EXHIBIT 10.1
CONFORMED COPY
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MULTI-YEAR CREDIT AGREEMENT
Dated as of April 30, 2002
among
TUPPERWARE CORPORATION
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
CITIBANK, N.A.,
as Syndication Agent,
XX XXXXXX XXXXX BANK
and
FLEET NATIONAL BANK,
as Co-Documentation Agents
and
The Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC
and
XXXXXXX XXXXX BARNEY INC.,
as
Joint Lead Arrangers and Joint Book Managers
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms...........................................................................................2
1.02 Other Interpretive Provisions..........................................................................22
1.03 Accounting Terms.......................................................................................23
1.04 Rounding...............................................................................................23
1.05 References to Agreements and Laws......................................................................24
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving Loans........................................................................................25
2.02 Borrowings, Conversions and Continuations of Revolving Loans...........................................25
2.03 Letters of Credit......................................................................................26
2.04 Swing Line Loans.......................................................................................34
2.05 Prepayments............................................................................................36
2.06 Reduction or Termination of Commitments................................................................37
2.07 Repayment of Loans.....................................................................................37
2.08 Interest...............................................................................................38
2.09 Fees...................................................................................................38
2.10 Computation of Interest and Fees.......................................................................39
2.11 Evidence of Debt.......................................................................................39
2.12 Payments Generally.....................................................................................40
2.13 Sharing of Payments....................................................................................42
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes..................................................................................................43
3.02 Illegality.............................................................................................44
3.03 Inability to Determine Rates...........................................................................44
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.................44
3.05 Funding Losses.........................................................................................46
3.06 Matters Applicable to all Requests for Compensation....................................................47
3.07 Survival...............................................................................................47
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Closing..................................................................................48
4.02 Conditions to all Credit Extensions (other than CP Backup Advances) and Conversions and Continuations..50
4.03 Conditions to CP Backup Advances.......................................................................51
TABLE OF CONTENTS
(continued)
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with Laws...............................................52
5.02 Authorization; No Contravention........................................................................52
5.03 Governmental and Third-Party Authorization.............................................................52
5.04 Binding Effect.........................................................................................52
5.05 Financial Statements; No Material Adverse Effect.......................................................52
5.06 Litigation.............................................................................................53
5.07 No Default.............................................................................................53
5.08 Ownership of Property; Liens...........................................................................53
5.09 Environmental Compliance...............................................................................53
5.10 Insurance..............................................................................................53
5.11 Taxes..................................................................................................53
5.12 ERISA Compliance.......................................................................................54
5.13 Subsidiaries...........................................................................................54
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.........................54
5.15 Disclosure.............................................................................................55
5.16 Intellectual Property; Licenses, Etc. .................................................................55
5.17 Solvency...............................................................................................55
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Financial Statements...................................................................................56
6.02 Certificates; Other Information........................................................................56
6.03 Notices................................................................................................57
6.04 Payment of Obligations.................................................................................58
6.05 Preservation of Existence, Etc. .......................................................................58
6.06 Maintenance of Properties..............................................................................58
6.07 Maintenance of Insurance...............................................................................58
6.08 Compliance with Laws and Contractual Obligations.......................................................59
6.09 Books and Records......................................................................................59
6.10 Inspection Rights......................................................................................59
6.11 Compliance with ERISA..................................................................................59
6.12 Use of Proceeds........................................................................................59
6.13 Protected Subsidiaries and Tupperware Finance..........................................................59
6.14 Maintain Principal Line of Business....................................................................59
ARTICLE VII
NEGATIVE COVENANTS
7.01 Liens..................................................................................................60
7.02 Investments............................................................................................61
7.03 Indebtedness...........................................................................................61
7.04 Fundamental Changes....................................................................................62
7.05 Sales of Assets........................................................................................62
7.06 ERISA..................................................................................................63
7.07 Transactions with Affiliates...........................................................................63
7.08 Burdensome Agreements..................................................................................63
7.09 Use of Proceeds........................................................................................63
7.10 Financial Covenants....................................................................................63
7.11 Tupperware Finance.....................................................................................64
TABLE OF CONTENTS
(continued)
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default......................................................................................65
8.02 Remedies Upon Event of Default.........................................................................67
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent..................................................68
9.02 Delegation of Duties...................................................................................68
9.03 Liability of Administrative Agent......................................................................68
9.04 Reliance by Administrative Agent.......................................................................69
9.05 Notice of Default......................................................................................69
9.06 Credit Decision; Disclosure of Information by Administrative Agent.....................................70
9.07 Indemnification of Administrative Agent................................................................70
9.08 Administrative Agent in its Individual Capacity........................................................71
9.09 Successor Administrative Agent.........................................................................71
9.10 Other Agents; Lead Managers............................................................................72
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc........................................................................................73
10.02 Notices and Other Communications; Facsimile Copies.....................................................74
10.03 No Waiver; Cumulative Remedies.........................................................................75
10.04 Attorney Costs, Expenses and Taxes.....................................................................75
10.05 Indemnification by the Borrower; Limitation of Liability...............................................75
10.06 Payments Set Aside.....................................................................................76
10.07 Successors and Assigns.................................................................................77
10.08 Confidentiality........................................................................................79
10.09 Set-off................................................................................................80
10.10 Interest Rate Limitation...............................................................................80
10.11 Counterparts...........................................................................................81
10.12 Integration............................................................................................81
10.13 Survival of Representations and Warranties.............................................................81
10.14 Severability...........................................................................................81
10.15 Tax Forms..............................................................................................81
10.16 Governing Law..........................................................................................82
10.17 Waiver of Right to Trial by Jury.......................................................................83
SIGNATURES.......................................................................................Signature Page - 1
TABLE OF CONTENTS
(continued)
SCHEDULES
1.01 Existing Letters of Credit
2.01 Commitments and Pro Rata Shares
5.06 Litigation
5.09 Environmental Matters
5.11 Tax Matters
5.13 Subsidiaries and Other Equity Investments
5.16 Intellectual Property Matters
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.05 Excluded Property
7.06 Existing Leases
10.02 Lending Offices, Addresses for Notices
EXHIBITS
FORM OF
A Revolving Loan Notice
B Swing Line Loan Notice
C-1 Revolving Loan Note
C-2 Swing Line Note
D Compliance Certificate
E Assignment and Assumption
F Form of Facility Guaranty
MULTI-YEAR CREDIT AGREEMENT
This MULTI-YEAR CREDIT AGREEMENT ("Agreement") is entered into as of
April 30, 2002, among TUPPERWARE CORPORATION, a Delaware corporation (the
"Borrower"), each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender"), BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, and CITIBANK, N.A., as
Syndication Agent.
The Borrower has requested that the Lenders provide a senior revolving
credit facility, and the Lenders are willing to do so on the terms and
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" means the acquisition of (i) a controlling equity or
other ownership interest in another Person (including the purchase of an
option, warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder thereof),
whether by purchase of such equity or other ownership interest or upon exercise
of an option or warrant for, or conversion of securities into, such equity or
other ownership interest, or (ii) assets of another Person which constitute all
or any material part of the assets of such Person or of a line or lines of
business conducted by such Person.
"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.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "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. A Person shall be deemed to be
Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 10% or more of the securities having ordinary voting
power for the election of directors or managing general partners.
"Agent/Arranger Fee Letter" has the meaning specified in Section
2.09(c).
"Agent-Related Persons" means the Administrative Agent (including any
successor administrative agent), together with its Affiliates (including, in
the case of Bank of America in its capacity as the Administrative Agent, BAS),
and the officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Aggregate Commitments" means, as at the date of determination
thereof, the sum of all Commitments of all Lenders at such date.
"Agreement" means this Credit Agreement.
"Applicable Margin" means, from time to time, the following
percentages per annum, based upon the Debt Ratings as set forth below:
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EURODOLLAR RATE LOANS
PRICING LEVEL DEBT RATINGS AND LETTER OF CREDIT
S&P/XXXXX'X FACILITY FEE FEES
1 >BBB+ / Baa1 .15% .725%
-
2 BBB / Baa2 .175% .825%
3 BBB- / Baa3 .20% 1.05%
4 < BB+ / Ba1 .25% 1.125%
-
or not rated
Initially, the Applicable Margin shall be determined based upon the
Debt Rating. Thereafter, each change in the Applicable Margin resulting from a
publicly announced change in the Debt Rating shall be effective, in the case of
an upgrade, during the period commencing on the date of public announcement of
a change in the Debt Rating provided Borrower has delivered to the
Administrative Agent notice of such change pursuant to Section 6.03(f) and
ending on the date immediately preceding the effective date of the next such
change and, in the case of a downgrade, during the period commencing on the
date of the public announcement thereof and ending on the date immediately
preceding the effective date of the next such change.
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arrangers" means BAS and Xxxxxxx Xxxxx Barney, Inc., each in its
respective capacity as joint lead arranger and joint book manager.
"Asset Securitization" means any transaction or series of transactions
pursuant to which the Borrower or any of its Subsidiaries may sell, convey or
otherwise transfer to a Securitization Entity (in the case of a transfer by the
Borrower or any of its Subsidiaries) or any other Person (in case of a transfer
by a Securitization Entity), or may grant a security interest in, any
Receivables (whether now existing or arising or acquired in the future) of the
Borrower or any of its Subsidiaries, and any Related Security, all of the
foregoing for the purpose of providing working capital financing on terms that
are more favorable to the Borrower and its Subsidiaries than would otherwise be
available at that time; provided, that the terms of such Asset Securitization
are subject to approval of the Administrative Agent.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel and the allocated
reasonable cost of internal legal services and all disbursements of internal
counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital 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 payments under the relevant lease that
3
would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a capital lease, and
(c) in respect of any Asset Securitization, the aggregate amount of obligations
owed to (including the amount of investment in transferred assets by) Persons
other than the Borrower or its Subsidiaries.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
29, 2001, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and
its Subsidiaries, including the notes thereto.
"Bank of America" means Bank of America, N.A.
"BAS" means Banc of America Securities LLC.
"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." Such 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 prime rate. Any change in such prime 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 Loan that bears interest based on
the Base Rate.
"Borrower" has the meaning set forth in the introductory paragraph
hereto.
"Borrowing" means a Revolving Borrowing or a Swing Line Borrowing, as
the context may require.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, 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 deposits are conducted by and between banks in the London
interbank market.
"Cash Collateralize" means 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 the L/C Obligations plus all fees accrued or to be incurred in
connection therewith, cash, deposit accounts and all balances therein, in an
amount not less than the sum of such L/C Obligations and fees and all proceeds
of the foregoing pursuant to documentation in form and substance satisfactory
to the Administrative Agent and the L/C Issuer (which documents are hereby
consented to by the Lenders) and to take all such other action as shall be
necessary for the Administrative Agent to have "control" thereof within the
meaning of the Uniform Commercial Code applicable thereto. Derivatives of such
term shall have corresponding meaning. The Borrower hereby grants the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a Lien
on all such cash and deposit account balances. Cash collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of America
or other institutions satisfactory to it.
4
"Change of Control" means, with respect to any Person, 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, 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 such Person entitled to vote for members of
the board of directors or equivalent governing body of such Person on
a fully diluted basis (i.e., 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 such Person 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.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in
the case of Section 4.01(b), waived by the Person entitled to receive the
applicable payment).
"Code" means the Internal Revenue Code of 1986 as amended from time to
time and all regulations issued pursuant thereto.
"Commitment" means, as to each Lender, its obligation to (a) make
Revolving Loans to the Borrower pursuant to Section 2.01, (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 1.01, as
such amount may be reduced or adjusted from time to time in accordance with
this Agreement.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit E.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income reduced by, to the extent not deducted in determining
Consolidated Net Income, any extraordinary, unusual or non-recurring gains, (b)
Consolidated Interest Charges, (c) the amount of taxes, based on or measured by
income, used or included in determining such Consolidated Net Income, (d) the
5
amount of depreciation and amortization expense deducted in determining such
Consolidated Net Income, and (e) extraordinary, unusual or non-recurring
non-cash charges, including the write-off of goodwill, to the extent deducted
in determining Consolidated Net Income.
"Consolidated Funded Indebtedness" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis
(including the elimination of intercompany indebtedness) and without
duplication, the sum 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) Attributable
Indebtedness, and (c) without duplication, all Contingent Obligations with
respect to Indebtedness of the types specified in subsections (a) and (b) above
of Persons other than the Borrower or any Subsidiary. For all purposes hereof,
the Consolidated Funded Indebtedness of the Borrower or any Subsidiary shall
include the foregoing Indebtedness in (a), (b) and (c) above of any partnership
or joint venture (other than a joint venture that is itself a corporation or a
limited liability company) in which the Borrower or any Subsidiary is a general
partner or joint venturer, unless such Indebtedness is expressly made
non-recourse to the Borrower or such Subsidiary.
"Consolidated Interest Charges" means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, the sum, without
duplication, of (a) all interest, debt discount, premium payments, commissions,
fees, charges and related expenses of the Borrower and its Subsidiaries in
connection with Indebtedness (including capitalized interest) or in connection
with the deferred purchase price of assets, in each case to the extent treated
as interest in accordance with GAAP, (b) the portion of rent expense of the
Borrower and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP and (c) the amount of
payments in respect of Synthetic Lease Obligations and Asset Securitizations
that are in the nature of interest (including, with respect to Asset
Securitizations, the aggregate discount (net of reserves) from the face value
of assets transferred).
"Consolidated Net Income" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the net income of the Borrower and
its Subsidiaries as determined in accordance with GAAP.
"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 that date, plus any decrease or minus
any increase in the "Accumulated Other Comprehensive Income (Loss)" account
(the "Accumulated Account") resulting from changes in the "Foreign Currency
Translation Adjustment" and/or "Net Equity Xxxxxx"subaccounts of the
Accumulated Account, from the amount reflected in the Borrower's consolidated
balance sheet with the December 29, 2001 Audited Financial Statement.
"Consolidated Total Assets" means, as of any date on which the amount
thereof is to be determined, the total amount of assets of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Contingent Obligation" means, as to any Person, (a) any obligation,
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying any Indebtedness or other obligation payable or
performable by another Person (the "primary
6
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 or holding harmless 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. The amount of any Contingent Obligation
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
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guarantying Person in good faith.
"Continuation" and "Continue" mean, with respect to any Eurodollar
Rate Loan, the continuation of such Eurodollar Rate Loan as a Eurodollar Rate
Loan on the last day of the Interest Period for such Loan.
"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.
"Conversion" and "Convert" mean the conversion of a Loan from one Type
to another Type.
"CP Backup Advance" means any Borrowing the purpose of which is to
fund the repurchase of commercial paper previously issued by the Borrower.
"CP Program Documents" means, collectively, the written agreements
between the Borrower and the dealers, paying agents, and other parties related
to the marketing and administration of the Borrower's commercial paper
programs.
"Credit Extension" means each of a Borrowing or an L/C Credit
Extension.
"Dart" means Dart Industries Inc., a Delaware corporation and a
Subsidiary of the Borrower.
"Debt Rating" means, as of any date of determination, the ratings as
determined by each of (i) S&P of the non-credit-enhanced, senior unsecured
long-term debt of the Borrower or (ii) Moody's of the non-credit-enhanced,
senior unsecured long-term debt of Tupperware Finance (collectively, the "Debt
Ratings"); provided that if there shall exist a split in the Debt Ratings
issued by each of the foregoing rating agencies, then the lower of such Debt
Ratings shall apply (with Pricing Level 1 in the definition of "Applicable
Margin" being the highest and Pricing Level 4 in the definition of "Applicable
Margin" being the lowest), unless there is a split in Debt
7
Ratings of more than one level, in which case the level that is one level
higher than the lower Debt Rating shall apply.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, 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 of America
or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event or circumstance that, with the giving of any
notice, the passage of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to the Base Rate plus 2%
per annum; provided, however, that with respect to Eurodollar Rate Loans, until
the end of the Interest Period during which the Default Rate is first
applicable, the Default Rate shall be an interest rate equal to the interest
rate (including any Applicable Margin) otherwise applicable to such Loan plus
2% per annum, and thereafter, the Base Rate plus 2% per annum, in each case to
the fullest extent permitted by applicable Laws.
"Disposition" or "Dispose" means the sale, transfer, license or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
"Disqualified Capital Stock" shall mean, with respect to any Person,
any Capital Stock of such Person that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event or otherwise, (i) matures or is mandatorily
redeemable or subject to any mandatory repurchase requirement, pursuant to a
sinking fund obligation or otherwise, (ii) is redeemable or subject to any
mandatory repurchase requirement at the sole option of the holder thereof, or
(iii) is convertible into or exchangeable for (whether at the option of the
issuer or the holder thereof) (a) debt securities or (b) any Capital Stock
referred to in (i) or (ii) above, in each case under (i), (ii) or (iii) above
at any time on or prior to the Maturity Date; provided, however, that only the
portion of Capital Stock that so matures or is mandatorily redeemable, is so
redeemable at the option of the holder thereof, or is so convertible or
exchangeable on or prior to such date shall be deemed to be Disqualified
Capital Stock.
"Dollar" and "$" means lawful money of the United States of America.
"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, the L/C Issuer and the Swing Line
Lender, and (ii) unless a Default or 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.
"Environmental Laws" means all Laws relating to environmental matters
applicable to any property.
8
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any of its 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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, all regulations issued pursuant thereto and any
successor statute.
"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 with
the PBGC, 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
might reasonably be expected to constitute 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 PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by Administrative Agent
pursuant to the following formula:
Eurodollar Rate = Interbank Offered Rate
---------------------------------------------
1.00 - Eurodollar Reserve Percentage
Where "Interbank Offered Rate" means, for such Interest
Period:
(i) the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate that appears on the
page of the Telerate screen (or any successor thereto) that displays
an average British Bankers Association Interest Settlement Rate for
deposits (for delivery on the first day of such Interest Period) with
a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, or
9
(ii) if the rate referenced in the preceding subsection
(a) does not appear on such page or service or such page or service
shall not be available, the rate per annum equal to the rate
determined by Administrative Agent to be the offered rate on such
other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period, or
(iii) if the rates referenced in the preceding subsections
(a) and (b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest at which deposits 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 in its capacity as a Lender
and with a term equivalent to such Interest Period would be offered by
Bank of America's London Branch or London Affiliate to major banks in
the applicable Eurodollar Dollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period.
The determination of the Eurodollar Rate by the Administrative Agent
shall be conclusive in the absence of demonstrable error.
"Eurodollar Rate Loan" means a Loan bearing interest based on the
Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal, carried out to
five decimal places) in effect on such day, whether or not applicable to any
Lender, under regulations issued from time to time by the FRB for determining
the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage. The
determination of the Eurodollar Reserve Percentage by the Administrative Agent
shall be conclusive in the absence of demonstrable error.
"Event of Default" means any of the events or circumstances specified
in Article VIII.
"Excluded Sale and Leaseback Transaction" means any sale or transfer
of property owned by Borrower or any Subsidiary to any Person within 365 days
following the acquisition or completion of construction of such property by
Borrower or any Subsidiary if Borrower or a Subsidiary shall concurrently with
such sale or transfer lease such property, as lessee.
"Existing Credit Facility" means that certain Competitive Advance and
Revolving Credit Facility Agreement dated as of May 16, 1996 among the
Borrower, the Subsidiaries named therein, the lenders named therein and Chase
Manhattan Bank, N.A. (as successor to Chemical Bank), as agent.
"Existing Letters of Credit" means those letters of credit issued by
Bank of America more particularly described on Schedule 1.01.
10
"Facility Guaranty" means that certain Guaranty Agreement dated as of
the date hereof among the Guarantors and the Administrative Agent substantially
in the form of Exhibit F hereto, as from time to time amended, supplemented or
replaced.
"Fair Market Value" means, at any time and with respect to any real or
personal property of any kind, tangible or intangible, xxxxxx or inchoate, the
sale value of such property that would be realized in an arm's-length sale at
such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell).
"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 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 charged to
Bank of America on such day on such transactions as determined by the
Administrative Agent.
"Foreign Lender" has the meaning specified in Section 10.15(a).
"FRB" means the Board of Governors of the Federal Reserve System of
the United States of America.
"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.
"GAAP" means generally accepted accounting principles 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, that are
applicable to the circumstances as of the date of determination, consistently
applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Guarantors" means Tupperware Finance and Dart.
"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, radon gas, infectious or medical wastes
and all other substances or wastes of any nature, the generation,
11
handling, storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
"Honor Date" has the meaning set forth in Section 2.03(c).
"Indebtedness" means, as to any Person at a particular time, 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) all direct or Contingent Obligations of such Person
arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations under any Swap Contract in an amount
equal to the Swap Termination Value thereof;
(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);
(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) Attributable Indebtedness;
(g) all Contingent Obligations of such Person in respect
of any of the foregoing; and
(h) Disqualified Capital Stock.
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, unless such Indebtedness
is expressly made non-recourse to such Person. The amount of any capital lease
or Synthetic Lease Obligation as of any date shall be deemed to be the amount
of Attributable Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Intellectual Property" means trademarks and service marks (whether
registered or unregistered) and trade names; patents (including any
continuations, continuations in part, renewals and applications for any of the
foregoing); copyrights (including any registrations and
12
applications therefor and whether registered or unregistered); computer
programs, including any and all software implementations of algorithms, models
and methodologies, whether in source code or object code, databases and
compilations, including any and all data and collections of data, whether
machine readable or otherwise; works of authorship; mask works; technology;
trade secrets, know-how, proprietary processes, formulae, algorithms, models,
user interfaces, inventions, discoveries, concepts, ideas, techniques, methods,
source codes, object codes, methodologies and, with respect to all of the
foregoing, related confidential data or information and any licenses of the
foregoing; but excluding any limited copyright license or permission from
authors, publishers or other parties to use material in the Borrower's or a
Subsidiary's products that have no future payment obligations.
"Interbank Offered Rate" has the meaning therefor set forth in the
definition of Eurodollar Rate.
"Interest Coverage Ratio" means, as of any date of determination, for
the Borrower and its Subsidiaries on a consolidated basis, the ratio of (a)
Consolidated EBITDA for the period of the four prior fiscal quarters ending on
such date to (b) Consolidated Interest Charges for such period.
"Interest Payment Date" means, (a) as to any Eurodollar Rate Loan, the
last day of the relevant Interest Period, any date that such Loan is prepaid or
Converted, in whole or in part, and the Maturity Date; provided, however, that
if any Interest Period for a Eurodollar Rate Loan exceeds three months,
interest shall also be paid on the Business Day which falls every three months
after the beginning of such Interest Period; and (b) as to any Base Rate Loan
or Swing Line Loan, the last Business Day of each March, June, September and
December and the Maturity Date; provided, further, that interest accruing at
the Default Rate shall be payable from time to time upon demand of
Administrative Agent.
"Interest Period" means for each Eurodollar Rate Loan, initially, the
period commencing on the date such Eurodollar Rate Loan is disbursed or on the
date any Loan is Continued as or Converted into a Eurodollar Rate Loan, and
ending, in each case, on the date which is one, two, three or six months
thereafter, as selected by the Borrower in its Revolving Loan Notice, provided
that:
(i) 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;
(ii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the scheduled
Maturity Date.
13
"Investment" means, as to any Person, any acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities of another Person, (b) a loan, advance or
capital contribution to, guaranty of debt of, or purchase or other acquisition
of any other debt or equity participation or interest in, another Person,
including any partnership or joint venture interest in such other Person, or
(c) the purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a business unit. 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, but including subsequent amounts of
Investments in the same Person at the time such amount is actually invested,
whether pursuant to earnouts, working capital adjustments or other contractual
obligations, or otherwise.
"IRS" means the United States Internal Revenue Service and any
successor governmental agency performing a similar function.
"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
Environmental Laws, the Trading with the Enemy Act, as amended, or any of the
foreign asset control regulations of the United States Treasury Department),
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 Lender, such Lender's
funding in Dollars of its participation in any L/C Borrowing in accordance with
its Pro Rata Share as set forth in Section 2.03(c).
"L/C Borrowing" means an extension of credit in Dollars resulting from
a drawing under any Letter of Credit which has not been reimbursed on the date
when made or refinanced as a 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 renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of
Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder.
"L/C Obligations" means, as at any date of determination, the
aggregate undrawn face amount of all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings.
"Lender" has the meaning specified in the introductory paragraph
hereto and, as the context requires, includes the L/C Issuer and the Swing Line
Lender.
14
"Lending Office" means, as to any Lender, the office or offices of
such Lender described as such on Schedule 10.02, or such other office or
offices as a Lender may from time to time notify the Borrower and the
Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder, and
including the Existing Letters of Credit. A Letter of Credit may be a
commercial letter of credit or a standby letter of credit, but not a time draft
or bankers acceptance.
"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 scheduled Maturity Date (or, if such day is not a Business Day,
the next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to the lesser of
Aggregate Commitments and $50,000,000. The Letter of Credit Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Leverage Ratio" means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for
the period of the four fiscal quarters ending on or most recently ended prior
to such date.
"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 of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable Laws of any jurisdiction) of or in
property securing any obligation to, or a claim by a Person other than the
owner of such property, whether statutory, by contract or otherwise, including
the interest of a purchaser of accounts receivable.
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, the Facility
Guaranty, the Agent/Arranger Fee Letter, each Revolving Loan Notice, each
Letter of Credit Application and each Compliance Certificate, and all other
instruments and documents heretofore or hereafter executed or delivered to or
in favor of any Lender or the Administrative Agent in connection with the Loans
made and transactions contemplated by this Agreement.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
"Material Adverse Effect" means (a) a material adverse change in, or
a material adverse effect upon, the operations, business, assets, properties,
condition (financial or otherwise), liabilities (actual or contingent) or
prospects of the Borrower and its Subsidiaries taken as a whole; (b) a material
impairment of the ability of any Loan Party to pay or perform its obligations
under any Loan Document to which it is a party; or (c) a material adverse
effect upon
15
the legality, validity, binding effect or enforceability against any Loan Party
of any Loan Document to which it is a party.
"Material Intellectual Property" means all Intellectual Property
relating to the conduct of the businesses of the Borrower and its Subsidiaries,
other than Intellectual Property that is no longer of material value or utility
to the Borrower or its Subsidiaries.
"Maturity Date" means (a) April 29, 2005, or (b) such earlier date
upon which the Aggregate Commitments may be terminated in accordance with the
terms hereof.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
thereto.
"Multi-Year Revolving Credit Facility" means the revolving credit
facility of up to $150,000,000 described herein.
"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
three calendar years, has made or been obligated to make contributions.
"Net Proceeds" means with respect to any sale of property by any
Person an amount equal to (a) the aggregate amount of the consideration
received by such Person in respect of such sale (valued at Fair Market Value of
such consideration at the time of such sale determined by the board of
directors of Borrower), minus (b) the sum of (i) all out-of-pocket costs and
expenses actually incurred by such Person in connection with such sale, and
(ii) all state, federal and foreign taxes incurred, or to be incurred, by the
seller (assuming the highest marginal rate were applicable to such sale) in
connection with such sale.
"Notes" means, collectively, the Revolving Loan Notes and the Swing
Line Note.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of the Borrower arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, 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 that accrues after the commencement by or against the
Borrower or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws; (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 and any agreement,
instrument, filing or notice with respect thereto filed in connection with its
formation with the secretary of state or other department in the state of its
formation and all certificates and articles issued thereto by such secretary of
state or other department, in each case as amended from time to time.
"Other Taxes" has the meaning therefor set forth in Section 3.01(b).
16
"Outstanding Amount" means (i) with respect to Revolving 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
Revolving Loans and Swing Line Loans, as the case may be, occurring on such
date; and (ii) 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 the aggregate amount of
the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or
any reductions in the maximum amount available for drawing under Letters of
Credit taking effect on such date.
"Participant" has the meaning specified in Section 10.07(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 plan
(as described in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding five plan years.
"Permitted Acquisition" means each Acquisition effected with the
consent and approval of the board of directors or other applicable governing
body of the Person being acquired, and with the duly obtained approval of such
shareholders or other holders of equity or other ownership interest as such
Person may be required to obtain, so long as (i) immediately prior to and
immediately after the consummation of such Acquisition, no Default or Event of
Default has occurred and is continuing and (ii) any Person so acquired shall
become a Subsidiary or any assets so acquired shall become the property of
Borrower or a Subsidiary.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or any ERISA Affiliate.
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender's Commitment, which as of the Closing Date is set
forth opposite the name of such Lender on Schedule 2.01, as such percentage may
be adjusted as contemplated herein; provided that if the Aggregate Commitments
have been terminated at such time, then the Pro Rata Share of each Lender shall
be (x) with respect to the distribution of payments to such Lender, the
percentage (carried out to the ninth decimal place) of the aggregate
Outstanding Amount that is held by such Lender (with the aggregate amount of
each Lender's funded participations in L/C Obligations and Swing Line Loans
being deemed "held" by such Lender for this purpose), and (y) for all other
purposes, determined based on the Pro Rata Share of such Lender immediately
prior to such termination and after giving effect to any subsequent assignments
made pursuant to Section 10.07.
17
"Protected Subsidiary" means (a) each Subsidiary of Dart which owns,
or licenses from a Person other than the Borrower or any Subsidiary,
Intellectual Property and (b) BC International Cosmetic & Image Services, Inc.
"Receivables" means a payment owing to a Person (whether constituting
an account, chattel paper, document, instrument or general intangible) arising
from the provision of merchandise, goods or services by such Person, including
the right to payment of any interest or finance charges and other obligations
owing to such Person.
"Register" has the meaning set forth in Section 10.07(c).
"Related Security" means with respect to any Receivable: (a) all
security interests or liens and property subject thereto from time to time
securing or purporting to secure the payment of such Receivable by the Person
obligated thereon, (b) all guaranties, indemnities and warranties, insurance
policies, financing statements and other agreements or arrangements of whatever
character from time to time supporting or securing payment of such Receivable,
(c) all right, title and interest of the Borrower or any Subsidiary or any
Securitization Entity in and to any goods (including returned, repossessed or
foreclosed goods) the sale of which gave rise to such Receivable; provided,
that Related Security will not include returned goods only to the extent that
all amounts required to be paid pursuant to Asset Securitizations in respect of
such goods have been paid, (d) all collections with respect to any of the
foregoing, (e) all records with respect to any of the foregoing, and (f) all
proceeds of such Receivable or with respect to any of the foregoing.
"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.
"Required Lenders" means, as of any date of determination, Lenders
whose Voting Percentages aggregate more than 50% of the Voting Percentages of
all Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, any vice president, secretary, treasurer or assistant
treasurer of a Loan Party. 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 and/or other action 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 the Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other
equity interest or of any option, warrant or other right to acquire any such
capital stock or other equity interest.
"Revolving Borrowing" means a borrowing consisting of simultaneous
Revolving Loans of the same Type and, as to Eurodollar Rate Loans, having the
same Interest Period made by each of the Lenders pursuant to Section 2.01.
18
"Revolving Loan" means a Base Rate Loan or a Eurodollar Rate Loan made
to the Borrower by a Lender in accordance with its Pro Rata Share pursuant to
Section 2.01, except as otherwise provided herein.
"Revolving Loan Note" means a promissory note made by the Borrower in
favor of a Lender evidencing Revolving Loans made by such Lender, substantially
in the form of Exhibit C-1.
"Revolving Loan Notice" means a notice of (a) a Revolving Borrowing,
(b) a Conversion of Revolving Loans, or (c) a Continuation of Revolving Loans
as the same Type, pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"Same Day Funds" means immediately available funds.
"Securitization Entity" means Borrower and any wholly-owned Subsidiary
of Borrower (or another Person in which Borrower or any Subsidiary of Borrower
makes an Investment and to which Borrower or any Subsidiary of Borrower
transfers accounts receivable and related assets) that engages in no activities
other than in connection with the financing of accounts receivable and that is
designated by the board of directors of Borrower (as provided below) as a
Securitization Entity, (i) no portion of the Indebtedness (contingent or
otherwise) of which (a) is guaranteed by Borrower or any Subsidiary of Borrower
other than pursuant to Standard Securitization Undertakings, (b) is recourse to
or obligates Borrower or any Subsidiary of Borrower in any way other than
pursuant to Standard Securitization Undertakings or (c) subjects any property
or asset of Borrower or any Subsidiary of Borrower, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than pursuant to
Standard Securitization Undertakings, (ii) with which neither Borrower nor any
Subsidiary of Borrower has any material contract, agreement, arrangement or
understanding other than on terms no less favorable to Borrower or such
Subsidiary than those that might be obtained at the time from Persons that are
not Affiliates of Borrower, other than fees payable in the ordinary course of
business in connection with servicing receivables of such entity, and (iii) to
which neither Borrower nor any Subsidiary of Borrower has any obligation to
maintain or preserve such entity's financial condition or cause such entity to
achieve certain levels of operating results. Any such designation by the board
of directors of Borrower shall be evidenced to the Administrative Agent by
filing with the Administrative Agent a certified copy of the resolution of the
board of directors of Borrower giving effect to such designation and a
certificate of a Responsible Officer certifying that such designation complied
with the foregoing conditions.
"Senior Indebtedness" means all Consolidated Funded Indebtedness other
than Subordinated Indebtedness.
"Senior Notes" means the Series 2001-A 7.91% senior notes in the
amount of $150,000,000 issued pursuant to that certain Note Purchase Agreement
dated as of July 15, 2001 by and among Tupperware Finance and certain
purchasers party thereto from time to time.
19
"Senior Notes Guaranty" means that certain Guaranty Agreement dated
July 15, 2001 by and among Borrower and certain purchasers party thereto from
time to time delivered in connection with the Senior Notes.
"Shareholders' Equity" means, as of any date of determination for the
Borrower and its Subsidiaries on a consolidated basis, shareholders' equity as
of that date determined in accordance with GAAP.
"Solvent" means, when used with respect to any Person, that
at the time of determination:
(a) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(b) it is then able and expects to be able to
pay its debts as they mature; and
(c) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by Borrower or any
Subsidiary of Borrower that are reasonably customary in accounts receivable
securitization transactions.
"Subordinated Indebtedness" means all unsecured Indebtedness of
Borrower (excluding "back-to-back" borrowings in foreign currencies by
Subsidiaries operating in countries outside of the United States and Canada for
which there are related deposits or receivables of equivalent amounts so long
as (y) such borrowings are not included in Consolidated Funded Indebtedness
under GAAP and (z) the borrowing arrangements include rights of offset allowing
defaulted principal and accrued interest to be offset against the related
repayment obligation) which shall contain or have applicable thereto
subordination provisions providing for the subordination thereof to other
Indebtedness of Borrower (including, without limitation, the obligations of
Borrower under the Senior Notes Guaranty).
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"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
20
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 xxxx-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 any 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 Note" means a promissory note made by the Borrower in
favor of the Swing Line Lender evidencing Swing Line Loans made by such Lender,
substantially in the form of Exhibit C-2.
"Swing Line Sublimit" means an amount equal to the lesser of the
Aggregate Commitments and $25,000,000. The Swing Line Sublimit is part of, and
not in addition to, the Aggregate Commitments.
"Syndication Agent" means Citibank, N.A., in its capacity as
syndication agent under any of the Loan Documents, or any successor syndication
agent.
"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
21
possession of property creating obligations that do not appear on the balance
sheet of such Person but which, upon the insolvency or bankruptcy of such
Person, would be characterized as the indebtedness of such Person (without
regard to accounting treatment).
"Taxes" has the meaning therefor set forth in Section 3.01(a).
"364-Day Revolving Credit Agreement" means that certain Credit
Agreement dated as of the date hereof by the Borrower, the Administrative Agent
and the lenders party thereto, pursuant to which the lenders party thereto are
making available to the Borrower a revolving credit facility in the original
maximum aggregate principal amount of $100,000,000.
"Threshold Amount" means $10,000,000.
"Tupperware Finance" means Tupperware Finance Company B.V., a company
organized under the laws of The Netherlands and a Subsidiary of the Borrower.
"Type" means with respect to a Revolving Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan.
"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.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
"Voting Percentage" means, as to any Lender, (a) at any time when the
Aggregate Commitments are in effect, such Lender's Pro Rata Share and (b) at
any time after the termination of the Aggregate Commitments, the percentage
(carried out to the ninth decimal place) which (i) the sum of (A) the
Outstanding Amount of such Lender's Revolving Loans plus (B) such Lender's Pro
Rata Share of the Outstanding Amount of L/C Obligations, plus (C) such Lender's
Pro Rata Share of the Outstanding Amount of Swing Line Loans, then comprises of
(ii) the aggregate Outstanding Amount of all Loans and L/C Obligations;
provided, however, that if any Lender has failed to fund any portion of the
Revolving Loans, participations in L/C Obligations or participations in Swing
Line Loans required to be funded by it hereunder, such Lender's Voting
Percentage shall be deemed to be zero, and the respective Pro Rata Shares and
Voting Percentages of the other Lenders shall be recomputed for purposes of
this definition and the definition of "Required Lenders" without regard to such
Lender's Commitment or the Outstanding Amount of its Revolving Loans, L/C
Advances and funded participations in Swing Line Loans, as the case may be.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
22
(b) (i) The words "herein" and "hereunder" and words of similar
import when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial statements and
other writings, however evidenced, whether in physical or electronic form.
(c) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including;" the
words "to" and "until" each mean "to but excluding;" and the word "through"
means "to and including."
(d) Each reference to "basis points" or "bps" shall be
interpreted in accordance with the convention that 100 bps = 1.0%.
(e) 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) 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) 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).
23
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents)
and other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan Document;
and (b) references to any Law shall include all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting
such Law.
24
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 REVOLVING LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make, Convert and Continue Revolving
Loans to the Borrower from time to time on any Business Day during the period
from the Closing Date to the Maturity Date; provided, however, that after giving
effect to any Revolving Borrowing, (i) the aggregate Outstanding Amount of all
Loans and L/C Obligations shall not exceed the Aggregate Commitments, and (ii)
the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender's Pro Rata Share of the aggregate Outstanding Amount of all L/C
Obligations, plus such Lender's Pro Rata Share of the aggregate Outstanding
Amount of all Swing Line Loans, shall not exceed such Lender's Commitment.
Within the limits of each Lender's Commitment, and subject to the other terms
and conditions hereof, the Borrower may borrow under this Section 2.01, prepay
under Section 2.05, and reborrow under this Section 2.01. Revolving Loans may be
Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF REVOLVING LOANS.
(a) Each Revolving Borrowing, each Conversion of Revolving Loans,
and each Continuation of Revolving 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., New York time, (i) three Business Days prior to the requested date
of any Borrowing of, Conversion to or Continuation of Eurodollar Rate Loans, and
(ii) on the requested date of any Borrowing of, or Conversion to, Base Rate
Loans. Each such telephonic notice must be confirmed promptly by delivery to the
Administrative Agent of a written Revolving Loan Notice, appropriately completed
and signed by a Responsible Officer (unless such Revolving Loan Notice is being
delivered by the Swing Line Lender pursuant to Section 2.04(c) or by the
Administrative Agent on behalf of the L/C Issuer pursuant to Section
2.03(c)(i)); provided that the lack of such prompt confirmation shall not affect
the conclusiveness or binding effect of such telephonic notice. Except as
provided in Sections 2.03(c) and 2.04(c), 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. 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 Revolving Loan Notice
(whether telephonic or written) shall be substantially in the form of Exhibit A
attached hereto. If the Borrower fails to specify a Type of Revolving Loan in a
Revolving Loan Notice or if the Borrower fails to give a timely notice
requesting a Conversion or Continuation, then the applicable Revolving Loans
shall, subject to the last sentence of this Section 2.02(a), be made or
Continued 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. 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. If the Borrower requests
a Borrowing of, Conversion to, or Continuation of Eurodollar Rate Loans in any
such Revolving Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.
25
(b) Following receipt of a Revolving Loan Notice, the
Administrative Agent shall promptly notify each Lender of its Pro Rata Share of
the applicable Revolving Loans. Each Lender shall make the amount of its
Revolving Loan available to the Administrative Agent in Same Day Funds at the
Administrative Agent's Office not later than 1:00 p.m., New York time, on the
Business Day specified in the applicable Revolving 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.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan
may be Continued or Converted only on the last day of the Interest Period for
such Eurodollar Rate Loan. During the existence of a Default or Event of
Default, no Loans may be requested as, Converted into or Continued as Eurodollar
Rate Loans without the consent of the Required Lenders, and the Required Lenders
may demand that any or all of the then outstanding Eurodollar Rate Loans be
Converted immediately to Base Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower
and the Lenders of the interest rate applicable to any Eurodollar Rate Loan upon
determination of such interest rate. The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of demonstrable
error.
(e) After giving effect to all Revolving Borrowings, all
Conversions of Revolving Loans from one Type to the other, and all Continuations
of Revolving Loans as the same Type, there shall not be more than ten Interest
Periods in effect with respect to Revolving Loans.
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 other
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 renew Letters of Credit previously issued by
it, in accordance with subsection (b) below, and (2) to honor drafts
under the Letters of Credit; and (B) the Lenders severally agree to
risk participate in Letters of Credit issued for the account of the
Borrower; provided that the L/C Issuer shall not be obligated to make
any L/C Credit Extension with respect to any Letter of Credit, and no
Lender shall be obligated to risk participate in, any Letter of Credit
if as of the date of such L/C Credit Extension, (w) the aggregate
Outstanding Amount of all Loans and L/C Obligations would exceed the
Aggregate Commitments, (y) the aggregate Outstanding Amount of the
Revolving Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata
Share of the Outstanding Amount of all Swing Line Loans, would exceed
such Lender's Commitment, or (z) the Outstanding Amount of the L/C
Obligations would exceed the Letter of Credit Sublimit. Within the
foregoing
26
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.
(ii) The L/C Issuer shall be under no 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 xxxxx xxxxx
material to it;
(B) subject to Section 2.03(b)(iii), the expiry
date of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last renewal,
unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer; or
(E) such Letter of Credit is to be denominated
in a currency other than Dollars.
(iii) 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.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal 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. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 12:00
noon, New York time, at least two Business Days (or such later date and
time as the L/C Issuer may agree in a particular
27
instance in its 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 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 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
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended;
(B) the proposed date of amendment thereof (which shall be a Business
Day); (C) the nature of the proposed amendment; and (D) such other
matters as the L/C Issuer may 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. Upon receipt by the L/C Issuer of confirmation from the
Administrative Agent that the requested issuance or amendment is
permitted hereunder in terms of any additional L/C Obligations created
thereby, then, 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 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 Lender's Pro Rata Share times the amount of such Letter
of Credit.
(iii) If the Borrower so requests in any applicable Letter
of Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
renewal provisions (each, an "Auto-Renewal Letter of Credit"); provided
that any such Auto-Renewal Letter of Credit must permit the L/C Issuer
to prevent any such renewal at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day
(the "Nonrenewal Notice Date") in each such twelve-month period to be
agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Borrower shall not be
required to make a specific request to the L/C Issuer for any such
renewal. Once an Auto-Renewal Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) the
L/C Issuer to permit the renewal of such Letter of Credit at any time
to an expiry date not later than the Letter of Credit Expiration Date;
provided, however, that the L/C Issuer shall not permit any such
renewal if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof,
or (B) it has received notice (which may be by telephone or in writing)
on or before the day that is two Business Days before the Nonrenewal
Notice Date (1) from the Administrative Agent that the Required Lenders
have elected not to permit such renewal or (2) from the
28
Administrative Agent, any Lender or the Borrower that one or more of
the applicable conditions specified in Section 4.02 is not then
satisfied. Notwithstanding anything to the contrary contained herein,
the L/C Issuer shall have no obligation to permit the renewal of any
Auto-Renewal Letter of Credit at any time, and in no event shall the
expiry date of any Auto-Renewal Letter of Credit after any renewal as
described herein occur after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date.
(iv) 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 any drawing under any Letter of Credit, the L/C
Issuer shall notify the Borrower and the Administrative Agent thereof.
Not later than 11:00 a.m., New York time, 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
in Dollars in Same Day Funds. If the Borrower fails to so reimburse the
L/C Issuer by such time, the Administrative Agent shall promptly notify
each Lender of the Honor Date, the amount of the unreimbursed drawing
(the "Unreimbursed Amount"), such Lender's Pro Rata Share thereof and,
in accordance with the following sentence, whether a Swing Line
Borrowing or a Revolving Borrowing will be made to repay the
Unreimbursed Amount or whether, pursuant to Section 2.03(c)(iii), an
L/C Borrowing in the amount of the Unreimbursed Amount shall be deemed
incurred by the Borrower and that each Lender shall participate in such
L/C Borrowing in accordance with its Pro Rata Share. In such event, the
Borrower shall be deemed to have requested a Swing Line Borrowing,
without regard to the minimum and multiples specified in Section 2.04,
or, if the Unreimbursed Amount is greater than the amount available for
Swing Line Borrowings under the Swing Line Sublimit, a Revolving
Borrowing, without regard to the minimum and multiples specified in
Section 2.02, to be disbursed on the Honor Date in an amount equal to
the Unreimbursed Amount, but subject, in each case, to the amount of
the unutilized portion of the Aggregate Commitments, and the conditions
set forth in Section 4.02 (other than the delivery of a Revolving Loan
Notice). Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.03(c)(i) shall constitute a notice under
Section 2.04(b) or a Revolving Loan Notice, respectively, and 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) The Swing Line Lender, if a Swing Line Borrowing can
be made as determined by the Administrative Agent pursuant to Section
2.03(c)(i), shall 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 the Unreimbursed Amount, not later than 2:00 p.m.,
New York time, on the Business Day specified in such notice by the
Administrative Agent. In the event the Administrative Agent determines
that a Swing Line Borrowing is not so available and its notice pursuant
to Section 2.03(c)(i) indicates that in the alternative a Revolving
Borrowing or an L/C Borrowing is to be made, each
29
Lender (including the Lender acting as L/C Issuer) shall upon receipt
of any such notice pursuant to Section 2.03(c)(i) make funds in Dollars
available to the Administrative Agent for the account of the L/C Issuer
at the Administrative Agent's Office in the amount equal to its Pro
Rata Share of the Unreimbursed Amount not later than 2:00 p.m., New
York time, on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each 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 from either the
Swing Line Lender or the Lenders, as applicable, to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Borrowing because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, the Borrower
shall be deemed to have incurred from the L/C Issuer a 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 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 risk participation in such L/C Borrowing and shall
constitute a L/C Advance from such Lender in satisfaction of its risk
participation obligation in such L/C Borrowing under this Section 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C
Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer
for any Unreimbursed Amount drawn under any Letter of Credit or to fund
its participation therein, as the case may be, interest in respect of
such Lender's Pro Rata Share of such amount shall be solely for the
account of the L/C Issuer.
(v) Each Lender's obligation to make Revolving 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 set-off, 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 Event of Default, or (C)
any other occurrence, event or condition, whether or not similar to any
of the foregoing; provided, however, that each Lender's obligation to
make Revolving Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02. Any such reimbursement with the
proceeds of Revolving Loans or L/C Advances shall not 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 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 applicable Federal Funds Rate
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for three (3) Business Days and thereafter at a rate per annum equal to
the Default Rate. A certificate of the L/C Issuer submitted to any
Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (vi) shall be conclusive absent demonstrable
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 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 related Unreimbursed
Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), or any payment of interest thereon, the
Administrative Agent will distribute to such Lender the amount of its
Pro Rata Share thereof in Dollars.
(ii) If any payment received by the Administrative Agent
for the account of the L/C Issuer pursuant to Section 2.03(c)(i) in
respect of any drawing on any Letter of Credit is required to be
returned (including pursuant to any settlement entered into by the
Administrative Agent or the L/C Issuer in its discretion), each Lender
shall pay to the Administrative Agent in Dollars for the account of the
L/C Issuer its Pro Rata Share of such amount 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 applicable Federal Funds Rate from time to time
in effect, and such payment by each Lender shall be deemed to be its
L/C Advance in such amount pursuant to Section 2.03(c)(iii).
(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 agreement or instrument
relating thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the Borrower may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the 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;
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(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 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.
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. Neither the
L/C Issuer, any Agent-Related Person nor any of the respective correspondents,
participants or assignees 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 Lenders or the Required 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
Letter of Credit Application. 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. Neither the L/C Issuer, any Agent-Related Person, nor any of the
respective correspondents, participants or assignees 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, special, punitive 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
32
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) 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, or (ii) if,
as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the Outstanding Amount of all L/C Obligations
plus the Letter of Credit fees payable with respect to such Letter of Credit
(calculated at the Applicable Margin then in effect for the period from the date
of such cash collateralization until the expiry date of such Letter of Credit).
(h) Applicability of ISP98 and UCP. Unless otherwise expressly
agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit), (i)
the rules of the "International Standby Practices 1998" published by the
Institute of International Banking Law & Practice (or such later version thereof
as may be in effect at the time of issuance) shall apply to each standby Letter
of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of
Commerce (the "ICC") at the time of issuance (including the ICC decision
published by the Commission on Banking Technique and Practice on April 6, 1998
regarding the European single currency (euro)) shall apply to each commercial
Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its Pro
Rata Share a Letter of Credit fee (for each day such Letter of Credit remains in
effect) for each Letter of Credit equal to the Applicable Margin for Eurodollar
Rate Loans multiplied by the daily maximum amount available to be drawn under
such Letter of Credit. Such fee for each Letter of Credit shall be due and
payable on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, and on the Letter of Credit Expiration Date. If there is any change
in the Applicable Margin during any quarter, the actual daily amount of each
Letter of Credit shall be computed and multiplied by the Applicable Margin
separately for each period during such quarter that such Applicable Margin was
in effect.
(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 in an amount equal to 1/8 of 1% per annum on the daily
maximum amount available to be drawn thereunder, due and payable quarterly in
arrears on the next Business Day following the last Business Day of each March,
June, September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit, and on the Letter of Credit Expiration
Date. 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 fees and charges are due
and payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of
any conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
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2.04 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees to make loans (each such loan, a "Swing
Line Loan") in Dollars, to the Borrower from time to time on any Business Day
during the period from the Closing Date to the Maturity Date in an aggregate
amount not to exceed the amount of the Swing Line Sublimit, notwithstanding the
fact that such Swing Line Loans, when aggregated with the aggregate Outstanding
Amount of Revolving Loans and Pro Rata Share of L/C Obligations of the Swing
Line Lender in its capacity as a Lender, may exceed the amount of such Lender's
Commitment; provided, however, that after giving effect to any Swing Line Loan,
(i) the aggregate Outstanding Amount of all Loans and L/C Obligations shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of
the Revolving Loans of any Lender other than the Swing Line Lender, plus such
Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender's Commitment. 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 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 Lender's Pro Rata Share times the amount of the 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
12:00 noon, New York time on the requested borrowing date, and shall specify (i)
the amount to be borrowed, which shall be a minimum of $1,000,000 and integral
multiples 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. 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
Lender) prior to 1:00 p.m., New York time, 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 2.03(a), or (B) that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 2:00
p.m., New York time, 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 Same Day Funds.
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(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 a Revolving Loan be made in an amount equal to the
amount of Swing Line Loans then outstanding. Such request shall be made
in accordance with the requirements of Section 2.02, without regard to
the minimum and multiples specified therein for the principal amount of
Revolving Loans, but subject to the unutilized portion of the Aggregate
Commitments, and the conditions set forth in Section 4.02. Each Lender
shall make an amount equal to its Pro Rata Share of the amount
specified in such Revolving Loan Notice available to the Administrative
Agent in Same Day Funds for the account of the Swing Line Lender at the
Administrative Agent's Office not later than 2:00 p.m., New York time,
on the Business Day specified in such Revolving Loan Notice, whereupon,
subject to Section 2.04 (c)(ii), each 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 from the Lenders to the Swing Line Lender.
(ii) If for any reason any Revolving Borrowing cannot be
requested in accordance with Section 2.04(c)(i) or any Swing Line Loan
cannot be refinanced by such a Revolving Borrowing, the Revolving Loan
Notice submitted by the Swing Line Lender shall be deemed to be a
request by the Swing Line Lender that each of the Lenders fund in
Dollars its risk participation in the amount of the relevant Swing Line
Loan and each 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 Dollars in respect of such risk participation in
the amount of such Swing Line Loan.
(iii) If any 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 applicable
Federal Funds Rate for three (3) Business Days and thereafter at a rate
per annum equal to the Default Rate. 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 Lender's obligation to make Revolving 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 set-off,
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 Event of Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided,
however, that each Lender's obligation to make Revolving Loans pursuant
to this Section 2.04(c) is subject to the conditions set forth in
Section 4.02. Any such
35
purchase of risk participations by each Lender from the Swing Line
Lender shall not 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 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 in Dollars to such Lender its Pro Rata Share 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 outstanding and funded).
(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, each Lender shall pay to the
Swing Line Lender in Dollars its Pro Rata Share of such amount on
demand of the Administrative Agent, plus interest thereon from the date
of such demand to the date such amount is returned (including pursuant
to any settlement entered into by the Swing Line Lender in its
discretion), at a rate per annum equal to the applicable Federal Funds
Rate. The Administrative Agent will make such demand only upon the
request of the Swing Line Lender.
(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 Lender funds its Revolving Loan or risk participation
pursuant to this Section 2.04, interest in respect of such Pro Rata Share 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) The Borrower may, upon notice to the Administrative Agent, at
any time or from time to time voluntarily prepay Revolving Loans in whole or in
part without premium or penalty; provided that (i) such notice must be received
by the Administrative Agent not later than 12:00 noon, New York time, (A) three
Business Days prior to any date of prepayment of Eurodollar Rate Loans
denominated in Dollars, and (B) on the date of prepayment of Base Rate Loans;
(ii) 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 (iii) 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. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Revolving Loans to be
prepaid. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of such Lender's Pro Rata Share 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. 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 such prepayment
36
shall be applied to the Revolving Loans in Dollars of the Lenders in accordance
with their respective Pro Rata Shares.
(b) 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 (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 12:00 noon, New York time, on the date of
the prepayment, and (ii) any such prepayment shall be in a minimum principal
amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. 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.
(c) If for any reason the Outstanding Amount of all Loans and L/C
Obligations at any time exceeds the Aggregate Commitments then in effect, the
Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations, as it shall select, in an aggregate amount equal to such excess.
2.06 REDUCTION OR TERMINATION OF COMMITMENTS. (a) The Borrower may,
upon notice to the Administrative Agent, terminate the Aggregate Commitments, or
permanently reduce the Aggregate Commitments to an amount not less than the then
aggregate Outstanding Amount of all Loans and L/C Obligations; provided that (i)
any such notice shall be received by the Administrative Agent not later than
11:00 a.m., New York time, five Business Days prior to the date of termination
or reduction, and (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. The
Administrative Agent shall promptly notify the Lenders of any such notice of
reduction or termination of the Aggregate Commitments. Once reduced in
accordance with this Section, the Aggregate Commitments may not be increased.
Any reduction of the Aggregate Commitments shall be applied to the Commitment of
each Lender according to its Pro Rata Share. All facility and utilization fees
accrued until the effective date of any termination of the Aggregate Commitments
shall be paid on the effective date of such termination.
(b) In the event the Borrower shall be required to use the Net
Proceeds from the transfer of assets to repay Senior Indebtedness as provided in
Section 7.05 and such Net Proceeds are applied to prepay Outstanding Amounts,
the Aggregate Commitments shall be permanently reduced by the amount of such Net
Proceeds paid to the Lenders and so applied. In the event such Net Proceeds are
used to repay outstanding commercial paper of the Borrower or any Subsidiary,
the Aggregate Commitments shall be permanently reduced by the principal amount
of commercial paper so paid.
2.07 REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Lenders on the Maturity Date
the aggregate principal amount of Revolving Loans outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan on the earlier
to occur of (i) demand (by telephonic or written notice) by the Administrative
Agent and (ii) the Maturity Date.
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2.08 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan 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 Margin; (ii) each Base Rate
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate; 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.
(b) If any amount payable by the Borrower under any Loan Document
is not paid when due (without regard to any applicable grace periods), such
amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Law. Furthermore, while any Event of Default exists or after
acceleration, the Borrower shall pay interest on the principal amount of all
outstanding Obligations at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Law.
Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(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 subsections (i)
and (j) of Section 2.03:
(a) Facility Fee. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share, a
facility fee equal to the Applicable Margin times the actual daily amount of the
Aggregate Commitments, regardless of usage. The facility fee shall accrue at all
times from the Closing Date until the Maturity Date and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date. The facility fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Margin during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable
Margin separately for each period during such quarter that such Applicable
Margin was in effect. The facility fee shall accrue at all times, including at
any time during which one or more of the conditions in Article IV is not met.
(b) Utilization Fee. Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share, a
utilization fee of 0.125 % times the actual daily aggregate Outstanding Amount
of all Loans and L/C Obligations on each day that (i) the sum of (A) such
aggregate Outstanding Amount plus (B) the Outstanding Amount of all Loans under,
and as each such term is defined in, the 364-Day Revolving Credit Agreement,
exceeds 33% of (ii) the sum of (A) the Aggregate Commitments and (B) the
Aggregate Commitments under, and as defined in, the 364-Day Revolving Credit
Agreement. The utilization fee shall be due and payable quarterly in arrears on
the last Business Day of each
38
March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the Maturity Date. The utilization fee
shall be calculated quarterly in arrears. The utilization fee shall accrue at
all times, including at any time during which one or more of the conditions in
Article IV is not met.
(c) Arrangement and Agent Fees. The Borrower shall pay an
arrangement fee to each Arranger for such Arranger's own account, and shall pay
an agency fee to the Administrative Agent for the Administrative Agent's own
account, in the amounts and at the times specified in the letter agreement,
dated March 6, 2002 (the "Agent/Arranger Fee Letter"), among the Borrower, the
Arrangers, the Administrative Agent and the Syndication Agent. Such fees shall
be fully earned when paid and shall be nonrefundable for any reason whatsoever,
except that in the year of termination the agency fee shall be prorated.
(d) Lenders' Upfront Fee. On the Closing Date, the Borrower shall
pay to the Administrative Agent, for the account of the Lenders in accordance
with their respective Pro Rata Shares, an upfront fee in a mutually agreeable
amount. Such upfront fees are for the credit facilities committed by the Lenders
under this Agreement and are fully earned on the date paid. The upfront fee paid
to each Lender is solely for its own account and is nonrefundable for any reason
whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES. Interest on Base Rate Loans
determined by reference to the Bank of America prime rate shall be calculated on
the basis of a year of 365 or 366 days, as the case may be, and the actual
number of days elapsed. Computation of all other types of interest and all fees
shall be calculated on the basis of a year of 360 days and the actual number of
days elapsed, which results in a higher yield to the payee thereof than a method
based on a year of 365 or 366 days. Interest shall accrue on each Loan for the
day on which the Loan is made, and, subject to Section 2.12(a), 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 bear interest for one day.
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 demonstrable 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 shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, such Lender's Loans shall be
evidenced by a Revolving Loan Note and/or a Swing Line Note, as applicable, in
addition to such accounts or records. Each Lender may attach schedules to its
Note(s) and endorse thereon the date, Type (if applicable), amount and maturity
of the applicable Loans and payments with respect thereto.
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(b) In addition to the accounts and records referred to in
subsection (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,
in the absence of manifest error, shall control.
2.12 PAYMENTS GENERALLY.
(a) 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 applicable
Administrative Agent's Office in Dollars and in Same Day Funds not later than
12:00 noon, New York time, on the date specified herein. The Administrative
Agent will promptly distribute to each Lender its Pro Rata Share 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 12:00 noon, New York time,
shall be deemed received on the next succeeding Business Day and any applicable
interest or fee shall in each case continue to accrue.
(b) Subject to the definition of "Interest Period," 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 reflected in computing interest or fees, as the case may be.
(c) If at any time prior to the occurrence of an Event of Default
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, L/C Borrowings, interest and fees then due
hereunder, such funds shall be applied (i) first, toward costs and expenses
(including Attorney Costs and amounts payable under Article III) incurred by the
Administrative Agent and each Lender, (ii) second, toward repayment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(iii) third, toward repayment of principal and L/C Borrowings then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and L/C Borrowings then due to such parties. If at any time
after the occurrence of an Event of Default insufficient funds are received by
and available to the Administrative Agent to pay fully all Outstanding Amounts
hereunder and Outstanding Amounts (as defined in the 364-Day Revolving Credit
Agreement) under the 364-Day Revolving Credit Agreement, such funds shall be
applied (i) first, toward costs and expenses hereunder and under the 364-Day
Revolving Credit Agreement including Attorney Costs (hereunder and under the
364-Day Revolving Credit Agreement) and amounts payable under Article III hereof
and amounts payable under Article III of the 364-Day Revolving Credit Agreement
incurred by the Administrative Agent and each Lender hereunder and the
Administrative Agent and each Lender under the 364-Day Revolving Credit
Agreement (each as defined in the 364-Day Revolving Credit Agreement), (ii)
second, toward repayment of interest and fees then due hereunder and under the
364-Day Revolving Credit Agreement, ratably among the parties entitled thereto
in accordance with the amounts of interest and fees then due to such parties,
and (iii) third, toward repayment of principal and L/C Borrowings (including L/C
Borrowings as defined in the 364-
40
Day Revolving Credit Agreement) then due hereunder and under the 364-Day
Revolving Credit Agreement, ratably among the parties entitled thereto in
accordance with the amounts of principal and L/C Borrowings then due to such
parties
(d) Unless the Borrower or any Lender has notified the
Administrative Agent prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that the Borrower or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that the Borrower or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
Same Day Funds, then:
(i) if the Borrower failed to make such payment, each
Lender shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender
in Same Day Funds, together with interest thereon in respect of each
day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid
to the Administrative Agent in Same Day Funds, at the applicable
Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such
Lender shall forthwith on demand pay to the Administrative Agent the
amount thereof in Same Day Funds, together with interest thereon for
the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the applicable Federal Funds Rate from time to
time in effect. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Revolving Loan
included in the applicable Borrowing. If such Lender does not pay such
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the Borrower, and
the Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate
per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its Commitment or to prejudice any rights
which the Administrative Agent or the Borrower may have against any
Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with respect
to any amount owing under this subsection (d) shall be conclusive, absent
demonstrable error.
(e) 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, except to the extent
such funds do not constitute the funding of a risk participation under Article
II, shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.
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(f) The obligations of the Lenders hereunder to make Revolving
Loans and to fund participations in Letters of Credit and Swing Line Loans are
several and not joint. The failure of any Lender to make any Revolving Loan or
to fund any participations in Letters of Credit and Swing Line Loans 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 Revolving Loan or purchase its
participations in Letters of Credit and Swing Line Loans.
(g) 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.
2.13 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Revolving Loans made
by it or the participations in L/C Obligations or in Swing Line Loans held by it
(but not including any amounts applied by the Swing Line Lender to outstanding
Swing Line Loans prior to the funding of risk participations therein), any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Revolving Loans made by them and/or such subparticipations
in the participations in L/C Obligations or Swing Line Loans held by them, as
the case may be, as shall be necessary to cause such purchasing Lender to share
the excess payment in respect of such Revolving Loans or such risk
participations, as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender (including pursuant to any settlement
entered into by the Administrative Agent or any Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of (i)
the amount of such paying Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered,
without further interest thereon. The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off), but subject to Section 10.09 with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation. The Administrative Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right to
give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the
Obligations purchased.
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ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrower to or for the account of
the Administrative Agent or any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its net
income, 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 the
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Loan Document to the Administrative Agent or any Lender, (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 and such Lender receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of such
payment, the Borrower shall furnish to the Administrative Agent (which shall
forward the same to such Lender) the original or a certified copy of a receipt
evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes
or Other Taxes from or in respect of any sum payable under any Loan Document to
the Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent (for the account of such Lender) or to such Lender, at the
time interest is paid, such additional amount that such Lender specifies is
necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income) such Lender would have
received if such Taxes or Other Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section) paid by the Administrative Agent and such Lender, (ii)
amounts payable under Section 3.01(c) and (iii) any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto, in
each case
43
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. Payment under this subsection
(d) shall be made within 30 days after the date the Lender or the Administrative
Agent makes a demand therefor. Notwithstanding the foregoing, the Borrower will
not be required to pay any additional amounts in respect of Taxes imposed by the
United States federal government to any Lender if and to the extent the
obligation to pay such additional amounts would not have arisen but for a
failure by such Lender to comply with its obligations under Section 10.15.
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 as it would otherwise be obligated hereunder to make,
maintain or fund, or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable Eurodollar
interbank market, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation existing hereunder 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 thereof, 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. Each
Lender agrees to designate a different Lending Office if such designation will
avoid the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Administrative Agent or
the Required Lenders determine in connection with any request for a Eurodollar
Rate Loan or a Conversion to or Continuation thereof that (a) deposits in
Dollars are not being offered to banks in the London eurodollar interbank 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 Base
Rate for such Eurodollar Rate Loan, or (c) the Eurodollar Base Rate for such
Eurodollar Rate Loan does not adequately and fairly reflect the cost to the
Lenders of funding such Eurodollar Rate Loan, the Administrative Agent
(following notice from the Required Lenders if they make such determination)
will promptly notify the Borrower and all Lenders. Thereafter, the obligation of
the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until
the Administrative Agent revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing, Conversion 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 COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES
ON EURODOLLAR RATE LOANS.
(a) If any Lender determines that as a result of the introduction
of or any change in or in the interpretation of any Law, or such Lender's
compliance therewith, there shall be any
44
increase in the cost to such Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Loans or (as the case may be) issuing or
participating in Letters of Credit, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this subsection (a) any such increased costs or reduction in amount
resulting from (i) Taxes or Other Taxes (as to which Section 3.01 shall govern),
(ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or any foreign jurisdiction or any political
subdivision of either thereof under the Laws of which such Lender is organized
or has its Lending Office, and (iii) reserve requirements utilized, as to
Eurodollar Rate Loans, in the determination of the Eurodollar Rate), then from
time to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
(c) (i) If any Lender shall make a claim for compensation from the
Borrower pursuant to Section 3.01 or Section 3.04, the Borrower may,
upon notice to such Lender and the Administrative Agent, (A) remove
such Lender by terminating such Lender's Commitment or (B) replace
such Lender by causing such Lender to assign its Commitment (without
payment of any assignment fee) pursuant to Section 10.07(b) to one or
more other Lenders or Eligible Assignees procured by the Borrower;
provided, however, that if the Borrower elects to exercise such right
with respect to any Lender pursuant to Section 3.04(c), it shall be
obligated to remove or replace, as the case may be, all Lenders that
have made similar requests for compensation pursuant to Section 3.01
or 3.04. The Borrower shall (x) pay in full all principal, interest,
fees and other amounts owing to such Lender through the date of
removal or replacement (including any amounts payable pursuant to
Section 3.05), (y) provide appropriate assurances and indemnities
(which may include letters of credit) to the L/C Issuer and the Swing
Line Lender as each may reasonably require with respect to any
continuing obligation to purchase participation interests in any L/C
Obligations or any Swing Line Loans then outstanding, and (z) release
such Lender from its obligations under the Loan Documents. Any Lender
being replaced shall execute and deliver an Assignment and Assumption
with respect to such Lender's Commitment and outstanding Credit
Extensions. The Administrative Agent shall distribute an amended
Schedule 2.01, which shall be deemed incorporated into this Agreement,
to reflect changes in the identities of the Lenders and adjustments of
their respective Commitments and/or Pro Rata Shares resulting from any
such removal or replacement.
(ii) In order to make all the Lenders' interests in any
outstanding Credit Extensions ratable in accordance with any revised
Pro Rata Shares after giving effect to
45
the removal or replacement of a Lender, the Borrower shall pay or
prepay, if necessary, on the effective date thereof, all outstanding
Revolving Loans of all Lenders, together with any amounts due under
Section 3.05. The Borrower may then request Revolving Loans from the
Lenders in accordance with their revised Pro Rata Shares. The Borrower
may net any payments required hereunder against any funds being
provided by any Lender or Eligible Assignee replacing a terminating
Lender. The effect for purposes of this Agreement shall be the same as
if separate transfers of funds had been made with respect thereto.
(iii) This section shall supersede any provision in
Section 10.01 or 10.07 to the contrary.
(d) Notwithstanding anything to the contrary contained in this
Section 3.04, unless the Lender gives notice to the Borrower that the Borrower
is obligated to pay an amount under this Section 3.04 within 180 days after the
later of (x) the date such Lender incurs the respective increased costs, loss,
expense or liability, reduction in amounts received or receivable or reduction
in return on capital or (y) the date such Lender has actual knowledge of its
incurrence of the respective increased costs, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital,
then such Lender shall only be entitled to be compensated for such amount by
the Borrower to the extent the respective increased costs, loss, expense or
liability, reduction in amounts received or receivable or reduction in return
on capital are incurred or suffered on or after the date which occurs 180 days
prior to such Lender giving notice to the Borrower as provided above that
the Borrower is obligated to pay the respective amounts pursuant to this
Section. 3.04.
3.05 FUNDING 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); or
(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;
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 Interbank Offered Rate used in
determining the Eurodollar Rate for such Loan by a matching deposit or other
borrowing in the applicable Eurodollar interbank market for Dollars for a
comparable amount and for a comparable period, whether or not such Eurodollar
Rate Loan was in fact so funded.
46
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION. A
certificate of the Administrative Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of demonstrable error.
In determining such amount, the Administrative Agent or such Lender may use any
reasonable averaging and attribution methods.
3.07 SURVIVAL. All of the Borrower's obligations under this
Article III shall survive termination of the Aggregate Commitments and repayment
of all Obligations.
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ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF CLOSING. The closing of the credit facilities
under this Agreement is subject to satisfaction of the following conditions
precedent:
(a) Unless waived by all the Lenders (or by the Administrative
Agent with respect to immaterial matters or items specified in clause (v), (vi)
or (xiii) below with respect to which the Borrower has given assurances
satisfactory to the Administrative Agent that such items shall be delivered
promptly following the Closing Date), the Administrative Agent's receipt of the
following, each of which shall be originals or facsimiles (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 satisfactory to the Administrative Agent
and its legal counsel:
(i) executed counterparts of this Agreement and the
Facility Guaranty, sufficient in number for distribution to the
Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in
favor of each Lender requesting such a Note, each in a principal amount
equal to such Lender's Commitment;
(iii) a Swing Line Note executed by the Borrower in favor
of the Swing Line Lender (if it requests such a Note) in the principal
amount of the Swing Line Sublimit;
(iv) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of the signing Loan Party as the Administrative Agent may
require to evidence the identities of and the 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;
(v) such documents and certifications as the
Administrative Agent may reasonably require to evidence that each Loan
Party is duly organized or formed, validly existing, in good standing
and qualified to engage in business in each jurisdiction in which it is
organized and in which its chief executive office is located, including
certified copies of each Loan Parties' Organization Documents,
certificates of good standing and/or qualification to engage in
business;
(vi) 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, (B) that there is no event,
circumstance, action, suit, investigation or proceeding pending or, to
the best knowledge of such Responsible Officer, threatened in any court
or before any arbitrator or Governmental Authority since date of the
Audited Financial Statements
48
which has or could be reasonably expected to have a Material Adverse
Effect, (C) the current Debt Ratings (and including a copy thereof),
and (D) as to the matters described in Section 4.01(d);
(vii) an opinion or opinions of counsel to each Loan Party
in form and substance satisfactory to the Administrative Agent;
(viii) the consolidated financial statements of the Borrower
and its Subsidiaries for the fiscal years ended 1999, 2000 and 2001,
including balance sheets, income and cash flow statements, all audited
and opined on by independent certified public accountants of recognized
national standing and prepared in conformity with GAAP, and such other
financial information as the Administrative Agent may request;
(ix) evidence that the Existing Credit Facility has been
or concurrently with the Closing Date is being terminated, all
indebtedness and obligations of the Borrower incurred thereunder have
been, or with the initial Credit Extension hereunder on the Closing
Date will be, repaid and the Borrower released from all liability
thereunder except such as by their express terms survive such repayment
and termination;
(x) the 364-Day Revolving Credit Agreement has been
executed and delivered by all parties thereto and the conditions set
forth in Sections 4.01 and 4.02 thereof as of the Closing Date have
been satisfied or waived in accordance with its terms;
(xi) amendments to the applications and agreements for
issuance of letters of credit pertaining to the Existing Letters of
Credit;
(xii) a Compliance Certificate signed by a Responsible
Officer of the Borrower dated as of the Closing Date demonstrating
compliance with the financial covenants contained in Section 7.10 as of
the end of the fiscal quarter most recently ended prior to the Closing
Date;
(xiii) evidence of all insurance required by the Loan
Documents;
(xiv) an initial Revolving Loan Notice;
(xv) evidence of the current Debt Ratings; and
(xvi) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent, the L/C Issuer, the
Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date
shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall
have paid all Attorney Costs of the Administrative Agent to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of Attorney Costs
as shall constitute its reasonable estimate of Attorney Costs 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).
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(d) In the good faith judgment of the Administrative Agent and the
Lenders:
(i) there shall not have occurred or become known to the
Administrative Agent or the Lenders any event, condition, situation or
status since the date of the information contained in the financial and
business projections, budgets, pro forma data and forecasts concerning
the Borrower and its Subsidiaries delivered to the Administrative Agent
prior to the Closing Date that has had or could reasonably be expected
to result in a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or
threatened which could reasonably be likely to result in a Material
Adverse Effect; and
(iii) the Borrower shall have received all approvals,
consents and waivers, and shall have made or given all necessary
filings and notices as shall be required to consummate the transactions
contemplated hereby without the occurrence of any default under,
conflict with or violation of (A) any applicable law, rule, regulation,
order or decree of any Governmental Authority or arbitral authority or
(B) any agreement, document or instrument to which the Borrower or any
Subsidiary is a party or by which any of them or their properties is
bound.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS (OTHER THAN CP BACKUP
ADVANCES) AND CONVERSIONS AND CONTINUATIONS. The obligation of each Lender to
honor any Revolving Loan Notice (other than CP Backup Advances and a Revolving
Loan Notice requesting only a Conversion of Eurodollar Rate Loans to Base Rate
Loans) is subject to the following conditions precedent:
(a) The representations and warranties contained in Article V or
in any other Loan Documents shall be true and correct on and as of the date of
such Credit Extension, Conversion or Continuation, except to the extent that
such representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct as of such earlier date.
(b) No Default or Event of Default shall exist, or would result
from such proposed Credit Extension, Conversion or Continuation.
(c) The Administrative Agent and, if applicable, the L/C Issuer or
the Swing Line Lender shall have received a Revolving Loan Notice in accordance
with the requirements hereof.
(d) The Administrative Agent shall have received, in form and
substance satisfactory to it, such other assurances, certificates, documents or
consents related to the foregoing as the Administrative Agent or the Required
Lenders reasonably may require.
Each Revolving Loan Notice submitted by the Borrower under this
Section 4.02 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.
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4.03 CONDITIONS TO CP BACKUP ADVANCES. The obligation of each
Lender to honor any Revolving Loan Notice requesting a CP Backup Advance is
subject to the following conditions precedent:
(a) The representations and warranties contained in Article V,
other than Section 5.05(b), or in any other Loan Documents shall be true and
correct on and as of the date of such CP Backup Advance, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date.
(b) No Default or Event of Default shall exist, or would result
from such proposed Credit Extension, Conversion or Continuation.
(c) The Administrative Agent shall have received a Revolving Loan
Notice in accordance with the requirements hereof certifying that the Borrowing
is a CP Backup Advance, which shall constitute the Borrower's certification that
the proceeds of the Borrowing requested will be used solely to repurchase
commercial paper of the Borrower maturing on or about the date of such requested
Borrowing and that the Borrower is unable to issue additional commercial paper
to fund such repurchase upon terms set forth in the Borrower's CP Program
Documents.
Each Revolving Loan Notice submitted by the Borrower under this Section
4.03 shall be deemed to be a representation and warranty that the conditions
specified in Sections 4.03(a) and (b) have been satisfied on and as of the date
of the applicable Credit Extension.
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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. Each
Loan Party (a) is a corporation 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 governmental
licenses, authorizations, consents and approvals to own its assets, carry on its
business and to execute and deliver, and perform its obligations under, the Loan
Documents to which it is a party, (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 its business requires such
qualification or license, other than those jurisdictions as to which the failure
to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, and (d) is
in compliance in all material respects with all Laws.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
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 the Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, any Contractual
Obligation to which the Person is a party or any order, injunction, writ or
decree of any Governmental Authority or arbitral award to which such Person or
its property is subject; or (c) violate any Law.
5.03 GOVERNMENTAL AND THIRD-PARTY AUTHORIZATION. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
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 (i) applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights generally
and (ii) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
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 as of the
52
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 as of the date thereof, including liabilities for taxes,
material commitments and Indebtedness.
(b) Since the date of the Audited Financial Statements, there has
been no event or circumstance that has had or could reasonably be expected to
have a Material Adverse Effect.
5.06 LITIGATION. Except as specifically disclosed in Schedule 5.06,
there are no investigations by any Governmental Authority or actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Borrower
after due and diligent investigation, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, by or against the
Borrower or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby, or (b) if
determined adversely, 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 be
reasonably expected to have a Material Adverse Effect. No Default or Event of
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. Each of the Borrower and its
Subsidiaries has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. As of the Closing Date, the property of the Borrower and its
Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01.
5.09 ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries
conduct in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof the Borrower has reasonably concluded
that, except as specifically disclosed in Schedule 5.09, such Environmental Laws
and claims could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
5.10 INSURANCE. The properties of the Borrower and its Subsidiaries
are insured with financially sound and reputable insurance companies not
Affiliates of the Borrower, in such amounts (after giving effect to any
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 its Subsidiaries operate.
5.11 TAXES. Except as set forth in Schedule 5.11, the Borrower and
its Subsidiaries have filed all Federal, state and other material tax returns
and reports required to be filed, and
53
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 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. There is no
proposed tax assessment against the Borrower or any Subsidiary that could
reasonably be expected to have a Material Adverse Effect.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects 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 be 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 is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (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 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 be subject to Sections 4069 or 4212(c) of ERISA.
5.13 SUBSIDIARIES. The Borrower has no Subsidiaries other than
those specifically disclosed in Part (a) of Schedule 5.13 and has no equity
investments in any other corporation or entity other than those specifically
disclosed in Part (b) of Schedule 5.13.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY
HOLDING 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), or
extending credit for the purpose of purchasing or carrying margin stock.
54
(b) None of the Borrower, any Person controlling the Borrower, or
any Subsidiary (i) is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, or (ii) is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. No statement, information, report, representation,
or warranty made by any Loan Party in any Loan Document or furnished to the
Administrative Agent or any Lender by or on behalf of any Loan Party in
connection with any Loan Document contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
5.16 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and its
Subsidiaries own, or possess the right to use, all Intellectual Property that is
reasonably necessary for the operation of their respective businesses. To the
best knowledge of the Borrower, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Borrower or any Subsidiary, which is
material to business of the Borrower and its Subsidiaries taken as a whole,
infringes upon any rights held by any other Person. Except as specifically
disclosed in Schedule 5.16, no claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Borrower, threatened, and
no patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of the Borrower,
proposed, which, in either case, could reasonably be expected to have a Material
Adverse Effect.
5.17 SOLVENCY. The Borrower and its Subsidiaries, taken as a whole,
are Solvent after giving effect to the transactions contemplated by the Loan
Documents.
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EXHIBIT 10.1
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation 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 satisfactory to the Administrative Agent and
the Required Lenders:
(a) as soon as available, but in any event within 105 days after
the end of each fiscal year of the Borrower, 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 amounts for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, audited and accompanied by a report and
opinion of an independent certified public accountant of nationally recognized
standing reasonably acceptable to the Required Lenders (it being understood
that any of the four largest public accounting firms having its principal place
of business in the United States shall be acceptable without approval of the
Required Lenders), which report and opinion shall be prepared in accordance
with generally accepted auditing standards and shall not be subject to any
qualifications or exceptions as to the scope of the audit or the going concern
status of the Borrower; and
(b) as soon as available, but in any event within 50 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Borrower, 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 and certified by a Responsible
Officer of the Borrower as fairly presenting the financial condition, results
of operations and cash flows of the Borrower and its Subsidiaries in accordance
with GAAP, subject only to normal, recurring year end adjustments and the
absence of certain footnotes.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the
Administrative Agent and each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified
public accountants rendering an opinion on such financial statements and
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default under the financial covenants set
forth in Section 7.10 or, if any such Default or Event of Default shall exist,
stating the nature and status of such event;
56
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance
Certificate 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 or management letters submitted to
the board of directors (or the audit committee of the board of directors) of
the Borrower by independent accountants in connection with the accounts or
books of the Borrower or any Subsidiary, 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 Securities and Exchange Commission under Section
13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required
to be delivered to the Administrative Agent pursuant hereto; and
(e) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
Each document required to be delivered pursuant to Section 6.01(a) or
(b) or Section 6.02(d) shall be deemed to have been delivered on the date on
which such document is posted on the Securities and Exchange Commission's
website at xxx.xxx.xxx (the "SEC Website") or on an Internet website
established by the Administrative Agent with Intralinks, Inc. or other
similarly available electronic media (each of the foregoing an "Informational
Website"); provided that (i) the Borrower shall deliver paper copies of all
such documents to the Administrative Agent or any Lender that requests the
Borrower to deliver such paper copies until a request to cease delivering paper
copies is given by the Administrative Agent or such Lender and (ii) the
Administrative Agent and each Lender shall be notified by electronic mail of
the applicable Informational Website and of the posting of each such document.
The Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above in this paragraph, 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.
6.03 NOTICES. Promptly notify the Administrative Agent and each
Lender:
(a) of the occurrence of any Default or Event of 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 the
Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws;
57
(c) of any litigation, investigation or proceeding affecting the
Borrower or any Subsidiary in which the amount involved (excluding amounts
covered by applicable insurance as to which no reservation of rights is in
effect) exceeds the Threshold Amount, or in which injunctive relief or similar
relief is sought, which relief, if granted, could reasonably be expected to
have a Material Adverse Effect;
(d) of the occurrence of any ERISA Event;
(e) of any material change in accounting policies or financial
reporting practices by the Borrower or any Subsidiary;
(f) of any public or private announcement by Xxxxx'x or S&P of
any change in a Debt Rating or change in outlook as to the Borrower; and
(g) Each notice pursuant to this Section shall be accompanied 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 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 or other Loan Document that have been breached.
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 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;
(b) all lawful claims which, if unpaid, would by law become a Lien upon its
property; 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.
6.05 PRESERVATION OF EXISTENCE, ETC. Except in a transaction
permitted by Section 7.04 or 7.05, preserve, renew and maintain in full force
and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization; take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in
the normal conduct of its business, and preserve or renew all of its registered
Intellectual Property, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) 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;
and (b) make all necessary repairs thereto and renewals and replacements
thereof except where the failure to do so could not reasonably be expected to
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 any self-insurance
compatible with the following standards) as are customarily carried under
similar circumstances by such other Persons.
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6.08 COMPLIANCE WITH LAWS AND CONTRACTUAL OBLIGATIONS. Comply in
all material respects with the requirements of all Laws and Contractual
Obligations applicable to it or to its business or property, except in such
instances in which (i) such requirement of Law or Contractual Obligation is
being contested in good faith by appropriate proceedings diligently conducted
or a bona fide dispute exists with respect thereto or (ii) with respect to
Contractual Obligations only, the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) 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; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over the Borrower or such Subsidiary, as the
case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect
any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its officers, and independent public
accountants, at such reasonable times during normal business hours and as often
as may be reasonably desired, upon reasonable advance notice to the Borrower
and, prior to an Event of Default, at the expense of the Lenders; provided,
however, that when an Event of Default has occurred and is continuing the
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice.
6.11 COMPLIANCE WITH ERISA. Do, and cause each of its ERISA
Affiliates to do, each of the following: (a) maintain each Plan in compliance
in all material respects with the applicable provisions of ERISA, the Code and
other Federal or state law; (b) cause each Plan which is qualified under
Section 401(a) of the Code to maintain such qualification; and (c) make all
required contributions to any Plan subject to Section 412 of the Code.
6.12 USE OF PROCEEDS. Use the proceeds of the Credit Extensions
(i) for working capital, capital expenditures, and other general corporate
purposes not in contravention of any Law or of any Loan Document; (ii) to
refinance all indebtedness outstanding under the Existing Credit Facility; and
(iii) to provide CP Backup Advances as commercial paper liquidity.
6.13 PROTECTED SUBSIDIARIES AND TUPPERWARE FINANCE. (a) Maintain
at all times Dart or 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 Intellectual Property, (b)
cause Tupperware Finance 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 and (ii) to continue to operate its business
substantially as heretofore conducted and (c) cause each Guarantor to be at all
times a wholly-owned Subsidiary.
6.14 MAINTAIN PRINCIPAL LINE OF BUSINESS. Maintain on a
consolidated basis the principal line of business of the Borrower and its
Subsidiaries as it exists on the Closing Date.
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ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation 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, assets or revenues, whether now owned or hereafter
acquired, other than the following:
(a) Liens created or arising pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01
and any renewals or extensions thereof, provided that the property covered
thereby is not increased and any renewal or extension of the obligations
secured or benefited thereby does not increase the maximum outstanding
principal amount of such obligations;
(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, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business with
respect to which the obligation secured thereby is not overdue for a period of
more than 30 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 and appeal
bonds, 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 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 in an
aggregate amount not in excess of the Threshold Amount (except to the extent
covered by independent third-party insurance as to which the insurer has
acknowledged in writing its obligation to cover), unless any such judgment
remains undischarged for a period of more than 30 consecutive days during which
execution is not effectively stayed;
60
(i) Liens securing (i) indebtedness of a Subsidiary to the
Borrower or a Guarantor, or (ii) Indebtedness of any Subsidiary other than a
Dart or a Protected Subsidiary, to any wholly-owned Subsidiary;
(j) Liens of a consignor of merchandise to the Borrower or any
Subsidiary on such consignor's merchandise;
(k) Liens in addition to those described in clauses (a) through
(j) above on assets other than equity interests in any Subsidiary securing
Indebtedness other than Intercompany Indebtedness (including Indebtedness
committed to the Borrower or any Subsidiary but not advanced) in aggregate
outstanding principal amount not to exceed $35,000,000 at any time;
(l) Liens on Receivables subject to Asset Securitizations and any
Related Security therefor.
7.02 INVESTMENTS. Make any Investments, except:
(a) those permitted by subsections (b) through (g) plus those
that are existing on the date hereof and listed on Schedule 7.02;
(b) Investments held by the Borrower or a Subsidiary in the form
of cash equivalents or short-term marketable securities;
(c) (i) non-cash loans to officers and employees in connection
with the acquisition of shares pursuant to the Borrower's management stock
purchase plan in transactions that have no net effect on Consolidated Net Worth
and (ii) advances to officers, directors and employees of the Borrower and
Subsidiaries in an aggregate amount not to exceed $25,000,000 (including those
existing on the date hereof which are listed on Schedule 7.02 to the extent
they are outstanding and advances to officers, directors and employees pursuant
to Section 7.02(h)) at any time outstanding;
(d) Investments of any Subsidiary in the Borrower or of the
Borrower or any Subsidiary in another Subsidiary;
(e) Investments consisting of extensions of credit in the nature
of accounts receivable or notes receivable arising from the sale or lease of
goods or services or the sale of real estate in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;
(f) Permitted Acquisitions;
(g) Investments permitted by Section 7.04; and
(h) other Investments in aggregate outstanding principal amount
not to exceed, at any time, $25,000,000.
7.03 INDEBTEDNESS. Allow or permit any Subsidiary other than
Tupperware Finance to create, incur, assume or suffer to exist any Indebtedness
other than (a) Indebtedness existing on
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the date hereof set forth on Schedule 7.03, (b) Contingent Obligations of Dart
guaranteeing Senior Indebtedness (other than Contingent Obligations) incurred
by the Borrower or Tupperware Finance, or (c) Indebtedness of Subsidiaries
other than Protected Subsidiaries, without duplication for any Contingent
Obligations permitted hereunder of any Subsidiary guaranteeing or in effect
guaranteeing Indebtedness of a Subsidiary, in an aggregate outstanding
principal amount (including Indebtedness of such Subsidiaries described on
Schedule 7.03) not greater than $100,000,000; provided that any Indebtedness
guaranteed by Dart or Tupperware Finance shall be Senior Indebtedness.
7.04 FUNDAMENTAL CHANGES. Merge, consolidate with or into, or
convey, transfer, lease or otherwise 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 or Event of Default exists or would result therefrom:
(a) any Subsidiary may merge with or sell substantially all its
assets (upon voluntary liquidation or otherwise) to the Borrower, provided
that, if a merger, the Borrower shall be the continuing or surviving Person;
(b) any Subsidiary other than Dart or a Protected Subsidiary may
merge with or sell substantially all its assets (upon voluntary liquidation or
otherwise) to any one or more Subsidiaries, provided that if the seller in a
sale of assets transaction is a wholly-owned Subsidiary, then the purchaser
must also be a wholly-owned Subsidiary;
(c) Any Subsidiary of Dart may merge with and into Dart, merge
with any other Subsidiary of Dart, or sell substantially all of its assets
(upon voluntary liquidation or otherwise) to Dart or another Subsidiary of
Dart; provided that if the seller in such sale of assets transaction is a
wholly-owned Subsidiary, then the purchaser must be a wholly-owned Subsidiary;
and
(d) Any Subsidiary of Tupperware Finance may merge with and into
Tupperware Finance, merge with any other Subsidiary of Tupperware Finance, or
sell substantially all of its assets (upon voluntary liquidation or otherwise)
to Tupperware Finance or another Subsidiary of Tupperware Finance; provided
that if the seller in such sale of assets transaction is a wholly-owned
Subsidiary, then the purchaser must be a wholly-owned Subsidiary.
7.05 SALES OF ASSETS. Sell, lease or otherwise dispose of any
substantial part (as defined below) of the assets of Borrower and its
Subsidiaries; provided, however, that Borrower or any Subsidiary may sell,
lease or otherwise dispose of assets constituting a substantial part of the
assets of Borrower and its Subsidiaries if such assets are sold in an arms
length transaction and, at such time and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing and an amount
equal to the Net Proceeds, including proceeds from any Asset Securitization,
received from such sale, lease or other disposition shall be used within 365
days of such sale, lease or disposition, in any combination:
(a) to acquire productive assets used or useful in carrying on
the business of Borrower and its Subsidiaries and having a value at least equal
to the value of such assets sold, leased or otherwise disposed of; or
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(b) to prepay or retire commercial paper of Borrower and/or its
Subsidiaries or to prepay Outstanding Amounts.
As used in this Section 7.05, a sale, lease or other disposition of
assets shall be deemed to be a "substantial part" of the assets of Borrower and
its Subsidiaries if the book value of all other assets sold, leased or
otherwise disposed of by Borrower and its Subsidiaries during any period of 24
consecutive months, exceeds 20% of the book value of Consolidated Total Assets,
determined as of the end of the fiscal year immediately preceding such sale,
lease or other disposition; provided that there shall be excluded from any
determination of a "substantial part" any (i) sale or disposition of assets in
the ordinary course of business of Borrower and its Subsidiaries, (ii) any
transfer of assets from Borrower to a wholly-owned Subsidiary or from any
Subsidiary to Borrower, (iii) any Excluded Sale Leaseback Transaction and (iv)
any sale or other disposition of the properties listed on Schedule 7.05 hereto.
7.06 ERISA. At any time engage in a transaction which could be
subject to Section 4069 or 4212(c) of ERISA, or permit any Plan to (a) engage
in any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (b) fail to comply with ERISA or any other applicable Laws; or (c) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA), which, with respect to each event listed above, could reasonably be
expected to have a Material Adverse Effect.
7.07 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind other than loans described in Section 7.02(c) with any Affiliate of
the Borrower, other than for compensation and upon fair and reasonable terms
with Affiliates in transactions that are otherwise permitted hereunder no less
favorable to the Borrower or Subsidiary than would be obtained in a comparable
arm's-length transaction with a Person other than an Affiliate.
7.08 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation
that limits the ability (a) of any Subsidiary to make Restricted Payments to
the Borrower or to otherwise transfer property to the Borrower or (b) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person, other than standard and customary negative pledge
provisions in property acquired with the proceeds of any capital lease or
purchase money financing that extend and apply only to such acquired property.
7.09 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.
7.10 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 (A)
$82,000,000, (B) an amount equal to 25% of the Consolidated Net Income earned
in each fiscal quarter ending after December 29, 2001 (with no deduction for a
net loss in any such fiscal quarter) and (C) an amount equal to 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
capital stock of the Borrower
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(including upon any conversion of debt securities of the Borrower into such
capital stock) minus (D) a cumulative reduction not to exceed $15,000,000 of
Shareholders' Equity resulting from the application of Statements of Financial
Accounting Standards No. 142 specifically related to BeautiControl, Inc.
(b) Interest Coverage Ratio. As of the end of any fiscal quarter,
permit the Interest Coverage Ratio computed using the most recent four fiscal
quarters then ended to be less than 3.0 to 1.0.
(c) Leverage Ratio. As of the end of any fiscal quarter, permit
the Leverage Ratio computed using the most recent four fiscal quarters to be
greater than 3.0 to 1.0.
7.11 TUPPERWARE FINANCE. Permit at any time Tupperware Finance to
engage in any business other than incurring Indebtedness and acting as a
finance conduit and related activities for the Borrower and its Subsidiaries
located outside the United States.
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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 fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan, or any L/C
Obligation, or (ii) within three days after the same becomes due interest on
any Loan or on any L/C Obligation, or any facility, utilization or other fee
due hereunder, or (iii) within five days after the same becomes due, 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 (i) contained in any of Section 6.03, 6.05
(with respect to maintaining the continued existence of any Loan Party), 6.10,
6.12, 6.13 or 6.14 or Article VII (other than Section 7.07 or 7.08) or (ii)
contained in either Section 7.07 or 7.08 and such failure continues for five
days; or
(c) Other Defaults. Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (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 notice of such default shall have been
given to the Borrower by the Administrative Agent; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact 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 or
misleading when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Contingent
Obligation (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 Contingent Obligation 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
Contingent Obligation (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
or redeemed (automatically or otherwise) prior to its stated maturity, or such
Contingent Obligation 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
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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
the Borrower or such Subsidiary as a result thereof is greater than the
Threshold Amount; or (iii) there occurs any Event of Default under the 364-Day
Revolving Credit Agreement; or
(f) Insolvency Proceedings, Etc. The Borrower or any of its
Subsidiaries institutes or takes any action to indicate its consent to or
approval of the institution of any proceeding under any Debtor Relief Law, or
makes an 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 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 the Borrower
or any of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth in this subsection (f); or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any
Subsidiary 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 60 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any
Subsidiary (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
independent third-party insurance as to which the insurer does not dispute
coverage), or (ii) any non-monetary final judgment that has, or could
reasonably be expected to have, 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; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time
after its execution and delivery and for any reason other than the agreement of
all the Lenders or satisfaction in full of all the Obligations, ceases to be in
full force and effect, or is declared by a court of competent jurisdiction to
be null and void, invalid or unenforceable in any respect; or any Loan Party
denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan Document; or
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(k) Change of Control. There occurs any Change of Control with
respect to the Borrower.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
occurs, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders,
(a) declare the commitment of each Lender to make Loans, the
commitment of the Swing Line Lender to make Swing Line 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) plus
the Letter of Credit fees payable with respect to such Letter of Credit
(calculated at the Applicable Margin then in effect for the period from the
date of such cash collateralization until the expiry date of such Letter of
Credit); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in
subsection (f) of Section 8.01, 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.
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ARTICLE IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" herein and in the other Loan
Documents with reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith until such time (and except for so long) as the Administrative Agent
may agree at the request of the Required Lenders to act for the L/C Issuer with
respect thereto; provided, however, that the L/C Issuer shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this
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 the application and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term "Administrative
Agent" as used in this Article IX included the L/C Issuer with respect to such
acts or omissions, and (ii) as additionally provided herein with respect to the
L/C Issuer.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute
any of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in
the absence of gross negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein),
or (b) be responsible in any manner to any Lender or participant for any
recital,
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statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
for any failure of any Loan Party or any other party to any Loan Document to
perform its obligations hereunder or thereunder. No Agent-Related Person shall
be under any obligation to any Lender or participant to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party or any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any Loan Party), independent accountants
and other experts selected by the Administrative Agent. The Administrative
Agent shall be fully justified in failing or refusing to take any action under
any Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Required Lenders or all the Lenders, if required hereunder, and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and participants. Where this Agreement expressly
permits or prohibits an action unless the Required Lenders otherwise determine,
the Administrative Agent shall, and in all other instances, the Administrative
Agent may, but shall not be required to, initiate any solicitation for the
consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in 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 either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice
from a Lender or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default." The Administrative Agent will notify the Lenders of its receipt of
any such notice. The Administrative Agent shall take such action with respect
to such Default or Event of Default as may be directed by the Required Lenders
in accordance with Article VIII; provided, however, that unless and until the
Administrative Agent has received any such direction, the
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Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their Subsidiaries, and all applicable
bank or other regulatory Laws relating to the transactions contemplated hereby,
and made its own decision to enter into this Agreement and to extend credit to
the Borrower and the other Loan Parties hereunder. Each Lender also represents
that it will, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other condition
and creditworthiness of the Borrower and the other Loan Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent herein, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the Borrower or any of its
Affiliates which may come into the possession of any Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities to the extent determined in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Person's own gross negligence or willful misconduct;
provided, however, that no action taken in accordance with the directions of
the Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for its
ratable share of any costs or out-of-pocket expenses (including Attorney Costs
and the costs and expenses incurred in connection with the use of Intralinks,
Inc. or other comparable information transmission systems in connection with
this Agreement) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of
70
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall survive termination of the
Aggregate Commitments, the payment of all Obligations hereunder and the
resignation of the Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Borrower and its Affiliates as though Bank of America were
not the Administrative Agent or the L/C Issuer hereunder and without notice to
or consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
the Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the
Administrative Agent or the L/C Issuer, and the terms "Lender" and "Lenders"
include Bank of America in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders; provided
that any such resignation by Bank of America shall also constitute its
resignation as L/C Issuer and Swing Line Lender. If the Administrative Agent
resigns under this Agreement, the Required Lenders shall appoint from among the
Lenders a successor administrative agent for the Lenders which successor
administrative agent shall be consented to by the Borrower at all times other
than during the existence of an Event of Default (which consent of the Borrower
shall not be unreasonably withheld or delayed). If no successor administrative
agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Borrower, a successor administrative agent from among
the Lenders. Upon the acceptance of its appointment as successor administrative
agent hereunder, the Person acting as such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent, L/C Issuer and Swing Line Lender and the respective terms
"Administrative Agent," "L/C Issuer" and "Swing Line Lender" shall mean such
successor administrative agent, Letter of Credit issuer and swing line lender,
and the retiring Administrative Agent's appointment, powers and duties as
Administrative Agent shall be terminated and the retiring L/C Issuer's and
Swing Line Lender's rights, powers and duties as such shall be terminated,
without any other or further act or deed on the part of such retiring L/C
Issuer or Swing Line Lender or any other Lender, other than the obligation of
the successor L/C Issuer to issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession. After
any retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Article IX and Sections 10.04 and 10.05 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative
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Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.
9.10 OTHER AGENTS; LEAD MANAGERS. None of the Lenders identified
on the facing page or signature pages of this agreement as a "Syndication
Agent," "Co-Agent," "Lead Manager," or "Arranger" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none
of the Lenders so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
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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, unless in writing and signed by each of the
Lenders directly affected thereby and by the Borrower, and acknowledged by the
Administrative Agent, do any of the following:
(a) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.02);
(b) extend or postpone any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the proviso
below) 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 at the Default Rate;
(d) change the percentage of the Aggregate Commitments or of the
aggregate unpaid principal amount of the Loans and L/C Obligations which is
required for the Lenders or any of them to take any action hereunder;
(e) change the Pro Rata Share or Voting Percentage of any Lender;
or
(f) amend this Section, or Section 2.13, or any provision herein
providing for consent or other action by all the 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 Required Lenders or
each directly-affected Lender, as the case may be, affect the rights or duties
of the L/C Issuer under this Agreement or any Letter of Credit Application
relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Required Lenders or each directly-affected
Lender, as the case may be, 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
Required Lenders or each directly-affected Lender, as the case may be, affect
the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document; and (iv) the
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Agent/Arranger Fee Letter may be amended, or rights or privileges thereunder
waived, in a writing executed only by the respective parties thereto.
Notwithstanding anything to the contrary herein, any Lender that has a Voting
Percentage of zero shall not have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Pro Rata Share of such
Lender may not be increased without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission) and mailed (via certified mail, postage
prepaid with return receipt requested), faxed or delivered, to the address,
facsimile number or (subject to subsection (c) below) electronic mail address
specified for notices on Schedule 10.02; or, in the case of the Borrower, the
Administrative Agent, the L/C Issuer or the Swing Line Lender, to such other
address as shall be designated by such party in a notice to the other parties,
and in the case of any other party, to such other address as shall be
designated by such party in a notice to the Borrower, the Administrative Agent,
the L/C Issuer and the Swing Line Lender. All such notices and other
communications shall be deemed to be given or made upon the earlier to occur of
(i) actual receipt by the intended recipient and (ii) (A) if delivered by hand
or by courier, when signed for by the intended recipient (which need not be any
natural person to whose attention such communication is directed, in the case
of communications to Persons other than natural Persons); (B) if delivered by
mail, when delivered; (C) if delivered by facsimile, when sent and receipt has
been confirmed by telephone; and (D) if delivered by electronic mail (which
form of delivery is subject to the provisions of subsection (c) below), when
delivered; provided, however, that notices and other communications to the
Administrative Agent, the L/C Issuer and the Swing Line Lender pursuant to
Article II shall not be effective until actually received by such Person. Any
notice or other communication permitted to be given, made or confirmed by
telephone hereunder shall be given, made or confirmed by means of a telephone
call to the intended recipient at the number specified on Schedule 10.02, or to
such other number as shall be designated by such party in a notice to the
Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender,
it being understood and agreed that a voicemail message shall in no event be
effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on all
Loan Parties, the Administrative Agent and the Lenders. The Administrative
Agent may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to
request or deliver the same shall not limit the effectiveness of any facsimile
document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet
and intranet websites may be used only to distribute routine communications,
such as financial statements and other information as provided in Section 6.02,
and to distribute Loan Documents for execution by the parties thereto, and may
not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Revolving
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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
each Agent-Related Person and each Lender 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 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 or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder 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 or therein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower agrees (a)
to pay or reimburse the Administrative Agent for all reasonable costs and
expenses incurred in connection with the development, due diligence,
preparation, negotiation, syndication and execution of this Agreement and the
other Loan Documents and any amendment, waiver, consent or other modification
of the provisions hereof and thereof (whether or not the transactions
contemplated hereby or thereby are consummated), and the consummation and
administration of the transactions contemplated hereby and thereby, including
all Attorney Costs and the costs and expenses incurred in connection with the
use of Intralinks, Inc. or other similar information transmission systems in
connection with this Agreement, and (b) to pay or reimburse the Administrative
Agent and each Lender for all costs and expenses incurred in connection with
the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or the other Loan Documents (including all such
costs and expenses incurred during any "workout" or restructuring in respect of
the Obligations and during any legal proceeding, including any proceeding under
any Debtor Relief Law), including all Attorney Costs. The foregoing costs and
expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and the cost of independent
public accountants and other outside experts retained by the Administrative
Agent or any Lender. The agreements in this Section shall survive the
termination of the Aggregate Commitments and repayment of all other
Obligations.
10.05 INDEMNIFICATION BY THE BORROWER; LIMITATION OF LIABILITY.
Whether or not the transactions contemplated hereby are consummated, the
Borrower shall indemnify and hold harmless each Agent-Related Person, the
Arrangers, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in
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connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated thereby
or the consummation of the transactions contemplated thereby, (b) any
Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit),
(c) any actual or alleged presence or release of Hazardous Materials on or from
any property currently or formerly owned or operated by the Borrower or any
Subsidiary, or any Environmental Liability related in any way to the Borrower
or any Subsidiary, or (d) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation
or proceeding) and regardless of whether any Indemnitee is a party thereto (all
the foregoing, collectively, the "Indemnified Liabilities"); provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements are determined by a court of competent
jurisdiction by final and non-appealable judgment by a court of competent
jurisdiction to have resulted primarily from the gross negligence or willful
misconduct of such Indemnitee or as shall have resulted from any claim asserted
against an Indemnitee by another Indemnitee. The Borrower agrees that no
Indemnitee shall have any liability (whether direct or indirect, in contract or
tort or otherwise) to it or any of its Subsidiaries, security holders or
creditors as a result for any action taken or not taken by it arising out of,
related to or taken in connection with any Loan Document or the consummation of
the transactions contemplated hereby or the actual or proposed use of Loan or
Letter of Credit proceeds, except to the extent that such liability is found in
a final non-appealable judgment by a court of competent jurisdiction to have
directly resulted from the gross negligence or willful misconduct of such
Indemnitee, and in no event shall any Indemnitee be liable thereto for special,
consequential, punitive or indirect damages. Without limitation of the
foregoing, no Indemnitee shall be liable for any damages arising from the use
by others of information or other materials obtained through Intralinks or
other comparable electronic transmission systems utilized in connection with
the credit facilities provided hereunder. The agreements in this Section shall
survive the resignation of the Administrative Agent, the replacement of any
Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all the other Obligations. All amounts due under this Section
10.05 shall be payable within ten Business Days after demand therefor.
10.06 PAYMENTS SET ASIDE. To the extent that the Borrower makes a
payment to the Administrative Agent or any Lender, or the Administrative Agent
or any Lender exercises its right of set-off, and such payment or the proceeds
of such set-off 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 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 set-off had not occurred,
and (b) each Lender severally agrees to pay to the Administrative Agent upon
demand its applicable share of any amount so recovered from or paid by the
Administrative Agent, plus interest thereon
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from the date of such demand to the date such payment is made at a rate per
annum equal to the applicable Federal Funds Rate from time to time in effect.
10.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective 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 each Lender (and any attempted assignment or transfer by the
Borrower without such consent 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 Indemnitees) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) 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 subsection (b), participations in L/C Obligations and
participations 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) 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 a
"Trade Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $1,000,000 unless each of the Administrative Agent
and, so long as no Default or Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed), (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 and the Commitment
assigned, except that this clause (ii) shall not apply to rights in respect of
Swing Line Loans, and (iii) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500. 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 10.05 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 new or
replacement Notes to the assigning Lender and the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this
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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
subsection (d) of this Section.
(c) 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, 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 the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) 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 that would (i) postpone any date upon which any payment of money
is scheduled to be paid to such Participant or (ii) reduce the principal,
interest, fees or other amounts payable to 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
subsection (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.09 as though
it were a Lender, provided such Participant agrees to be subject to Section
2.13 as though it were a Lender.
(e) 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 10.15 as though it were a Lender.
(f) 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 Notes, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve
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Bank; 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) Notwithstanding anything to the contrary contained herein,
any Lender that is a Fund that invests in bank loans may create a security
interest in all or any portion of the advances owing to it and the Note or
Notes held by it to the trustee for holders of obligations owed, or securities
issued, by such Fund as security for such obligations or securities, provided
that unless and until such trustee actually becomes a Lender in compliance with
the other provisions of this Section 10.07, (i) no such pledge shall release
the pledging Lender from any of its obligations under the Loan Documents and
(ii) such trustee shall not be entitled to exercise any of the rights of a
Lender under the Loan Documents even though such trustee may have acquired
ownership rights with respect to the pledged interest through foreclosure or
otherwise.
(h) Notwithstanding anything to the contrary contained herein, if
at any time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon 30 days' notice to the
Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon five Business
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. Bank of America 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 Swing Line Lender to make Swing Line Loans or the Lenders to make
Revolving Loans or fund participations in the manner set forth in Section
2.03(c)). If Bank of America resigns as Swing Line 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
termination, including the right to require the Lenders to make Revolving Loans
or fund participations in outstanding Swing Line Loans in the manner set forth
in Section 2.04(c).
10.08 CONFIDENTIALITY. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (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; (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process; (d)
to any other party to this Agreement; (e) in connection with the exercise of
any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder; (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any Eligible Assignee of or Participant in, or any prospective Eligible
Assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty's or prospective
counterparty's professional advisor) to any credit derivative transaction
relating to obligations of the Borrower; (g) with the consent of the
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Borrower; (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 or any Lender on a nonconfidential basis from a source
other than the Borrower; or (i) to the National Association of Insurance
Commissioners or any other similar organization or any nationally recognized
rating agency that requires access to information about a Lender's or its
Affiliates' investment portfolio in connection with ratings issued with respect
to such Lender or its Affiliates. In addition, the Administrative Agent and the
Lenders may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to the Administrative Agent and the Lenders in
connection with the administration and management of this Agreement, the other
Loan Documents, the Commitments, and the Credit Extensions. For the purposes of
this Section, "Information" means all information received from the Borrower
relating to the Borrower or its business, other than any such information that
is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by the Borrower; provided that, in the case of
information received from the Borrower 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.
10.09 SET-OFF. In addition to any rights and remedies of the
Lenders provided by law, upon the occurrence and during the continuance of any
Event of Default, each Lender is authorized at any time and from time to time,
without prior notice to the Borrower, any such notice being waived by the
Borrower to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such Lender to or
for the credit or the account of the Borrower against any and all Obligations
owing to such Lender, now or hereafter existing, irrespective of whether or not
the Administrative Agent or such Lender shall have made demand under this
Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured. Each Lender agrees promptly to notify the Borrower and
the Administrative Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.
10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If 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.
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10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter. In the event of any conflict between
the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by 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 Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of 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
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
10.14 SEVERABILITY. Any provision of this Agreement and the other
Loan Documents to which the Borrower is a party that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.15 TAX FORMS. (a) Each Lender that is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code (a "Foreign
Lender") shall deliver to the Administrative Agent, prior to receipt of any
payment subject to withholding under the Code (or upon accepting an assignment
of an interest herein), two duly signed completed copies of either IRS Form
W-8BEN or any successor thereto (relating to such Person and entitling it to an
exemption from, or reduction of, withholding tax on all payments to be made to
such Person by the Borrower pursuant to this Agreement) or IRS Form W-8ECI or
any successor thereto (relating to all payments to be made to such Person by
the Borrower pursuant to this Agreement) or such other evidence satisfactory to
the Borrower and the Administrative Agent that such Person is entitled to an
exemption from, or reduction of, U.S. withholding tax. Thereafter and from time
to time, each such Person shall (i) promptly submit to the Administrative Agent
such additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
the Borrower and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such
81
Person by the Borrower pursuant to this Agreement, (ii) promptly notify the
Administrative Agent of any change in circumstances which would modify or
render invalid any claimed exemption or reduction, and (iii) take such steps as
shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re-designation
of its Lending Office) to avoid any requirement of applicable Laws that the
Borrower make any deduction or withholding for taxes from amounts payable to
such Person. If such Person fails to deliver the above forms or other
documentation, then the Administrative Agent may withhold from any interest
payment to such Person an amount equivalent to the applicable withholding tax
imposed by Sections 1441 and 1442 of the Code, without reduction.
(b) Upon the request of the Administrative Agent, each Lender
that is a "United States person" within the meaning of Section 7701(a)(30) of
the Code shall deliver to the Administrative Agent two duly signed completed
copies of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the
Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the termination of the Aggregate
Commitments, repayment of all Obligations and the resignation of the
Administrative Agent.
10.16 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, the LAW OF THE STATE OF NEW YORK applicable to agreements made
and to be performed entirely within such State; PROVIDED THAT THE
ADMINISTRATIVE Agent AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX
XXXX SITTING IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER, THE ADMINISTRATIVE Agent AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY
LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF
82
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE.
10.17 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
[Signatures on following pages.]
83
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/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President,
General Counsel and Secretary
Signature Page - 1
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Signature Page - 2
BANK OF AMERICA, N.A., as a Lender,
L/C Issuer and Swing Line Lender
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Signature Page - 3
CITIBANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Signature Page - 4
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Signature Page - 5
XX XXXXXX XXXXX BANK
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: SVP/Regional Manager
Signature Page - 6
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx X. Toulouse
----------------------------------------
Name: Xxxxx X. Toulouse
Title: Vice President
Signature Page - 7
ABN AMRO BANK N.V.
By: /s/ Xxxxx-Xxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxx-Xxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
Signature Page - 0
XXX XXXXXXXXXXX XXXX, XXX XXXX BRANCH
By: /s/ Xxxxxxx Xxx
----------------------------------------
Name: Xxxxxxx Xxx
Title: General Manager
Signature Page - 9
BANK HAPOALIM, B.M.
By: /s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx Xxxxxx X. Xxxxxxxx
Title: VP-SR Lending Officer Vice President
Signature Page - 10
MIZUHO CORPORATE BANK, LIMITED
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Signature Page - 00
XXXXX XXXXXXXXX XXX XXXXXX X.X.X.,
XXX XXXX BRANCH
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
Signature Page - 12
KBC BANK N.V.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Signature Page - 13
SCHEDULE 1.01
EXISTING LETTERS OF CREDIT
Letter of Credit
Number Stated Amount Expiry Date Beneficiary
---------------- ------------- ----------- -----------
3028664 $ 1,596,000.00 8/31/2002 Lumbermens Mutual Casualty
Company
3033822 $ 1,000,000.00 5/31/2002 The Travelers Indemnity
Company
3038010 4,000,000 euro 5/31/2002 Commerzbank
Aktiengesellschaft
$US (3,489,600.00)
3047683 $ 1,208,688.26 4/5/2003 Xxxx'x Home Centers
1
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
------ ---------- --------------
Bank of America, N.A. $ 21,000,000 14.000000000%
Citibank, N.A. 21,000,000 14.000000000%
Fleet National Bank 18,000,000 12.000000000%
XX Xxxxxx Xxxxx Bank 18,000,000 12.000000000%
The Northern Trust Company 15,000,000 10.000000000%
ABN AMRO Bank N.V. 12,000,000 8.000000000%
The Norinchukin Bank, New York Branch 9,000,000 6.000000000%
Bank Hapoalim, B.M. 9,000,000 6.000000000%
Mizuho Corporate Bank, Limited 9,000,000 6.000000000%
Banca Nazionale Del Lavoro S.p.A., New York Branch 9,000,000 6.000000000%
KBC Bank N.V. 9,000,000 6.000000000%
Total $150,000,000 100.000000000%
1
SCHEDULE 5.06
LITIGATION
None.
1
SCHEDULE 5.09
ENVIRONMENTAL MATTERS
None.
1
SCHEDULE 5.11
TAX MATTERS
None.
1
SCHEDULE 5.13
SUBSIDIARIES
AND OTHER EQUITY INVESTMENTS
Part (a) Subsidiaries
(As of March 21, 2002)
The following subsidiaries are wholly owned by Tupperware Corporation or a
subsidiary of Tupperware Corporation (degree of remoteness from the registrant
is shown by indentations).
Tupperware Corporation
Dart Industries Inc.
Tupperware Espana, S.A.
Tupperware, Industria Lusitana de Artigos Domesticos,
Limitada
Tupperware (Portugal) Artigos Domesticos, Lda.
Deerfield Land Corporation
Tupperware Far East, Inc.
Tupperware Turkey, Inc.
Dart Far East Sdn. Bhd.
Dart de Venezuela, C.A.
Tupperware Colombia X.X.
Xxxx do Brasil Industria e Comercio Ltda.
Daypar Participacoes Ltda
Academia de Negocios S/C Ltda.
Tupperware Hellas S.A.I.C.
Tupperware Del Ecuador Cia. Ltda.
Dart Industries Hong Kong Limited
Dart Industries (New Zealand) Limited
Tupperware New Zealand Staff Superannuation Plan
Dart, S.A. de C.V.
Servicios Especializados de Arrendamiento en Latinoamerica S.A.
de C.V.
Dartco Manufacturing Inc.
Premiere Products, Inc.
Premiere Korea Ltd.
Premiere Marketing Company
Exportadora Xxxxx, X.X. de C.V.
Tupperware Australia Pty. Ltd.
Tupperware Singapore Pte. Ltd.
Newco Logistica e Participacoes Ltda.
Centro de Distribuicao RS Ltda.
Distribuidora Comercial Nordeste de Produtos
Plasticos Ltda.
Distribuidora Comercial Paulista de Plasticos Ltda.
Centro de Distribuicao Mineira de Produtos de
Plastico Ltda.
Distribuidora Esplanada de Produtos Plasticos Ltda.
Corcovado-Plast Distribuidora de Artigos Domesticos
Ltda.
Distribuidora Baiana de Produtos Plasticos Ltda
1
Uniao Norte Distribuidora de Produtos Plasticos Ltda
Eixo Sul Brasileiro de Artigos Domesticos Ltda.
Centro Oeste Distribuidora de Produtos Plasticos
Ltda.
Premiere Manufacturing, Inc.
Tupperware U.S., Inc.
Tupperware Distributors, Inc.
Tupperware Factors Inc.
Xxxxxxxxxx.xxx, Inc.
Tupperware Canada Inc.
Dart Staff Superannuation Fund Pty Ltd.
Importadora Y Distribuidora Importupp Limitada
Tupperware Iberica S.A.
Tupperware (Thailand) Limited
Tupperware Uruguay X.X.
Xxxx Executive Pension Fund Limited
Dart Pension Fund Limited
Tupperware U.K. Holdings, Inc.
The Tupperware Foundation
Tupperware Products, Inc.
Tupperware de El Salvador, S.A. de C.V.
Tupperware del Peru S.R.L.
Dart Holdings, S. de X.X.
Tupperware Honduras, S. de X.X.
Tupperware de Costa Rica, S.A.
Tupperware de Guatemala, S.A.
Asociacion Nacional de Distribuidores de Productos Tupperware,
A.C.
Tupperware International Holdings Corporation
Tupperware International Holdings BV
Tupperware Israel Ltd.
Tupperware Belgium N.V.
Tupperware France S.A.
Tupperware Polska Sp.zo.o
Dart Argentina S.A.
TWP S.A.
Tupperware Asia Pacific Holdings Private Limited
Tupperware India Private Limited
Tupperware China, LLC
Tupperware (China) Company Limited
Dart (Philippines), Inc.
Tupperware Realty Corporation
Tupperware Philippines, Inc.
Tupperware Holdings B.V.
Tupperware Services GmbH
Tupperware, Ltd.
Tupperware Nederland Properties B.V.
Tupperware Nederland B.V.
Tupperware Deutschland GmbH
Tupperware Osterreich G.m.b.H.
Tupperware Southern Africa (Proprietary)
Limited
2
Tupperware Products B.V.
Tupperware (Suisse) SA
Tupperware Products S.A.
Tupperware d.o.o.
Tupperware Bulgaria EOOD
Tupperware Eesti OU
UAB "Tupperware"
SIA Tupperware Latvia
Tupperware Luxembourg S.ar.l.
Tupperware Slovakia s.r.o.
Tupperware Morocco
Tupperware Asset Management Sarl
Diecraft Australia Pty. Ltd.
Tupperware Egypt Ltd
Tupperware East Africa Limited
Tupperware Italia S.p.A.
Tupperware General Services N.V.
Japan Tupperware Co., Ltd.
Tupperware Trading Ltd.
Tupperware Czech Republic, spol. s.r.o.
Tupperware United Kingdom & Ireland Limited
Tupperware Nordic A/S
Tupperware Global Center SARL
Tupperware Panama, X.X.
Xxxx Manufacturing India Pvt. Ltd.
Premiere Products Mexico, S. de X.X.
BeautiControl Mexico, S. de X.X.
PT Imawi Benjaya
Tupperware Finance Holding Company B.V.
Tupperware Finance Company B.V.
Tupperware Holdings Corporation
Tupperware Home Parties Corporation
Tupperware Export Sales, Ltd.
Tupperware Services, Inc.
Tupperware Holdings Ltd.
BeautiControl, Inc.
BC International Cosmetic & Image Services, Inc.
BeautiControl Canada, Ltd.
BeautiControl International, Inc.
BeautiControl International Services, Inc.
BeautiControl Asia Pacific Inc.
BeautiControl Hong Kong, Inc.
BeautiControl Japan, Inc.
BeautiControl Taiwan, Inc.
Eventus International, Inc.
JLH Properties, Inc.
BeautiControl Cosmeticos do Brasil Ltda.
International Investor, Inc.
3
Part (b) Other Equity Investments
Note 1. None that are material. Tupperware occasionally will
receive shares in a company in the ordinary course of business
(a creditor becomes bankrupt, a "mutual" insurance company
becomes "publicly owned", etc.) These shares would typically
be sold for cash as soon as practical.
4
SCHEDULE 5.16
INTELLECTUAL PROPERTY MATTERS
None.
1
SCHEDULE 7.01
EXISTING LIENS
Approximate Amount
Unit/Location (USD Equivalent)
8.33% Mortgage Note on Dallas, Texas Building JLH Properties, BeautiControl $ 5,504,000.00
2 Liens on Manufacturing Building - Contingent Premiere Korea Ltd. $ 13,350,000.00
Tax Assessment
Leased Computer Equipment (Capital Leases) Czech Republic $ 31,000.00
Leased Computer Equipment, Manager Cars Poland $ 52,000.00
Leased Computer Equipment, IBM Suisse Tupperware Products S.A. $ 2,071,000.00
Fribourg, Switzerland
Intercompany Sale/Lease-Back of Hemingway, South Carolina N/A
Manufacturing Equipment (Note 1)
Intercompany Sale/Lease-Back of France, Belgium N/A
Mold Equipment (Note 2)
Note 1: This transaction is structured such that the lease payments are made and
received by subsidiaries of the Borrower. Therefore, the capital lease
obligation is eliminated in consolidation under U.S. GAAP.
Note 2: The seller (lessee) and the buyer (Lessor) are both subsidiaries of the
Borrower. The amount is shown as N/A since the capital lease obligation is
eliminated in consolidation under U.S. GAAP.
1
SCHEDULE 7.02
EXISTING INVESTMENTS
Loans/Receivables from Goings $7,483,360
Numerous Equity Investments in Various Tupperware
Subsidiaries, disclosed in Schedule 5.13
Numerous Intercompany loans to/from subsidiaries
Of the Borrower
Numerous guarantees by the Borrower of obligations of
Tupperware subsidiaries' obligations to third parties
Various extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or
lease of goods or services or the sale of real estate in the
ordinary course of business as disclosed in the Consolidated
Balance Sheet.
Note 1. Loans/Receivables from Certain Executives and Directors Related to the
Management Stock Purchase Program are excluded from this Schedule. These are
non-cash loans, and are excluded according to Section 7.02 (c).
1
SCHEDULE 7.03
EXISTING INDEBTEDNESS
(Presented on a Consolidated basis, with intercompany debt eliminated in
accordance with U.S. GAAP)
Approx. Amount
at 3/30/2002
Description Borrower Guarantor(s) (USD Equiv)
7.05% Notes due 2003 Tupperware Finance Co. BV Tupperware Corporation $ 15,000,000
7.25% Notes due 2006 Tupperware Finance Co. BV Tupperware Corporation $ 100,000,000
8.33% Mortgage Note JLH Properties BeautiControl Inc. $ 5,504,000
due 2009 Tupperware Corporation
7.91% Notes due 2011 Tupperware Finance Co. BV Tupperware Corporation $ 150,000,000
Dart Industries Inc. (Note 1)
Commercial Paper Notes Tupperware Corporation $ 125,983,000
Capital Lease - IBM Suisse Tupperware Products S.A. Tupperware Corporation $ 1,245,000
Bank debt - Italy Tupperware Italy Tupperware Corporation $ 557,000
Bank debt - Greece Tupperware Greece Tupperware Corporation $ 220,000
Bank debt - France Tupperware France Tupperware Corporation $ 2,919,000
Bank debt - Germany Tupperware Germany Tupperware Corporation $ 6,714,000
Bank debt - Japan Tupperware Japan Tupperware Corporation $ 1,835,000
Bank debt - Taiwan Tupperware Taiwan Tupperware Corporation $ 1,142,000
Bank debt - India Tupperware India Tupperware Corporation $ 632,000
Bank debt - Mexico Dart SA de CV Tupperware Corporation $ 2,252,000
Other various $ 2,570,000
-------------
Total $ 416,573,000
Note 1: Under the terms of the 7.91% Notes due 2011, if Dart Industries Inc.
offers its guarantee to the Revolving Credit Facility, it must also provide its
guarantee to these note holders.
1
SCHEDULE 7.05
EXCLUDED PROPERTY
Xxxxxxxx Xxxxxxxxxxx
Xxxxx, Xxxxxxxxx Xxxxxxxx, Xxxx Xxxxxx 703,229 Square Feet of building space on
Xxxxx Xxxx Xxxxxx Xxxxx Xxxxx Xxxx & approx. 65 acres plus 19 acres of surplus
Old Highway 51 South land.
AKA State Route 88, AKA Church Street
Halls, Lauderdale County, Tennessee
Orange County, Florida Undeveloped real estate. Adjacent to the
Frontage on S. Orange Blossom Trail Osceola Co. Corporate Center, described
Xxxxxxx, Xxxxxxx 00000 below. Approx. 262 gross acres.
Osceola County, Florida Osceola Co. Corporate Center. Approx 929 gross
Frontage on S. Orange Blossom Trail, acres. Zoned for Commercial Development.
Xxxx Xxxxx Pkway, and Osceola Pkway Actively seeking buyers. Some parcels under
Orlando, Florida sales contracts.
Convention Center Building, Real Estate Approx. 2,000 seat Theatre. Approx. 23,600 sq. ft.
South Portion of the Tupperware Banquet/Exhibit hall. Adjacent property, including
Headquarters property 25,000 sq. ft. Plaza plus significant undeveloped
14901 S. Orange Blossom Trail real estate.
Xxxxxxx, Xxxxxxx 00000
Manufacturing Facility/Warehouse/Office Space Approx. 224,000 sq. ft. plus adjacent real estate.
00 Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxxx
Xxxxxxxx 0000 Xxxxxxxxx
Manufacturing/Warehouse/ Office Space Largely idle facility. Acreage of approx.
Ruta 1001 - Km. 8/C.C. 255 255,000 sq. metres. Building covers approx.
2930 San Xxxxx, Prov. Buenas Aires 19,056 sq. metres.
Argentina
Manufacturing/Office Space/Warehouse Under contract. Closing expected in 2002.
Carretera A Xxxxxxx, Xx. 1,100 Building is approx. 12,000 sq. meters. Approx.
E-28100 Alcobendas 40,000 sq. meters total acreage.
Madrid, Spain
Manufacturing/Office Space/Warehouse Production, office, and storage facilities
Xxxxxxx xx Xxxx Xx. 000 with adjacent real estate.
CEP 23020-230
Xxx xx Xxxxxxx - XX
Xxxxxx
0
SCHEDULE 10.02
LENDING OFFICES,
ADDRESSES FOR NOTICES
TUPPERWARE CORPORATION
00000 X. Xxxxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx
Telephone: 407.826.____
Facsimile: 407.826.____
Electronic Mail: xxxxxxxxx@xxxxxxxxxx.xxx
BANK OF AMERICA
Administrative Agent's Office and Bank of America's Lending Office (for payments
and Requests for Credit Extensions): Bank of America, N.A.
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
XX0-000-00-00
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: 000.000.0000
Facsimile: 888 969.2786
Electronic Mail: Xxxxx.Xxxx@xxxxxxxxxxxxx.xxx
Account No.: 3750836479
Ref: Tupperware Corporation
ABA# 000000000
L/C Issuer for Standby Letters of Credit:
Bank of America, N.A.
Trade Operations-Los Angeles #22621
000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Mail Code: CA9-703-19-23
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxx
Vice President
Telephone: 000.000.0000
Facsimile: 213.345.6694
Electronic Mail: Xxxxxx.Xxxx@xxxxxxxxxxxxx.xxx
1
L/C Issuer for Commercial Letters of Credit:
Bank of America, N.A.
Agency Management
000 Xxxxx Xxxxx Xxxxxx
Mail Code: NC1-001-08-19
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx-Xxxxxx Xxxxxxx
Assistant Vice President
Telephone: 000.000.0000
Facsimile: 704.386.3324
Electronic Mail: Xxxxxxxxxx.Xxxxxxx@xxxxxxxxxxxxx.xxx
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
Xxxx X. Xxxxxxx
VP; Credit Services Team Lead II
Agency Management
Bank of America
Mail Code: CA5-701-05-19
0000 Xxxxxx Xx
Xxx Xxxxxxxxx, XX 00000-0000
Phone: 000.000.0000
Fax: 000.000.0000
Internet: xxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
Other Notices as a Lender:
Bank of America, N.A.
Xxxxx X. Xxxxxxxxx
Vice President
Consumer/Retail
Bank of America
Mail Code:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 000.000.0000
Fax: 000.000.0000
Internet: xxxxx.x.xxxxxxxxx@xxxxxxxxxxxxx.xxx
2
OTHER LENDERS
Requests for Credit Extensions:
CITIBANK, N.A.
0 Xxxxx Xxx, Xxxxx 000
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
Telephone: 000.000.0000
Facsimile: 402.894.6120
Electronic Mail: xxxx.x0.xxxxxxxxx@xxxx.xxx
Account No. 00000000
Ref: Tupperware Corporation
ABA# 000000000
Notices (other than Requests for Credit Extensions):
CITIBANK, N.A.
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxx
Telephone: 000.000.0000
Facsimile: 770.668.8137
Electronic Mail: xxxx.xxxxxxx@xxxx.xxx
3
Requests for Credit Extensions:
FLEET NATIONAL BANK
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Loan Administrator
Telephone: 000.000.0000
Facsimile: 617.434.0800
Electronic Mail: xxxx.x.xxxxxxxx@xxxxx.xxx
Account No. 00-0000000-00000
Account Name: Commercial Loan Services
Ref: Tupperware Corporation
ABA# 000000000
Notices (other than Requests for Credit Extensions):
FLEET NATIONAL BANK
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Relationship Manager
Telephone: 000.000.0000
Facsimile: 617.434.0601
Electronic Mail: xxxxx.x.xxxxxxxx@xxxxx.xxx
Ref: Tupperware Corporation
4
Requests for Credit Extensions:
XX XXXXXX CHASE BANK
0 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Vice President
Telephone: 000.000.0000
Facsimile: 718.242.3846
Electronic Mail: xxxxxxx.xxxxxx@xxxxx.xxx
Account No. ______________
Ref: Tupperware Corporation
ABA# 000000000
Notices (other than Requests for Credit Extensions):
XX XXXXXX XXXXX BANK
0 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Vice President
Telephone: 000.000.0000
Facsimile: 718.242.3846
Electronic Mail: xxxxxxx.xxxxxx@xxxxx.xxx
Ref: Tupperware Corporation
5
Requests for Credit Extensions:
THE NORTHERN TRUST COMPANY
00 X. XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Honda
Commercial Loans
Telephone: 000.000.0000
Facsimile: 312.630.1566
Electronic Mail: __________@__________
Bank: The Northern Trust Bank
Account No. 5186401000
Ref: Tupperware Corporation
ABA# 000000000
Notices (other than Requests for Credit Extensions):
THE NORTHERN TRUST COMPANY
00 X. XxXxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx
Telephone: 000.000.0000
Facsimile: 312.444.5055
Electronic Mail: __________@__________
6
Requests for Credit Extensions:
ABN AMRO BANK N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Loan Administration
Telephone: 000.000.0000
Facsimile: 312.992.5158
Electronic Mail: xxx.xxxx.x@xxxxxxx.xxx
Account No. 650-001-1789-41
Ref: CPU (00418463) (Tupperware)
ABA# 026009500
F/O ABN AMRO Bank, N.V.
Notices (other than Requests for Credit Extensions):
ABN AMRO BANK N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Credit Administration
Telephone: 000.000.0000
Facsimile: 312.992.5111
Electronic Mail: xxxxxx.xxxxxxx@xxxxxxx.xxx
With a copy to:
ABN AMRO Bank N.V.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxx
Telephone: 000.000.0000
Facsimile: 212.409.1641
0
XXX XXXXXXXXXXX XXXX, XXX XXXX BRANCH
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx XxXxxxx
Assistant Vice President
Telephone: 000.000.0000/7189
Facsimile: 212.697.5754
Electronic Mail: xxxxxxxx@xxxxxxxxx.xx.xx
Account No. 000-0-00000
Ref: Tupperware Corporation
Bank: The Chase Manhattan Bank
New York, New York
ABA# 000000000
Account Name: The Norinchukin Bank
Notices (other than Requests for Credit Extensions):
THE NORINCHUKIN BANK, NEW YORK BRANCH
000 Xxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx
Vice President
Telephone: 000.000.0000
Facsimile: 212.697.5754
Electronic Mail: xxxxxx@xxxxxxxxx.xx.xx
8
Requests for Credit Extensions:
BANK HAPOALIM B.M.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Loan Administrator
Telephone: 000.000.0000
Facsimile: 312.___.____
Electronic Mail: __________@__________
Account No. 1756-00-00
Ref: Tupperware Corporation
ABA# 000000000
Bank: Bank Hapoalim-Chicago (BK HAPOALIM CHGO)
Attn: C/L Dept.
Notices (other than Requests for Credit Extensions):
BANK HAPOALIM B.M.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Vice President, Senior Lending Officer
Telephone: 000.000.0000
Facsimile: 312.___.____
Electronic Mail: __________@__________
9
Requests for Credit Extensions:
MIZUHO CORPORATE BANK, LIMITED
1251 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxxxxx or Xxxxxx Xxxxxxxx
Credit Administration Department
Telephone: 000.000.0000
Facsimile: 212.282.4479/4480
Electronic Mail: __________@__________
Bank: Mizuho Corporate Bank, Limited
ABA# 000000000
Attn: Credit Administration
Ref: Tupperware Corporation
Notices (other than Requests for Credit Extensions):
MIZUHO CORPORATE BANK, LIMITED
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx
Vice President
Telephone: 000.000.0000, Ext. 107
Facsimile: 404.524.8509
Electronic Mail: xxxxxxx@xxxxx.xxx
10
Requests for Credit Extensions:
BANCA NAZIONALE DEL LAVORO S.p.A., NEW YORK BRANCH
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxx
Telephone: 000.000.0000
Facsimile: 212.765.2978
Electronic Mail: __________@__________
Bank: Chase Manhattan Bank, New York
ABA# 000000000
For A/C BNL New York Branch
A/C# 000-0-000000
Ref: Tupperware Corporation
Notices (other than Requests for Credit Extensions):
BANCA NAZIONALE DEL LAVORO S.p.A., NEW YORK BRANCH
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Vice President
Telephone: 000.000.0000, Ext. 107
Facsimile: 212.765.2978
Electronic Mail: xxxx.xxxxxx@xxxxxxx.xxx
11
Requests for Credit Extensions:
KBC BANK N.V.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Pacific
Loan Administration
Telephone: 000.000.0000
Facsimile: 212.956.5681
Electronic Mail: __________@__________
Bank: Federal Reserve Bank
ABA# 000000000
Account Name: KBC Bank N.V., New York Branch
Ref: Tupperware Corporation
Notices (other than Requests for Credit Extensions):
KBC BANK N.V.
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Vice President
Telephone: 000.000.0000
Facsimile: 404.584.5165
Electronic Mail: __________@__________
12
EXHIBIT A
FORM OF REVOLVING LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Multi-Year Credit Agreement, dated as
of April 30, 2002 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Tupperware Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.
The undersigned hereby requests (select one):
[ ] A Borrowing of Revolving Loans [ ] A Conversion of Loans
[ ] A Continuation of Loans
1. On __________________ ___, 20___ (a Business Day).
2. In the amount of $____________________. (Note: Minimum of
$5,000,000 and multiples of $1,000,000 for Eurodollar Rate Loans; minimum of
$1,000,000 and multiples of $100,000 for Base Rate Loans)
3. Comprised of: [ ] Base Rate Loan
[ ] Eurodollar Rate Loan
4. For Eurodollar Rate Loans: with an Interest Period of
__________ months.
5. The Borrowing (select one) is [ ] is [ ] not a CP Backup
Advance.
The Borrowing requested herein complies with the proviso to the first
sentence of Section 2.01 of the Agreement.
A-1
The matters set forth in (x) Section 4.02(a) and (b) in the case of any
Borrowing that is not a CP Backup Advance and (y) Section 4.03(a) and (b) in the
case of any CP Backup Advance, are true, correct and complete as of the date
hereof and with respect to the requested Credit Extension.
TUPPERWARE CORPORATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
A-2
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Multi-Year Credit Agreement, dated as
of April 30, 2002 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Tupperware Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.
The undersigned hereby requests a Swing Line Loan:
1. On ____________________ (a Business Day).
2. In the amount of $__________. (Minimum of $1,000,000)
The Swing Line Borrowing requested herein complies with the
requirements of the provisos to the first sentence of Section 2.04(a) of the
Agreement.
The matters set forth in (x) Section 4.02(a) and (b) in the case of any
Borrowing that is not a CP Backup Advance and (y) Section 4.03(a) and (b) in the
case of any CP Backup Advance, are true, correct and complete as of the date
hereof and with respect to the requested Credit Extension.
TUPPERWARE CORPORATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
B-1
EXHIBIT C-1
FORM OF REVOLVING LOAN NOTE
Date: __________, _____
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
to pay to the order of _____________________________ (the "Lender"), on the
Maturity Date (as defined in the Credit Agreement referred to below) the
Lender's Commitment, or such lesser principal amount of Revolving Loans (as
defined in such Credit Agreement) due and payable by the Borrower to the Lender
on the Maturity Date under that certain Multi-Year Credit Agreement, dated as of
April 30, 2002 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among the Borrower, the Lenders
from time to time party thereto, and Bank of America, N.A., as Administrative
Agent, L/C Issuer and Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Loan from the date of such Revolving Loan until such principal
amount is paid in full, at such interest rates, and at such times as are
specified in the Agreement. All payments of principal and interest shall be made
to the Administrative Agent for the account of the Lender in Dollars, in Same
Day Funds at the Administrative Agent's Office. If any amount is not paid in
full when due hereunder, such unpaid amount shall bear interest, to be paid upon
demand, from the due date thereof until the date of actual payment (and before
as well as after judgment) computed at the per annum rate set forth in the
Agreement.
This Note is one of the Revolving Loan Notes referred to in the
Agreement, is entitled to the benefits thereof and is subject to optional
prepayment in whole or in part as provided therein. Upon the occurrence of one
or more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Revolving Loans
made by the Lender shall be evidenced by one or more loan accounts or records
maintained by the Lender in the ordinary course of business. The Lender may also
attach schedules to this Note and endorse thereon the date, amount and maturity
of its Revolving Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
C-1-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
TUPPERWARE CORPORATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
C-1-2
REVOLVING LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF OUTSTANDING
PRINCIPAL OR PRINCIPAL
TYPE OF LOAN AMOUNT OF LOAN END OF INTEREST INTEREST PAID BALANCE THIS
DATE MADE MADE PERIOD THIS DATE DATE NOTATION MADE BY
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C-1-3
ACKNOWLEDGEMENT OF EXECUTION ON BEHALF OF
TUPPERWARE CORPORATION
STATE OF _______________
COUNTY OF _______________
Before me, the undersigned, a Notary Public in and for said County and
State on this _____ day of April, 2002, personally appeared Xxxxxx X. Xxxxxx,
known to be the Senior Vice President, General Counsel and Secretary of
Tupperware Corporation (the "Borrower"), who, being by me duly sworn, says he
works at 00000 X. Xxxxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000-0000, and that by
authority duly given by, and as the act of, the Borrower, the foregoing
Revolving Note dated as of April 30, 2002 was signed by him as said Senior Vice
President, General Counsel and Secretary on behalf of the Borrower.
Witness my hand and official seal this _____ day of April, 2002.
-------------------------------------
Notary Public
(SEAL)
My commission expires: __________________
C-1-4
AFFIDAVIT OF ____________________________
[Name of Affiant]
The undersigned, being first duly sworn, deposes and says that:
1. He is a _____________________ of ____________________________
[title] [name of institution]
and works at _____________________________________, _____________, __________.
[street address] [city] [state]
2. The Revolving Note of Tupperware Corporation dated April 30,
2002 was executed before him and delivered to him/her on behalf of the
Administrative Agent in _____________________, __________ on April __, 2002.
[city] [state]
This the _____ day of April, 2002.
-------------------------------------
[Signaure of Affiant]
Acknowledgement of Execution
STATE OF _______________
COUNTY OF _______________
Before me, the undersigned, a Notary Public in and for said County and
State on this _____ day of April, 2002 A.D., personally appeared
_________________________ who before me affixed his signature to the above
Affidavit.
Witness my hand and official seal this _____ day of April, 2002.
-------------------------------------
Notary Public
(SEAL)
My Commission Expires: ___________________
C-1-5
EXHIBIT C-2
FORM OF SWING LINE NOTE
$_________________ Date: ____________, _____
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
to pay to the order of _________________________ ("Swing Line Lender"), on the
date when due in accordance with the Credit Agreement referred to below, the
aggregate principal amount of each Swing Line Loan from time to time made by the
Swing Line Lender to the Borrower under that certain Multi-Year Credit
Agreement, dated as of April 30, 2002 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among the Borrower, the Lenders from time to time party thereto, and Bank of
America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Swing Line Loan from the date of such Swing Line Loan until such principal
amount is paid in full, at such interest rates and at such times as provided in
the Agreement. All payments of principal and interest shall be made to the Swing
Line Lender in Dollars, in Same Day Funds at its Lending Office. If any amount
is not paid in full when due hereunder, such unpaid amount shall bear interest,
to be paid upon demand, from the due date thereof until the date of actual
payment (and before as well as after judgment) computed at the per annum rate
set forth in the Agreement.
This Note is the Swing Line Note referred to in the Agreement, is
entitled to the benefits thereof and is subject to optional prepayment in whole
or in part as provided therein. Upon the occurrence of one or more of the Events
of Default specified in the Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable all as
provided in the Agreement. Swing Line Loans made by the Swing Line Lender shall
be evidenced by one or more loan accounts or records maintained by Swing Line
Lender in the ordinary course of business. The Swing Line Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of the
Swing Line Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
C-2-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
TUPPERWARE CORPORATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
C-2-2
SWING LINE LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF PRINCIPAL OR OUTSTANDING PRINCIPAL
DATE AMOUNT OF LOAN MADE INTEREST PAID THIS DATE BALANCE THIS DATE NOTATION MADE BY
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C-2-3
ACKNOWLEDGEMENT OF EXECUTION ON BEHALF OF
TUPPERWARE CORPORATION
STATE OF _______________
COUNTY OF _______________
Before me, the undersigned, a Notary Public in and for said County and
State on this _____ day of April, 2002, personally appeared Xxxxxx X. Xxxxxx,
known to be the Senior Vice President, General Counsel and Secretary of
Tupperware Corporation (the "Borrower"), who, being by me duly sworn, says he
works at 00000 X. Xxxxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000-0000, and that by
authority duly given by, and as the act of, the Borrower, the foregoing Swing
Line Note dated as of April 30, 2002 was signed by him as said Senior Vice
President, General Counsel and Secretary on behalf of the Borrower.
Witness my hand and official seal this _____ day of April, 2002.
-------------------------------------
Notary Public
(SEAL)
My commission expires: __________________
C-2-4
AFFIDAVIT OF ____________________________
[Name of Affiant]
The undersigned, being first duly sworn, deposes and says that:
1. He is a ______________________ of ___________________________
[title] [name of institution]
and works at _____________________________________, ______________, __________.
[street address] [city] [state]
2. The Swing Line Note of Tupperware Corporation dated April 30,
2002 was executed before him and delivered to him/her on behalf of the
Administrative Agent in __________, __________ on April __, 2002. [city] [state]
This the _____ day of April, 2002.
-------------------------------------
[Signaure of Affiant]
Acknowledgement of Execution
STATE OF _______________
COUNTY OF _______________
Before me, the undersigned, a Notary Public in and for said County and
State on this _____ day of April, 2002 A.D., personally appeared
_________________________ who before me affixed his signature to the above
Affidavit.
Witness my hand and official seal this _____ day of April, 2002.
-------------------------------------
Notary Public
(SEAL)
My Commission Expires: ___________________
C-2-5
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ,
------------ ---
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Multi-Year Credit Agreement, dated as
of April 30, 2002 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Tupperware Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the ________ of the Borrower, and that, as such, he/she is
authorized to execute and deliver this Certificate to the Administrative Agent
on the behalf of the Borrower, and that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited
financial statements required by Section 6.01(a) of the Agreement for the fiscal
year of the Borrower ended as of the above date, together with the report and
opinion of an independent certified public accountant required by such section.
[Use following for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial
statements required by Section 6.01(b) of the Agreement for the fiscal quarter
of the Borrower ended as of the above date. Such financial statements fairly
present the financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal, recurring year-end audit adjustments and
the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of
the Agreement and has made, or has caused to be made under his/her supervision,
a detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower during such fiscal
period has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and
D-1
[select one:]
[to the best knowledge of the undersigned during such fiscal period,
the Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it.]
--or--
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default or Event of Default
and its nature and status:]
4. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of ________________________, _______________.
TUPPERWARE CORPORATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
D-2
SCHEDULE 2
to The Compliance Certificate
($ in 000's)
I. SECTION 7.10(A) - CONSOLIDATED NET WORTH.
A. Beginning base net worth $ 82,000
---------------
B. 25% of Consolidated Net Income for each fiscal
quarter ending after December 29, 2001
(no reduction for losses) $
---------------
C. 100% of increases in Shareholders' Equity from issuances
of capital stock after the Closing Date $
---------------
D. FASB 142 BeautiControl Adjustment (Cannot exceed $15,000,000) $
---------------
E. Minimum required Consolidated Net Worth
(I.A. + I.B. + I.C. - I.D.) $
---------------
F. Shareholders' Equity at statement date $
---------------
G. Foreign currency translation and net equity hedge adjustments $
---------------
H. Consolidated Net Worth at statement date $
---------------
II. SECTION 7.10(B) - INTEREST COVERAGE RATIO.
A. Consolidated EBITDA for four consecutive fiscal quarters
ending on above date ("Subject Period"):
1. Consolidated Net Income (excluding extraordinary,
unusual or non-recurring gains) for Subject Period: $
---------------
2. Consolidated Interest Charges for Subject Period: $
---------------
3. Provision for income taxes for Subject Period: $
---------------
4. Depreciation and amortization expenses for Subject Period: $
---------------
5. Extraordinary, unusual or non-recurring non-cash
charges for Subject Period $
---------------
6. Consolidated EBITDA (Lines II.A.1 + 2 + 3 + 4 + 5): $
---------------
B. Consolidated Interest Charges for Subject Period: $
---------------
C. Interest Coverage Ratio (Line II.A.6 / Line II.B): to 1.00
---------------
D-3
Minimum required: 3.00 to 1.00
III. SECTION 7.10(C) - LEVERAGE RATIO.
A. Consolidated EBITDA for Subject Period (Line II.A.6 above): $
---------------
B. Consolidated Funded Indebtedness at Statement Date: $
---------------
C. Leverage Ratio (Line III.A / Line III.B): ______ to 1.00
Maximum permitted: 3.00 to 1.00
IV. COMMERCIAL PAPER.
Amount of Outstanding Commercial Paper: $
---------------
D-4
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below, the interest in and to all of
the Assignor's rights and obligations under the Credit Agreement and any other
documents or instruments delivered pursuant thereto that represents the amount
and percentage interest identified below of all of the Assignor's outstanding
rights and obligations under the respective facilities identified below
(including, without limitation, Letters of Credit and Swing Line Loans included
in such facilities and, to the extent permitted to be assigned under applicable
law, all claims (including, without limitation, contract claims, tort claims,
malpractice claims and all other claims at law or in equity, including claims
under any law governing the purchase and sale of securities or governing
indentures pursuant to which securities are issued), suits, causes of action and
any other right of the Assignor against any other Person) (the "Assigned
Interest"). Such sale and assignment is without recourse to the Assignor and,
except as expressly provided in this Assignment and Assumption, without
representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [which is a
Lender/Affiliate/Approved Fund of [identify Lender](1)
3. Borrower(s): ______________________________
4. Administrative Agent: Bank of America, N.A., as the Administrative
Agent under the Credit Agreement
5. Credit Agreement: The Multi-Year Credit Agreement, dated as of April
30, 2002, among Tupperware Corporation, the Lenders
parties thereto, and Bank of America, N.A., as
Administrative Agent
-----------------
(1) Select as applicable.
E-1
6. Assigned Interest:
Aggregate Amount of Amount of Commitment/Loans Percentage Assigned of
Commitment/Loans for all Lenders* Assigned(2) Commitment/Loans(1)
--------------------------------- -------------------------- ----------------------
$ $ %
---------------- ---------------- --------------
$ $ %
---------------- ---------------- --------------
$ $ %
---------------- ---------------- --------------
[7. Trade Date: __________________](4)
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
----------------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
----------------------------------
Title:
-----------------
(2) Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective
Date.
(3) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
(4) To be completed if the Assignor and the Assignee intend that the
minimum assignment amount is to be determined as of the Trade Date.
E-2
[Consented to and](5) Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender
By:
---------------------------------
Title:
[Consented to:](6)
[TUPPERWARE CORPORATION]
By:
---------------------------------
Title:
-----------------
(5) To be added only if the consent of the Administrative Agent, L/C Issuer
and Swing Line Lender is required by the terms of the Credit Agreement.
(6) To be added only if the consent of the Borrower and/or other parties
(e.g. Swing Line Lender, L/C Issuer) is required by the terms of the
Credit Agreement.Accepted:
E-3
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
Multi-Year Credit Agreement, dated as of April 30, 2002, among Tupperware
Corporation, the Lenders parties thereto, and Bank of America, N.A.,
as Administrative Agent
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance
by the Borrower, any of its Subsidiaries or Affiliates or any other Person of
any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
E-4
1.3 Assignee's Address for Notices, etc. Attached hereto as
Schedule 1 is all contact information, address, account and other administrative
information relating to the Assignee.
2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to or on or after the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of New York.
E-5
SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information)
E-6
EXHIBIT F
FORM OF FACILITY GUARANTY
F-1
===============================================================================
CONFORMED COPY
364-DAY CREDIT AGREEMENT
Dated as of April 30, 2002
among
TUPPERWARE CORPORATION
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
CITIBANK, N.A.,
as Syndication Agent,
XX XXXXXX XXXXX BANK
and
FLEET NATIONAL BANK,
as Co-Documentation Agents
and
The Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC
and
XXXXXXX XXXXX BARNEY, INC.,
as
Joint Lead Arrangers and Joint Book Managers
===============================================================================
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms..................................................................................2
1.02 Other Interpretive Provisions.................................................................20
1.03 Accounting Terms..............................................................................21
1.04 Rounding......................................................................................21
1.05 References to Agreements and Laws.............................................................22
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Loans.........................................................................................23
2.02 Borrowings, Conversions and Continuations of Loans............................................23
2.03 Prepayments...................................................................................24
2.04 Reduction or Termination of Commitments.......................................................24
2.05 Repayment of Loans............................................................................25
2.06 Interest......................................................................................25
2.07 Fees..........................................................................................25
2.08 Computation of Interest and Fees..............................................................26
2.09 Evidence of Debt..............................................................................27
2.10 Payments Generally............................................................................27
2.11 Sharing of Payments...........................................................................29
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.........................................................................................30
3.02 Illegality....................................................................................31
TABLE OF CONTENTS
(continued)
3.03 Inability to Determine Rates..................................................................31
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans........31
3.05 Funding Losses................................................................................33
3.06 Matters Applicable to all Requests for Compensation...........................................33
3.07 Survival......................................................................................33
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension........................................................34
4.02 Conditions to all Credit Extensions (other than CP Backup Advances) and Conversions and
Continuations.................................................................................36
4.03 Conditions to CP Backup Advances..............................................................36
ARTICLE V REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with Laws......................................38
5.02 Authorization; No Contravention...............................................................38
5.03 Governmental and Third-Party Authorization....................................................38
5.04 Binding Effect................................................................................38
5.05 Financial Statements; No Material Adverse Effect..............................................38
5.06 Litigation....................................................................................39
5.07 No Default....................................................................................39
5.08 Ownership of Property; Liens..................................................................39
5.09 Environmental Compliance......................................................................39
5.10 Insurance.....................................................................................39
TABLE OF CONTENTS
(continued)
5.11 Taxes.........................................................................................39
5.12 ERISA Compliance..............................................................................40
5.13 Subsidiaries..................................................................................40
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act................40
5.15 Disclosure....................................................................................41
5.16 Intellectual Property; Licenses, Etc..........................................................41
5.17 Solvency......................................................................................41
ARTICLE VI AFFIRMATIVE COVENANTS
6.01 Financial Statements..........................................................................42
6.02 Certificates; Other Information...............................................................42
6.03 Notices.......................................................................................43
6.04 Payment of Obligations........................................................................44
6.05 Preservation of Existence, Etc................................................................44
6.06 Maintenance of Properties.....................................................................44
6.07 Maintenance of Insurance......................................................................44
6.08 Compliance with Laws and Contractual Obligations..............................................45
6.09 Books and Records.............................................................................45
6.10 Inspection Rights.............................................................................45
6.11 Compliance with ERISA.........................................................................45
6.12 Use of Proceeds...............................................................................45
6.13 Protected Subsidiaries and Tupperware Finance.................................................45
TABLE OF CONTENTS
(continued)
6.14 Maintain Principal Line of Business...........................................................45
ARTICLE VII NEGATIVE COVENANTS
7.01 Liens.........................................................................................46
7.02 Investments...................................................................................47
7.03 Indebtedness..................................................................................47
7.04 Fundamental Changes...........................................................................48
7.05 Sales of Assets...............................................................................48
7.06 ERISA.........................................................................................49
7.07 Transactions with Affiliates..................................................................49
7.08 Burdensome Agreements.........................................................................49
7.09 Use of Proceeds...............................................................................49
7.10 Financial Covenants...........................................................................49
7.11 Tupperware Finance............................................................................50
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default.............................................................................51
8.02 Remedies Upon Event of Default................................................................53
ARTICLE IX ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent.........................................54
9.02 Delegation of Duties..........................................................................54
9.03 Liability of Administrative Agent.............................................................54
9.04 Reliance by Administrative Agent..............................................................55
TABLE OF CONTENTS
(continued)
9.05 Notice of Default.............................................................................55
9.06 Credit Decision; Disclosure of Information by Administrative Agent............................55
9.07 Indemnification of Administrative Agent.......................................................56
9.08 Administrative Agent in its Individual Capacity...............................................56
9.09 Successor Administrative Agent................................................................57
9.10 Other Agents; Lead Managers...................................................................57
ARTICLE X MISCELLANEOUS
10.01 Amendments, Etc...............................................................................58
10.02 Notices and Other Communications; Facsimile Copies............................................59
10.03 No Waiver; Cumulative Remedies................................................................60
10.04 Attorney Costs, Expenses and Taxes............................................................60
10.05 Indemnification by the Borrower; Limitation of Liability......................................60
10.06 Payments Set Aside............................................................................61
10.07 Successors and Assigns........................................................................61
10.08 Confidentiality...............................................................................64
10.09 Set-off.......................................................................................64
10.10 Interest Rate Limitation......................................................................65
10.11 Counterparts..................................................................................65
10.12 Integration...................................................................................65
10.13 Survival of Representations and Warranties....................................................65
10.14 Severability..................................................................................65
10.15 Tax Forms.....................................................................................66
10.16 Governing Law.................................................................................66
10.17 Waiver of Right to Trial by Jury..............................................................67
SIGNATURES.......................................................................................Signature Page - 1
TABLE OF CONTENTS
(continued)
SCHEDULES
2.01 Commitments and Pro Rata Shares
5.06 Litigation
5.09 Environmental Matters
5.13 Subsidiaries and Other Equity Investments
5.16 Intellectual Property Matters
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.05 Excluded Property
7.06 Existing Leases
10.02 Lending Offices, Addresses for Notices
EXHIBITS
FORM OF
A Loan Notice
B Note
C Compliance Certificate
D Assignment and Assumption
E Form of Facility Guaranty
364-DAY CREDIT AGREEMENT
This 364-DAY CREDIT AGREEMENT ("Agreement") is entered into as of
April 30, 2002, among TUPPERWARE CORPORATION, a Delaware corporation (the
"Borrower"), each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender"), BANK OF AMERICA, N.A., as
Administrative Agent and CITIBANK, N.A., as Syndication Agent.
The Borrower has requested that the Lenders provide a senior revolving
credit facility, and the Lenders are willing to do so on the terms and
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" means the acquisition of (i) a controlling equity or
other ownership interest in another Person (including the purchase of an
option, warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder thereof),
whether by purchase of such equity or other ownership interest or upon exercise
of an option or warrant for, or conversion of securities into, such equity or
other ownership interest, or (ii) assets of another Person which constitute all
or any material part of the assets of such Person or of a line or lines of
business conducted by such Person.
"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.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "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. A Person shall be deemed to be
Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 10% or more of the securities having ordinary voting
power for the election of directors or managing general partners.
"Agent/Arranger Fee Letter" has the meaning specified in Section
2.07(c).
"Agent-Related Persons" means the Administrative Agent (including any
successor administrative agent), together with its Affiliates (including, in
the case of Bank of America in its capacity as the Administrative Agent, BAS),
and the officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Aggregate Commitments" means, as at the date of determination
thereof, the sum of all Commitments of all Lenders at such date.
"Agreement" means this Credit Agreement.
"Applicable Margin" means, from time to time, the following
percentages per annum, based upon the Debt Ratings as set forth below:
2
PRICING LEVEL DEBT RATINGS
S&P/XXXXX'X FACILITY FEE EURODOLLAR RATE LOANS
1 >BBB+ / Baa1 .125% .750%
-
2 BBB / Baa2 .150% .850%
3 BBB- / Baa3 .175% 1.075%
4 < BB+ / Ba1 .225% 1.150%
-
or not rated
Initially, the Applicable Margin shall be determined based upon the
Debt Rating. Thereafter, each change in the Applicable Margin resulting from a
publicly announced change in the Debt Rating shall be effective, in the case of
an upgrade, during the period commencing on the date of public announcement of
a change in the Debt Rating provided Borrower has delivered to the
Administrative Agent notice of such change pursuant to Section 6.03(f) and
ending on the date immediately preceding the effective date of the next such
change and, in the case of a downgrade, during the period commencing on the
date of the public announcement thereof and ending on the date immediately
preceding the effective date of the next such change.
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arrangers" means BAS and Xxxxxxx Xxxxx Barney, Inc., each in its
respective capacity as joint lead arranger and joint book manager.
"Asset Securitization" means any transaction or series of transactions
pursuant to which the Borrower or any of its Subsidiaries may sell, convey or
otherwise transfer to a Securitization Entity (in the case of a transfer by the
Borrower or any of its Subsidiaries) or any other Person (in case of a transfer
by a Securitization Entity), or may grant a security interest in, any
Receivables (whether now existing or arising or acquired in the future) of the
Borrower or any of its Subsidiaries, and any Related Security, all of the
foregoing for the purpose of providing working capital financing on terms that
are more favorable to the Borrower and its Subsidiaries than would otherwise be
available at that time; provided, that the terms of such Asset Securitization
are subject to approval of the Administrative Agent.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit D.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel and the allocated
reasonable cost of internal legal services and all disbursements of internal
counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital 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 payments under the relevant lease that
3
would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a capital lease, and
(c) in respect of any Asset Securitization, the aggregate amount of obligations
owed to (including the amount of investment in transferred assets by) Persons
other than the Borrower or its Subsidiaries.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
29, 2001, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and
its Subsidiaries, including the notes thereto.
"Bank of America" means Bank of America, N.A.
"BAS" means Banc of America Securities LLC.
"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." Such 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 prime rate. Any change in such prime 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 Loan that bears interest based on the Base
Rate.
"Borrower" has the meaning set forth in the introductory paragraph
hereto.
"Borrowing" means a borrowing consisting of simultaneous Loans of the
same Type and, as to Eurodollar Rate Loans, having the same Interest Period,
made by each of the Lenders pursuant to Section 2.01.
"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 deposits are conducted by and between banks in the London
interbank market.
"Change of Control" means, with respect to any Person, 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, an
"option right"), whether such right is exercisable immediately or only
after the passage of time),
4
directly or indirectly, of 35% or more of the equity securities of
such Person entitled to vote for members of the board of directors or
equivalent governing body of such Person on a fully diluted basis
(i.e., 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 such Person 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.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in
the case of Section 4.01(b), waived by the Person entitled to receive the
applicable payment).
"Code" means the Internal Revenue Code of 1986 as amended from time to
time and all regulations issued pursuant thereto.
"Commitment" means, as to each Lender, its obligation to make Loans to
the Borrower pursuant to Section 2.01, 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, as such amount may be reduced or adjusted from time to
time in accordance with this Agreement.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income reduced by, to the extent not deducted in determining
Consolidated Net Income, any extraordinary, unusual or non-recurring gains, (b)
Consolidated Interest Charges, (c) the amount of taxes, based on or measured by
income, used or included in determining such Consolidated Net Income, (d) the
amount of depreciation and amortization expense deducted in determining such
Consolidated Net Income, and (e) extraordinary, unusual or non-recurring
non-cash charges, including the write-off of goodwill, to the extent deducted
in determining Consolidated Net Income.
"Consolidated Funded Indebtedness" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis
(including the elimination of intercompany indebtedness) and without
duplication, the sum 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) Attributable
Indebtedness, and (c) without duplication, all Contingent Obligations with
respect to Indebtedness of the types specified in subsections (a) and (b) above
of Persons other than the Borrower or any Subsidiary. For all purposes hereof,
the Consolidated Funded Indebtedness of the Borrower or any Subsidiary shall
include the foregoing Indebtedness
5
in (a), (b) and (c) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or a limited liability company) in
which the Borrower or any Subsidiary is a general partner or joint venturer,
unless such Indebtedness is expressly made non-recourse to the Borrower or such
Subsidiary.
"Consolidated Interest Charges" means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, the sum, without
duplication, of (a) all interest, debt discount, premium payments, commissions,
fees, charges and related expenses of the Borrower and its Subsidiaries in
connection with Indebtedness (including capitalized interest) or in connection
with the deferred purchase price of assets, in each case to the extent treated
as interest in accordance with GAAP, (b) the portion of rent expense of the
Borrower and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP and (c) the amount of
payments in respect of Synthetic Lease Obligations and Asset Securitizations
that are in the nature of interest (including, with respect to Asset
Securitizations, the aggregate discount (net of reserves) from the face value
of assets transferred).
"Consolidated Net Income" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the net income of the Borrower and
its Subsidiaries as determined in accordance with GAAP.
"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 that date, plus any decrease or minus
any increase in the "Accumulated Other Comprehensive Income (Loss)" account
(the "Accumulated Account") resulting from changes in the "Foreign Currency
Translation Adjustment" and/or "Net Equity Xxxxxx"subaccounts of the
Accumulated Account, from the amount reflected in the Borrower's consolidated
balance sheet with the December 29, 2001 Audited Financial Statement.
"Consolidated Total Assets" means, as of any date on which the amount
thereof is to be determined, the total amount of assets of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Contingent Obligation" means, as to any Person, (a) any obligation,
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying 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 or holding harmless 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. The amount of any
Contingent Obligation shall be deemed to be an
6
amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guarantying Person in good
faith.
"Continuation" and "Continue" mean, with respect to any Eurodollar
Rate Loan, the continuation of such Eurodollar Rate Loan as a Eurodollar Rate
Loan on the last day of the Interest Period for such Loan.
"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.
"Conversion" and "Convert" mean the conversion of a Loan from one Type
to another Type.
"CP Backup Advance" means any Borrowing the purpose of which is to
fund the repurchase of commercial paper previously issued by the Borrower.
"CP Program Documents" means, collectively, the written agreements
between the Borrower and the dealers, paying agents, and other parties related
to the marketing and administration of the Borrower's commercial paper
programs.
"Credit Extension" means a Borrowing.
"Dart" means Dart Industries Inc., a Delaware corporation and a
Subsidiary of the Borrower.
"Debt Rating" means, as of any date of determination, the ratings as
determined by each of (i) S&P of the non-credit-enhanced, senior unsecured
long-term debt of the Borrower or (ii) Xxxxx'x of the non-credit-enhanced,
senior unsecured long-term debt of Tupperware Finance (collectively, the "Debt
Ratings"); provided that if there shall exist a split in the Debt Ratings
issued by each of the foregoing rating agencies, then the lower of such Debt
Ratings shall apply (with Pricing Level 1 in the definition of "Applicable
Margin" being the highest and Pricing Level 4 in the definition of "Applicable
Margin" being the lowest), unless there is a split in Debt Ratings of more than
one level, in which case the level that is one level higher than the lower Debt
Rating shall apply.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, 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 of America
or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event or circumstance that, with the giving of any
notice, the passage of time, or both, would be an Event of Default.
7
"Default Rate" means an interest rate equal to the Base Rate plus 2%
per annum; provided, however, that with respect to Eurodollar Rate Loans, until
the end of the Interest Period during which the Default Rate is first
applicable, the Default Rate shall be an interest rate equal to the interest
rate (including any Applicable Margin) otherwise applicable to such Loan plus
2% per annum, and thereafter, the Base Rate plus 2% per annum, in each case to
the fullest extent permitted by applicable Laws.
"Disposition" or "Dispose" means the sale, transfer, license or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
"Disqualified Capital Stock" shall mean, with respect to any Person,
any Capital Stock of such Person that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event or otherwise, (i) matures or is mandatorily
redeemable or subject to any mandatory repurchase requirement, pursuant to a
sinking fund obligation or otherwise, (ii) is redeemable or subject to any
mandatory repurchase requirement at the sole option of the holder thereof, or
(iii) is convertible into or exchangeable for (whether at the option of the
issuer or the holder thereof) (a) debt securities or (b) any Capital Stock
referred to in (i) or (ii) above, in each case under (i), (ii) or (iii) above
at any time on or prior to the Maturity Date; provided, however, that only the
portion of Capital Stock that so matures or is mandatorily redeemable, is so
redeemable at the option of the holder thereof, or is so convertible or
exchangeable on or prior to such date shall be deemed to be Disqualified
Capital Stock.
"Dollar" and "$" means lawful money of the United States of America.
"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, and (ii) unless a Default or 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.
"Environmental Laws" means all Laws relating to environmental matters
applicable to any property.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any of its 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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, all regulations issued pursuant thereto and any
successor statute.
8
"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 with
the PBGC, 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
might reasonably be expected to constitute 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 PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by Administrative Agent
pursuant to the following formula:
Eurodollar Rate = Interbank Offered Rate
---------------------------------------------
1.00 - Eurodollar Reserve Percentage
Where "Interbank Offered Rate" means, for such Interest
Period:
(i) the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate that appears on the
page of the Telerate screen (or any successor thereto) that displays
an average British Bankers Association Interest Settlement Rate for
deposits (for delivery on the first day of such Interest Period) with
a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, or
(ii) if the rate referenced in the preceding subsection
(a) does not appear on such page or service or such page or service
shall not be available, the rate per annum equal to the rate
determined by Administrative Agent to be the offered rate on such
other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period, or
(iii) if the rates referenced in the preceding subsections
(a) and (b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest at which deposits 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
9
Converted by Bank of America in its capacity as a Lender and with a
term equivalent to such Interest Period would be offered by Bank of
America's London Branch or London Affiliate to major banks in the
applicable Eurodollar Dollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period.
The determination of the Eurodollar Rate by the Administrative Agent
shall be conclusive in the absence of demonstrable error.
"Eurodollar Rate Loan" means a Loan bearing interest based on the
Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal, carried out to
five decimal places) in effect on such day, whether or not applicable to any
Lender, under regulations issued from time to time by the FRB for determining
the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage. The
determination of the Eurodollar Reserve Percentage by the Administrative Agent
shall be conclusive in the absence of demonstrable error.
"Event of Default" means any of the events or circumstances specified
in Article VIII.
"Excluded Sale and Leaseback Transaction" means any sale or transfer
of property owned by Borrower or any Subsidiary to any Person within 365 days
following the acquisition or completion of construction of such property by
Borrower or any Subsidiary if Borrower or a Subsidiary shall concurrently with
such sale or transfer lease such property, as lessee.
"Existing Credit Facility" means that certain Competitive Advance and
Revolving Credit Facility Agreement dated as of May 16, 1996 among the
Borrower, the Subsidiaries named therein, the lenders named therein and Chase
Manhattan Bank, N.A. (as successor to Chemical Bank), as agent.
"Facility Guaranty" means that certain Guaranty Agreement dated as of
the date hereof among the Guarantors and the Administrative Agent substantially
in the form of Exhibit E hereto, as from time to time amended, supplemented or
replaced.
"Fair Market Value" means, at any time and with respect to any real or
personal property of any kind, tangible or intangible, xxxxxx or inchoate, the
sale value of such property that would be realized in an arm's-length sale at
such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell).
"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 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
10
no such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Foreign Lender" has the meaning specified in Section 10.15(a).
"FRB" means the Board of Governors of the Federal Reserve System of
the United States of America.
"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.
"GAAP" means generally accepted accounting principles 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, that are
applicable to the circumstances as of the date of determination, consistently
applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Guarantors" means Tupperware Finance and Dart.
"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, radon gas, infectious or medical wastes
and all other substances or wastes of any nature, the generation, handling,
storage, transportation, disposal, treatment, release, discharge or emission of
which is subject to any Environmental Law.
"Indebtedness" means, as to any Person at a particular time, 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) all direct or Contingent Obligations of such Person
arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar
instruments;
11
(c) net obligations under any Swap Contract in an amount
equal to the Swap Termination Value thereof;
(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);
(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) Attributable Indebtedness;
(g) all Contingent Obligations of such Person in respect
of any of the foregoing; and
(h) Disqualified Capital Stock.
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, unless such Indebtedness
is expressly made non-recourse to such Person. The amount of any capital lease
or Synthetic Lease Obligation as of any date shall be deemed to be the amount
of Attributable Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Intellectual Property" means trademarks and service marks (whether
registered or unregistered) and trade names; patents (including any
continuations, continuations in part, renewals and applications for any of the
foregoing); copyrights (including any registrations and applications therefor
and whether registered or unregistered); computer programs, including any and
all software implementations of algorithms, models and methodologies, whether
in source code or object code, databases and compilations, including any and
all data and collections of data, whether machine readable or otherwise; works
of authorship; mask works; technology; trade secrets, know-how, proprietary
processes, formulae, algorithms, models, user interfaces, inventions,
discoveries, concepts, ideas, techniques, methods, source codes, object codes,
methodologies and, with respect to all of the foregoing, related confidential
data or information and any licenses of the foregoing; but excluding any
limited copyright license or permission from authors, publishers or other
parties to use material in the Borrower's or a Subsidiary's products that have
no future payment obligations.
"Interbank Offered Rate" has the meaning therefor set forth in the
definition of Eurodollar Rate.
12
"Interest Coverage Ratio" means, as of any date of determination, for
the Borrower and its Subsidiaries on a consolidated basis, the ratio of (a)
Consolidated EBITDA for the period of the four prior fiscal quarters ending on
such date to (b) Consolidated Interest Charges for such period.
"Interest Payment Date" means, (a) as to any Eurodollar Rate Loan, the
last day of the relevant Interest Period, any date that such Loan is prepaid or
Converted, in whole or in part, and the Maturity Date; provided, however, that
if any Interest Period for a Eurodollar Rate Loan exceeds three months,
interest shall also be paid on the Business Day which falls every three months
after the beginning of such Interest Period; and (b) as to any Base Rate Loan,
the last Business Day of each March, June, September and December and the
Maturity Date; provided, further, that interest accruing at the Default Rate
shall be payable from time to time upon demand of Administrative Agent.
"Interest Period" means for each Eurodollar Rate Loan, initially, the
period commencing on the date such Eurodollar Rate Loan is disbursed or on the
date any Loan is Continued as or Converted into a Eurodollar Rate Loan, and
ending, in each case, on the date which is one, two, three or six months
thereafter, as selected by the Borrower in its Loan Notice, provided that:
(i) 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;
(ii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the scheduled
Maturity Date.
"Investment" means, as to any Person, any acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities of another Person, (b) a loan, advance or
capital contribution to, guaranty of debt of, or purchase or other acquisition
of any other debt or equity participation or interest in, another Person,
including any partnership or joint venture interest in such other Person, or
(c) the purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a business unit. 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, but including subsequent amounts of
Investments in the same Person at the time such amount is actually invested,
whether pursuant to earnouts, working capital adjustments or other contractual
obligations, or otherwise.
"IRS" means the United States Internal Revenue Service and any
successor governmental agency performing a similar function.
13
"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
Environmental Laws, the Trading with the Enemy Act, as amended, or any of the
foreign asset control regulations of the United States Treasury Department),
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.
"Lender" has the meaning specified in the introductory paragraph
hereto.
"Lending Office" means, as to any Lender, the office or offices of
such Lender described as such on Schedule 10.02, or such other office or
offices as a Lender may from time to time notify the Borrower and the
Administrative Agent.
"Leverage Ratio" means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for
the period of the four fiscal quarters ending on or most recently ended prior
to such date.
"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 of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable Laws of any jurisdiction) of or in
property securing any obligation to, or a claim by a Person other than the
owner of such property, whether statutory, by contract or otherwise, including
the interest of a purchaser of accounts receivable.
"Loan" means a Base Rate Loan or a Eurodollar Rate Loan made to the
Borrower by a Lender in accordance with its Pro Rata Share pursuant to Section
2.01, except as otherwise provided herein.
"Loan Notice" means a notice of (a) a Borrowing, (b) a Conversion of
Loans, or (c) a Continuation of Loans as the same Type, pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
"Loan Documents" means this Agreement, each Note, the Facility
Guaranty, the Agent/Arranger Fee Letter, each Loan Notice, each Compliance
Certificate, and all other instruments and documents heretofore or hereafter
executed or delivered to or in favor of any Lender or the Administrative Agent
in connection with the Loans made and transactions contemplated by this
Agreement.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
"Material Adverse Effect" means (a) a material adverse change in, or
a material adverse effect upon, the operations, business, assets, properties,
condition (financial or otherwise),
14
liabilities (actual or contingent) or prospects of the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of any
Loan Party to pay or perform its obligations under any Loan Document to which
it is a party; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to
which it is a party.
"Material Intellectual Property" means all Intellectual Property
relating to the conduct of the businesses of the Borrower and its Subsidiaries,
other than Intellectual Property that is no longer of material value or utility
to the Borrower or its Subsidiaries.
"Maturity Date" means (a) April 28, 2003, or (b) such earlier date
upon which the Aggregate Commitments may be terminated in accordance with the
terms hereof.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
thereto.
"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
three calendar years, has made or been obligated to make contributions.
"Multi-Year Revolving Credit Agreement" means that certain Multi-Year
Credit Agreement dated as of the date hereof by the Borrower, the
Administrative Agent and the lenders party thereto, pursuant to which the
lenders party thereto are making available to the Borrower a revolving credit
facility in the original maximum aggregate principal amount of $150,000,000.
"Net Proceeds" means with respect to any sale of property by any
Person an amount equal to (a) the aggregate amount of the consideration
received by such Person in respect of such sale (valued at Fair Market Value of
such consideration at the time of such sale determined by the board of
directors of Borrower), minus (b) the sum of (i) all out-of-pocket costs and
expenses actually incurred by such Person in connection with such sale, and
(ii) all state, federal and foreign taxes incurred, or to be incurred, by the
seller (assuming the highest marginal rate were applicable to such sale) in
connection with such sale.
"Note" means a promissory note made by the Borrower in favor of a
Lender evidencing Loans made by such Lender, substantially in the form of
Exhibit B.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of the Borrower arising under any Loan
Document or otherwise with respect to any Loan, 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 that
accrues after the commencement by or against the Borrower or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as
the debtor in such proceeding.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws; (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 and any agreement,
instrument, filing or
15
notice with respect thereto filed in connection with its formation with the
secretary of state or other department in the state of its formation and all
certificates and articles issued thereto by such secretary of state or other
department, in each case as amended from time to time.
"Other Taxes" has the meaning therefor set forth in Section 3.01(b).
"Outstanding Amount" means with respect to Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Loans as the case may be, occurring
on such date.
"Participant" has the meaning specified in Section 10.07(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 plan
(as described in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding five plan years.
"Permitted Acquisition" means each Acquisition effected with the
consent and approval of the board of directors or other applicable governing
body of the Person being acquired, and with the duly obtained approval of such
shareholders or other holders of equity or other ownership interest as such
Person may be required to obtain, so long as (i) immediately prior to and
immediately after the consummation of such Acquisition, no Default or Event of
Default has occurred and is continuing and (ii) any Person so acquired shall
become a Subsidiary or any assets so acquired shall become the property of
Borrower or a Subsidiary.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or any ERISA Affiliate.
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender's Commitment, which as of the Closing Date is set
forth opposite the name of such Lender on Schedule 2.01, as such percentage may
be adjusted as contemplated herein; provided that if the Aggregate Commitments
have been terminated at such time, then the Pro Rata Share of each Lender shall
be (x) with respect to the distribution of payments to such Lender, the
percentage (carried out to the ninth decimal place) of the aggregate
Outstanding Amount that is held by such Lender, and (y) for all other purposes,
determined based on the Pro Rata Share of such Lender immediately prior to such
termination and after giving effect to any subsequent assignments made pursuant
to Section 10.07.
16
"Protected Subsidiary" means (a) each Subsidiary of Dart which owns,
or licenses from a Person other than the Borrower or any Subsidiary,
Intellectual Property and (b) BC International Cosmetic & Image Services, Inc.
"Receivables" means a payment owing to a Person (whether constituting
an account, chattel paper, document, instrument or general intangible) arising
from the provision of merchandise, goods or services by such Person, including
the right to payment of any interest or finance charges and other obligations
owing to such Person.
"Register" has the meaning set forth in Section 10.07(c).
"Related Security" means with respect to any Receivable: (a) all
security interests or liens and property subject thereto from time to time
securing or purporting to secure the payment of such Receivable by the Person
obligated thereon, (b) all guaranties, indemnities and warranties, insurance
policies, financing statements and other agreements or arrangements of whatever
character from time to time supporting or securing payment of such Receivable,
(c) all right, title and interest of the Borrower or any Subsidiary or any
Securitization Entity in and to any goods (including returned, repossessed or
foreclosed goods) the sale of which gave rise to such Receivable; provided,
that Related Security will not include returned goods only to the extent that
all amounts required to be paid pursuant to Asset Securitizations in respect of
such goods have been paid, (d) all collections with respect to any of the
foregoing, (e) all records with respect to any of the foregoing, and (f) all
proceeds of such Receivable or with respect to any of the foregoing.
"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.
"Required Lenders" means, as of any date of determination, Lenders
whose Voting Percentages aggregate more than 50% of the Voting Percentages of
all Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, any vice president, secretary, treasurer or assistant
treasurer of a Loan Party. 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 and/or other action 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 the Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other
equity interest or of any option, warrant or other right to acquire any such
capital stock or other equity interest.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
17
"Same Day Funds" means immediately available funds.
"Securitization Entity" means Borrower and any wholly-owned Subsidiary
of Borrower (or another Person in which Borrower or any Subsidiary of Borrower
makes an Investment and to which Borrower or any Subsidiary of Borrower
transfers accounts receivable and related assets) that engages in no activities
other than in connection with the financing of accounts receivable and that is
designated by the board of directors of Borrower (as provided below) as a
Securitization Entity, (i) no portion of the Indebtedness (contingent or
otherwise) of which (a) is guaranteed by Borrower or any Subsidiary of Borrower
other than pursuant to Standard Securitization Undertakings, (b) is recourse to
or obligates Borrower or any Subsidiary of Borrower in any way other than
pursuant to Standard Securitization Undertakings or (c) subjects any property
or asset of Borrower or any Subsidiary of Borrower, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than pursuant to
Standard Securitization Undertakings, (ii) with which neither Borrower nor any
Subsidiary of Borrower has any material contract, agreement, arrangement or
understanding other than on terms no less favorable to Borrower or such
Subsidiary than those that might be obtained at the time from Persons that are
not Affiliates of Borrower, other than fees payable in the ordinary course of
business in connection with servicing receivables of such entity, and (iii) to
which neither Borrower nor any Subsidiary of Borrower has any obligation to
maintain or preserve such entity's financial condition or cause such entity to
achieve certain levels of operating results. Any such designation by the board
of directors of Borrower shall be evidenced to the Administrative Agent by
filing with the Administrative Agent a certified copy of the resolution of the
board of directors of Borrower giving effect to such designation and a
certificate of a Responsible Officer certifying that such designation complied
with the foregoing conditions.
"Senior Indebtedness" means all Consolidated Funded Indebtedness other
than Subordinated Indebtedness.
"Senior Notes" means the Series 2001-A 7.91% senior notes in the
amount of $150,000,000 issued pursuant to that certain Note Purchase Agreement
dated as of July 15, 2001 by and among Tupperware Finance and certain
purchasers party thereto from time to time.
"Senior Notes Guaranty" means that certain Guaranty Agreement dated
July 15, 2001 by and among Borrower and certain purchasers party thereto from
time to time delivered in connection with the Senior Notes.
"Shareholders' Equity" means, as of any date of determination for the
Borrower and its Subsidiaries on a consolidated basis, shareholders' equity as
of that date determined in accordance with GAAP.
"Solvent" means, when used with respect to any Person, that at the
time of determination:
(a) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(b) it is then able and expects to be able to
pay its debts as they mature; and
18
(c) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by Borrower or any
Subsidiary of Borrower that are reasonably customary in accounts receivable
securitization transactions.
"Subordinated Indebtedness" means all unsecured Indebtedness of
Borrower (excluding "back-to-back" borrowings in foreign currencies by
Subsidiaries operating in countries outside of the United States and Canada for
which there are related deposits or receivables of equivalent amounts so long
as (y) such borrowings are not included in Consolidated Funded Indebtedness
under GAAP and (z) the borrowing arrangements include rights of offset allowing
defaulted principal and accrued interest to be offset against the related
repayment obligation) which shall contain or have applicable thereto
subordination provisions providing for the subordination thereof to other
Indebtedness of Borrower (including, without limitation, the obligations of
Borrower under the Senior Notes Guaranty).
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"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 xxxx-to-
19
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 any Lender).
"Syndication Agent" means Citibank, N.A., in its capacity as
syndication agent under any of the Loan Documents, or any successor syndication
agent.
"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 creating obligations
that do not appear on the balance sheet of such Person but which, upon the
insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).
"Taxes" has the meaning therefor set forth in Section 3.01(a).
"364-Day Revolving Credit Facility" means the revolving credit
facility of up to $100,000,000 described herein.
"Threshold Amount" means $10,000,000.
"Tupperware Finance" means Tupperware Finance Company B.V., a company
organized under the laws of The Netherlands and a Subsidiary of the Borrower.
"Type" means with respect to a Loan, its character as a Base Rate Loan
or a Eurodollar Rate Loan.
"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.
"Voting Percentage" means, as to any Lender, (a) at any time when the
Aggregate Commitments are in effect, such Lender's Pro Rata Share and (b) at
any time after the termination of the Aggregate Commitments, the percentage
(carried out to the ninth decimal place) which (i) the Outstanding Amount of
such Lender's Loans then comprises of (ii) the aggregate Outstanding Amount of
all Loans; provided, however, that if any Lender has failed to fund any portion
of the Loans required to be funded by it hereunder, such Lender's Voting
Percentage shall be deemed to be zero, and the respective Pro Rata Shares and
Voting Percentages of the other Lenders shall be recomputed for purposes of
this definition and the definition of "Required Lenders" without regard to such
Lender's Commitment or the Outstanding Amount of its Loans.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
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(b) (i) The words "herein" and "hereunder" and words of similar
import when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial statements and
other writings, however evidenced, whether in physical or electronic form.
(c) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including;" the
words "to" and "until" each mean "to but excluding;" and the word "through"
means "to and including."
(d) Each reference to "basis points" or "bps" shall be
interpreted in accordance with the convention that 100 bps = 1.0%.
(e) 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) 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) 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).
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1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents)
and other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan Document;
and (b) references to any Law shall include all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting
such Law.
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ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 LOANS. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make, Convert and Continue Loans to the Borrower
from time to time on any Business Day during the period from the Closing Date to
the Maturity Date; provided, however, that after giving effect to any Borrowing,
(i) the aggregate Outstanding Amount of all Loans shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Loans of any
Lender shall not exceed such Lender's Commitment. Within the limits of each
Lender's Commitment, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.01, prepay under Section 2.03, and
reborrow under this Section 2.01. Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each Conversion of Loans, and each
Continuation of 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., New York
time, (i) three Business Days prior to the requested date of any Borrowing of,
Conversion to or Continuation of Eurodollar Rate Loans, and (ii) on the
requested date of any Borrowing of, or Conversion to, Base Rate Loans. Each such
telephonic notice must be confirmed promptly by delivery to the Administrative
Agent of a written Loan Notice, appropriately completed and signed by a
Responsible Officer; provided that the lack of such prompt confirmation shall
not affect the conclusiveness or binding effect of such telephonic notice. 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. Each Borrowing of or Conversion to Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
Each Loan Notice (whether telephonic or written) shall be substantially in the
form of Exhibit A attached hereto. If the Borrower fails to specify a Type of
Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a Conversion or Continuation, then the applicable Loans shall,
subject to the last sentence of this Section 2.02(a), be made or Continued 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. 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. If the Borrower requests a
Borrowing of, Conversion to, or Continuation of Eurodollar Rate Loans in any
such Loan Notice, but fails to specify an Interest Period, it will be deemed to
have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent
shall promptly notify each Lender of its Pro Rata Share of the applicable Loans.
Each Lender shall make the amount of its Loan available to the Administrative
Agent in Same Day Funds at the Administrative Agent's Office not later than 1:00
p.m., New York time, on the Business Day specified in the applicable 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
23
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.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan
may be Continued or Converted only on the last day of the Interest Period for
such Eurodollar Rate Loan. During the existence of a Default or Event of
Default, no Loans may be requested as, Converted into or Continued as Eurodollar
Rate Loans without the consent of the Required Lenders, and the Required Lenders
may demand that any or all of the then outstanding Eurodollar Rate Loans be
Converted immediately to Base Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower
and the Lenders of the interest rate applicable to any Eurodollar Rate Loan upon
determination of such interest rate. The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of demonstrable
error.
(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 with respect
to Loans.
2.03 PREPAYMENTS.
(a) 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 (i) such notice must be received by
the Administrative Agent not later than 12:00 noon, New York time, (A) three
Business Days prior to any date of prepayment of Eurodollar Rate Loans
denominated in Dollars, and (B) on the date of prepayment of Base Rate Loans;
(ii) 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 (iii) 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. 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 such Lender's Pro Rata Share 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. 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 such prepayment shall be applied to the Loans in
Dollars of the Lenders in accordance with their respective Pro Rata Shares.
(b) If for any reason the Outstanding Amount of all Loans at any
time exceeds the Aggregate Commitments then in effect, the Borrower shall
immediately prepay Loans in an aggregate amount equal to such excess.
2.04 REDUCTION OR TERMINATION OF COMMITMENTS. (a) The Borrower may,
upon notice to the Administrative Agent, terminate the Aggregate Commitments, or
permanently reduce the Aggregate Commitments to an amount not less than the then
aggregate Outstanding
24
Amount of all Loans; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m., New York time, five Business
Days prior to the date of termination or reduction, and (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. The Administrative Agent shall promptly notify the
Lenders of any such notice of reduction or termination of the Aggregate
Commitments. Once reduced in accordance with this Section, the Aggregate
Commitments may not be increased. Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Pro Rata
Share. All facility and utilization fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective date of
such termination.
(b) In the event the Borrower shall be required to use the Net
Proceeds from the transfer of assets to repay Senior Indebtedness as provided in
Section 7.05 and such Net Proceeds are applied to prepay Outstanding Amounts,
the Aggregate Commitments shall be permanently reduced by the amount of such Net
Proceeds paid to the Lenders and so applied. In the event such Net Proceeds are
used to repay outstanding commercial paper of the Borrower or any Subsidiary,
the Aggregate Commitments shall be permanently reduced by the principal amount
of commercial paper so paid.
2.05 REPAYMENT OF LOANS. The Borrower shall repay to the Lenders on
the Maturity Date the aggregate principal amount of Loans outstanding on such
date.
2.06 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan 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 Margin; and (ii) each Base
Rate Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Base Rate.
(b) If any amount payable by the Borrower under any Loan Document
is not paid when due (without regard to any applicable grace periods), such
amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Law. Furthermore, while any Event of Default exists or after
acceleration, the Borrower shall pay interest on the principal amount of all
outstanding Obligations at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Law.
Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(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.
2.07 FEES.
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(a) Facility Fee. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share, a
facility fee equal to the Applicable Margin times the actual daily amount of the
Aggregate Commitments, regardless of usage. The facility fee shall accrue at all
times from the Closing Date until the Maturity Date and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date. The facility fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Margin during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable
Margin separately for each period during such quarter that such Applicable
Margin was in effect. The facility fee shall accrue at all times, including at
any time during which one or more of the conditions in Article IV is not met.
(b) Utilization Fee. Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share, a
utilization fee of 0.125% times the actual daily aggregate Outstanding Amount
of all Loans on each day that (i) the sum of (A) such aggregate Outstanding
Amount plus (B) the Outstanding Amount of all Loans and L/C Obligations under,
and as each such term is defined in, the Multi-Year Revolving Credit Agreement,
exceeds 33% of (ii) the sum of (a) the Aggregate Commitments and (B) the
Aggregate Commitments under, and as defined in, the Multi-Year Revolving Credit
Agreement. The utilization fee shall be due and payable quarterly in arrears on
the last Business Day of each March, June, September and December, commencing
with the first such date to occur after the Closing Date, and on the Maturity
Date. The utilization fee shall be calculated quarterly in arrears. The
utilization fee shall accrue at all times, including at any time during which
one or more of the conditions in Article IV is not met.
(c) Arrangement and Agent Fees. The Borrower shall pay an
arrangement fee to each Arranger for such Arranger's own account, and shall pay
an agency fee to the Administrative Agent for the Administrative Agent's own
account, in the amounts and at the times specified in the letter agreement,
dated March 6, 2002 (the "Agent/Arranger Fee Letter"), among the Borrower, the
Arrangers, the Administrative Agent and the Syndication Agent. Such fees shall
be fully earned when paid and shall be nonrefundable for any reason whatsoever,
except that in the year of termination the agency fee shall be prorated.
(d) Lenders' Upfront Fee. On the Closing Date, the Borrower shall
pay to the Administrative Agent, for the account of the Lenders in accordance
with their respective Pro Rata Shares, an upfront fee in a mutually agreeable
amount. Such upfront fees are for the credit facilities committed by the Lenders
under this Agreement and are fully earned on the date paid. The upfront fee paid
to each Lender is solely for its own account and is nonrefundable for any reason
whatsoever.
2.08 COMPUTATION OF INTEREST AND FEES. Interest on Base Rate Loans
determined by reference to the Bank of America prime rate shall be calculated on
the basis of a year of 365 or 366 days, as the case may be, and the actual
number of days elapsed. Computation of all other types of interest and all fees
shall be calculated on the basis of a year of 360 days and the actual number of
days elapsed, which results in a higher yield to the payee thereof than a method
based on a year of 365 or 366 days. Interest shall accrue on each Loan for the
day on which the Loan is made, and, subject to Section 2.10, shall not accrue on
a Loan, or any portion thereof, for the
26
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 bear interest for one day.
2.09 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 demonstrable 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 shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, such Lender's Loans shall be
evidenced by a Note in addition to such accounts or records. Each Lender may
attach schedules to its Note(s) and endorse thereon the date, Type (if
applicable), amount and maturity of the applicable Loans and payments with
respect thereto.
2.10 PAYMENTS GENERALLY.
(a) 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 applicable
Administrative Agent's Office in Dollars and in Same Day Funds not later than
12:00 noon, New York time, on the date specified herein. The Administrative
Agent will promptly distribute to each Lender its Pro Rata Share 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 12:00 noon, New York time,
shall be deemed received on the next succeeding Business Day and any applicable
interest or fee shall in each case continue to accrue.
(b) Subject to the definition of "Interest Period," 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 reflected in computing interest or fees, as the case may be.
(c) If at any time prior to the occurrence of an Event of Default
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, interest and fees then due hereunder, such
funds shall be applied (i) first, toward costs and expenses (including Attorney
Costs and amounts payable under Article III) incurred by the Administrative
Agent and each Lender, (ii) second, toward repayment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (iii) third, toward
repayment of principal then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal then due to such parties. If
at any time after the occurrence of an Event of Default insufficient funds are
received by and available to the Administrative Agent to pay fully all
Outstanding
27
Amounts hereunder and Outstanding Amounts (as defined in the Multi-Year
Revolving Credit Agreement) under the Multi-Year Revolving Credit Agreement,
such funds shall be applied (i) first, toward costs and expenses hereunder and
under the Multi-Year Revolving Credit Agreement including Attorney Costs
(hereunder and under the Multi-Year Revolving Credit Agreement) and amounts
payable under Article III hereof and amounts payable under Article III of the
Multi-Year Revolving Credit Agreement incurred by the Administrative Agent and
each Lender hereunder and the Administrative Agent and each Lender under the
Multi-Year Revolving Credit Agreement (each as defined in the Multi-Year
Revolving Credit Agreement), (ii) second, toward repayment of interest and fees
then due hereunder and under the Multi-Year Revolving Credit Agreement, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (iii) third, toward repayment of
principal then due hereunder and and principal and L/C Borrowings (as defined in
the Multi-Year Revolving Credit Agreement) then due under the Multi-Year
Revolving Credit Agreement, ratably among the parties entitled thereto in
accordance with the amounts of principal and L/C Borrowings then due to such
parties.
(d) Unless the Borrower or any Lender has notified the
Administrative Agent prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that the Borrower or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that the Borrower or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
Same Day Funds, then:
(i) if the Borrower failed to make such payment, each
Lender shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender
in Same Day Funds, together with interest thereon in respect of each
day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid
to the Administrative Agent in Same Day Funds, at the applicable
Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such
Lender shall forthwith on demand pay to the Administrative Agent the
amount thereof in Same Day Funds, together with interest thereon for
the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the applicable Federal Funds Rate from time to
time in effect. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in
the applicable Borrowing. If such Lender does not pay such amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the Borrower, and
the Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate
per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its Commitment or to prejudice any rights
which the Administrative Agent or the
28
Borrower may have against any Lender as a result of any default by such
Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with respect
to any amount owing under this subsection (d) shall be conclusive, absent
demonstrable error.
(e) 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, except to the extent
such funds do not constitute the funding of a risk participation under Article
II, shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans are
several and not joint. The failure of any Lender to make any Loan 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.
(g) 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.
2.11 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it,
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Loans made by them as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such Loans or such
risk participations, as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender (including pursuant to any settlement
entered into by the Administrative Agent or any Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of (i)
the amount of such paying Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered,
without further interest thereon. The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off), but subject to Section 10.09 with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation. The Administrative Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right to
give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the
Obligations purchased.
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ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrower to or for the account of
the Administrative Agent or any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its net
income, 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 the
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Loan Document to the Administrative Agent or any Lender, (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 and such Lender receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of such
payment, the Borrower shall furnish to the Administrative Agent (which shall
forward the same to such Lender) the original or a certified copy of a receipt
evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes
or Other Taxes from or in respect of any sum payable under any Loan Document to
the Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent (for the account of such Lender) or to such Lender, at the
time interest is paid, such additional amount that such Lender specifies is
necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income) such Lender would have
received if such Taxes or Other Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section) paid by the Administrative Agent and such Lender, (ii)
amounts payable under Section 3.01(c) and (iii) any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto, in
each case
30
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. Payment under this subsection
(d) shall be made within 30 days after the date the Lender or the Administrative
Agent makes a demand therefor. Notwithstanding the foregoing, the Borrower will
not be required to pay any additional amounts in respect of Taxes imposed by the
United States federal government to any Lender if and to the extent the
obligation to pay such additional amounts would not have arisen but for a
failure by such Lender to comply with its obligations under Section 10.15.
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 as it would otherwise be obligated hereunder to make,
maintain or fund, or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable Eurodollar
interbank market, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation existing hereunder 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 thereof, 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. Each
Lender agrees to designate a different Lending Office if such designation will
avoid the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Administrative Agent or
the Required Lenders determine in connection with any request for a Eurodollar
Rate Loan or a Conversion to or Continuation thereof that (a) deposits in
Dollars are not being offered to banks in the London eurodollar interbank 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 Base
Rate for such Eurodollar Rate Loan, or (c) the Eurodollar Base Rate for such
Eurodollar Rate Loan does not adequately and fairly reflect the cost to the
Lenders of funding such Eurodollar Rate Loan, the Administrative Agent
(following notice from the Required Lenders if they make such determination)
will promptly notify the Borrower and all Lenders. Thereafter, the obligation of
the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until
the Administrative Agent revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing, Conversion 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 COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES
ON EURODOLLAR RATE LOANS.
(a) If any Lender determines that as a result of the introduction
of or any change in or in the interpretation of any Law, or such Lender's
compliance therewith, there shall be any
31
increase in the cost to such Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Loans, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this subsection (a) any such increased costs or reduction in amount
resulting from (i) Taxes or Other Taxes (as to which Section 3.01 shall govern),
(ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or any foreign jurisdiction or any political
subdivision of either thereof under the Laws of which such Lender is organized
or has its Lending Office, and (iii) reserve requirements utilized, as to
Eurodollar Rate Loans, in the determination of the Eurodollar Rate), then from
time to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
(c) (i) If any Lender shall make a claim for compensation from the
Borrower pursuant to Section 3.01 or Section 3.04, the Borrower may,
upon notice to such Lender and the Administrative Agent, (A) remove
such Lender by terminating such Lender's Commitment or (B) replace such
Lender by causing such Lender to assign its Commitment (without payment
of any assignment fee) pursuant to Section 10.07(b) to one or more
other Lenders or Eligible Assignees procured by the Borrower; provided,
however, that if the Borrower elects to exercise such right with
respect to any Lender pursuant to Section 3.04(c), it shall be
obligated to remove or replace, as the case may be, all Lenders that
have made similar requests for compensation pursuant to Section 3.01 or
3.04. The Borrower shall (x) pay in full all principal, interest, fees
and other amounts owing to such Lender through the date of removal or
replacement (including any amounts payable pursuant to Section 3.05)
and (y) release such Lender from its obligations under the Loan
Documents. Any Lender being replaced shall execute and deliver an
Assignment and Assumption with respect to such Lender's Commitment and
outstanding Credit Extensions. The Administrative Agent shall
distribute an amended Schedule 2.01, which shall be deemed incorporated
into this Agreement, to reflect changes in the identities of the
Lenders and adjustments of their respective Commitments and/or Pro Rata
Shares resulting from any such removal or replacement.
(ii) In order to make all the Lenders' interests in any
outstanding Credit Extensions ratable in accordance with any revised
Pro Rata Shares after giving effect to the removal or replacement of a
Lender, the Borrower shall pay or prepay, if necessary, on the
effective date thereof, all outstanding Loans of all Lenders, together
with any amounts due under Section 3.05. The Borrower may then request
Loans from the Lenders in accordance with their revised Pro Rata
Shares. The Borrower may net any payments required hereunder against
any funds being provided by any Lender or Eligible
32
Assignee replacing a terminating Lender. The effect for purposes of
this Agreement shall be the same as if separate transfers of funds had
been made with respect thereto.
(iii) This section shall supersede any provision in Section
10.01 or 10.07 to the contrary.
(d) Notwithstanding anything to the contrary contained in this
Section 3.04, unless the Lender gives notice to the Borrower that the Borrower
is obligated to pay an amount under this Section 3.04 within 180 days after the
later of (x) the date such Lender incurs the respective increased costs, loss,
expense or liability, reduction in amounts received or receivable or reduction
in return on capital or (y) the date such Lender has actual knowledge of its
incurrence of the respective increased costs, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital,
then such Lender shall only be entitled to be compensated for such amount by the
Borrower to the extent the respective increased costs, loss, expense or
liability, reduction in amounts received or receivable or reduction in return on
capital are incurred or suffered on or after the date which occurs 180 days
prior to such Lender giving notice to the Borrower as provided above that the
Borrower is obligated to pay the respective amounts pursuant to this Section.
3.04.
3.05 FUNDING 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); or
(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;
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 Interbank Offered Rate used in
determining the Eurodollar Rate for such Loan by a matching deposit or other
borrowing in the applicable Eurodollar interbank market for Dollars for a
comparable amount and for a comparable period, whether or not such Eurodollar
Rate Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION. A
certificate of the Administrative Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of demonstrable error.
In determining such amount, the Administrative Agent or such Lender may use any
reasonable averaging and attribution methods.
3.07 SURVIVAL. All of the Borrower's obligations under this Article
III shall survive termination of the Aggregate Commitments and repayment of all
Obligations.
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ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF CLOSING. The closing of the credit facilities
under this Agreement is subject to satisfaction of the following conditions
precedent:
(a) Unless waived by all the Lenders (or by the Administrative
Agent with respect to immaterial matters or items specified in clause (iv), (v)
or (xi) below with respect to which the Borrower has given assurances
satisfactory to the Administrative Agent that such items shall be delivered
promptly following the Closing Date), the Administrative Agent's receipt of the
following, each of which shall be originals or facsimiles (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 satisfactory to the Administrative Agent
and its legal counsel:
(i) executed counterparts of this Agreement and the
Facility Guaranty, sufficient in number for distribution to the
Administrative Agent, each Lender and the Borrower;
(ii) Notes executed by the Borrower in favor of each
Lender requesting such a Note, each in a principal amount equal to such
Lender's Commitment;
(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of the signing Loan Party as the Administrative Agent may
require to evidence the identities of and the 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;
(iv) such documents and certifications as the
Administrative Agent may reasonably require to evidence that each Loan
Party is duly organized or formed, validly existing, in good standing
and qualified to engage in business in each jurisdiction in which it is
organized and in which its chief executive office is located, including
certified copies of each Loan Parties' Organization Documents,
certificates of good standing and/or qualification to engage in
business;
(v) 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, (B) that there is no event,
circumstance, action, suit, investigation or proceeding pending or, to
the best knowledge of such Responsible Officer, threatened in any court
or before any arbitrator or Governmental Authority since date of the
Audited Financial Statements which has or could be reasonably expected
to have a Material Adverse Effect, (C) the current Debt Ratings (and
including a copy thereof), and (D) as to the matters described in
Section 4.01(d);
34
(vi) an opinion or opinions of counsel to each Loan Party
in form and substance satisfactory to the Administrative Agent;
(vii) the consolidated financial statements of the Borrower
and its Subsidiaries for the fiscal years ended 1999, 2000 and 2001,
including balance sheets, income and cash flow statements, all audited
and opined on by independent certified public accountants of recognized
national standing and prepared in conformity with GAAP, and such other
financial information as the Administrative Agent may request;
(viii) evidence that the Existing Credit Facility has been
or concurrently with the Closing Date is being terminated, all
indebtedness and obligations of the Borrower incurred thereunder have
been, or with the initial Credit Extension hereunder on the Closing
Date will be, repaid and the Borrower released from all liability
thereunder except such as by their express terms survive such repayment
and termination;
(ix) the Multi-Year Revolving Credit Agreement has been
executed and delivered by all parties thereto and the conditions set
forth in Sections 4.01 and 4.02 thereof as of the Closing Date have
been satisfied or waived in accordance with its terms;
(x) a Compliance Certificate signed by a Responsible
Officer of the Borrower dated as of the Closing Date demonstrating
compliance with the financial covenants contained in Section 7.10 as of
the end of the fiscal quarter most recently ended prior to the Closing
Date;
(xi) evidence of all insurance required by the Loan
Documents;
(xii) an initial Loan Notice;
(xiii) evidence of the current Debt Ratings; and
(xiv) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent or the Required
Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date
shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall
have paid all Attorney Costs of the Administrative Agent to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of Attorney Costs
as shall constitute its reasonable estimate of Attorney Costs 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) In the good faith judgment of the Administrative Agent and the
Lenders:
(i) there shall not have occurred or become known to the
Administrative Agent or the Lenders any event, condition, situation or
status since the date of the information contained in the financial and
business projections, budgets, pro forma data and forecasts concerning
the Borrower and its Subsidiaries delivered to the
35
Administrative Agent prior to the Closing Date that has had or could
reasonably be expected to result in a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or
threatened which could reasonably be likely to result in a Material
Adverse Effect; and
(iii) the Borrower shall have received all approvals,
consents and waivers, and shall have made or given all necessary
filings and notices as shall be required to consummate the transactions
contemplated hereby without the occurrence of any default under,
conflict with or violation of (A) any applicable law, rule, regulation,
order or decree of any Governmental Authority or arbitral authority or
(B) any agreement, document or instrument to which the Borrower or any
Subsidiary is a party or by which any of them or their properties is
bound.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS (OTHER THAN CP BACKUP
ADVANCES) AND CONVERSIONS AND CONTINUATIONS. The obligation of each Lender to
honor any Loan Notice (other than CP Backup Advances and a Loan Notice
requesting only a Conversion of Eurodollar Rate Loans to Base Rate Loans) is
subject to the following conditions precedent:
(a) The representations and warranties contained in Article V or
in any other Loan Documents shall be true and correct on and as of the date of
such Credit Extension, Conversion or Continuation, except to the extent that
such representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct as of such earlier date.
(b) No Default or Event of Default shall exist, or would result
from such proposed Credit Extension, Conversion or Continuation.
(c) The Administrative Agent shall have received a Loan Notice in
accordance with the requirements hereof.
(d) The Administrative Agent shall have received, in form and
substance satisfactory to it, such other assurances, certificates, documents or
consents related to the foregoing as the Administrative Agent or the Required
Lenders reasonably may require.
Each Loan Notice submitted by the Borrower under this Section 4.02
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.
4.03 CONDITIONS TO CP BACKUP ADVANCES. The obligation of each
Lender to honor any Loan Notice requesting a CP Backup Advance is subject to the
following conditions precedent:
(a) The representations and warranties contained in Article V,
other than Section 5.05(b), or in any other Loan Documents shall be true and
correct on and as of the date of such CP Backup Advance, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date.
36
(b) No Default or Event of Default shall exist, or would result
from such proposed Credit Extension, Conversion or Continuation.
(c) The Administrative Agent shall have received a Loan Notice in
accordance with the requirements hereof certifying that the Borrowing is a CP
Backup Advance, which shall constitute the Borrower's certification that the
proceeds of the Borrowing requested will be used solely to repurchase commercial
paper of the Borrower maturing on or about the date of such requested Borrowing
and that the Borrower is unable to issue additional commercial paper to fund
such repurchase upon terms set forth in the Borrower's CP Program Documents.
Each Loan Notice submitted by the Borrower under this Section 4.03
shall be deemed to be a representation and warranty that the conditions
specified in Sections 4.03(a) and (b) have been satisfied on and as of the date
of the applicable Credit Extension.
37
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. Each
Loan Party (a) is a corporation 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 governmental
licenses, authorizations, consents and approvals to own its assets, carry on its
business and to execute and deliver, and perform its obligations under, the Loan
Documents to which it is a party, (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 its business requires such
qualification or license, other than those jurisdictions as to which the failure
to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, and (d) is
in compliance in all material respects with all Laws.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
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 the Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, any Contractual
Obligation to which the Person is a party or any order, injunction, writ or
decree of any Governmental Authority or arbitral award to which such Person or
its property is subject; or (c) violate any Law.
5.03 GOVERNMENTAL AND THIRD-PARTY AUTHORIZATION. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
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 (i) applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights generally
and (ii) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
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 as of the
38
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 as of the date thereof, including liabilities for taxes,
material commitments and Indebtedness.
(b) Since the date of the Audited Financial Statements, there has
been no event or circumstance that has had or could reasonably be expected to
have a Material Adverse Effect.
5.06 LITIGATION. Except as specifically disclosed in Schedule 5.06,
there are no investigations by any Governmental Authority or actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Borrower
after due and diligent investigation, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, by or against the
Borrower or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby, or (b) if
determined adversely, 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 be
reasonably expected to have a Material Adverse Effect. No Default or Event of
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. Each of the Borrower and its
Subsidiaries has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. As of the Closing Date, the property of the Borrower and its
Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01.
5.09 ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries
conduct in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof the Borrower has reasonably concluded
that, except as specifically disclosed in Schedule 5.09, such Environmental Laws
and claims could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
5.10 INSURANCE. The properties of the Borrower and its Subsidiaries
are insured with financially sound and reputable insurance companies not
Affiliates of the Borrower, in such amounts (after giving effect to any
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 its Subsidiaries operate.
5.11 TAXES. Except as set forth in Schedule 5.11, the Borrower and
its Subsidiaries have filed all Federal, state and other material tax returns
and reports required to be filed, and
39
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 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. There is no
proposed tax assessment against the Borrower or any Subsidiary that could
reasonably be expected to have a Material Adverse Effect.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects 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 be 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 is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (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 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 be subject to Sections 4069 or 4212(c) of ERISA.
5.13 SUBSIDIARIES. The Borrower has no Subsidiaries other than
those specifically disclosed in Part (a) of Schedule 5.13 and has no equity
investments in any other corporation or entity other than those specifically
disclosed in Part (b) of Schedule 5.13.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY
HOLDING 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), or
extending credit for the purpose of purchasing or carrying margin stock.
40
(b) None of the Borrower, any Person controlling the Borrower, or
any Subsidiary (i) is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, or (ii) is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. No statement, information, report, representation,
or warranty made by any Loan Party in any Loan Document or furnished to the
Administrative Agent or any Lender by or on behalf of any Loan Party in
connection with any Loan Document contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
5.16 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and its
Subsidiaries own, or possess the right to use, all Intellectual Property that is
reasonably necessary for the operation of their respective businesses. To the
best knowledge of the Borrower, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Borrower or any Subsidiary, which is
material to business of the Borrower and its Subsidiaries taken as a whole,
infringes upon any rights held by any other Person. Except as specifically
disclosed in Schedule 5.16, no claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Borrower, threatened, and
no patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of the Borrower,
proposed, which, in either case, could reasonably be expected to have a Material
Adverse Effect.
5.17 SOLVENCY. The Borrower and its Subsidiaries, taken as a whole,
are Solvent after giving effect to the transactions contemplated by the Loan
Documents.
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ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, 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 satisfactory to the Administrative Agent and the
Required Lenders:
(a) as soon as available, but in any event within 105 days after
the end of each fiscal year of the Borrower, 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
amounts for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders (it being understood that any of
the four largest public accounting firms having its principal place of business
in the United States shall be acceptable without approval of the Required
Lenders), which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any
qualifications or exceptions as to the scope of the audit or the going concern
status of the Borrower; and
(b) as soon as available, but in any event within 50 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Borrower, 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 and certified by a Responsible
Officer of the Borrower as fairly presenting the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in accordance
with GAAP, subject only to normal, recurring year end adjustments and the
absence of certain footnotes.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent and each Lender, in form and detail satisfactory to the Administrative
Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified
public accountants rendering an opinion on such financial statements and stating
that in making the examination necessary therefor no knowledge was obtained of
any Default or Event of Default under the financial covenants set forth in
Section 7.10 or, if any such Default or Event of Default shall exist, stating
the nature and status of such event;
42
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate
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 or management letters submitted to
the board of directors (or the audit committee of the board of directors) of the
Borrower by independent accountants in connection with the accounts or books of
the Borrower or any Subsidiary, 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 Securities and Exchange Commission under Section 13
or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to
be delivered to the Administrative Agent pursuant hereto; and
(e) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
Each document required to be delivered pursuant to Section 6.01(a) or
(b) or Section 6.02(d) shall be deemed to have been delivered on the date on
which such document is posted on the Securities and Exchange Commission's
website at xxx.xxx.xxx (the "SEC Website") or on an Internet website established
by the Administrative Agent with Intralinks, Inc. or other similarly available
electronic media (each of the foregoing an "Informational Website"); provided
that (i) the Borrower shall deliver paper copies of all such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies until a request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Administrative Agent and each
Lender shall be notified by electronic mail of the applicable Informational
Website and of the posting of each such document. The Administrative Agent shall
have no obligation to request the delivery or to maintain copies of the
documents referred to above in this paragraph, 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.
6.03 NOTICES. Promptly notify the Administrative Agent and each
Lender:
(a) of the occurrence of any Default or Event of 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 the
Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws;
43
(c) of any litigation, investigation or proceeding affecting the
Borrower or any Subsidiary in which the amount involved (excluding amounts
covered by applicable insurance as to which no reservation of rights is in
effect) exceeds the Threshold Amount, or in which injunctive relief or similar
relief is sought, which relief, if granted, could reasonably be expected to have
a Material Adverse Effect;
(d) of the occurrence of any ERISA Event;
(e) of any material change in accounting policies or financial
reporting practices by the Borrower or any Subsidiary;
(f) of any public or private announcement by Xxxxx'x or S&P of any
change in a Debt Rating or change in outlook as to the Borrower; and
(g) Each notice pursuant to this Section shall be accompanied 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 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 or other Loan Document that have been breached.
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 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; (b) all
lawful claims which, if unpaid, would by law become a Lien upon its property;
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.
6.05 PRESERVATION OF EXISTENCE, ETC. Except in a transaction
permitted by Section 7.04 or 7.05, preserve, renew and maintain in full force
and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization; take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in
the normal conduct of its business, and preserve or renew all of its registered
Intellectual Property, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) 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;
and (b) make all necessary repairs thereto and renewals and replacements thereof
except where the failure to do so could not reasonably be expected to 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 any self-insurance
compatible with the following standards) as are customarily carried under
similar circumstances by such other Persons.
44
6.08 COMPLIANCE WITH LAWS AND CONTRACTUAL OBLIGATIONS. Comply in
all material respects with the requirements of all Laws and Contractual
Obligations applicable to it or to its business or property, except in such
instances in which (i) such requirement of Law or Contractual Obligation is
being contested in good faith by appropriate proceedings diligently conducted or
a bona fide dispute exists with respect thereto or (ii) with respect to
Contractual Obligations only, the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) 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; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over the Borrower or such Subsidiary, as the case may
be.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its officers, and independent public accountants, at
such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower and, prior to
an Event of Default, at the expense of the Lenders; provided, however, that when
an Event of Default has occurred and is continuing the Administrative Agent or
any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at any
time during normal business hours and without advance notice.
6.11 COMPLIANCE WITH ERISA. Do, and cause each of its ERISA
Affiliates to do, each of the following: (a) maintain each Plan in compliance in
all material respects with the applicable provisions of ERISA, the Code and
other Federal or state law; (b) cause each Plan which is qualified under Section
401(a) of the Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Code.
6.12 USE OF PROCEEDS. Use the proceeds of the Credit Extensions (i)
for working capital, capital expenditures, and other general corporate purposes
not in contravention of any Law or of any Loan Document; (ii) to refinance all
indebtedness outstanding under the Existing Credit Facility; and (iii) to
provide CP Backup Advances as commercial paper liquidity.
6.13 PROTECTED SUBSIDIARIES AND TUPPERWARE FINANCE. (a) Maintain at
all times Dart or 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 Intellectual Property, (b)
cause Tupperware Finance 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 and (ii) to continue to operate its business
substantially as heretofore conducted and (c) cause each Guarantor to be at all
times a wholly-owned Subsidiary.
6.14 MAINTAIN PRINCIPAL LINE OF BUSINESS. Maintain on a
consolidated basis the principal line of business of the Borrower and its
Subsidiaries as it exists on the Closing Date.
45
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, 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, assets or revenues, whether now owned or hereafter
acquired, other than the following:
(a) Liens created or arising pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01
and any renewals or extensions thereof, provided that the property covered
thereby is not increased and any renewal or extension of the obligations secured
or benefited thereby does not increase the maximum outstanding principal amount
of such obligations;
(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, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business with
respect to which the obligation secured thereby is not overdue for a period of
more than 30 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 and appeal
bonds, 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 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 in an
aggregate amount not in excess of the Threshold Amount (except to the extent
covered by independent third-party insurance as to which the insurer has
acknowledged in writing its obligation to cover), unless any such judgment
remains undischarged for a period of more than 30 consecutive days during which
execution is not effectively stayed;
46
(i) Liens securing (i) indebtedness of a Subsidiary to the
Borrower or a Guarantor, or (ii) Indebtedness of any Subsidiary other than a
Dart or a Protected Subsidiary, to any wholly-owned Subsidiary;
(j) Liens of a consignor of merchandise to the Borrower or any
Subsidiary on such consignor's merchandise;
(k) Liens in addition to those described in clauses (a) through
(j) above on assets other than equity interests in any Subsidiary securing
Indebtedness other than Intercompany Indebtedness (including Indebtedness
committed to the Borrower or any Subsidiary but not advanced) in aggregate
outstanding principal amount not to exceed $35,000,000 at any time;
(l) Liens on Receivables subject to Asset Securitizations and any
Related Security therefor.
7.02 INVESTMENTS. Make any Investments, except:
(a) those permitted by subsections (b) through (g) plus those that
are existing on the date hereof and listed on Schedule 7.02;
(b) Investments held by the Borrower or a Subsidiary in the form
of cash equivalents or short-term marketable securities;
(c) (i) non-cash loans to officers and employees in connection
with the acquisition of shares pursuant to the Borrower's management stock
purchase plan in transactions that have no net effect on Consolidated Net Worth
and (ii) advances to officers, directors and employees of the Borrower and
Subsidiaries in an aggregate amount not to exceed $25,000,000 (including those
existing on the date hereof which are listed on Schedule 7.02 to the extent they
are outstanding and advances to officers, directors and employees pursuant to
Section 7.02(h)) at any time outstanding;
(d) Investments of any Subsidiary in the Borrower or of the
Borrower or any Subsidiary in another Subsidiary;
(e) Investments consisting of extensions of credit in the nature
of accounts receivable or notes receivable arising from the sale or lease of
goods or services or the sale of real estate in the ordinary course of business,
and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order
to prevent or limit loss;
(f) Permitted Acquisitions;
(g) Investments permitted by Section 7.04; and
(h) other Investments in aggregate outstanding principal amount
not to exceed, at any time, $25,000,000.
7.03 INDEBTEDNESS. Allow or permit any Subsidiary other than
Tupperware Finance to create, incur, assume or suffer to exist any Indebtedness
other than (a) Indebtedness existing on
47
the date hereof set forth on Schedule 7.03, (b) Contingent Obligations of Dart
guaranteeing Senior Indebtedness (other than Contingent Obligations) incurred by
the Borrower or Tupperware Finance, or (c) Indebtedness of Subsidiaries other
than Protected Subsidiaries, without duplication for any Contingent Obligations
permitted hereunder of any Subsidiary guaranteeing or in effect guaranteeing
Indebtedness of a Subsidiary, in an aggregate outstanding principal amount
(including Indebtedness of such Subsidiaries described on Schedule 7.03) not
greater than $100,000,000; provided that any Indebtedness guaranteed by Dart or
Tupperware Finance shall be Senior Indebtedness.
7.04 FUNDAMENTAL CHANGES. Merge, consolidate with or into, or
convey, transfer, lease or otherwise 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 or Event of Default exists or would result therefrom:
(a) any Subsidiary may merge with or sell substantially all its
assets (upon voluntary liquidation or otherwise) to the Borrower, provided that,
if a merger, the Borrower shall be the continuing or surviving Person;
(b) any Subsidiary other than Dart or a Protected Subsidiary may
merge with or sell substantially all its assets (upon voluntary liquidation or
otherwise) to any one or more Subsidiaries, provided that if the seller in a
sale of assets transaction is a wholly-owned Subsidiary, then the purchaser must
also be a wholly-owned Subsidiary;
(c) Any Subsidiary of Dart may merge with and into Dart, merge
with any other Subsidiary of Dart, or sell substantially all of its assets (upon
voluntary liquidation or otherwise) to Dart or another Subsidiary of Dart;
provided that if the seller in such sale of assets transaction is a wholly-owned
Subsidiary, then the purchaser must be a wholly-owned Subsidiary; and
(d) Any Subsidiary of Tupperware Finance may merge with and into
Tupperware Finance, merge with any other Subsidiary of Tupperware Finance, or
sell substantially all of its assets (upon voluntary liquidation or otherwise)
to Tupperware Finance or another Subsidiary of Tupperware Finance; provided that
if the seller in such sale of assets transaction is a wholly-owned Subsidiary,
then the purchaser must be a wholly-owned Subsidiary.
7.05 SALES OF ASSETS. Sell, lease or otherwise dispose of any
substantial part (as defined below) of the assets of Borrower and its
Subsidiaries; provided, however, that Borrower or any Subsidiary may sell, lease
or otherwise dispose of assets constituting a substantial part of the assets of
Borrower and its Subsidiaries if such assets are sold in an arms length
transaction and, at such time and after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing and an amount equal to
the Net Proceeds, including proceeds from any Asset Securitization, received
from such sale, lease or other disposition shall be used within 365 days of such
sale, lease or disposition, in any combination:
(a) to acquire productive assets used or useful in carrying on the
business of Borrower and its Subsidiaries and having a value at least equal to
the value of such assets sold, leased or otherwise disposed of; or
48
(b) to prepay or retire commercial paper of Borrower and/or its
Subsidiaries or to prepay Outstanding Amounts.
As used in this Section 7.05, a sale, lease or other disposition of
assets shall be deemed to be a "substantial part" of the assets of Borrower and
its Subsidiaries if the book value of all other assets sold, leased or otherwise
disposed of by Borrower and its Subsidiaries during any period of 24 consecutive
months, exceeds 20% of the book value of Consolidated Total Assets, determined
as of the end of the fiscal year immediately preceding such sale, lease or other
disposition; provided that there shall be excluded from any determination of a
"substantial part" any (i) sale or disposition of assets in the ordinary course
of business of Borrower and its Subsidiaries, (ii) any transfer of assets from
Borrower to a wholly-owned Subsidiary or from any Subsidiary to Borrower, (iii)
any Excluded Sale Leaseback Transaction and (iv) any sale or other disposition
of the properties listed on Schedule 7.05 hereto.
7.06 ERISA. At any time engage in a transaction which could be
subject to Section 4069 or 4212(c) of ERISA, or permit any Plan to (a) engage in
any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (b) fail to comply with ERISA or any other applicable Laws; or (c) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA), which, with respect to each event listed above, could reasonably be
expected to have a Material Adverse Effect.
7.07 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind other than loans described in Section 7.02(c) with any Affiliate of the
Borrower, other than for compensation and upon fair and reasonable terms with
Affiliates in transactions that are otherwise permitted hereunder no less
favorable to the Borrower or Subsidiary than would be obtained in a comparable
arm's-length transaction with a Person other than an Affiliate.
7.08 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation
that limits the ability (a) of any Subsidiary to make Restricted Payments to the
Borrower or to otherwise transfer property to the Borrower or (b) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person, other than standard and customary negative pledge
provisions in property acquired with the proceeds of any capital lease or
purchase money financing that extend and apply only to such acquired property.
7.09 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.
7.10 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 (A)
$82,000,000, (B) an amount equal to 25% of the Consolidated Net Income earned in
each fiscal quarter ending after December 29, 2001 (with no deduction for a net
loss in any such fiscal quarter) and (C) an amount equal to 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 capital stock of the
Borrower
49
(including upon any conversion of debt securities of the Borrower into such
capital stock) minus (D) a cumulative reduction not to exceed $15,000,000 of
Shareholders' Equity resulting from the application of Statements of Financial
Accounting Standards No. 142 specifically related to BeautiControl, Inc.
(b) Interest Coverage Ratio. As of the end of any fiscal quarter,
permit the Interest Coverage Ratio computed using the most recent four fiscal
quarters then ended to be less than 3.0 to 1.0.
(c) Leverage Ratio. As of the end of any fiscal quarter, permit
the Leverage Ratio computed using the most recent four fiscal quarters to be
greater than 3.0 to 1.0.
7.11 TUPPERWARE FINANCE. Permit at any time Tupperware Finance to
engage in any business other than incurring Indebtedness and acting as a finance
conduit and related activities for the Borrower and its Subsidiaries located
outside the United States.
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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 fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan, or (ii) within
three days after the same becomes due interest on any Loan or any facility,
utilization or other fee due hereunder, or (iii) within five days after the same
becomes due, 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 (i) contained in any of Section 6.03, 6.05 (with
respect to maintaining the continued existence of any Loan Party), 6.10, 6.12,
6.13 or 6.14 or Article VII (other than Section 7.07 or 7.08) or (ii) contained
in either Section 7.07 or 7.08 and such failure continues for five days; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (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 notice of such default shall have been given
to the Borrower by the Administrative Agent; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact 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 or
misleading when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Contingent
Obligation (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 Contingent Obligation 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
Contingent Obligation (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
or redeemed (automatically or otherwise) prior to its stated maturity, or such
Contingent Obligation 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
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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
the Borrower or such Subsidiary as a result thereof is greater than the
Threshold Amount; or (iii) there occurs any Event of Default under the
Multi-Year Revolving Credit Agreement; or
(f) Insolvency Proceedings, Etc. The Borrower or any of its
Subsidiaries institutes or takes any action to indicate its consent to or
approval of the institution of any proceeding under any Debtor Relief Law, or
makes an 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 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 the Borrower
or any of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth in this subsection (f); or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any
Subsidiary 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 60 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any
Subsidiary (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
independent third-party insurance as to which the insurer does not dispute
coverage), or (ii) any non-monetary final judgment that has, or could reasonably
be expected to have, 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; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time
after its execution and delivery and for any reason other than the agreement of
all the Lenders or satisfaction in full of all the Obligations, ceases to be in
full force and effect, or is declared by a court of competent jurisdiction to be
null and void, invalid or unenforceable in any respect; or any Loan Party denies
that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or
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(k) Change of Control. There occurs any Change of Control with
respect to the Borrower.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
occurs, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders,
(a) declare the commitment of each Lender to make Loans 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; and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in subsection
(f) of Section 8.01, the obligation of each Lender to make Loans shall
automatically terminate and the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable, in each case without further act of the Administrative Agent or any
Lender.
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ARTICLE IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT. Each
Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party or any Affiliate thereof.
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9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any Loan Party), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders or all the Lenders, if required hereunder, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and participants. Where this Agreement expressly permits or prohibits an
action unless the Required Lenders otherwise determine, the Administrative Agent
shall, and in all other instances, the Administrative Agent may, but shall not
be required to, initiate any solicitation for the consent or a vote of the
Lenders.
(b) For purposes of determining compliance with the conditions
specified in 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 either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice from
a Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has,
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independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan Parties
and their Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to the Borrower and the other
Loan Parties hereunder. Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the Borrower or any of its Affiliates
which may come into the possession of any Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities to the extent determined in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Person's own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the Required
Lenders shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs and the costs and
expenses incurred in connection with the use of Intralinks, Inc. or other
comparable information transmission systems in connection with this Agreement)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by or
on behalf of the Borrower. The undertaking in this Section shall survive
termination of the Aggregate Commitments, the payment of all Obligations
hereunder and the resignation of the Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Borrower and its Affiliates as though Bank of America were not
the Administrative Agent hereunder and without notice to or consent of the
Lenders.
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The Lenders acknowledge that, pursuant to such activities, Bank of America or
its Affiliates may receive information regarding the Borrower or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Borrower or such Affiliate) and acknowledge that the Administrative
Agent shall be under no obligation to provide such information to them. With
respect to its Loans, Bank of America shall have the same rights and powers
under this Agreement as any other Lender and may exercise such rights and powers
as though it were not the Administrative Agent and the terms "Lender" and
"Lenders" include Bank of America in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor administrative agent for the Lenders
which successor administrative agent shall be consented to by the Borrower at
all times other than during the existence of an Event of Default (which consent
of the Borrower shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the resignation
of the Administrative Agent, the Administrative Agent may appoint, after
consulting with the Lenders and the Borrower, a successor administrative agent
from among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent, and the term "Administrative Agent" shall mean
such successor administrative agent, and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated
without any other or further act or deed on the part of any other Lender. After
any retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Article IX and Sections 10.04 and 10.05 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. If no successor administrative
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.
9.10 OTHER AGENTS; LEAD MANAGERS. None of the Lenders identified on
the facing page or signature pages of this agreement as a "Syndication Agent,"
"Co-Agent," "Lead Manager," or "Arranger" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
the Lenders so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
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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, unless in writing and signed by each of the
Lenders directly affected thereby and by the Borrower, and acknowledged by the
Administrative Agent, do any of the following:
(a) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.02);
(b) extend or postpone any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan or (subject to clause (iv) of the proviso below) 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 at the Default Rate;
(d) change the percentage of the Aggregate Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Lenders
or any of them to take any action hereunder;
(e) change the Pro Rata Share or Voting Percentage of any Lender;
or
(f) amend this Section, or Section 2.11, or any provision herein
providing for consent or other action by all the Lenders;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Required
Lenders or each directly-affected Lender, as the case may be, affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan
Document, and (ii) the Agent/Arranger Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the respective
parties thereto. Notwithstanding anything to the contrary herein, any Lender
that has a Voting Percentage of zero shall not have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the Pro Rata
Share of such Lender may not be increased without the consent of such Lender.
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10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission) and mailed (via certified mail, postage
prepaid with return receipt requested), faxed or delivered, to the address,
facsimile number or (subject to subsection (c) below) electronic mail address
specified for notices on Schedule 10.02; or, in the case of the Borrower or the
Administrative Agent, to such other address as shall be designated by such party
in a notice to the other parties, and in the case of any other party, to such
other address as shall be designated by such party in a notice to the Borrower
and the Administrative Agent. All such notices and other communications shall be
deemed to be given or made upon the earlier to occur of (i) actual receipt by
the intended recipient and (ii) (A) if delivered by hand or by courier, when
signed for by the intended recipient (which need not be any natural person to
whose attention such communication is directed, in the case of communications to
Persons other than natural Persons); (B) if delivered by mail, when delivered;
(C) if delivered by facsimile, when sent and receipt has been confirmed by
telephone; and (D) if delivered by electronic mail (which form of delivery is
subject to the provisions of subsection (c) below), when delivered; provided,
however, that notices and other communications to the Administrative Agent
pursuant to Article II shall not be effective until actually received by such
Person. Any notice or other communication permitted to be given, made or
confirmed by telephone hereunder shall be given, made or confirmed by means of a
telephone call to the intended recipient at the number specified on Schedule
10.02, or to such other number as shall be designated by such party in a notice
to the Borrower and the Administrative Agent, it being understood and agreed
that a voicemail message shall in no event be effective as a notice,
communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on all
Loan Parties, the Administrative Agent and the Lenders. The Administrative Agent
may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet
and intranet websites may be used only to distribute routine communications,
such as financial statements and other information as provided in Section 6.02,
and to distribute Loan Documents for execution by the parties thereto, and may
not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic 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
each Agent-Related Person and each Lender 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 communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
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10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder 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 or therein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all reasonable costs and expenses
incurred in connection with the development, due diligence, preparation,
negotiation, syndication and execution of this Agreement and the other Loan
Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs
and the costs and expenses incurred in connection with the use of Intralinks,
Inc. or other similar information transmission systems in connection with this
Agreement, and (b) to pay or reimburse the Administrative Agent and each Lender
for all costs and expenses incurred in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs and expenses
incurred during any "workout" or restructuring in respect of the Obligations and
during any legal proceeding, including any proceeding under any Debtor Relief
Law), including all Attorney Costs. The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal charges and
fees and taxes related thereto, and other out-of-pocket expenses incurred by the
Administrative Agent and the cost of independent public accountants and other
outside experts retained by the Administrative Agent or any Lender. The
agreements in this Section shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations.
10.05 INDEMNIFICATION BY THE BORROWER; LIMITATION OF LIABILITY.
Whether or not the transactions contemplated hereby are consummated, the
Borrower shall indemnify and hold harmless each Agent-Related Person, the
Arrangers, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Commitment or Loan or the use or
proposed use of the proceeds therefrom, (c) any actual or alleged presence or
release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Borrower or any Subsidiary, or any Environmental
Liability related in any way to the Borrower or any Subsidiary, or (d) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory
(including any investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation or proceeding) and
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regardless of whether any Indemnitee is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements are determined by a court of competent jurisdiction by
final and non-appealable judgment by a court of competent jurisdiction to have
resulted primarily from the gross negligence or willful misconduct of such
Indemnitee or as shall have resulted from any claim asserted against an
Indemnitee by another Indemnitee. The Borrower agrees that no Indemnitee shall
have any liability (whether direct or indirect, in contract or tort or
otherwise) to it or any of its Subsidiaries, security holders or creditors as a
result for any action taken or not taken by it arising out of, related to or
taken in connection with any Loan Document or the consummation of the
transactions contemplated hereby or the actual or proposed use of Loan proceeds,
except to the extent that such liability is found in a final non-appealable
judgment by a court of competent jurisdiction to have directly resulted from the
gross negligence or willful misconduct of such Indemnitee, and in no event shall
any Indemnitee be liable thereto for special, consequential, punitive or
indirect damages. Without limitation of the foregoing, no Indemnitee shall be
liable for any damages arising from the use by others of information or other
materials obtained through Intralinks or other comparable electronic
transmission systems utilized in connection with the credit facilities provided
hereunder. The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other
Obligations. All amounts due under this Section 10.05 shall be payable within
ten Business Days after demand therefor.
10.06 PAYMENTS SET ASIDE. To the extent that the Borrower makes a
payment to the Administrative Agent or any Lender, or the Administrative Agent
or any Lender exercises its right of set-off, and such payment or the proceeds
of such set-off 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 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 set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or paid 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 applicable Federal Funds Rate
from time to time in effect.
10.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective 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 each Lender (and any attempted assignment or transfer by the Borrower
without such consent 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
61
subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Indemnitees) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) 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 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)
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 a "Trade Date" is specified in the Assignment and Assumption, as of
the Trade Date, shall not be less than $1,000,000 unless each of the
Administrative Agent and, so long as no Default or Event of Default has occurred
and is continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed), (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 and the Commitment
assigned, and (iii) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500. 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 10.05 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 new or replacement Notes to the assigning
Lender and 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 subsection (d)
of this Section.
(c) 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 owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, 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 the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
62
(d) 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 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 that would (i) postpone any date upon
which any payment of money is scheduled to be paid to such Participant or (ii)
reduce the principal, interest, fees or other amounts payable to 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 subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.09
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.11 as though it were a Lender.
(e) 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
10.15 as though it were a Lender.
(f) 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 Notes, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; 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) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund that invests in bank loans may create a security interest
in all or any portion of the advances owing to it and the Note or Notes held by
it to the trustee for holders of obligations owed, or securities issued, by such
Fund as security for such obligations or securities, provided that unless and
until such trustee actually becomes a Lender in compliance with the other
provisions of this Section 10.07, (i) no such pledge shall release the pledging
Lender from any of its obligations under the Loan Documents and (ii) such
trustee shall not be entitled to exercise any of the rights of a Lender under
the Loan Documents even though such trustee may have acquired ownership rights
with respect to the pledged interest through foreclosure or otherwise.
63
10.08 CONFIDENTIALITY. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (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; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible Assignee of
or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Borrower;
(g) with the consent of the Borrower; (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 or any Lender on a
nonconfidential basis from a source other than the Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates. In
addition, the Administrative Agent and the Lenders may disclose the existence of
this Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents, the Commitments, and the
Credit Extensions. For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower or its business,
other than any such information that is available to the Administrative Agent or
any Lender on a nonconfidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower 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.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrower, any such notice being waived by the Borrower to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of the Borrower against any and all Obligations owing to such
Lender, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender;
provided,
64
however, that the failure to give such notice shall not affect the validity of
such set-off and application.
10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If 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.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by 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 Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of 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
shall remain unpaid or unsatisfied.
10.14 SEVERABILITY. Any provision of this Agreement and the other
Loan Documents to which the Borrower is a party that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions thereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
65
10.15 TAX FORMS. (a) Each Lender that is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code (a "Foreign
Lender") shall deliver to the Administrative Agent, prior to receipt of any
payment subject to withholding under the Code (or upon accepting an assignment
of an interest herein), two duly signed completed copies of either IRS Form
W-8BEN or any successor thereto (relating to such Person and entitling it to an
exemption from, or reduction of, withholding tax on all payments to be made to
such Person by the Borrower pursuant to this Agreement) or IRS Form W-8ECI or
any successor thereto (relating to all payments to be made to such Person by the
Borrower pursuant to this Agreement) or such other evidence satisfactory to the
Borrower and the Administrative Agent that such Person is entitled to an
exemption from, or reduction of, U.S. withholding tax. Thereafter and from time
to time, each such Person shall (i) promptly submit to the Administrative Agent
such additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Borrower and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Person by the Borrower pursuant to this Agreement, (ii) promptly
notify the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (iii) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws that the Borrower make any deduction or withholding for taxes from amounts
payable to such Person. If such Person fails to deliver the above forms or other
documentation, then the Administrative Agent may withhold from any interest
payment to such Person an amount equivalent to the applicable withholding tax
imposed by Sections 1441 and 1442 of the Code, without reduction.
(b) Upon the request of the Administrative Agent, each Lender that
is a "United States person" within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two duly signed completed copies
of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the termination of the Aggregate
Commitments, repayment of all Obligations and the resignation of the
Administrative Agent.
10.16 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, the LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
66
PROVIDED THAT THE ADMINISTRATIVE Agent AND EACH LENDER SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER, THE ADMINISTRATIVE Agent AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE
BORROWER, THE ADMINISTRATIVE Agent AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE
Agent AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
10.17 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
[Signatures on following pages.]
67
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/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, General Counsel
and Secretary
Signature Page - 1
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Signature Page - 2
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Signature Page - 3
CITIBANK, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Signature Page - 4
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Signature Page - 5
XX XXXXXX XXXXX BANK
By: /s/Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: SVP/Regional Manager
Signature Page - 6
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx X. Toulouse
-------------------------------------------
Name: Xxxxx X. Toulouse
Title: Vice President
Signature Page - 7
ABN AMRO BANK, N.V.
By: /s/ Xxxxx-Xxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxx-Xxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
Signature Page - 0
XXX XXXXXXXXXXX XXXX, XXX XXXX BRANCH
By: /s/ Xxxxxxx Xxx
-------------------------------------------
Name: Xxxxxxx Xxx
Title: General Manager
Signature Page - 9
BANK HAPOALIM, B.M.
By: /s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxx Xxxxxx X. Xxxxxxxx
Title: VP-SR Lending Officer Vice President
Signature Page - 10
MIZUHO CORPORATE BANK, LIMITED
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Signature Page - 00
XXXXX XXXXXXXXX XXX XXXXXX X.X.X.,
XXX XXXX BRANCH
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
Signature Page - 12
KBC BANK N.V.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Signature Page - 13
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
-----------------------------------------------------------------------------------------------------------
Bank of America, N.A. $ 14,000,000 14.000000000%
Citibank, N.A. 14,000,000 14.000000000%
Fleet National Bank 12,000,000 12.000000000%
XX Xxxxxx Chase Bank 12,000,000 12.000000000%
The Northern Trust Company 10,000,000 10.000000000%
ABN AMRO Bank N.V. 8,000,000 8.000000000%
The Norinchukin Bank, New York Branch 6,000,000 6.000000000%
Bank Hapoalim B.M. 6,000,000 6.000000000%
Mizuho Corporate Bank, Limited 6,000,000 6.000000000%
Banca Nationale Del Lavoro S.p.A., New York Branch 6,000,000 6.000000000%
KBC Bank N.V. 6,000,000 6.000000000%
Total $100,000,000 100.000000000%
1
SCHEDULE 5.06
LITIGATION
None.
1
SCHEDULE 5.09
ENVIRONMENTAL MATTERS
None.
1
SCHEDULE 5.11
TAX MATTERS
None.
2
SCHEDULE 5.13
SUBSIDIARIES
AND OTHER EQUITY INVESTMENTS
Part (a) Subsidiaries
(As of March 21, 2002)
The following subsidiaries are wholly owned by Tupperware Corporation or a
subsidiary of Tupperware Corporation (degree of remoteness from the registrant
is shown by indentations).
Tupperware Corporation
Dart Industries Inc.
Tupperware Espana, S.A.
Tupperware, Industria Lusitana de Artigos Domesticos, Limitada
Tupperware (Portugal) Artigos Domesticos, Lda.
Deerfield Land Corporation
Tupperware Far East, Inc.
Tupperware Turkey, Inc.
Dart Far East Sdn. Bhd.
Dart de Venezuela, C.A.
Tupperware Colombia X.X.
Xxxx do Brasil Industria e Comercio Ltda.
Daypar Participacoes Ltda
Academia de Negocios S/C Ltda.
Tupperware Hellas S.A.I.C.
Tupperware Del Ecuador Cia. Ltda.
Dart Industries Hong Kong Limited
Dart Industries (New Zealand) Limited
Tupperware New Zealand Staff Superannuation Plan
Dart, S.A. de C.V.
Servicios Especializados de Arrendamiento en Latinoamerica S.A. de C.V.
Dartco Manufacturing Inc.
Premiere Products, Inc.
Premiere Korea Ltd.
Premiere Marketing Company
Exportadora Xxxxx, X.X. de C.V.
Tupperware Australia Pty. Ltd.
Tupperware Singapore Pte. Ltd.
Newco Logistica e Participacoes Ltda.
Centro de Distribuicao RS Ltda.
Distribuidora Comercial Nordeste de Produtos Plasticos Ltda.
Distribuidora Comercial Paulista de Plasticos Ltda.
Centro de Distribuicao Mineira de Produtos de Plastico Ltda.
Distribuidora Esplanada de Produtos Plasticos Ltda.
Corcovado-Plast Distribuidora de Artigos Domesticos Ltda.
Distribuidora Baiana de Produtos Plasticos Ltda
1
Uniao Norte Distribuidora de Produtos Plasticos Ltda
Eixo Sul Brasileiro de Artigos Domesticos Ltda.
Centro Oeste Distribuidora de Produtos Plasticos Ltda.
Premiere Manufacturing, Inc.
Tupperware U.S., Inc.
Tupperware Distributors, Inc.
Tupperware Factors Inc.
Xxxxxxxxxx.xxx, Inc.
Tupperware Canada Inc.
Dart Staff Superannuation Fund Pty Ltd.
Importadora Y Distribuidora Importupp Limitada
Tupperware Iberica S.A.
Tupperware (Thailand) Limited
Tupperware Uruguay X.X.
Xxxx Executive Pension Fund Limited
Dart Pension Fund Limited
Tupperware U.K. Holdings, Inc.
The Tupperware Foundation
Tupperware Products, Inc.
Tupperware de El Salvador, S.A. de C.V.
Tupperware del Peru S.R.L.
Dart Holdings, S. de X.X.
Tupperware Honduras, S. de X.X.
Tupperware de Costa Rica, S.A.
Tupperware de Guatemala, S.A.
Asociacion Nacional de Distribuidores de Productos Tupperware, A.C.
Tupperware International Holdings Corporation
Tupperware International Holdings BV
Tupperware Israel Ltd.
Tupperware Belgium N.V.
Tupperware France S.A.
Tupperware Polska Sp.zo.o
Dart Argentina S.A.
TWP S.A.
Tupperware Asia Pacific Holdings Private Limited
Tupperware India Private Limited
Tupperware China, LLC
Tupperware (China) Company Limited
Dart (Philippines), Inc.
Tupperware Realty Corporation
Tupperware Philippines, Inc.
Tupperware Holdings B.V.
Tupperware Services GmbH
Tupperware, Ltd.
Tupperware Nederland Properties B.V.
Tupperware Nederland B.V.
Tupperware Deutschland GmbH
Tupperware Osterreich G.m.b.H.
Tupperware Southern Africa (Proprietary) Limited
2
Tupperware Products B.V.
Tupperware (Suisse) SA
Tupperware Products S.A.
Tupperware d.o.o.
Tupperware Bulgaria EOOD
Tupperware Eesti OU
UAB "Tupperware"
SIA Tupperware Latvia
Tupperware Luxembourg S.ar.l.
Tupperware Slovakia s.r.o.
Tupperware Morocco
Tupperware Asset Management Sarl
Diecraft Australia Pty. Ltd.
Tupperware Egypt Ltd
Tupperware East Africa Limited
Tupperware Italia S.p.A.
Tupperware General Services N.V.
Japan Tupperware Co., Ltd.
Tupperware Trading Ltd.
Tupperware Czech Republic, spol. s.r.o.
Tupperware United Kingdom & Ireland Limited
Tupperware Nordic A/S
Tupperware Global Center SARL
Tupperware Panama, X.X.
Xxxx Manufacturing India Pvt. Ltd.
Premiere Products Mexico, S. de X.X.
BeautiControl Mexico, S. de X.X.
PT Imawi Benjaya
Tupperware Finance Holding Company B.V.
Tupperware Finance Company B.V.
Tupperware Holdings Corporation
Tupperware Home Parties Corporation
Tupperware Export Sales, Ltd.
Tupperware Services, Inc.
Tupperware Holdings Ltd.
BeautiControl, Inc.
BC International Cosmetic & Image Services, Inc.
BeautiControl Canada, Ltd.
BeautiControl International, Inc.
BeautiControl International Services, Inc.
BeautiControl Asia Pacific Inc.
BeautiControl Hong Kong, Inc.
BeautiControl Japan, Inc.
BeautiControl Taiwan, Inc.
Eventus International, Inc.
JLH Properties, Inc.
BeautiControl Cosmeticos do Brasil Ltda.
International Investor, Inc.
3
Part (b) Other Equity Investments
Note 1. None that are material. Tupperware occasionally will receive shares in
a company in the ordinary course of business (a creditor becomes bankrupt, a
"mutual" insurance company becomes "publicly owned", etc.) These shares would
typically be sold for cash as soon as practical.
4
SCHEDULE 5.16
INTELLECTUAL PROPERTY MATTERS
None.
1
SCHEDULE 7.01
EXISTING LIENS
Unit/Location Approximate Amount
(USD Equivalent)
8.33% Mortgage Note on Dallas, Texas Building JLH Properties, BeautiControl $5,504,000.00
2 Liens on Manufacturing Building - Contingent Premiere Korea Ltd. $13,350,000.00
Tax Assessment
Leased Computer Equipment (Capital Leases) Czech Republic $31,000.00
Leased Computer Equipment, Manager Cars Poland $52,000.00
Leased Computer Equipment, IBM Suisse Tupperware Products S.A. $2,071,000.00
Fribourg, Switzerland
Intercompany Sale/Lease-Back of Hemingway, South Carolina N/A
Manufacturing Equipment (Note 1)
Intercompany Sale/Lease-Back of France, Belgium N/A
Mold Equipment (Note 2)
Note 1: This transaction is structured such that the lease payments are made
and received by subsidiaries of the Borrower. Therefore, the capital lease
obligation is eliminated in consolidation under U.S. GAAP.
Note 2: The seller (lessee) and the buyer (Lessor) are both subsidiaries of the
Borrower. The amount is shown as N/A since the capital lease obligation is
eliminated in consolidation under U.S. GAAP.
1
SCHEDULE 7.02
EXISTING INVESTMENTS
Loans/Receivables from Goings $7,483,360
Numerous Equity Investments in Various Tupperware
Subsidiaries, disclosed in Schedule 5.13
Numerous Intercompany loans to/from subsidiaries
Of the Borrower
Numerous guarantees by the Borrower of obligations of
Tupperware subsidiaries' obligations to third parties
Various extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services or the sale of
real estate in the ordinary course of business as disclosed in the Consolidated
Balance Sheet.
Note 1. Loans/Receivables from Certain Executives and Directors Related to the
Management Stock Purchase Program are excluded from this Schedule. These are
non-cash loans, and are excluded according to Section 7.02 (c).
1
SCHEDULE 7.03
EXISTING INDEBTEDNESS
(Presented on a Consolidated basis, with intercompany debt eliminated in
accordance with U.S. GAAP)
Approx. Amount
Description Borrower Guarantor(s) at 3/30/2002
(USD Equiv)
7.05% Notes due 2003 Tupperware Finance Co. BV Tupperware Corporation $ 15,000,000
7.25% Notes due 2006 Tupperware Finance Co. BV Tupperware Corporation $100,000,000
8.33% Mortgage Note JLH Properties BeautiControl Inc. $ 5,504,000
due 2009 Tupperware Corporation
7.91% Notes due 2011 Tupperware Finance Co. BV Tupperware Corporation $150,000,000
Dart Industries Inc.
(Note 1)
Commercial Paper Notes Tupperware Corporation $125,983,000
Capital Lease -
IBM Suisse Tupperware Products S.A. Tupperware Corporation $ 1,245,000
Bank debt - Italy Tupperware Italy Tupperware Corporation $ 557,000
Bank debt - Greece Tupperware Greece Tupperware Corporation $ 220,000
Bank debt - France Tupperware France Tupperware Corporation $ 2,919,000
Bank debt - Germany Tupperware Germany Tupperware Corporation $ 6,714,000
Bank debt - Japan Tupperware Japan Tupperware Corporation $ 1,835,000
Bank debt - Taiwan Tupperware Taiwan Tupperware Corporation $ 1,142,000
Bank debt - India Tupperware India Tupperware Corporation $ 632,000
Bank debt - Mexico Dart SA de CV Tupperware Corporation $ 2,252,000
Other various $ 2,570,000
------------
Total $416,573,000
Note 1: Under the terms of the 7.91% Notes due 2011, if Dart Industries Inc.
offers its guarantee to the Revolving Credit Facility, it must also provide its
guarantee to these note holders.
1
SCHEDULE 7.05
EXCLUDED PROPERTY
Xxxxxxxx Xxxxxxxxxxx
Xxxxx, Xxxxxxxxx Xxxxxxxx, Xxxx Xxxxxx 703,229 Square Feet of building space on
Xxxxx Xxxx Xxxxxx Xxxxx Xxxxx Xxxx & approx. 65 acres plus 19 acres of surplus
Old Highway 51 South land.
AKA State Route 88, AKA Church Street
Halls, Lauderdale County, Tennessee
Orange County, Florida Undeveloped real estate. Adjacent to the
Frontage on S. Orange Blossom Trail Osceola Co. Corporate Center, described
Xxxxxxx, Xxxxxxx 00000 below. Approx. 262 gross acres.
Osceola County, Florida Osceola Co. Corporate Center. Approx 929 gross
Frontage on S. Orange Blossom Trail, acres. Zoned for Commercial Development.
Xxxx Xxxxx Pkway, and Osceola Pkway Actively seeking buyers. Some parcels under
Orlando, Florida sales contracts.
Convention Center Building, Real Estate Approx. 2,000 seat Theatre. Approx. 23,600 sq. ft.
South Portion of the Tupperware Banquet/Exhibit hall. Adjacent property, including
Headquarters property 25,000 sq.ft. Plaza plus significant undeveloped
14901 S. Orange Blossom Trail real estate.
Xxxxxxx, Xxxxxxx 00000
Manufacturing Facility/Warehouse/Office Space Approx. 224,000 sq.ft. plus adjacent real estate.
00 Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxxx
Xxxxxxxx 0000 Xxxxxxxxx
Manufacturing/Warehouse/ Office Space Largely idle facility. Acreage of approx.
Ruta 1001 - Km. 8/C.C. 255 255,000 sq. metres. Building covers approx.
2930 San Xxxxx, Prov. Buenas Aires 19,056 sq. metres.
Argentina
Manufacturing/Office Space/Warehouse Under contract. Closing expected in 2002.
Carretera A Xxxxxxx, Xx. 1,100 Building is approx. 12,000 sq. meters. Approx.
E-28100 Alcobendas 40,000 sq. meters total acreage.
Madrid, Spain
Manufacturing/Office Space/Warehouse Production, office, and storage facilities
Xxxxxxx xx Xxxx Xx. 000 with adjacent real estate.
CEP 23020-230
Xxx xx Xxxxxxx - XX
Xxxxxx
0
SCHEDULE 10.02
LENDING OFFICES,
ADDRESSES FOR NOTICES
TUPPERWARE CORPORATION
00000 X. Xxxxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx
Senior Vice President, General Counsel
and Secretary
Telephone: 407.826.____
Facsimile: 407.826.____
Electronic Mail: xxxxxxxxx@xxxxxxxxxx.xxx
BANK OF AMERICA
Administrative Agent's Office and Bank of America's Lending Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
0000 Xxxxxxx Xxxxxxxxx, 5(th) Floor
CA4-706-05-09
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: 000.000.0000
Facsimile: 888 969.2786
Electronic Mail: Xxxxx.Xxxx@xxxxxxxxxxxxx.xxx
Account No.: 3750836479
Ref: Tupperware Corporation
ABA# 000000000
1
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
Xxxx X. Xxxxxxx
VP; Credit Services Team Lead II
Agency Management
Bank of America
Mail Code: CA5-701-05-19
0000 Xxxxxx Xx
Xxx Xxxxxxxxx, XX 00000-0000
Phone: 000.000.0000
Fax: 000.000.0000
Internet: xxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
Other Notices as a Lender:
Bank of America, N.A.
Xxxxx X. Xxxxxxxxx
Vice President
Consumer/Retail
Bank of America
Mail Code:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 000.000.0000
Fax: 000.000.0000
Internet: xxxxx.x.xxxxxxxxx@xxxxxxxxxxxxx.xxx
2
OTHER LENDERS
Requests for Credit Extensions:
CITIBANK, N.A.
0 Xxxxx Xxx, Xxxxx 000
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
Telephone: 000.000.0000
Facsimile: 402.894.6120
Electronic Mail: xxxx.x0.xxxxxxxxx@xxxx.xxx
Account No. 00000000
Ref: Tupperware Corporation
ABA# 000000000
Notices (other than Requests for Credit Extensions):
CITIBANK, N.A.
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxx
Telephone: 000.000.0000
Facsimile: 770.668.8137
Electronic Mail: xxxx.xxxxxxx@xxxx.xxx
3
Requests for Credit Extensions:
FLEET NATIONAL BANK
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Loan Administrator
Telephone: 000.000.0000
Facsimile: 617.434.0800
Electronic Mail: xxxx.x.xxxxxxxx@xxxxx.xxx
Account No. 00-0000000-00000
Account Name: Commercial Loan Services
Ref: Tupperware Corporation
ABA# 000000000
Notices (other than Requests for Credit Extensions):
FLEET NATIONAL BANK
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Relationship Manager
Telephone: 000.000.0000
Facsimile: 617.434.0601
Electronic Mail: xxxxx.x.xxxxxxxx@xxxxx.xxx
Ref: Tupperware Corporation
4
Requests for Credit Extensions:
XX XXXXXX CHASE BANK
0 Xxxxxxxxx Xxxxxx, 00(xx) Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Vice President
Telephone: 000.000.0000
Facsimile: 718.242.3846
Electronic Mail: xxxxxxx.xxxxxx@xxxxx.xxx
Account No. ______________
Ref: Tupperware Corporation
ABA# 000000000
Notices (other than Requests for Credit Extensions):
XX XXXXXX XXXXX BANK
0 Xxxxxxxxx Xxxxxx, 00(xx) Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Vice President
Telephone: 000.000.0000
Facsimile: 718.242.3846
Electronic Mail: xxxxxxx.xxxxxx@xxxxx.xxx
Ref: Tupperware Corporation
5
Requests for Credit Extensions:
THE NORTHERN TRUST COMPANY
00 X. XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Honda
Commercial Loans
Telephone: 000.000.0000
Facsimile: 312.630.1566
Electronic Mail: __________@__________
Bank: The Northern Trust Bank
Account No. 5186401000
Ref: Tupperware Corporation
ABA# 000000000
Notices (other than Requests for Credit Extensions):
THE NORTHERN TRUST COMPANY
00 X. XxXxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx
Telephone: 000.000.0000
Facsimile: 312.444.5055
Electronic Mail: __________@__________
6
Requests for Credit Extensions:
ABN AMRO BANK N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Loan Administration
Telephone: 000.000.0000
Facsimile: 312.992.5158
Electronic Mail: xxx.xxxx.x@xxxxxxx.xxx
Account No. 650-001-1789-41
Ref: CPU (00418463) (Tupperware)
ABA# 026009500
F/O ABN AMRO Bank, N.V.
Notices (other than Requests for Credit Extensions):
ABN AMRO BANK N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Credit Administration
Telephone: 000.000.0000
Facsimile: 312.992.5111
Electronic Mail: xxxxxx.xxxxxxx@xxxxxxx.xxx
With a copy to:
ABN AMRO Bank N.V.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxx
Telephone: 000.000.0000
Facsimile: 212.409.1641
0
XXX XXXXXXXXXXX XXXX, XXX XXXX BRANCH
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx XxXxxxx
Assistant Vice President
Telephone: 000.000.0000/7189
Facsimile: 212.697.5754
Electronic Mail: xxxxxxxx@xxxxxxxxx.xx.xx
Account No. 000-0-00000
Ref: Tupperware Corporation
Bank: The Chase Manhattan Bank
New York, New York
ABA# 000000000
Account Name: The Norinchukin Bank
Notices (other than Requests for Credit Extensions):
THE NORINCHUKIN BANK, NEW YORK BRANCH
000 Xxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx
Vice President
Telephone: 000.000.0000
Facsimile: 212.697.5754
Electronic Mail: xxxxxx@xxxxxxxxx.xx.xx
8
Requests for Credit Extensions:
BANK HAPOALIM B.M.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Loan Administrator
Telephone: 000.000.0000
Facsimile: 312.___.____
Electronic Mail: __________@__________
Account No. 1756-00-00
Ref: Tupperware Corporation
ABA# 000000000
Bank: Bank Hapoalim-Chicago (BK HAPOALIM CHGO)
Attn: C/L Dept.
Notices (other than Requests for Credit Extensions):
BANK HAPOALIM B.M.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Vice President, Senior Lending Officer
Telephone: 000.000.0000
Facsimile: 312.___.____
Electronic Mail: __________@__________
9
Requests for Credit Extensions:
MIZUHO CORPORATE BANK, LIMITED
1251 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxxxxx or Xxxxxx Xxxxxxxx
Credit Administration Department
Telephone: 000.000.0000
Facsimile: 212.282.4479/4480
Electronic Mail: __________@__________
Bank: Mizuho Corporate Bank, Limited
ABA# 000000000
Attn: Credit Administration
Ref: Tupperware Corporation
Notices (other than Requests for Credit Extensions):
MIZUHO CORPORATE BANK, LIMITED
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx
Vice President
Telephone: 000.000.0000, Ext. 107
Facsimile: 404.524.8509
Electronic Mail: xxxxxxx@xxxxx.xxx
10
Requests for Credit Extensions:
BANCA NAZIONALE DEL LAVORO S.p.A., NEW YORK BRANCH
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxx
Telephone: 000.000.0000
Facsimile: 212.765.2978
Electronic Mail: __________@__________
Bank: Chase Manhattan Bank, New York
ABA# 000000000
For A/C BNL New York Branch
A/C# 000-0-000000
Ref: Tupperware Corporation
Notices (other than Requests for Credit Extensions):
BANCA NAZIONALE DEL LAVORO S.p.A., NEW YORK BRANCH
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Vice President
Telephone: 000.000.0000, Ext. 107
Facsimile: 212.765.2978
Electronic Mail: xxxx.xxxxxx@xxxxxxx.xxx
11
Requests for Credit Extensions:
KBC BANK N.V.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Pacific
Loan Administration
Telephone: 000.000.0000
Facsimile: 212.956.5681
Electronic Mail: __________@__________
Bank: Federal Reserve Bank
ABA# 000000000
Account Name: KBC Bank N.V., New York Branch
Ref: Tupperware Corporation
Notices (other than Requests for Credit Extensions):
KBC BANK N.V.
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Vice President
Telephone: 000.000.0000
Facsimile: 404.584.5165
Electronic Mail: __________@__________
12
EXHIBIT A
FORM OF LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain 364-Day Credit Agreement, dated as
of April 30, 2002 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Tupperware Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent.
The undersigned hereby requests (select one):
[ ] A Borrowing of Loans [ ] A Conversion of Loans
[ ] A Continuation of Loans
1. On __________________ ___, 20___ (a Business Day).
2. In the amount of $____________________. (Note: Minimum of
$5,000,000 and multiples of $1,000,000 for Eurodollar Rate Loans; minimum of
$500,000 and multiples of $100,000 for Base Rate Loans)
3. Comprised of: [ ] Base Rate Loan
[ ] Eurodollar Rate Loan
4. For Eurodollar Rate Loans: with an Interest Period of
__________ months.
5. The Borrowing (select one) is [ ] is not [ ] a CP Backup
Advance.
The Borrowing requested herein complies with the proviso to the first
sentence of Section 2.01 of the Agreement.
A-1
The matters set forth in (x) Section 4.02(a) and (b) in the case of
any Borrowing that is not a CP Backup Advance and (y) Section 4.03(a) and (b)
in the case of any CP Backup Advance, are true, correct and complete as of the
date hereof and with respect to the requested Credit Extension.
TUPPERWARE CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
A-2
EXHIBIT B
FORM OF NOTE
Date: __________, _____
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
to pay to the order of _____________________________ (the "Lender"), on the
Maturity Date (as defined in the Credit Agreement referred to below) the
Lender's Commitment, or such lesser principal amount of Loans (as defined in
such Credit Agreement) due and payable by the Borrower to the Lender on the
Maturity Date under that certain 364-Day Credit Agreement, dated as of April
30, 2002 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being
used herein as therein defined), among the Borrower, the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent.
The Borrower promises to pay interest on the unpaid principal amount
of each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates, and at such times as are specified in the
Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars, in Same Day
Funds at the Administrative Agent's Office. If any amount is not paid in full
when due hereunder, such unpaid amount shall bear interest, to be paid upon
demand, from the due date thereof until the date of actual payment (and before
as well as after judgment) computed at the per annum rate set forth in the
Agreement.
This Note is one of the Notes referred to in the Agreement, is
entitled to the benefits thereof and is subject to optional prepayment in whole
or in part as provided therein. Upon the occurrence of one or more of the
Events of Default specified in the Agreement, all amounts then remaining unpaid
on this Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Loans made by the Lender shall be
evidenced by one or more loan accounts or records maintained by the Lender in
the ordinary course of business. The Lender may also attach schedules to this
Note and endorse thereon the date, amount and maturity of its Loans and
payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
B-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
TUPPERWARE CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
B-2
LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF OUTSTANDING
PRINCIPAL OR PRINCIPAL
TYPE OF LOAN AMOUNT OF LOAN END OF INTEREST INTEREST PAID BALANCE THIS
DATE MADE MADE PERIOD THIS DATE DATE NOTATION MADE BY
--------------------------------------------------------------------------------------------------------------------------------
-------------------- ------------ -------------- --------------- ------------- ------------ -----------------
-------------------- ------------ -------------- --------------- ------------- ------------ -----------------
-------------------- ------------ -------------- --------------- ------------- ------------ -----------------
-------------------- ------------ -------------- --------------- ------------- ------------ -----------------
-------------------- ------------ -------------- --------------- ------------- ------------ -----------------
-------------------- ------------ -------------- --------------- ------------- ------------ -----------------
B-3
ACKNOWLEDGEMENT OF EXECUTION ON BEHALF OF
TUPPERWARE CORPORATION
STATE OF _______________
COUNTY OF _______________
Before me, the undersigned, a Notary Public in and for said County and
State on this _____ day of April, 2002, personally appeared Xxxxxx X. Xxxxxx,
known to be the Senior Vice President, General Counsel and Secretary of
Tupperware Corporation (the "Borrower"), who, being by me duly sworn, says he
works at 00000 X. Xxxxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000-0000, and that
by authority duly given by, and as the act of, the Borrower, the foregoing Note
dated as of April 30, 2002 was signed by him as said Senior Vice President,
General Counsel and Secretary on behalf of the Borrower.
Witness my hand and official seal this _____ day of April, 2002.
-----------------------------------
Notary Public
(SEAL)
My commission expires: __________________
B-4
AFFIDAVIT OF ____________________________
[Name of Affiant]
The undersigned, being first duly sworn, deposes and says that:
1. He is a ________________ of _________________________________
[title] [name of institution]
and works at _____________________________________, ______________, __________.
[street address] [city] [state]
2. The Note of Tupperware Corporation dated April 30, 2002 was
executed before him and delivered to him/her on behalf of the Administrative
Agent in _________________, __________ on April __, 2002.
[city] [state]
This the _____ day of April, 2002.
-----------------------------------
[Signaure of Affiant]
Acknowledgement of Execution
STATE OF _______________
COUNTY OF _______________
Before me, the undersigned, a Notary Public in and for said County and
State on this _____ day of April, 2002 A.D., personally appeared
_________________________ who before me affixed his signature to the above
Affidavit.
Witness my hand and official seal this _____ day of April, 2002.
-----------------------------------
Notary Public
(SEAL)
My Commission Expires: ___________________
B-5
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ______________,
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain 364-Day Credit Agreement, dated as
of April 30, 2002 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Tupperware Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the of the Borrower, and that, as such, he/she is
authorized to execute and deliver this Certificate to the Administrative Agent
on the behalf of the Borrower, and that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited
financial statements required by Section 6.01(a) of the Agreement for the
fiscal year of the Borrower ended as of the above date, together with the
report and opinion of an independent certified public accountant required by
such section.
[Use following for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial
statements required by Section 6.01(b) of the Agreement for the fiscal quarter
of the Borrower ended as of the above date. Such financial statements fairly
present the financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal, recurring year-end audit adjustments and
the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms
of the Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and condition (financial or
otherwise) of the Borrower during the accounting period covered by the attached
financial statements.
3. A review of the activities of the Borrower during such fiscal
period has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and
C-1
[select one:]
[to the best knowledge of the undersigned during such fiscal period,
the Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it.]
--or--
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default or Event of Default
and its nature and status:]
4. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of _______________________ , _______________.
TUPPERWARE CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
C-2
SCHEDULE 2
to The Compliance Certificate
($ in 000's)
I. SECTION 7.10(A) - CONSOLIDATED NET WORTH.
A. Beginning base net worth $ 82,000
---------
B. 25% of Consolidated Net Income for each fiscal
quarter ending after December 29, 2001
(no reduction for losses) $
---------
C. 100% of increases in Shareholders' Equity from issuances
of capital stock after the Closing Date $
---------
D. FASB 142 BeautiControl Adjustment (Cannot exceed $15,000,000) $
---------
E. Minimum required Consolidated Net Worth
(I.A. + I.B. + I.C. - I.D.) $
---------
F. Shareholders' Equity at statement date $
G. Foreign currency translation and net equity hedge adjustments $
---------
Consolidated Net Worth at statement date $
---------
II. SECTION 7.10(B) - INTEREST COVERAGE RATIO.
A. Consolidated EBITDA for four consecutive fiscal quarters
ending on above date ("Subject Period"):
1. Consolidated Net Income (excluding extraordinary, unusual
or non-recurring gains) for Subject Period: $
---------
2. Consolidated Interest Charges for Subject Period: $
---------
3. Provision for income taxes for Subject Period: $
---------
4. Depreciation and amortization expenses for Subject Period: $
---------
5. Extraordinary, unusual or non-recurring non-cash
charges for Subject Period $
---------
6. Consolidated EBITDA (Lines II.A.1 + 2 + 3 + 4 + 5): $
---------
B. Consolidated Interest Charges for Subject Period: $
---------
C. Interest Coverage Ratio (Line II.A.6 / Line II.B): to 1.00
---------
Minimum required: 3.00 to 1.00
III. SECTION 7.10(C) - LEVERAGE RATIO.
A. Consolidated EBITDA for Subject Period (Line II.A.6 above): $
---------
B. Consolidated Funded Indebtedness at Statement Date: $
---------
C. Leverage Ratio (Line III.A / Line III.B): to 1.00
---------
Maximum permitted: 3.00 to 1.00
IV. COMMERCIAL PAPER.
Amount of Outstanding Commercial Paper: $
---------
C-3
EXHIBIT D
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of
Assignee] (the "Assignee"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Credit Agreement identified below (the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below, the interest in and to all of
the Assignor's rights and obligations under the Credit Agreement and any other
documents or instruments delivered pursuant thereto that represents the amount
and percentage interest identified below of all of the Assignor's outstanding
rights and obligations under the respective facilities identified below
(including, without limitation, to the extent permitted to be assigned under
applicable law, all claims (including, without limitation, contract claims,
tort claims, malpractice claims and all other claims at law or in equity,
including claims under any law governing the purchase and sale of securities or
governing indentures pursuant to which securities are issued), suits, causes of
action and any other right of the Assignor against any other Person) (the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [which is a
Lender/Affiliate/Approved Fund of [identify Lender](1)]
3. Borrower(s): ______________________________
4. Administrative Agent: Bank of America, N.A., as the
Administrative Agent under the Credit
Agreement
5. Credit Agreement: The 364-Day Credit Agreement, dated as of
April 30, 2002, among Tupperware
Corporation, the Lenders parties thereto,
and Bank of America, N.A., as
Administrative Agent
6. Assigned Interest:
------------------------
(1) Select as applicable.
D-1
Aggregate Amount of Amount of Commitment/Loans Percentage Assigned of
Commitment/Loans for all Lenders(*) Assigned(2) Commitment/Loans(2)
$ $ %
---------------- ---------------- --------------
$ $ %
---------------- ---------------- --------------
$ $ %
---------------- ---------------- --------------
[7. Trade Date: __________________](4)
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE
REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby
agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
----------------------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
----------------------------------------
Title:
---------------------
(2) Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective
Date.
(3) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
(4) To be completed if the Assignor and the Assignee intend that the
minimum assignment amount is to be determined as of the Trade Date.
D-2
[Consented to and](5) Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
------------------------------------
Title:
[Consented to:] 6
[TUPPERWARE CORPORATION]
By:
------------------------------------
Title:
---------------
(5) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
(6) To be added only if the consent of the Borrower and/or other parties is
required by the terms of the Credit Agreement.
D-3
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
364-Day Credit Agreement, dated as of April 30, 2002, among Tupperware
Corporation, the Lenders parties thereto, and Bank of America, N.A., as
Administrative Agent
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i)
it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i)
it has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 6.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
D-4
1.3 Assignee's Address for Notices, etc. Attached hereto as
Schedule 1 is all contact information, address, account and other
administrative information relating to the Assignee.
2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
interest (including payments of principal, interest, fees and other amounts) to
the Assignee whether such amounts have accrued prior to or on or after the
Effective Date. The Assignor and the Assignee shall make all appropriate
adjustments in payments by the Administrative Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly
between themselves.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of New York.
D-5
SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and
facsimile numbers, electronic mail addresses and account and payment
information)
D-6
EXHIBIT E
FORM OF FACILITY GUARANTY
E-1
