its Subsidiaries shall be in PRO FORMA compliance with all of the
covenants set forth in SECTION 7.11; and
(v) the Borrower shall have delivered to the Administrative
Agent, on behalf of the Lenders, at least five Business Days prior to
the date on which any such purchase or other acquisition involving
total consideration in excess of $5,000,000 is to be consummated, a
certificate of a Responsible Officer of the Borrower, in form and
substance reasonably satisfactory to the Administrative Agent,
certifying that all of the requirements set forth in this SECTION
7.03(H) have been satisfied or will be satisfied on or prior to the
consummation of such purchase or other acquisition;
(i) Investments made or acquired pursuant to the terms of any
Plan or Employee Benefit Arrangement or pursuant to the terms of the
Existing CEO Agreement in the ordinary course of business;
(j) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(k) Investments made with the Net Cash Proceeds of any issuance
of Equity Interests remaining after making all mandatory prepayments
from such Net Cash Proceeds required pursuant to SECTION 2.05(B)(III);
(l) the non-exclusive licensing or sublicensing of Intellectual
Property Rights (other than Significant Marks) pursuant to joint
marketing arrangements with Persons other than the Borrower and its
Subsidiaries;
(m) any Investments acquired in connection with a Disposition
permitted by SECTION 7.05; and
(n) other Investments, net of all dividends, distributions,
payments of interest, return on capital and repayments of principal
received in cash in respect of such Investments, in an aggregate
amount not to exceed $15,000,000 at any time outstanding.
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7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with
or into another Person, or Dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge with, or be liquidated, wound up or
dissolved into (i) the Borrower, PROVIDED that the Borrower shall be the
continuing or surviving Person, or (ii) any one or more other Subsidiaries,
PROVIDED that when any Loan Party is merging with another Subsidiary that
is not a Loan Party, such Loan Party shall be the continuing or surviving
Person;
(b) any Loan Party may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or to
another Loan Party;
(c) any Subsidiary that is not a Loan Party may dispose of all or
substantially all its assets to (i) another Subsidiary which is not a Loan
Party or (ii) to a Loan Party;
(d) the Borrower and its Subsidiaries may consummate the Acquisition;
and
(e) in connection with any acquisition permitted under SECTION 7.03,
any Subsidiary of the Borrower may merge into or consolidate with any other
Person or permit any other Person to merge into or consolidate with it;
PROVIDED that the Person surviving such merger shall be a wholly owned
Subsidiary of the Borrower;
PROVIDED, HOWEVER, that in each case, immediately after giving effect thereto,
(x) in the case of any such merger to which the Borrower is a party, the
Borrower is the surviving corporation, and (y) in the case of any such merger to
which any Loan Party (other than the Borrower) is a party, such Loan Party is
the surviving corporation; PROVIDED, FURTHER, that the Borrower shall use its
commercially reasonable efforts to cause CH Laboratories Pty Limited to be
merged, liquidated, wound up or dissolved in a manner permitted by SECTION
7.04(A)(II) and until such merger, liquidation, winding up or dissolution shall
have occurred, CH Laboratories Pty Limited shall not own any assets.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of (i) obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business, and (ii)
fixed operating assets (solely to the extent not constituting all or
substantially all of the assets or business of the Borrower or any
Subsidiary or a business unit, line of business or division of the Borrower
or any Subsidiary) no longer used or useful to the business of the Borrower
and its Subsidiaries, whether now owned or hereafter acquired, in the
ordinary course of business;
(b) Dispositions of inventory and Cash Equivalents in the ordinary
course of business;
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(c) Dispositions of equipment or real property to the extent that (i)
such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are
reasonably promptly applied to the purchase price of such replacement
property;
(d) Dispositions of property by the Borrower or any Subsidiary to the
Borrower, a wholly owned Subsidiary, or a Qualified Non-Wholly Owned
Subsidiary; PROVIDED that (i) if the transferor of such property in a
noncash transaction is the Borrower or a Guarantor, the transferee thereof
must either be the Borrower or a Guarantor, and (ii) such Disposition shall
be for fair market value and on arm's-length terms;
(e) Dispositions permitted by SECTION 7.04 and, to the extent any
Investment permitted under SECTION 7.03 also constitutes, in whole or in
part, a Disposition, such Investment;
(f) any issuance of Equity Interests of the Borrower;
(g) Dispositions by the Borrower and its Subsidiaries of the Specified
Florida Properties and the Idle Properties; PROVIDED, that at least 25% of
the purchase price therefore shall be paid in cash so long as any noncash
consideration shall be secured by the Specified Florida Properties or the
Idle Properties subject to such Disposition;
(h) the sale, transfer or disposition of accounts in connection with
the collection or compromise thereof in the ordinary course of business;
(i) non-exclusive licenses of IP Rights in the ordinary course of
business and substantially consistent with past practice;
(j) Dispositions made pursuant to the terms of any Plan or Employee
Benefit Arrangement in the ordinary course of business;
(k) Dispositions by the Borrower and its Subsidiaries not otherwise
permitted under this SECTION 7.05; PROVIDED that (i) at the time of such
Disposition, no Default shall exist or would result from such Disposition,
(ii) the aggregate fair market value of all property Disposed of in
reliance on this CLAUSE (K) shall not exceed $10,000,000 in any fiscal year
and $30,000,000 in the aggregate, and (iii) at least 75% of the purchase
price for such asset shall be paid to the Borrower or such Subsidiary
solely in cash; and
(l) so long as no Default shall occur and be continuing, the grant of
any option or other right to purchase any asset in a transaction that would
be permitted under the provisions of SECTION 7.05(K) above;
PROVIDED, HOWEVER, that (x) any Disposition pursuant to SECTION 7.05(K) is for
consideration at least equivalent to fair market value of the property or assets
Disposed, and (y) neither Dart nor BCICIS shall transfer or otherwise Dispose of
any Significant ▇▇▇▇ except as permitted pursuant to SECTION 7.05(I) to the
Borrower and its Subsidiaries.
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7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that, so long as no Default or Event of Default shall have occurred and
be continuing at the time of any action described below or would result
therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower, any
Subsidiaries of the Borrower that are Guarantors and any other Person that
owns a direct Equity Interest in such Subsidiary, ratably according to
their respective holdings of the type of Equity Interest in respect of
which such Restricted Payment is being made;
(b) the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock or other
common Equity Interests of such Person;
(c) except to the extent the Net Cash Proceeds thereof are required to
be applied to the prepayment of the Loans pursuant to SECTION 2.05(B)(III),
the Borrower and each Subsidiary may purchase, redeem or otherwise acquire
its common Equity Interests with the proceeds received from the
substantially concurrent issue of new common Equity Interests;
(d) the Borrower and each Subsidiary may purchase, redeem or otherwise
acquire shares of its common stock to the extent that such purchase,
redemption or other acquisition is effected using the proceeds from any
exercise of any option, warrant, or other right to acquire capital stock in
the Borrower or such Subsidiary within 180 days after the date of such
exercise;
(e) the Borrower and each Subsidiary may make Restricted Payments and
may issue or sell Equity Interests pursuant to the terms of any Plan or
Employee Benefit Arrangement or pursuant to the Existing CEO Agreement in
the ordinary course of business;
(f) the Borrower may declare or pay cash dividends to its stockholders
and purchase, redeem or otherwise acquire shares of its common stock so
long as, after giving Pro Forma Effect thereto, the Borrower shall be in
PRO FORMA compliance with each of the covenants set forth in SECTION 7.11;
(g) the Borrower may purchase, redeem or acquire any of its Equity
Interests from any of its or its Subsidiaries' present or former officers
or employees upon the death, disability or termination of employment of
such officer or employee, so long as the aggregate amount of payments under
this SECTION 7.06(G) shall not exceed $2,500,000 in any fiscal year and
$5,000,000 in the aggregate since the Closing Date; and
(h) to the extent permitted by SECTION 7.03, the Borrower or any of
its Subsidiaries may purchase any or all of any portion of the minority
Equity Interests in any Subsidiary that is not (directly or indirectly)
wholly owned by the Borrower.
7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by the
Borrower and its
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Subsidiaries on the date hereof or any business similar, ancillary,
complementary or otherwise reasonably related thereto or that is a reasonable
extension, development or expansion thereof.
7.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any
kind with any Affiliate of the Borrower, whether or not in the ordinary course
of business, other than on fair and reasonable terms substantially as favorable
to the Borrower or such Subsidiary as would be obtainable by the Borrower or
such Subsidiary at the time in a comparable arm's length transaction with a
Person other than an Affiliate; provided that the following shall not be deemed
to be Affiliate transactions subject to the foregoing limitations:
(a) transactions between or among (i) the Borrower and any Domestic
Subsidiaries that are Loan Parties, (ii) any Subsidiaries that are not Loan
Parties, and (iii) Loan Parties and Subsidiaries that are not Loan Parties
with respect to transactions that are individually and in the aggregate DE
MINIMIS and immaterial;
(b) any Restricted Payment permitted by SECTION 7.06;
(c) fees and compensation, benefits and incentive arrangements paid or
provided to, and any indemnity provided on behalf of, officers, directors
or employees of the Borrower or any Subsidiary as determined in good faith
by the board of directors of the Borrower; and
(d) loans and advances to officers, directors and employees permitted
by SECTION 7.03(B).
7.09 BURDENSOME AGREEMENTS. Enter into or permit to exist any
Contractual Obligation (other than this Agreement or any other Loan Document)
that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to
the Borrower or any Guarantor or to otherwise transfer property to or invest in
the Borrower or any Guarantor, except for any agreement in effect (A) on the
date hereof or (B) at the time any Subsidiary becomes a Subsidiary of the
Borrower, so long as such agreement was not entered into solely in contemplation
of such Person becoming a Subsidiary of the Borrower, (ii) of any Subsidiary to
Guarantee the Indebtedness of the Borrower or (iii) of the Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on property of such
Person in favor of the Administrative Agent or otherwise for the benefit of the
Lenders pursuant to the Loan Documents; provided, however, that this clause
(iii) shall not prohibit any negative pledge incurred or provided in favor of
any holder of Indebtedness permitted under SECTION 7.02(F) solely to the extent
any such negative pledge relates to the property financed by or the subject of
such Indebtedness; or (b) requires the grant of a Lien to secure an obligation
of such Person if a Lien is granted to secure another obligation of such Person.
7.10 USE OF PROCEEDS. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation
U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund Indebtedness originally incurred for such
purpose.
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7.11 FINANCIAL COVENANTS. (a) Consolidated Net Worth. Permit
Consolidated Net Worth as of the end of any fiscal quarter of the Borrower to be
less than the sum of (i) 80% of the Consolidated Net Worth of the Borrower
determined as of December 31, 2005, PLUS (ii) an amount equal to 50% of the
Consolidated Net Income earned in each full fiscal quarter ending on or after
April 1, 2006 (with no deduction for a net loss in any such fiscal quarter),
PLUS (iii) an amount equal to (x) 100% of the aggregate increases in
Shareholders' Equity of the Borrower and its Subsidiaries after the date hereof
by reason of the issuance and sale of Equity Interests of the Borrower or any
Subsidiary (other than issuances to the Borrower or a wholly owned Subsidiary),
including upon any conversion of debt securities of the Borrower into such
Equity Interests LESS (y) the amount of any stock repurchases, redemptions and
acquisitions made pursuant to SECTION 7.06(D).
(b) CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated Leverage
Ratio as of the end of any fiscal quarter of the Borrower commencing with the
first fiscal quarter ending April 1, 2006, set forth below to be greater than
the ratio set forth below opposite such fiscal quarter:
--------------------------------------------------------------
Maximum
Consolidated
Four Fiscal Quarters Ending Leverage Ratio
--------------------------------------------------------------
Closing Date through September 30, 2006 3.75:1.00
--------------------------------------------------------------
December 30, 2006 through September 29, 2007 3.50:1.00
--------------------------------------------------------------
December 29, 2007 through September 27, 2008 3.25:1.00
--------------------------------------------------------------
December 27, 2008 through September 25, 2009 2.75:1.00
--------------------------------------------------------------
December 26, 2009 and each fiscal quarter 2.50:1.00
thereafter
--------------------------------------------------------------
(c) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit the Consolidated
Fixed Charge Coverage Ratio as of the end of any fiscal quarter of the Borrower
commencing with the first fiscal quarter ending April 1, 2006 to be less than
the ratio set forth below opposite such fiscal quarter:
--------------------------------------------------------------
Minimum
Consolidated
Fixed Charge
Four Fiscal Quarters Ending Coverage Ratio
--------------------------------------------------------------
Closing Date through September 29, 2007 1.05:1.00
--------------------------------------------------------------
December 29, 2007 through September 27, 1.20:1.00
2008
--------------------------------------------------------------
December 27, 2008 through September 26, 1.25:1.00
2009
--------------------------------------------------------------
December 26, 2009 through September 25, 1.40:1.00
2010
--------------------------------------------------------------
December 25, 2010 and each fiscal quarter 1.50:1.00
thereafter
--------------------------------------------------------------
7.12 AMENDMENTS OF ORGANIZATION DOCUMENTS. Amend any of its
Organization Documents in any manner adverse to the Lenders in any material
respect.
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7.13 ACCOUNTING CHANGES. Except to the extent necessary to conform the
accounting policies or reporting practices of the Business to that of the
Borrower and its Subsidiaries, make any change in (a) accounting policies or
reporting practices, except as required or permitted by GAAP, or (b) fiscal
year.
7.14 PREPAYMENTS, ETC. OF INDEBTEDNESS. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of, any
Indebtedness, except (a) the prepayment of the Credit Extensions in accordance
with the terms of this Agreement, (b) regularly scheduled or required repayments
or redemptions of Indebtedness set forth in SCHEDULE 7.02(D), and (C)
prepayments of Indebtedness permitted under SECTION 7.02(B), (F) and (M).
7.15 AMENDMENT, ETC. OF RELATED DOCUMENTS AND INDEBTEDNESS. (a) Cancel
or terminate any Related Document or consent to or accept any cancellation or
termination thereof, (b) except to the extent it is immaterial or not adverse to
the interests of the Lenders, amend, modify or change any term or condition of
any Related Document or give any consent, waiver or approval thereunder, (c)
waive any default under or any breach of any term or condition of any Related
Document, except to the extent it is immaterial or not adverse to the interests
of the Lenders, (d) knowingly take any other action in connection with any
Related Document that would impair the value of the interest or rights of any
Loan Party thereunder or that would impair the rights or interests of any Agent
or any Lender or (e) amend, modify or change in any manner any term or condition
of any Indebtedness set forth in SCHEDULE 7.02(D), except for any refinancing,
refunding, renewal or extension thereof permitted by SECTION 7.02(D); PROVIDED,
that, any determination as to materiality or immateriality and adversity to the
interests of the Lenders with respect to the Related Documents shall be made by
the Administrative Agent in its reasonable judgment.
7.16 WHOLLY OWNED SUBSIDIARIES. Permit any Guarantor or any Material
Subsidiary not to be a wholly owned Subsidiary or, in the case of any Material
Subsidiary that is a Foreign Subsidiary, a Qualified Non-Wholly owned
Subsidiary.
7.17 SPECULATIVE TRANSACTIONS. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or any similar speculative transactions, which are, in any
case, inconsistent with prior practice and not otherwise made in the ordinary
course of business.
7.18 FORMATION OF SUBSIDIARIES. Organize or invest in any new
Subsidiary except as permitted under SECTION 7.03(C) and (H).
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event
of Default:
(a) NON-PAYMENT. The Borrower or any other Loan Party fails to (i) pay
when and as required to be paid herein, any amount of principal of any
Loan or any L/C Obligation or deposit any funds as Cash Collateral in
respect of L/C Obligations, or
(ii) pay within 5 days after the same becomes due, any interest on
any Loan or on any L/C Obligation, or any fee due hereunder, or any
other amount payable hereunder or under any other Loan Document; or
(b) SPECIFIC COVENANTS. The Borrower fails to perform or observe any
term, covenant or agreement contained in any of SECTION 6.01, 6.02(A) AND
(B), 6.03, 6.05, 6.10, OR 6.18 or ARTICLE VII; or
(c) OTHER DEFAULTS. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in SECTION 8.01(A) or (B) above)
contained in any Loan Document on its part to be performed or observed and
such failure continues for 30 days after the earlier of (i) notice of such
default shall have been given to the Borrower by the Administrative Agent
and (ii) a Responsible Officer of any Loan Party shall have actual
knowledge of such failure; or
(d) REPRESENTATIONS AND WARRANTIES. Any representation or warranty
made or deemed made by or on behalf of the Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect in any material respect
(other than in respect of any representation or warranty that is subject to
a Material Adverse Effect qualifier, in which case, such representation or
warranty shall be incorrect) when made or deemed made except with respect
to any representation or warranty to the extent incorrect solely as to
Immaterial Subsidiaries; or
(e) CROSS-DEFAULT. (i) Any Loan Party or any of its Subsidiaries (A)
fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement)
of more than the Threshold Amount, or (B) fails to observe or perform any
other agreement or condition relating to any such Indebtedness or Guarantee
or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior
to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under
any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract
as to which the Borrower or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which the Borrower or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by
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the Loan Party or such Subsidiary as a result thereof is greater than the
Threshold Amount; or
(f) INSOLVENCY PROCEEDINGS, ETC. The Borrower or any of its Material
Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes a general assignment for the benefit
of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or
any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any
such proceeding; or
(g) INABILITY TO PAY DEBTS; ATTACHMENT. (i) The Borrower or any of its
Material Subsidiaries becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ or
warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is
not released, vacated or fully bonded within 30 days after its issue or
levy; or
(h) JUDGMENTS. There is entered against any Loan Party or any of its
Subsidiaries (i) a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered
by (A) independent third-party insurance as to which the insurer is rated
at least "A" by A.M. Best Company, has been notified of the potential claim
and does not dispute coverage, or (B) an indemnity by Kraft Foods, Inc.,
Premark International, Inc. or ▇▇▇▇ ▇▇▇ Corporation (the "APPLICABLE
INDEMNITOR"), as applicable, pursuant to a legally binding agreement then
in full force and effect as to which the Borrower shall have made a claim
for indemnification from the Applicable Indemnitor in accordance with the
applicable agreement and the Applicable Indemnitor does not dispute such
claim or its obligations to indemnify), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor upon
such judgment or order, or (B) there is a period of 10 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Borrower under Title IV of ERISA to the Pension
Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess
of the Threshold Amount
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(j) FOREIGN BENEFITS PLANS. The occurrence of any of the following
events, where such events individually or in the aggregate with all other
events in this SECTION 8.01(J), could reasonably be expected to have a
Material Adverse Effect: (i) any employer or employee contributions
required by law or by the terms of any Foreign Government Scheme or
Arrangement or any Foreign Plan are not made, or, if applicable, accrued,
in accordance with normal accounting practices; (ii) the fair market value
of the assets of each funded Foreign Plan, the liability of each insurer
for any Foreign Plan funded through insurance or the book reserve
established for any Foreign Plan, together with any accrued contributions,
is not sufficient to procure or provide for the accrued benefit obligations
with respect to all current and former participants in such Foreign Plan
according to the actuarial assumptions and valuations most recently used to
account for such obligations in accordance with applicable generally
accepted accounting principles; or (iii) any Foreign Plan required to be
registered is not registered or is not maintained in good standing with
applicable regulatory authorities; or
(k) INVALIDITY OF LOAN DOCUMENTS. Any provision of any Loan Document,
at any time after its execution and delivery and for any reason other than
as expressly permitted hereunder or thereunder or satisfaction in full of
all the Obligations, ceases to be in full force and effect; or any Loan
Party contests in any manner the validity or enforceability of any
provision of any Loan Document; or any Loan Party denies that it has any or
further liability or obligation under any provision of any Loan Document,
or purports to revoke, terminate or rescind any provision of any Loan
Document; or
(l) CHANGE OF CONTROL. There occurs any Change of Control; or
(m) COLLATERAL DOCUMENT. Any Collateral Document after delivery
thereof pursuant to SECTION 4.01 or 6.12 shall for any reason (other than
pursuant to the terms thereof) cease to create a valid and perfected first
priority lien (subject to Liens permitted by Section 7.01) on the
Collateral purported to be covered thereby.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs
and is continuing, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following
actions:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and
110
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents;
PROVIDED, HOWEVER, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for
in SECTION 8.02 (or after the Loans have automatically become immediately due
and payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to SECTION 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
FIRST, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable
under ARTICLE III) payable to the Administrative Agent in its capacity as
such;
SECOND, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest)
payable to the Lenders and the L/C Issuer (including fees, charges and
disbursements of counsel to the respective Lenders and the L/C Issuer and
amounts payable under ARTICLE III), ratably among them in proportion to
the amounts described in this clause SECOND payable to them;
THIRD, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans, L/C Borrowings and other
Obligations, ratably among the Lenders and the L/C Issuer in proportion to
the respective amounts described in this clause THIRD payable to them;
FOURTH, to payment of that portion of the Obligations constituting
unpaid principal of the Loans, L/C Borrowings, amounts owing under Secured
Swap Contracts and amounts owing under Secured Foreign Credit Lines,
ratably among the Lenders, the L/C Issuer, the Hedge Banks, the Foreign
Credit Line Banks in proportion to the respective amounts described in
this clause FOURTH held by them;
FIFTH, to the Administrative Agent for the account of the L/C Issuer,
to Cash Collateralize that portion of L/C Obligations comprised of the
aggregate undrawn amount of Letters of Credit;
SIXTH, to the payment of all other Obligations of the Loan Parties
owing under or in respect of the Loan Documents that are due and payable
to the Administrative Agent and the other Secured Parties on such date,
ratably based upon the respective aggregate
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amounts of all such Obligations owing to the Administrative Agent and the
other Secured Parties on such date; and
LAST, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by
Law.
Subject to SECTION 2.03(C), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause FIFTH above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY. (a) Each of the Lenders and the L/C
Issuer hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents (other than
the Swap Contracts and Secured Foreign Credit Lines) and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this ARTICLE are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and the Borrower shall not
have rights as a third party beneficiary of any of such provisions.
(b) The Administrative Agent shall also act as the "COLLATERAL AGENT"
under the Loan Documents, and each of the Lenders (in its capacities as a
Lender, Swing Line Lender (if applicable) and potential Hedge Bank and/or
Foreign Credit Line Bank) and the L/C Issuer hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of such Lender, Hedge
Bank, Foreign Credit Line Bank and the L/C Issuer for purposes of acquiring,
holding and enforcing any and all Liens on Collateral granted by any of the Loan
Parties to secure any of the Secured Obligations, together with such powers and
discretion as are reasonably incidental thereto. In this connection, the
Administrative Agent, as "collateral agent" and any co-agents, sub-agents and
attorneys-in-fact appointed by the Administrative Agent pursuant to SECTION 9.05
for purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights
and remedies thereunder at the direction of the Administrative Agent), shall be
entitled to the benefits of all provisions of this ARTICLE IX and ARTICLE X
(including SECTION 10.04(C), as though such co-agents, sub-agents and
attorneys-in-fact were the "collateral agent" under the Loan Documents) as if
set forth in full herein with respect thereto.
9.02 RIGHTS AS A LENDER. The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "LENDER" or "LENDERS" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial
112
advisor or in any other advisory capacity for and generally engage in any kind
of business with the Borrower or any Subsidiary or other Affiliate thereof as if
such Person were not the Administrative Agent hereunder and without any duty to
account therefor to the Lenders.
9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have
any duties or obligations except those expressly set forth herein and in the
other Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
PROVIDED that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided in SECTIONS 10.01 and 8.02) or (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Collateral
Documents, (v) the value or the sufficiency of any Collateral, or (vi) the
satisfaction of any condition set forth in ARTICLE IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
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9.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall
be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or
other writing (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or the L/C
Issuer, the Administrative Agent may presume that such condition is satisfactory
to such Lender or the L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or the L/C Issuer prior to the
making of such Loan or the issuance of such Letter of Credit. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any
and all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may
at any time give notice of its resignation to the Lenders, the L/C Issuer and
the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, with the consent of the Borrower so long as no
Default shall have occurred and be continuing (which consent of the Borrower
shall not be unreasonably withheld or delayed), to appoint a successor, which
shall be a bank with an office in the United States, or an Affiliate of any such
bank with an office in the United States. If no such successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the Lenders
and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall
notify the Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (a) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the
Loan Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is
appointed) and (b) all payments, communications and determinations provided to
be made by, to or through the Administrative Agent shall instead be made by or
to each Lender and the L/C Issuer directly, until such time as
114
the Required Lenders appoint a successor Administrative Agent as provided for
above in this Section. Upon the acceptance of a successor's appointment as
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other
Loan Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative
Agent's resignation hereunder and under the other Loan Documents, the provisions
of this ARTICLE and SECTION 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (i) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line
Lender, (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents, and (iii) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangement satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender and the L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, the Arranger listed on the cover page hereof shall not have any
powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender or the L/C Issuer hereunder.
9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
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whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, the L/C Issuer and the Administrative Agent and its agents
and counsel and all other amounts due the Lenders, the L/C Issuer and the
Administrative Agent under SECTIONS 2.03(I) and (J), 2.09 and 10.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, if the Administrative Agent shall consent to the making of such payments
directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent under SECTIONS 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment
or composition affecting the Obligations or the rights of any Lender or the L/C
Issuer or to authorize the Administrative Agent to vote in respect of the claim
of any Lender or the L/C Issuer in any such proceeding.
9.10 COLLATERAL AND GUARANTY MATTERS. The Lenders and the L/C Issuer
irrevocably authorize and hereby direct the Administrative Agent in accordance
with the terms hereof:
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent indemnification obligations and Obligations in respect of
Secured Swap Contracts and Secured Foreign Credit Lines) and the expiration
or termination of all Letters of Credit, (ii) that is sold or transferred
or to be sold or transferred as part of or in connection with any
Disposition permitted hereunder or under any other Loan Document (or
expressly permitted pursuant to a waiver, amendment, modification of or
consent, in accordance with SECTION 10.01 hereof, to a transaction
otherwise prohibited hereunder or by any other Loan Document), including by
way of merger or consolidation, or (iii) if approved, authorized or
ratified in writing in accordance with SECTION 10.01 hereof;
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(b) to release any Guarantor from its obligations under the Guaranty
and Loan Documents if such Person ceases to be a Subsidiary as a result of
a transaction permitted hereunder; and
(c) to subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on
such property that is permitted by SECTION 7.01(I), or, in the case of
SECTION 7.01(I), to release such Lien held by the Administrative Agent.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to release
its interest in particular types or items of property, or to release any
Guarantor from its obligations under the Guaranty pursuant to this SECTION 9.10.
In each case as specified in this SECTION 9.10, the Administrative Agent will,
at the Borrower's expense, execute and deliver to the applicable Loan Party such
documents as such Loan Party may reasonably request to evidence the release of
such item of Collateral from the assignment and security interest granted under
the Collateral Documents, or to release such Guarantor from its obligations
under the Guaranty, in each case in accordance with the terms of the Loan
Documents and this SECTION 9.10.
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in SECTION 4.01, or, in the case of
the initial Credit Extension, SECTION 4.02, without the written consent of
each Lender;
(b) after the initial Credit Extension, waive any condition set forth
in SECTION 4.02 without the written consent of the Required Revolving
Lenders;
(c) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to SECTION 8.02) without the written consent
of such Lender;
(d) postpone any date scheduled for any payment of principal of, or
interest on, the Loans pursuant to SECTION 2.07 or 2.08 due to the Lenders
without the written consent of each Lender entitled to such payment or any
date fixed for any payment of fees hereunder payable to a Lender or L/C
Issuer without the consent of such Lender or L/C Issuer;
(e) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (v) of the second
proviso to this SECTION 10.01)
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any fees or other amounts payable hereunder or under any other Loan
Document; PROVIDED, HOWEVER, that only the consent of the Required Lenders
shall be necessary to amend the definition of "Default Rate" or to waive
any obligation of the Borrower to pay interest or Letter of Credit Fees at
the Default Rate;
(f) change (i) SECTION 8.03 in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each
Lender or (ii) the order of application of any reduction in the Commitments
or any prepayment of Loans among the Facilities from the application
thereof set forth in the applicable provisions of SECTION 2.05(B) or
2.06(B), respectively, in any manner that materially and adversely affects
the Lenders under a Facility without the written consent of (i) if such
Facility is the Term B Facility, the Required Term B Lenders and (ii) if
such Facility is the Revolving Credit Facility, the Required Revolving
Lenders;
(g) change any provision of this SECTION 10.01 or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;
(h) release all or substantially all of the Collateral in any
transaction or series of related transactions, without the written consent
of each Lender;
(i) release all or substantially all of the value of the Guaranty,
without the written consent of each Lender; or
(j) impose any greater restriction on the ability of any Lender under
a Facility to assign any of its rights or obligations hereunder without the
written consent of (i) if such Facility is the Term B Facility, the
Required Term B Lenders and (ii) if such Facility is the Revolving Credit
Facility, the Required Revolving Lenders;
and PROVIDED FURTHER that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iv)
SECTION 10.06(H) may not be amended, waived or otherwise modified without the
consent of each Granting Lender all or any part of whose Loans are being funded
by an SPC at the time of such amendment, waiver or other modification; and (v)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.
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10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES. (a) NOTICES
GENERALLY. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subsection (b)
below), all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the L/C Issuer
or the Swing Line Lender, to the address, telecopier number,
electronic mail address or telephone number specified for such Person
on SCHEDULE 10.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below shall be effective as provided in such
subsection (b).
(b) ELECTRONIC COMMUNICATIONS. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, PROVIDED that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to ARTICLE
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
ARTICLE by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
PROVIDED that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), PROVIDED that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) THE PLATFORM. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE."
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF THE BORROWER MATERIALS OR THE
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ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent
or any of its Related Parties (collectively, the "AGENT PARTIES") have any
liability to the Borrower, any Lender, the L/C Issuer or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of the Borrower's or the Administrative
Agent's transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined
by a court of competent jurisdiction by a final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such Agent
Party; PROVIDED, HOWEVER, that in no event shall any Agent Party have any
liability to the Borrower, any Lender, the L/C Issuer or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).
(d) CHANGE OF ADDRESS, ETC. Each of the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing
Line Lender.
(e) RELIANCE BY ADMINISTRATIVE AGENT, L/C ISSUER AND LENDERS. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i)
such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower. All telephonic notices
to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the
L/C Issuer or the Administrative Agent to exercise, and no delay by any such
Person in exercising, any right, remedy, power or privilege hereunder or any
other Loan Document shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided,
and provided under each other Loan Document, are cumulative and not exclusive of
any rights, remedies, powers and privileges provided by law.
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10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) COSTS AND EXPENSES. The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent), in connection with
the syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the Administrative
Agent, any Lender or the L/C Issuer (including the fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender or the L/C
Issuer), in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
(b) INDEMNIFICATION BY THE BORROWER. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "INDEMNITEE") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related reasonable fees and
out-of-pocket costs and expenses (including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold
harmless each Indemnitee from all reasonable fees incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrower or any
other Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory, whether brought by a third party or by the Borrower or any
other Loan Party or any of the Borrower's or such Loan Party's directors,
shareholders or creditors, and regardless of whether any Indemnitee is a party
thereto and whether or not any of the transactions contemplated hereunder or
under any of the other Loan Documents is consummated; PROVIDED that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
(y) result from a claim brought by the Borrower or any other Loan Party against
an Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder
or under any other Loan Document, if the Borrower or such
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Loan Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.
(c) REIMBURSEMENT BY LENDERS. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
PROVIDED that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of SECTION 2.12(D).
(d) WAIVER OF CONSEQUENTIAL DAMAGES, ETC. To the fullest extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) PAYMENTS. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) SURVIVAL. The agreements in this Section shall survive the resignation of
the Administrative Agent and the L/C Issuer, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or
any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and
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the L/C Issuer severally agrees to pay to the Administrative Agent upon demand
its applicable share (without duplication) of any amount so recovered from or
repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal
Funds Rate from time to time in effect. The obligations of the Lenders and the
L/C Issuer under clause (b) of the preceding sentence shall survive the payment
in full of the Obligations and the termination of this Agreement.
10.06 SUCCESSORS AND ASSIGNS. (a) SUCCESSORS AND ASSIGNS GENERALLY.
The provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of SECTION 10.06(B), (II) by way of
participation in accordance with the provisions of SECTION 10.06(D), (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of SECTION 10.06(F), or (iv) to an SPC in accordance with the provisions of
SECTION 10.06(H) (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) ASSIGNMENTS BY LENDERS. Any Lender may at any time assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this SECTION 10.06(B), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); PROVIDED that
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender,
the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal outstanding balance of
the Loan of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as of the
Trade Date, shall not be less than $5,000,000, in the case of any
assignment in respect of the Revolving Credit Facility, or $1,000,000,
in the case of any assignment in respect of the Term B Facility,
unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or
delayed);
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(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
Commitment assigned, except that this CLAUSE (II) shall not (A) apply
to rights in respect of Swing Line Loans or (b) prohibit any Lender
from assigning all or a portion of its rights and obligations among
separate Facilities on a non-pro rata basis;
(iii) any assignment of a Revolving Credit Commitment must be
approved (such approval not to be unreasonably withheld or delayed) by
the Administrative Agent, the L/C Issuer and the Swing Line Lender
unless the Person that is the proposed assignee is itself a Revolving
Credit Lender (whether or not the proposed assignee would otherwise
qualify as an Eligible Assignee);
(iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee as set forth in ANNEX I hereto; and
(v) the Eligible Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative
Agent pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of SECTIONS 3.01, 3.04, 3.05 and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
SECTION 10.06(D).
(c) REGISTER. The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at the Administrative Agent's Office
a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be conclusive absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by each of the Borrower and the L/C
Issuer at any reasonable time and from time to time upon reasonable prior
notice. In addition, at any time that a request for a consent for a
124
material or other substantive change to the Loan Documents is pending, any
Lender may request and receive from the Administrative Agent a copy of the
Register.
(d) PARTICIPATIONS. Any Lender may at any time, without the consent
of, or notice to, the Borrower or the Administrative Agent, sell participations
to any Person (other than a natural person or the Borrower or any of the
Borrower's Affiliates or Subsidiaries) (each, a "PARTICIPANT") in all or a
portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender's participations in L/C Obligations and/or Swing Line Loans) owing to
it); PROVIDED that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower,
the 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. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; PROVIDED that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to SECTION 10.01 that directly affects such
Participant. Subject to SUBSECTION (E) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of SECTIONS 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to SECTION 10.06(B). To the extent permitted by law, each
Participant also shall be entitled to the benefits of SECTION 10.08 as though it
were a Lender, PROVIDED such Participant agrees to be subject to SECTION 2.13 as
though it were a Lender.
(e) LIMITATIONS UPON PARTICIPANT RIGHTS. A Participant shall not be
entitled to receive any greater payment under SECTION 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of SECTION 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with SECTION 3.01(E) as though it were a
Lender.
(f) CERTAIN PLEDGES. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank without the consent of the Borrower; PROVIDED that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) ELECTRONIC EXECUTION OF ASSIGNMENTS. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce
125
Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.
(h) SPECIAL PURPOSE FUNDING VEHICLES. Notwithstanding anything to the
contrary contained herein, any Lender (a "GRANTING LENDER") may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower (an "SPC")
the option to provide all or any part of any Loan that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement; PROVIDED that
(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to make
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof or, if it fails to do so, to make such
payment to the Administrative Agent as is required under SECTION 2.12(B)(II).
Each party hereto hereby agrees that (A) neither the grant to any SPC nor the
exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrower under this
Agreement (including its obligations under SECTION 3.04), (B) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement for
which a Lender would be liable, and (C) the Granting Lender shall for all
purposes, including the approval of any amendment, waiver or other modification
of any provision of any Loan Document, remain the lender of record hereunder.
The making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. 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 debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (1) with notice to, but
without prior consent of the Borrower and the Administrative Agent and with the
payment of a processing fee of $500, assign all or any portion of its right to
receive payment with respect to any Loan to the Granting Lender and (2) disclose
on a confidential basis any non-public information relating to its funding of
Loans to any rating agency, commercial paper dealer or provider of any surety or
Guarantee or credit or liquidity enhancement to such SPC.
(i) RESIGNATION AS L/C ISSUER OR SWING LINE LENDER AFTER ASSIGNMENT.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Revolving Credit Commitments and Revolving Credit
Loans pursuant to SECTION 10.06(B), Bank of America may, (i) upon 30 days'
notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30
days' notice to the Borrower, resign as Swing Line Lender. In the event of any
such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line
Lender hereunder; PROVIDED, HOWEVER, that no failure by the Borrower to appoint
any such successor shall affect the resignation of Bank of America as L/C Issuer
or Swing Line Lender, as the case may be. If Bank of America resigns as L/C
Issuer, it shall retain all the rights and obligations of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to SECTION 2.03(C)).
If Bank of America resigns as Swing Line
126
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to SECTION 2.04(C).
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. (a) Each of
the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable Laws or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the exercise of
any remedies hereunder or under any other Loan Document or any action or
proceeding relating to this Agreement or any other Loan Document the enforcement
of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
(b) Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrower or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
(c) For the purposes of this SECTION 10.07, "INFORMATION" means all
information received from any Loan Party relating to any Loan Party or their
respective businesses and Subsidiaries, other than any such information that is
available to the Administrative Agent, the L/C Issuer or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party, PROVIDED that, in
the case of information received from a Loan Party after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
10.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and
be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to
127
set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement or any other Loan Document to such Lender or the L/C
Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have
made any demand under this Agreement or any other Loan Document and although
such obligations of the Borrower may be contingent or unmatured or are owed to a
branch or office of such Lender or the L/C Issuer different from the branch or
office holding such deposit or obligated on such indebtedness. The rights of
each Lender, the L/C Issuer and their respective Affiliates under this Section
are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have. Each
Lender and the L/C Issuer agrees to notify the Borrower and the Administrative
Agent promptly after any such setoff and application, PROVIDED that the failure
to give such notice shall not affect the validity of such setoff and
application.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "MAXIMUM RATE"). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by the Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in SECTION 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the
128
Administrative Agent or any Lender may have had notice or knowledge of any
Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain
unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation
under SECTION 3.04, or if the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to SECTION 3.01, or if any Lender is a Defaulting Lender, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, SECTION 10.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), PROVIDED that:
(a) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in SECTION 10.06(B);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, Swing Line
participations to the extent funded and paid to the Swing Line Lender,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents (including any amounts under
SECTION 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of
all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under SECTION 3.04 or payments required to be made pursuant to
SECTION 3.01, such assignment will result in a reduction in such
compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
129
10.14 GOVERNING LAW; JURISDICTION; ETC. (a) GOVERNING LAW. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT THEREOF, AND
ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN
ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT,
ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY
COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING
IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY APPLICABLE LAW
10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
130
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act
(as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "ACT"), it is required to obtain, verify and record
information that identifies each Loan Party, which information includes the name
and address of each Loan Party and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify each Loan Party in
accordance with the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
TUPPERWARE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President, Chief Legal
Officer, and Secretary
S-1
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
S-2
BANK OF AMERICA, N.A., as a Lender, L/C Issuer
and Swing Line Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
S-3
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
S-4
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
S-5
BANCA NAZIONALE DEL LAVORO SPA, NEW
YORK BRANCH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ Francesco Di Mario
--------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ Francesco Di Mario
Title: Relationship Manager Senior Manager
S-6
CALYON NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
S-7
COMERICA BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
S-8
COMMERCEBANK, N.A.
By: /s/ ▇▇▇▇ ▇. Hills
-------------------------------
Name: ▇▇▇▇ ▇. Hills
Title: Vice President
S-9
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Executive Vice President
S-10
FORTIS CAPITAL CORP.,
as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
S-11
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
S-12
JPMORGAN CHASE BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
S-13
KBC BANK N.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
S-14
KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
S-15
MIZUHO CORPORATE BANK, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Deputy General Manager
S-16
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
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ANNEX I
PROCESSING AND RECORDATION FEES
The Administrative Agent will charge a processing and recordation fee (an
"ASSIGNMENT FEE") in the amount of $2,500 for each assignment; PROVIDED that, in
the event of two or more concurrent assignments to members of the same Assignee
Group (which may be effected by a suballocation of an assigned amount among
members of such Assignee Group) or two or more concurrent assignments by members
of the same Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group), the Assignment Fee will be $2,500
PLUS the amount set forth below:
TRANSACTION: ASSIGNMENT FEE:
------------ ---------------
First four concurrent assignments or -0-
suballocations to members of an
Assignee Group (or from members
of an Assignee Group, as applicable)
Each additional concurrent $500
assignment or suballocation to a
member of such Assignee Group (or
from a member of such Assignee
Group, as applicable)
For purposes hereof, "ASSIGNEE GROUP" means two or more Eligible Assignees that
are Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.