AMENDED AND RESTATED 364-DAY BRIDGE CREDIT AGREEMENT dated as of April 11, 2008 among DR PEPPER SNAPPLE GROUP, INC., as Borrower THE LENDERS PARTY HERETO and JPMORGAN CHASE BANK, N.A. as Administrative Agent BANK OF AMERICA, N.A. as Syndication Agent...
AMENDED AND RESTATED 364-DAY BRIDGE CREDIT AGREEMENT
dated as of
April 11, 2008
among
XX XXXXXX SNAPPLE GROUP, INC.,
as Borrower
as Borrower
THE LENDERS PARTY HERETO
and
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
as Administrative Agent
BANK OF AMERICA, N.A.
as Syndication Agent
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
XXXXXX XXXXXXX SENIOR FUNDING, INC.
and
UBS SECURITIES LLC
as Documentation Agents
as Syndication Agent
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
XXXXXX XXXXXXX SENIOR FUNDING, INC.
and
UBS SECURITIES LLC
as Documentation Agents
X.X. XXXXXX SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC
as Joint Lead Arrangers
and
BANC OF AMERICA SECURITIES LLC
as Joint Lead Arrangers
X.X. XXXXXX SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC,
XXXXXXX SACHS CREDIT PARTNERS L.P.,
XXXXXX XXXXXXX SENIOR FUNDING, INC.
and
UBS SECURITIES LLC
as Bookrunners
BANC OF AMERICA SECURITIES LLC,
XXXXXXX SACHS CREDIT PARTNERS L.P.,
XXXXXX XXXXXXX SENIOR FUNDING, INC.
and
UBS SECURITIES LLC
as Bookrunners
TABLE OF CONTENTS
Page | ||||||||
ARTICLE I Definitions | 1 | |||||||
Section 1.01. | Defined Terms | 1 | ||||||
Section 1.02. | Classification of Loans and Borrowings | 20 | ||||||
Section 1.03. | Terms Generally | 20 | ||||||
Section 1.04. | Accounting Terms; GAAP | 20 | ||||||
ARTICLE II The Credits | 20 | |||||||
Section 2.01. | Commitments | 20 | ||||||
Section 2.02. | Loans and Borrowings | 21 | ||||||
Section 2.03. | Requests for Borrowings | 21 | ||||||
Section 2.04. | Reserved | 22 | ||||||
Section 2.05. | Reserved | 22 | ||||||
Section 2.06. | Funding of Borrowings | 22 | ||||||
Section 2.07. | Interest Elections | 22 | ||||||
Section 2.08. | Termination and Reduction of Commitments | 23 | ||||||
Section 2.09. | Repayment of Loans; Evidence of Debt | 23 | ||||||
Section 2.10. | Prepayment of Loans | 24 | ||||||
Section 2.11. | Fees | 25 | ||||||
Section 2.12. | Interest | 25 | ||||||
Section 2.13. | Alternate Rate of Interest | 26 | ||||||
Section 2.14. | Increased Costs | 26 | ||||||
Section 2.15. | Break Funding Payments | 27 | ||||||
Section 2.16. | Taxes | 27 | ||||||
Section 2.17. | Payments Generally; Pro Rata Treatment; Sharing of Set-offs | 30 | ||||||
Section 2.18. | Mitigation Obligations; Replacement of Lenders | 31 | ||||||
ARTICLE III Representations and Warranties | 31 | |||||||
Section 3.01. | Organization; Powers | 32 | ||||||
Section 3.02. | Authorization; Enforceability | 32 | ||||||
Section 3.03. | Governmental Approvals; No Conflicts | 32 | ||||||
Section 3.04. | Financial Condition; No Material Adverse Change | 33 | ||||||
Section 3.05. | Properties | 33 | ||||||
Section 3.06. | Litigation and Environmental Matters | 33 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||||||
Section 3.07. | Compliance with Laws and Agreements | 34 | ||||||
Section 3.08. | Investment Company Status | 34 | ||||||
Section 3.09. | Taxes | 34 | ||||||
Section 3.10. | ERISA | 34 | ||||||
Section 3.11. | Disclosure | 34 | ||||||
Section 3.12. | Margin Regulations | 35 | ||||||
Section 3.13. | Labor Matters | 35 | ||||||
Section 3.14. | Separation Transactions | 35 | ||||||
ARTICLE IV Conditions | 36 | |||||||
Section 4.01. | Reserved | 36 | ||||||
Section 4.02. | Bridge Funding Date | 36 | ||||||
Section 4.03. | Conditions to Transaction Closing Date | 38 | ||||||
ARTICLE V Affirmative Covenants | 40 | |||||||
Section 5.01. | Financial Statements; Ratings Change and Other Information | 40 | ||||||
Section 5.02. | Notices of Material Events | 41 | ||||||
Section 5.03. | Existence; Conduct of Business | 41 | ||||||
Section 5.04. | Payment of Obligations | 42 | ||||||
Section 5.05. | Maintenance of Properties; Insurance | 42 | ||||||
Section 5.06. | Books and Records; Inspection Rights | 42 | ||||||
Section 5.07. | Compliance with Laws | 42 | ||||||
Section 5.08. | Use of Proceeds | 42 | ||||||
Section 5.09. | Additional Guarantors | 42 | ||||||
Section 5.10. | Ratings | 43 | ||||||
ARTICLE VI Negative Covenants | 43 | |||||||
Section 6.01. | Liens | 43 | ||||||
Section 6.02. | Fundamental Changes | 44 | ||||||
Section 6.03. | Investments, Loans, Advances, Guarantees and Acquisitions | 44 | ||||||
Section 6.04. | Financial Covenants | 45 | ||||||
Section 6.05. | Transactions with Affiliates | 46 | ||||||
Section 6.06. | Restrictive Agreements | 46 | ||||||
Section 6.07. | Subsidiary Indebtedness | 47 |
ii
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||||||
ARTICLE VII Events of Default | 47 | |||||||
ARTICLE VIII The Administrative Agent; the Agents and the Collateral Account | 49 | |||||||
Section 8.01. | The Administrative Agent; the Agents | 49 | ||||||
Section 8.02. | Collateral Account | 51 | ||||||
ARTICLE IX Miscellaneous | 52 | |||||||
Section 9.01. | Notices | 52 | ||||||
Section 9.02. | Waivers; Amendments | 53 | ||||||
Section 9.03. | Expenses; Indemnity; Damage Waiver | 53 | ||||||
Section 9.04. | Successors and Assigns | 54 | ||||||
Section 9.05. | Survival | 57 | ||||||
Section 9.06. | Counterparts; Integration; Effectiveness | 57 | ||||||
Section 9.07. | Severability | 58 | ||||||
Section 9.08. | Right of Setoff | 58 | ||||||
Section 9.09. | Governing Law; Jurisdiction; Consent to Service of Process | 58 | ||||||
Section 9.10. | WAIVER OF JURY TRIAL | 59 | ||||||
Section 9.11. | Headings | 59 | ||||||
Section 9.12. | Confidentiality | 59 | ||||||
Section 9.13. | Interest Rate Limitation | 60 | ||||||
Section 9.14. | Patriot Act | 60 | ||||||
Section 9.15. | No Advisory or Fiduciary Responsibility | 61 | ||||||
Section 9.16. | Release of Guarantors | 61 | ||||||
Section 9.17. | Amendment and Restatement | 62 |
iii
SCHEDULES:
Schedule 2.01
|
Commitments | |
Schedule 3.01(b) |
Subsidiaries | |
Schedule 3.06
|
Disclosed Matters | |
Schedule 6.01
|
Existing Indebtedness | |
Schedule 6.01
|
Existing Liens | |
Schedule 6.06
|
Existing Restrictions |
EXHIBITS:
Exhibit A — Form of Assignment and Assumption
Exhibit B — Form of Opinion of Borrower’s Counsel
Exhibit C — Form of Guaranty
Exhibit B — Form of Opinion of Borrower’s Counsel
Exhibit C — Form of Guaranty
ANNEXES
Annex I – Information Memorandum
Annex II – Separation Documents
Annex II – Separation Documents
iv
AMENEDED AND RESTATED CREDIT AGREEMENT dated as of April 11, 2008 (this “Agreement”),
among XX XXXXXX SNAPPLE GROUP, INC., as Borrower, the LENDERS party hereto, JPMORGAN CHASE BANK,
N.A., as Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent, and XXXXXXX XXXXX
CREDIT PARTNERS L.P., XXXXXX XXXXXXX SENIOR FUNDING, INC. and UBS SECURITIES LLC, as Documentation
Agents.
W I T N E S S E T H:
WHEREAS, the Borrower entered into the 364-Day Bridge Credit Agreement, dated as of March 10,
2008 (the “Existing Bridge Credit Agreement”) with the lenders and agents party thereto and
the Credit Agreement dated as of March 10, 2008 with the lenders, issuing banks and agents party
thereto; and
WHEREAS, the Borrower has requested, and the Lenders are willing to make available to the
Borrower, the credit facility described in this Agreement upon and subject to the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, covenants and agreements set forth herein,
the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.
“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder, and, as applicable, JPMorgan Chase Bank, N.A., in
its capacity as collateral agent for the Lenders hereunder, and any successor appointed pursuant to
Section 8.01(f).
“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“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.
“Agents” means, collectively, the Administrative Agent, Syndication Agent and
Documentation Agent.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“Applicable Percentage” means with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitments. If the applicable Commitments have
terminated or expired, the Applicable Percentages shall be determined based upon the applicable
Commitments most recently in effect, giving effect to any assignments.
“Applicable Rate” means, for any day, with respect to any ABR Loan or Eurodollar Loan,
the applicable rate per annum set forth below under the caption “ABR Spread” or “Eurodollar
Spread”, as the case may be, based upon the ratings by Xxxxx’x and S&P, respectively, applicable on
such date to the Index Debt:
ABR | Eurodollar | |||
Index Debt Ratings: | Spread | Spread | ||
Category 1 Index Debt ratings of at least BBB+ by S&P and/or Baa1 by Xxxxx’x |
0.00% | 1.00% | ||
Category 2 Index Debt ratings less than Category 1, but at least BBB by S&P and/or Baa2 by Xxxxx’x |
0.50% | 1.50% | ||
Category 3 Index Debt ratings less than Category 2, but at least BBB- by S&P and/or Baa3 by Xxxxx’x |
1.00% | 2.00% | ||
Category 4 Index Debt ratings less than Category 3, but at least BB+ by S&P and/or Ba1 by Xxxxx’x |
1.25% | 2.25% | ||
Category 5 Index Debt ratings less than Category 4 |
1.50% | 2.50% |
For purposes of the foregoing, (i) if either Xxxxx’x or S&P shall not have in effect a rating for
the Index Debt (other than by reason of the circumstances referred to in the last sentence of this
definition), then such rating agency shall be deemed to have established a rating in Category 5;
(ii) if the ratings established or deemed to have been established by Xxxxx’x and S&P for the Index
Debt shall fall within different Categories, the Applicable Rate shall be based on the higher of
the two ratings unless one of the two ratings is two or more Categories lower than the other, in
which case the Applicable Rate shall be determined by reference to the Category next below that of
the higher of the two ratings; and (iii) if the ratings established or deemed to have been
established by Xxxxx’x and S&P for the Index Debt shall be
changed (other than as a result of a change in the rating system of Xxxxx’x or S&P), such change
shall be effective as of the date on which it is first announced by the applicable rating agency,
irrespective of
2
when notice of such change shall have been furnished by the Borrower to the Agent
and the Lenders pursuant to Section 5.01 or otherwise. Each change in the Applicable Rate shall
apply during the period commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating system of Xxxxx’x
or S&P shall change, or if either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Borrower and the Lenders shall negotiate in good faith to amend
this definition to reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the rating most recently in effect prior to such change or cessation.
“Approved Fund” has the meaning assigned to such term in Section 9.04(b)(iv).
“Asset Sale”: means, with respect to any asset, real property or other tangible or
intangible property of the Borrower or its Subsidiaries, or any interest therein, any sale,
assignment, conveyance, transfer, lease, or other disposition or series of related dispositions
thereof, outside the ordinary course of business and resulting in proceeds exceeding $10,000,000
but excluding sales, assignments, conveyances, transfers, leases or other dispositions among the
Borrower and its Subsidiaries or pursuant to the Separation Documents in connection with the
Transactions.
“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.
“Audited Financial Statements” has the meaning assigned to such term in Section
4.02(k).
“Board” means the Board of Governors of the Federal Reserve System of the United
States of America.
“Bookrunners” means, collectively, X.X. Xxxxxx Securities Inc., Banc of America
Securities LLC, Xxxxxxx Sachs Credit Partners L.P., Xxxxxx Xxxxxxx Senior Funding, Inc. and UBS
Securities LLC, in their capacities as bookrunners.
“Borrower” means Xx Xxxxxx Snapple Group, Inc., a Delaware corporation.
“Borrowing” means an advance of Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect.
“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.
“Bridge Funding Date” has the meaning assigned to such term in Section 4.02.
“Business” means the beverage business in the United States, Canada, Mexico and the
Caribbean owned by Cadbury on the Effective Date and to be owned by the Borrower upon consummation
of the Separation Transactions.
“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.
3
“Cadbury” means Cadbury Schweppes plc, a public limited company organized under the
laws of England and Wales with registered number 0052457.
“Cadbury Material Adverse Effect” means a material adverse effect on the business,
operations, property or financial condition of Cadbury and its subsidiaries taken as a whole.
“Cadbury UK” means Cadbury plc, a United Kingdom public limited company incorporated
in England and Wales with registered number 0649739.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Cash Management Obligations” means all obligations of the Borrower or any Subsidiary
of the Borrower in respect of cash management services (including treasury, depository, overdraft,
credit or debit card, electronic funds transfer and other cash management arrangements) provided by
any Person that is a Lender or Affiliate of any Lender.
“Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Stock
representing more than 35% of the aggregate ordinary voting power represented by the issued and
outstanding Stock of the Borrower, (b) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i) nominated by the
board of directors of the Borrower nor (ii) appointed by directors so nominated or (c) a
termination of Cadbury UK’s and its subsidiaries’ indemnification obligations under the Tax Sharing
and Indemnification Agreement pursuant to the change of control provision therein.
“Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c) the
compliance by any Lender (or, for purposes of Section 2.14(b), by any lending office of such Lender
or by such Lender’s holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after the date of this
Agreement.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral Account” means a deposit account that is (a) established by and with the
Administrative Agent for the purpose of receiving the proceeds of the Loans on the Bridge Funding
Date (if the Bridge Funding Date occurs prior to the Transaction Closing Date), (b) in the name of
the Borrower and (c) over which the Administrative Agent has exclusive control and a perfected
first-priority Lien as security for the Obligations.
“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 under the caption “Commitment” or
4
opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement. The aggregate amount of the Commitments as of the Bridge Funding Date is
$1,700,000,000.
“Consolidated” means, with respect to any Person, the consolidation of accounts of
such Person and its subsidiaries in accordance with GAAP.
“Consolidated Cash Interest Expense” means, with respect to any Person, for any
period, the Consolidated Interest Expense of such Person and its subsidiaries for such period less
the Consolidated Non-Cash Interest Expense of such Person and its subsidiaries for such period.
“Consolidated EBITDA” means, with respect to any Person, for
any period, Consolidated
Net Income of such Person for such period plus (A) without duplication and to the extent deducted
in determining such Consolidated Net Income, the sum of (1) the aggregate amount of Consolidated
Interest Expense for such period, (2) the aggregate provision for federal, state, local or foreign
taxes based on income or profits or capital for such period, (3) all amounts attributable to
depreciation, amortization (including amortization of goodwill or other intangible assets) or
impairment of goodwill or other intangible assets for such period, (4) any extraordinary or
non-recurring non-cash charges for such period (provided, however, that cash expenditures
in respect of charges added back pursuant to this clause (4) shall be deducted in determining
Consolidated EBITDA for the period during which such expenditures are made), (5) the aggregate
amount of all non-cash compensation charges incurred during such period arising from the grant of
or the issuance of Stock or Stock Equivalents, (6) the aggregate amount of any extraordinary losses
plus any loss realized by such Person or any of its subsidiaries in connection with any
dispositions that occur during such period, (7) the aggregate amount of any fees, expenses or
charges paid on or prior to the Transaction Closing Date related to the Separation Transactions and
the negotiation, execution and delivery of this Agreement, the Bridge Loan and the Senior Notes,
(8) the aggregate amount of any fees, expenses or charges paid after the Transaction Closing Date
related to a refinancing of the Bridge Loan, if any, and (9) for periods prior to the Transaction
Closing Date, the aggregate amount of corporate costs allocated to the Borrower in its combined
financial statements and minus (B) (1) for periods prior to the Transaction Closing Date,
the Borrower’s good faith estimate of its costs of operating on a stand-alone basis as if the
Separation Transactions had occurred, which in no event shall be less than $11.25 million per
fiscal quarter (pro-rated in the case of a period comprising less than a full fiscal quarter), and
(2) without duplication and to the extent included in determining such Consolidated Net Income, the
sum of (i) any extraordinary gains and any non-recurring non-cash gains during such period, (ii)
any credit for federal, state, local or foreign taxes based on income or profits or capital during
such period, and (iii) any other gains realized by such Person or any of its subsidiaries in
connection with any dispositions that occur during such period. Notwithstanding the foregoing, the
following amounts (representing the aggregate effect of adjustments to (a) add back (I)
restructuring charges, reserves and integration costs, (II) anticipated benefits of organizational
restructuring, (III) losses
associated with the launch of Accelerade and (b) subtract profits and gains associated with
Glaceau) shall be added-back without duplication in determining Consolidated EBITDA during the
following periods:
Four Fiscal Quarters Ending | Net Add Back Amount | |
June 30, 2008 |
$68 million | |
September 30, 2008 |
$51 million | |
December 31, 2008 |
$34 million | |
March 31, 2009 |
$17 million |
5
“Consolidated Interest Expense” means, with respect to any Person, for any period, the
amount of interest expense reflected on the consolidated statement of income of such Person and its
subsidiaries for such period in conformity with GAAP.
“Consolidated Net Income” means, with respect to any Person, for any period, the
amount of net income reflected on the consolidated statement of income of such Person and its
subsidiaries for such period in conformity with GAAP.
“Consolidated Net Tangible Assets” means, with respect to any Person, as of any date
of determination, the total assets less the sum of goodwill, net, and other intangible assets, net,
in each case reflected on the Consolidated balance sheet of such Person and its subsidiaries as of
the end of the most recently ended fiscal quarter of such Person for which financial statements
have been delivered to the Administrative Agent pursuant to clause (a) or (b), as applicable, of
Section 5.01, determined on a consolidated basis in accordance with GAAP.
“Consolidated Non-Cash Interest Expense” means, with respect to any Person, for any
period, the sum of the following amounts to the extent included in the definition of Consolidated
Interest Expense of such Person: (a) the amount of debt discount and debt issuance costs amortized,
(b) charges relating to write-ups or write-downs in the book or carrying value of existing
Indebtedness, (c) interest payable in evidences of Indebtedness or by addition to the principal of
the related Indebtedness and (d) other non-cash interest.
“Consolidated Total Debt” means, with respect to any Person, as of the date of
determination, the aggregate amount of Indebtedness reflected on the consolidated balance sheet of
such Person and its subsidiaries as of such date in conformity with GAAP, plus, without
duplication, synthetic leases, letters of credit (but only to the extent drawn and not reimbursed).
“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.
“Debt Issuance” means, with respect to any Person, any incurrence or issuance of
Specified Indebtedness by such Person.
“Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Designated Swap Agreement” means any Swap Agreement (i) entered into by any
Subsidiary of the Borrower that is not a Guarantor with any Person that is a Lender or Affiliate of
any Lender and (ii) designated in writing by the Borrower to the Administrative Agent as a
“Designated Swap Agreement” for purposes of the Guranty.
“Disclosed Matters” means the events, actions, orders, decrees, judgments, inquiries,
investigations, reviews, suits and proceedings and the environmental matters disclosed in
Schedule 3.06.
6
“Documentation Agents” means Xxxxxxx Xxxxx Credit Partners L.P., Xxxxxx Xxxxxxx Senior
Funding, Inc. and UBS Securities LLC.
“dollars” or “$” refers to lawful money of the United States of America.
“Early Commitment Termination Date” means the earlier of (i) April 18, 2008, if by
that date the shareholders of Cadbury have not duly approved the Separation Transaction at a court
meeting and a general meeting as contemplated in the Registration Statement, (ii) the time any
borrowings are made under the UK Facility and (iii) 3:00 p.m. New York City time on May 13, 2008.
“Effective Date” means March 10, 2008, the “Effective Date” under the Existing Bridge
Credit Agreement.
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating to the protection of the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or,
as such relate to exposure to Hazardous Materials, to health and safety matters.
“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 Subsidiary 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.
“Equity Issuance” means the issue or sale of any Stock by the Borrower or any of its
Subsidiaries (other than (i) any such issuance of common Stock of the Borrower occurring in the
ordinary course of business to any director, member of the management or employee of the Borrower
or its Subsidiaries or (ii) any such issuance of Stock of the Borrower or any of its Subsidiaries
(A) to the Borrower of any of its Subsidiaries or (B) pursuant to the Separation Documents in
connection with the Transactions.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and rulings issued thereuder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) any failure to satisfy statutory minimum funding standards; (c) the
filing pursuant to Section 412(d) of the Code of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability with respect to the withdrawal or partial
7
withdrawal from any Plan or Multiemployer Plan;
or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected
to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.
“Event of Default” has the meaning assigned to such term in Article VII.
“Excluded Subsidiary” means (a) any Subsidiary that is not a wholly-owned Material
Subsidiary, (b) any Foreign Subsidiary, (c) any Subsidiary that is prohibited by applicable law
from guaranteeing the Obligations; provided that “Excluded Subsidiary” shall not include
any Subsidiary that guarantees, directly or indirectly, or otherwise provides a Guarantee for, any
Material Indebtedness of the Borrower or any other Loan Party or (d) Juice Guys Care, Inc. and
Cadbury Schweppes Americas Employee Relief Fund, so long as each remains qualified as a
not-for-profit corporation.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) income or franchise Taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
lending office is located, (b) any branch profits Taxes imposed by the United States of America (or
any political subdivision thereof) or any similar Tax imposed by any other jurisdiction in which
the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to
a request by the Borrower under Section 2.18(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.16(a).
“Existing Bridge Credit Agreement” has the meaning specified in the recitals to this
Agreement.
“Facilities” means the Commitments and the provisions herein related to the Loans.
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Fee and Syndication Letter” means that letter agreement dated March 10, 2008,
addressed to the Borrower and Cadbury from the Administrative Agent and the Bookrunners and
accepted by the Borrower and Cadbury on March 10, 2008, as amended on April 11, 2008.
8
“Financial Officer” means the chief financial officer, principal accounting officer,
senior vice president – corporate finance, treasurer or controller of the Borrower.
“Financing Transactions” means the execution, delivery and performance of the Loan
Documents and the Revolver and Term Loan Documents by the Loan Parties party thereto, the borrowing
of Loans, the borrowing of the Revolver and Term Loan or the issuance of the Senior Notes, as
applicable, and the use of the proceeds thereof.
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
“Foreign Subsidiary” means any Subsidiary that is not organized under the laws of the
United States, any state thereof or the District of Columbia.
“GAAP” means generally accepted accounting principles in the United States of America,
as in effect from time to time.
“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
“Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other payment obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other payment obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease
property, securities or services for the purpose of assuring the owner of such Indebtedness or
other payment obligation of the payment thereof, (c) to maintain working capital, equity capital or
any other financial statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other payment obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support such Indebtedness or
payment obligation; provided, that the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business, or customary and reasonable indemnity obligations in
effect on the Effective Date or entered into in connection with any acquisition or disposition of
assets.
“Guarantor” means the Borrower and each Subsidiary party to or that becomes party to
the Guaranty.
“Guaranty” means the Guaranty, executed and delivered by each Guarantor, in
substantially the form of Exhibit C, as the same may be amended, supplemented or otherwise modified
from time to time.
“Hazardous Materials” means all explosive or radioactive substances or wastes,
petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances, materials or wastes of
any nature regulated as hazardous or toxic, or a pollutant or contaminant, pursuant to any
Environmental Law.
9
“Immaterial Insolvency Event” means, as of any date, any Default under clause (h) of
Article VII with respect to any Guarantor that is a Material Subsidiary or group of Guarantors that
are Material Subsidiaries in connection with which an executive officer of such Subsidiary and the
general counsel of the Borrower each have certified (in writing to the Administrative Agent) that
(a) they believe that the commencement of the involuntary proceeding or involuntary petition
causing such Default is without merit and not expected to be sustained in the applicable proceeding
and (b) the Borrower has in good faith undertaken commercially reasonable efforts to dismiss such
proceeding or petition or otherwise cure such Default; provided that, at no time shall any
such Material Subsidiary subject to such Default (i) have Consolidated Net Tangible Assets as of
December 31, 2007 in the aggregate with all other Guarantors that are Material Subsidiaries subject
to such Default and all other Subsidiaries subject to the events of the type described in clause
(h) of Article VII, equal to or exceeding 10% of the Consolidated Net Tangible Assets of the
Borrower at such date and (ii) have Consolidated gross revenues for the fiscal year ended December
31, 2007 in the aggregate with all other Guarantors that are Material Subsidiaries subject to such
Default and all other Subsidiaries subject to the events of the type described in clause (h) of
Article VII, equal to or exceeding 10% of the Consolidated gross revenues of the Borrower for such
period, in each case determined in accordance with GAAP.
“Immaterial Subsidiary” means, any Subsidiary of the Borrower (including any Foreign
Subsidiary) that has been designated by the Borrower as an “Immaterial Subsidiary” for purposes of
this Agreement; provided that at no time shall (A) (i) the Consolidated Net Tangible Assets
of any Immaterial Subsidiary (as determined as of the last day of the most recently ended fiscal
quarter of the Borrower for which financial statements have been delivered pursuant to the clauses
(a) or (b), as applicable, of Section 5.01 (or prior to such delivery, as of December 31, 2007))
equal or exceed 5% or, together with all other Immaterial Subsidiaries and their subsidiaries, 10%,
of the Consolidated Net Tangible Assets of the Borrower at such date or (ii) the Consolidated gross
revenues of such Subsidiary for the four fiscal quarter period ending on the last day of the most
recently ended fiscal quarter of the Borrower for which financial statements have been delivered
pursuant to the clauses (a) or (b), as applicable, of Section 5.01 (or prior to such delivery, as
of December 31, 2007) equal or exceed 5% or, together with all other Immaterial Subsidiaries and
their subsidiaries, 10%, of the Consolidated gross revenues of the Borrower for such period, in
each case determined in accordance with GAAP, or (B) any Immaterial Subsidiary own, or be licensed
to use, any Material Intellectual Property.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (d) all obligations of such
Person in respect of the deferred purchase price of property or services (excluding (i) accounts
payable incurred in the ordinary course of business and not overdue by more than 120 days and (ii)
any earn-out obligation until such earn-out obligation becomes a liability on the balance sheet of
such Person in accordance with GAAP and if not paid after becoming due and payable), (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by
such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty and (i) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor. The amount of Indebtedness of any Person for purposes of
clause (e) above shall be
10
deemed to be the lesser of (i) the aggregate unpaid amount of such
Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by
such Person in good faith.
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Indemnitee” has the meaning set forth in Section 9.03(b).
“Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of the
Borrower that is not guaranteed by any other Person or subject to any other credit enhancement.
“Information Memorandum” means that certain Confidential Information Memorandum
relating to the Borrower, the Business and the Transactions to be used in connection with the
syndication of the Facilities.
“Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.07.
“Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each
March, June, September and December, and (b) with respect to any Eurodollar Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to
the last day of such Interest Period that occurs at intervals of three months’ duration after the
first day of such Interest Period.
“Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months or, with the consent of each Lender, nine or
twelve months (or at any time prior to the Transaction Closing Date, such period as agreed between
the Borrower and the Administrative Agent) thereafter, as the Borrower may elect; provided,
that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Borrowing
only, such next succeeding
Business Day would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day and (ii) any Interest Period pertaining to a Eurodollar
Borrowing that commences on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For purposes hereof,
the date of a Borrowing initially shall be the date on which such Borrowing is made.
“Investments” has the meaning assigned to such term in Section 6.03.
“Lenders” means (a) ay any time prior to the Bridge Funding Date, any Lender that
holds a Commitment at such time and (b) at any time after the Bridge Funding Date any Lender that
holds Loans at such time.
“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Reuters Screen LIBOR01 Page (or otherwise on the Reuters screen) (or on any
successor or substitute page of such service, or any successor to or substitute for such service,
providing rate quotations comparable to those currently provided on such page of such service, as
determined by the Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate
for dollar deposits with a
11
maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the “LIBO Rate” with respect to
such Eurodollar Borrowing for such Interest Period shall be the rate at which dollar deposits with
a maturity comparable to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset.
“Loan Documents” means, collectively, this Agreement, each Promissory Note, the Fee
and Syndication Letter, the Guaranty and, to the extent expressly designated as a “Loan Document”
by the Borrower and the Administrative Agent, each certificate, agreement or document executed by
the Borrower or any of its Subsidiaries and delivered to the Administrative Agent or any Lender in
connection with or pursuant to any of the foregoing.
“Loan Parties” means, as of any date, the Borrower and each Subsidiary party to the
Guaranty on such date.
“Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.
“Material Adverse Change” means any material adverse change in the business,
operations, property or financial condition of the Borrower and its Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business,
operations, property or financial condition of the Borrower and its Subsidiaries taken as a whole,
(b) the ability of the Borrower and the Guarantors (taken as a whole) to perform their payment
obligations under this Agreement or (c) the rights and remedies of the Lenders under this
Agreement.
“Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit) of any Loan Party or Material Subsidiary, or payment obligations in respect of any Swap
Agreement, that is outstanding in an amount exceeding the Minimum Threshold. For purposes of
determining Material Indebtedness, the “payment obligations” of such Loan Party or Material
Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that such Loan Party or such Material Subsidiary would be
required to pay if such Swap Agreement were terminated at such time.
“Material Intellectual Property” means any trademarks, tradenames, copyrights, patents
and other intellectual property owned or licensed by the Borrower or any of its Subsidiaries that
is material to the business of the Borrower and its Subsidiaries.
“Material Subsidiary” means, at any date of determination, any Subsidiary (including
any Foreign Subsidiary) that is not an Immaterial Subsidiary.
“Maturity Date” means the 364th day after the Bridge Funding Date.
“Minimum Threshold” means $75,000,000.
12
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate has any obligation, contingent or otherwise.
“Net Cash Proceeds” means proceeds received by the Borrower or any of its Subsidiaries
after the Bridge Funding Date in cash or cash equivalents from any (a) Asset Sale (including any
such proceeds received by way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as and when received) net
of (i) the reasonable cash costs of such sale, assignment or other disposition, (ii) taxes paid or
reasonably estimated to be payable as a result thereof, (iii) any amount required to be paid or
prepaid on Indebtedness secured by the assets subject to such Asset Sale and (iv) reasonable
reserves for purchase price adjustments and indemnification payments in connection therewith, (b)
Recovery Event or (c)(i) Equity Issuance, or (ii) Debt Issuance, in each case net of brokers’ and
advisors’ fees and other costs incurred in connection with such transaction; provided that,
(A) to the extent that the distribution to the Borrower or any Subsidiary of any Net Cash Proceeds
would (1) in the case of Net Cash Proceeds received by a Foreign Subsidiary, result in material
adverse tax consequences to the Borrower or its Subsidiaries, (2) result in a material breach of
any material agreement governing Indebtedness of such Subsidiary permitted to exist or to be
incurred by such Subsidiary under the terms of this Agreement or (3) in the case of Net Cash
Proceeds received by a Foreign Subsidiary, be limited or prohibited under applicable local law, the
application of such Net Cash Proceeds to the prepayments of the Loans pursuant to Section 2.10(d)
shall be deferred on terms to be agreed between the Borrower and the Administrative Agent and (B)
any Net Cash Proceeds pursuant to clause (a) or (b) above which are received on or after the Bridge
Funding Date and prior to the Transaction Closing Date, the application of such Net Cash Proceeds
to the prepayments of the Loans
pursuant to Section 2.10(d) shall be deferred until the no later than the 5th Business Day
following the Transaction Closing Date.
“Obligations” means the Loans and all other amounts owing by the Borrower to the
Administrative Agent, any Lender, any Affiliate of any of them or any Indemnitee, of every type and
description (whether by reason of an extension of credit, opening or amendment of a letter of
credit or payment of any draft drawn thereunder, loan, guarantee, indemnification or otherwise),
present or future, arising under this Agreement or any other Loan Document, whether direct or
indirect (including those acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising and however acquired and whether or not evidenced by any note,
guarantee or other instrument or for the payment of money, including all letter of credit and other
fees, interest, charges, expenses, attorneys’ fees and disbursements and other sums chargeable to
the Borrower under this Agreement or any other Loan Document.
“Offering Memorandum” means a complete preliminary prospectus or preliminary offering
memorandum or preliminary private placement memorandum customary for Rule 144A offerings, which
shall in any event contain (a) the Audited Financial Statements and the Pro Forma Financial
Statements delivered to the Bookrunners pursuant to Section 4.02(k), (b) summary
guarantor/nonguarantor net sales, income from operations, EBITDA, assets and debt information for
the fiscal years ended December 31, 2007, December 31, 2006 and January 1, 2006 and (c) all other
information that would be necessary for the investment banks thereunder to receive a customary
comfort letter from independent accountants in connection with an offering of the Senior Notes.
“Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, or similar charges or levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this
Agreement.
13
“Participant” has the meaning set forth in Section 9.04(c).
“Patriot Act” means the USA Patriot Act of 2001 (31 U.S.C. 5318 et seq.) as amended
from time to time.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
“Permitted Acquisitions” means any acquisition by the Borrower or a Subsidiary
(including any investments by the Borrower or any Subsidiary in any other Subsidiary for purposes
of financing such acquisition) of all or substantially all of the outstanding Stock (other than
directors’ qualifying shares) in, or all or substantially all the assets of, or all or
substantially all the assets constituting a division or line of business of, a Person if:
(a) no Default would result therefrom and, at the time contractually binding obligations with
respect to such acquisition are incurred, no Event of Default described in clauses (a), (b) (solely
with respect to interest or commitment fees), (h) or (i) of Article VII has occurred and is
continuing; and
(b) the Borrower shall be in compliance, on a pro forma basis, with the covenants set forth in
Section 6.04 as if and for the last day of the most recently ended fiscal quarter of the Borrower
for which financial statements have been delivered pursuant to the clauses (a) or (b), as
applicable, of Section 5.01.
“Permitted Encumbrances” means:
(a) Liens imposed by law for taxes, assessments or governmental charges that are not overdue
for a period of more than thirty (30) days or that are being contested in good faith in compliance
with Section 5.04;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing obligations that are not
overdue by more than thirty (30) days (or if more than thirty (30) days overdue, are unfiled and no
other action has been taken to enforce such Liens) or are being contested in compliance with
Section 5.04;
(c) (i) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations and
(ii) pledges and deposits in the ordinary course of business securing liability for reimbursement
or indemnification obligations of (including obligations in respect of letters of credit or bank
guarantees for the benefit of) insurance carriers providing property, casualty or liability
insurance to the Borrower or any Subsidiary;
(d) deposits to secure the performance of bids, trade contracts (other than for the repayment
of borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature (including those to secure health, safety and environmental
obligations), in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article VII;
14
(f) easements, restrictions, rights-of-way and similar encumbrances and minor title defects on
real property imposed by law or arising in the ordinary course of business that do not secure any
payment obligations and do not, in the aggregate, materially detract from the value of the affected
property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
(g) leases, licenses, subleases or sublicenses granted to others in the ordinary course of
business which do not (i) interfere in any material respect with the business of the Borrower and
its Subsidiaries, taken as a whole, or (ii) secure any Indebtedness;
(h) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the ordinary course of
business;
(i) Liens (i) of a collection bank on the items in the course of collection, (ii) attaching to
commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course
of business and (iii) in favor of a banking or other financial institution arising as a matter of
law encumbering deposits or other funds maintained with a financial institution (including the
right of set off) and which are customary in the banking industry;
(j) any interest or title of a lessor under leases entered into by the Borrower or any
Subsidiaries in the ordinary course of business and financing statements with respect to a lessor’s
right in and to personal property leased to such Person in the ordinary course of such Person’s
business other than through a capital lease;
(k) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by the Borrower or any Subsidiaries in the ordinary
course of business;
(l) Liens deemed to exist in connection with Permitted Investments and reasonable customary
initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or
other brokerage accounts maintained in the ordinary course of business and not for speculative
purposes;
(m) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks or other financial institutions not given in connection with the
issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any
Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of the Borrower and the Subsidiaries or (iii) relating to purchase orders and
other agreements entered into with customers of the Borrower or any Subsidiary in the ordinary
course of business;
(n) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any Subsidiaries
in connection with any letter of intent or purchase agreement;
(o) ground leases in respect of real property on which facilities owned or leased by the
Borrower or any of its Subsidiaries are located;
(p) Liens on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto;
15
(q) any zoning or similar law or right reserved to or vested in any Governmental Authority to
control or regulate the use of any real property that does not materially interfere with the
ordinary conduct of the business of the Borrower or any Subsidiary; and
(r) Liens on specific items of inventory or other goods and the proceeds thereof securing such
Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or
created for the account of such Person to facilitate the purchase, shipment or storage of such
inventory or goods.
“Permitted Investments” means:
(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or
from Moody’s;
(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution satisfying
the criteria described in clause (c) above; and
(e) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the
Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have
portfolio assets of at least $5,000,000,000.
“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.
“Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank as its prime rate in effect at its office located at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx; each change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.
“Pro Forma Financial Statements” has the meaning assigned to such term in Section
4.02(k).
“Promissory Note” has the meaning assigned to such term in Section 2.09(e).
16
“Recovery Event” any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding (including taking of property) relating to any
asset, real property or other tangible or intangible property of the Borrower or its Subsidiaries,
in each case, resulting in proceeds exceeding $10,000,000.
“Register” has the meaning set forth in Section 9.04(b)(iv).
“Regulation S-X” means Regulation S-X of the Securities Act of 1933, as amended.
“Registration Statement” means the Registration Statement on Form 10, under the
Securities Exchange Act of 1934, as amended, of the Borrower filed with the SEC on February 12,
2008, including the exhibits filed therewith, without giving effect to any subsequent amendments
filed thereto; provided, however, that Exhibits 99.1, 2.1, 10.1, 10.2 and 10.3
contained in the Registration Statement filed on February 12, 2008 shall, for the purposes of this
definition, mean Annex I (Information Memorandum) and Annex II (Separation Documents) hereof.
“Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective partners, directors, officers, employees, agents and advisors of such
Person and such Person’s Affiliates.
“Required Lenders” means, at any time, Lenders having more than 50% in total of the
principal amount of the Loans then outstanding.
“Revolver and Term Loan” means those certain commitments and loans made pursuant to
the Revolver and Term Loan Agreement in an aggregate amount of up to $2,700,000,000.
“Revolver and Term Loan Agreement” means that certain Amended and Restated Credit
Agreement dated as of the date hereof, among the Borrower, the lenders and issuing banks party
thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Bank of America, N.A. as Syndication
Agent, Xxxxxxx Xxxxx Credit Partners L.P., Xxxxxx Xxxxxxx Senior Funding, Inc., and UBS Securities
LLC as Documentation Agents, and the other parties thereto.
“S&P” shall mean Standard & Poor’s Ratings Services, a Division of The XxXxxx-Xxxx
Companies, Inc.
“SEC” means the Securities and Exchange Commission or any successor thereto.
“Senior Notes” means an aggregate of up to $1,700,000,000 of the Borrower’s senior
unsecured notes to be issued in an unregistered offering conducted pursuant to Rule 144A and
Regulation S under the U.S. Securities Act of 1933, as amended, the terms of which shall not
require scheduled principal payments to be made at any time prior to the later of the Revolving
Credit Facility Maturity Date (as defined in the Revolver and Term Loan Agreement) and the Term
Loan Facility Maturity Date (as defined in the Revolver and Term Loan Agreement).
“Separation and Distribution Agreement” means the Separation and Distribution
Agreement among Cadbury and the Borrower and, solely for certain sections set forth therein,
Cadbury UK, substantially in the form of the most recent draft delivered to the Bookrunners on or
prior to the date hereof and contained in Annex II, as amended to the extent permitted under
Section 3.14(d).
17
“Separation Documents” means (i) the Separation and Distribution Agreement, (ii) the
Transition Services Agreement between Cadbury and the Borrower substantially in the form of the
most recent draft delivered to the Bookrunners on or prior to the date hereof and contained in
Annex II, (iii) the Employee Matters Agreement among Cadbury, the Borrower and, solely for certain
sections set forth therein, Cadbury UK substantially in the form of the most recent draft delivered
to the Bookrunners on or prior to the date hereof and contained in Annex II, (iv) the Omnibus Stock
Incentive Plan of 2008 substantially in the form of the most recent draft delivered to the
Bookrunners on or prior to the date hereof and contained in Annex II, (v) the Annual Cash Incentive
Plan substantially in the form of the most recent draft delivered to the Bookrunners on or prior to
the date hereof and contained in Annex II, (vi) the Employee Stock Purchase Plan substantially in
the form of the most recent draft delivered to the Bookrunners on or prior to the date hereof and
contained in Annex II, (vii) the Tax Sharing and Indemnification Agreement, (vii) the Know-How
Agreement among Cadbury, the Borrower and its Subsidiaries substantially in the form of the most
recent draft delivered to the Bookrunners on or prior to the date hereof and contained in Annex II
and (viii) the Domain Names Agreement among Cadbury and the Borrower substantially in the form of
the most recent draft delivered to the Bookrunners on or prior to
the date hereof and contained in Annex II, in each case, as amended to the extent permitted
under Section 3.14(d).
“Separation Transactions” means the series of transactions pursuant to which Cadbury
intends to effect a separation of the Business from its global confectionary business and beverage
business through a distribution of the common stock of the Borrower to shareholders of Cadbury and
a transfer of the Business to the Borrower pursuant to the Separation and Distribution Agreement
and as contemplated and described in the Registration Statement.
“Solvent” means, with respect to any Person as of any date of determination, that, as
of such date, (a) the value of the assets of such Person (both at fair value and present fair
saleable value) is greater than the total amount of liabilities (including contingent and
unliquidated liabilities) of such Person, (b) such Person is able to pay all liabilities of such
Person as such liabilities mature and (c) such Person does not have unreasonably small capital. In
computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall
be computed at the amount that, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or matured liability.
Specified Indebtedness” means, with respect to any Person, all Indebtedness of the
type specified in clause (a) or (b) of the definition of “Indebtedness”, other than (i)
Indebtedness consisting of capital leases or purchase money obligations, (ii) Indebtedness under
the Revolver and Term Loan Agreement, (iii) Indebtedness among the Borrower and its Subsidiaries,
(iv) Indebtedness arising pursuant to the Separation Documents (if any) and (v) Indebtedness
incurred by such Person in the ordinary course of business.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentage (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentage shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation D
or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
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“Stock” means shares of capital stock (whether denominated as common stock or
preferred stock), beneficial, partnership or membership interests, participations or other
equivalents (regardless of how designated) of or in a corporation, partnership, limited liability
company or equivalent entity, whether voting or non-voting.
“Stock Equivalents” means all securities convertible into or exchangeable for Stock
and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not
presently convertible, exchangeable or exercisable.
“subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other business entity of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary
voting power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held.
“Subsidiary” means any subsidiary of the Borrower. Prior to the Bridge Funding Date,
all references to Subsidiaries shall refer to those subsidiaries of Cadbury constituting a part of
the Business and that will become Subsidiaries upon the consummation of the Separation
Transactions.
“Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a
Swap Agreement.
“Syndication Agent” means Bank of America, N.A.
“Taxes” means any and all present or future taxes, levies, imposts, duties or similar
charges imposed (including by deduction or withholding) by any Governmental Authority.
“Tax Sharing and Indemnification Agreement” means the Tax Sharing and Indemnification
Agreement among Cadbury, the Borrower and, solely for certain sections set forth therein, Cadbury
UK substantially in the form of the most recent draft delivered to the Bookrunners on or prior to
the date hereof and contained in Annex II.
“Transaction Closing Date” has the meaning assigned to such term in Section 4.03.
“Transactions” means, collectively, the Financing Transactions and the Separation
Transactions.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.
“UK Facility” means the £1,750,000,000 multi-currency revolving credit facility to be
made available to Cadbury pursuant to the terms of the facility agreement dated on or about the
date of this agreement and made between, amongst others, Cadbury UK as borrower, Cadbury as
guarantor and XX Xxxxxx Xxxxx Bank, N.A., Bank of America N.A., Xxxxxxx Sachs Credit Partners L.P.,
Xxxxxx Xxxxxxx Senior Funding Inc. and UBS AG, London Branch as lenders.
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“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan”). Borrowings
also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing”).
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. (a) Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP,
as in effect from time to time; provided that, if the Borrower notifies the Administrative
Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of
any change occurring after the date hereof in GAAP or in the application thereof on the operation
of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
(b) In calculating the ratios set forth in Section 6.04, (i) pro forma effect shall be given
to any Permitted Acquisitions or dispositions of all or substantially all the Stock or assets of
any Subsidiary or any division or line of business of the Borrower or any Subsidiary that occur
during the applicable reference period, or thereafter and on or prior to the reporting date with
respect thereto, as if they had occurred on the first day of the applicable reference period or as
of the last day of the applicable quarter, as the case may be and (ii) for any period prior to the
Transaction Closing Date, pro forma effect shall be given to the Transactions as if the
Indebtedness incurred in connection therewith had been incurred on the first date of the applicable
reference period.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Each Lender, subject to the terms and conditions set
forth herein, severally and not jointly with the other Lenders, agrees to make on the Bridge
Funding
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Date a single Loan to the Borrower in an aggregate principal amount not to exceed such
Lender’s Commitment. Once prepaid or repaid, no Term Loan may be re-borrowed.
(b) Notwithstanding any other provision of this Agreement, each Lender’s Commitment shall be
reduced, on a pro rata basis, by an amount equal to the aggregate Net Cash
Proceeds received by the Borrower or any of its Subsidiaries during the period commencing on
the Effective Date and ending on the Bridge Funding Date from any Debt Issuance or Equity Issuance.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans
as required.
(b) Subject to Section 2.13, each Borrowing shall be ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its option may make any Eurodollar
Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the Borrower
to repay such Loan in accordance with the terms of this Agreement; and provided
further that, as a result of the exercise of such option, such Lender, or such foreign
branch or Affiliate of such Lender shall not be entitled to receive any greater payment under
Section 2.14 or 2.16 than such Lender is entitled to prior to exercising such option.
(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$10,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $10,000,000. Borrowings of
more than one Type may be outstanding at the same time; provided that there shall not at
any time be more than a total of ten (10) Eurodollar Term Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrower shall
notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon, New
York City time, the same Business Day as the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
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(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the
term “Interest Period”; and
(v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06.
If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made
as part of the requested Borrowing.
SECTION 2.04. Reserved.
SECTION 2.05. Reserved.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately available funds by
2:00 p.m., New York City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders. On the Bridge Funding Date, the Administrative
Agent will deposit the proceeds of the Loans into the Collateral Account (if the Transaction
Closing Date does not occur on the same date) and will release such funds (or make such funds
available) on the Transaction Closing Date to the Borrower for the purposes of funding the
Separation Transactions on such date as contemplated in Section 5.08(a).
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.
22
(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.03:
(i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period
to be applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the request of the Required
Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. Unless previously terminated,
the Commitments shall terminate on the Bridge Funding Date or the date on which the Commitments are
reduced to zero pursuant to Section 2.01(b); provided that, if both the Bridge Funding Date
and the Transaction Closing Date have not occurred prior to the Early Commitment Termination Date,
then the Commitments shall terminate on the Early Commitment Termination Date.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of each Lender, the
then
23
unpaid principal amount of each Loan on the Maturity Date (or if earlier, the date of the
termination of the Commitments in full).
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the obligations recorded
therein (absent manifest error); provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a promissory note (a
“Promissory Note”). In such event, the Borrower shall prepare, execute and deliver to such
Lender a Promissory Note payable to the order of such Lender (or, if requested by such Lender, to
such Lender and its registered assigns) and in a form approved by the Administrative Agent.
SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent by telephone (confirmed by telecopy) of
any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than
12:00 noon, New York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Borrowing, not later than 12:00 noon, New York City time, one Business
Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid;
provided that, a notice of prepayment delivered by the Borrower may state that such notice
is conditioned upon the occurrence of an event, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if
such condition is not satisfied. Promptly following receipt of any such notice of prepayment
relating to the Loans, the Administrative Agent shall advise the Lenders of the contents of such
notice.
(c) If the Transaction Closing Date has not occurred on or prior to the Early Commitment
Termination Date, the Borrower shall immediately prepay the entire principal amount of the Loans
then outstanding, together with all accrued but unpaid interest and fees thereon and all other
Obligations of the Borrower owing on such date (other than indemnities and contingent claims which
by their terms would survive the termination of this Agreement). The Borrower authorizes the
release of all funds on deposit in the Collateral Account on such date and hereby irrevocably
authorizes and directs the Administrative Agent to apply such funds to such Obligations in the
manner set forth in Section 2.17(b) without any further action or authorization by the Borrower.
In the event there are excess funds in the Collateral Account after all such Obligations have been
paid in full, such funds shall be made available to the Borrower.
24
(d) (i) At any time on or after the Bridge Funding Date, upon receipt by the Borrower or any
of its Subsidiaries of Net Cash Proceeds arising from any Asset Sale, Recovery Event (except to the
extent that Net Cash Proceeds received in connection with such Recovery Event are applied within
180 days of receipt thereof to the replacement or repair of the assets giving rise thereto), Debt
Issuance or Equity Issuance, the Borrower shall prepay the Loans in an amount equal to 100% of such
Net Cash Proceeds;
(ii) The Borrower shall notify the Administrative Agent not later than the date
of receipt by the Borrower or applicable Subsidiary of receipt of any Net Cash
Proceeds subject to this Section 2.10(d). Each such notice shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to be
prepaid;
(iii) Subject to the terms of the proviso in the definition of “Net Cash
Proceeds”, each prepayment of Loans under this Section 2.10 shall be accompanied by
accrued interest to the date of such prepayment on the amount prepaid and shall be
made no later than the fifth Business Days after following the date of such receipt.
(iv)
Any prepayment of Net Cash Proceeds made pursuant to this Section 2.10 on
or after the Bridge Funding Date, but prior to the Transaction Closing Date, shall
be made by the Borrower providing notice to the Administrative Agent to release a
portion of the funds in the Collateral Account equal to the amount of such Net Cash
Proceeds and apply the funds so released to the prepayment of the Loans.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the Agents and the Bookrunners
the fees, the amount and dates of payment of which are embodied in the Fee and Syndication Letter.
(b) All fees payable hereunder (other than under the Fee and Syndication Letter) shall be paid
on the dates due, in immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees and participation fees, to the Lenders and Bookrunners. Fees paid shall
not be refundable under any circumstances. All fees payable under the Fee and Syndication Letter
shall be paid in accordance with the terms thereof.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing shall bear
interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus
the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due (after giving effect to any
applicable grace periods), whether at stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan; provided that (i) interest accrued pursuant to paragraph (c) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date of such repayment
or
25
prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of
the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Administrative Agent, and such determination shall be conclusive
absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or
the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in
such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender (except any such reserve requirement reflected in the
Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other condition
affecting this Agreement or Eurodollar Loans made by such Lender or participation
therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender such additional amount or amounts
as will compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s capital or on the
capital of such Lender’s holding company, if any, as a consequence of this Agreement or the
Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have
26
achieved but for such Change in Law (taking into consideration such Lender’s policies
and the policies of such Lender’s holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender such additional amount or amounts as will compensate
such Lender or such Lender’s holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such
Lender or its holding company as specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within ten (10) days after receipt
thereof.
(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date that such Lender, as
the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s intention to claim compensation therefor; provided
further that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
(e) Notwithstanding anything to the contrary herein, this Section 2.14 shall not apply to any
Taxes, which are governed exclusively by Section 2.16.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.10(b) and is
revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.18, then, in any such event, the Borrower shall compensate each Lender for
the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender
to be the excess, if any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the interest rate which
such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days
after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this
Section) the Administrative Agent or Lender (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the Borrower shall make such
deductions
27
and (iii) the Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender, within twenty (20)
days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent or such Lender, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and
any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority (which demand shall be made within 180 days of the earlier of (x)
if the Administrative Agent, such Lender received written notice from a Governmental Authority
demanding payment of such Indemnified Taxes or Other Taxes, the date the Administrative Agent, such
Lender received such written notice or (y) the date the Administrative Agent, such Lender filed a
tax return on which such Indemnified Taxes or Other Taxes is reflected). A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender, or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. If
the Borrower determines in good faith that a reasonable basis exists for contesting an Indemnified
Tax or Other Tax with respect to which it has made an indemnification payment under this subsection
(c), the relevant Administrative Agent or Lender shall cooperate with the Borrower in challenging
such Tax at the Borrower’s expense and if requested by the Borrower in writing; provided,
however, that no Administrative Agent or Lender shall be required to take any action
hereunder that, in the sole discretion of such Administrative Agent or Lender, would cause such
Administrative Agent or Lender to suffer any material economic, legal or regulatory disadvantage.
Additionally, nothing herein contained shall interfere with the right of an Administrative Agent or
Lender to arrange its tax affairs in whatever manner it thinks fit nor oblige any Administrative
Agent or Lender to make available its tax returns or disclose any information relating to its tax
affairs or any computations in respect thereof to the Borrower or require any Administrative Agent
or Lender to do anything that would materially prejudice its ability to benefit from any other
refunds, credits, reliefs, remissions or repayments to which it may be entitled.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) (i) Each Lender (other than a Lender described in Treasury Regulation Section
1.6049-4(c)(1)(ii)(A)(1) unless reasonably requested by the Borrower and the Administrative Agent
in writing) shall deliver documentation prescribed by applicable laws as will enable the Borrower
or the Administrative Agent to determine whether or not such Lender is subject to United States
federal backup withholding or information reporting requirements, but only if such Lender is
legally entitled to do so.
(ii) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such
properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without withholding or at a
reduced rate. Without
28
limiting the foregoing, each Foreign Lender shall deliver to the Borrower
and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower
or the Administrative Agent), but only if such Foreign Lender is legally entitled to do so,
whichever of the following is applicable:
(A) two (2) duly completed copies of Internal Revenue Service Form W-8BEN (or successor form)
claiming eligibility for benefits of an income tax treaty to which the United States is a party;
(B) two (2) duly completed copies of Internal Revenue Service Form W-8ECI (or successor
form);
(C) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender
is not (I) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (II) a “10 percent
shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (III) a
“controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) two duly
completed copies of Internal Revenue Service Form W-8BEN (or successor form); or
(D) any other form prescribed by applicable laws (including Internal Revenue Service Form
W-8IMY) as a basis for claiming exemption from or a reduction in United Stated federal withholding
tax duly completed together with such supplementary documentation as may be prescribed by
applicable law to permit the Borrower to determine the withholding or deduction required to be
made.
(iii) Each Lender, if reasonably requested by the Borrower or the Administrative Agent, shall
deliver to the Borrower and the Administrative Agent such additional duly completed forms,
certificates or documentation described in this subsection (e) that such Lender is legally entitled
to so deliver upon or prior to the expiration or obsolescence of any such forms, certificates or
documentation previously delivered by it pursuant to this subsection (e). Additionally, each
Lender shall deliver to the Borrower and the Administrative Agent such additional duly completed
forms, certificates or documentation described in this subsection (e) that such Lender is legally
entitled to so deliver after the occurrence of a change in the material facts reflected on any such
forms, certificates or documentation previously delivered by it pursuant to this subsection (e) (or
if, as a result of such change in material facts, such Lender is no longer legally entitled to
deliver any forms, certificates or documentation pursuant to this subsection (e), such Lender shall
so notify the Borrower and the Administrative Agent).
(f) For any period with respect to which a Lender has failed to provide the Borrower with the
appropriate form, certificate or other document described in subsection (e) above (other than if
such failure is due to a change in law, or in the interpretation or application thereof, occurring
after the date on which a form, certificate or other document originally was required to be
provided or if such form, certificate or other document otherwise is not required under subsection
(e) above, including because such Lender is not legally entitled to provide such form, certificate
or other document), such Lender shall not be entitled to indemnification under subsection (a) or
(c) of this Section 2.16 with respect to Indemnified Taxes imposed by the United States by reason
of such failure.
(g) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.16, it
shall
pay over such refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.16 with respect to the Taxes or Other
Taxes giving
29
rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower or any other Person.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The
Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees or of amounts payable under Section 2.14, 2.15 or 2.16, or otherwise) prior to 12:00
noon, New York City time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except that payments pursuant to
Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder shall be made in
dollars.
(b) Reserved.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued
interest thereon than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the Loans of other
Lenders to the extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are purchased and all
or any portion of the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in any of
its Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower
rights of set-off and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the
Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not
in fact made
30
such payment, then each of the Lenders severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.06(b), 2.17(d) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent
for the account of such Lender to satisfy such Lender’s obligations under such Sections until all
such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.14, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.16, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.14 or
2.16, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.14, (ii) the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.16, (iii) any Lender defaults in its obligation to fund Loans
hereunder or (iv) in connection with any proposed amendment, modification, waiver or termination
requiring the consent of all the Lenders or all affected Lenders, the consent of the Required
Lenders is obtained but the consent of any Lender whose consent is required is not obtained, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have
received the prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any
such assignment resulting from a claim for compensation under Section 2.14 or payments required to
be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation
or payments. A Lender shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
To induce the Lenders and the Administrative Agent to enter into this Agreement, (i) on and as
of the Effective Date, the Borrower makes each of the representations and warranties set forth in
Sections 3.01(a) and 3.02 below (but only with respect to the Borrower) and in Section 3.11 below,
(ii) on
31
and as of the Bridge Funding Date, the Borrower makes each of the representations and
warranties set forth in Sections 3.01, 3.02, 3.03, 3.04(a), 3.05, 3.06(a)(i), 3.07, 3.08, 3.09,
3.10, 3.11 and 3.12 below and (iii) on and as of the Transaction Closing Date, the Borrower makes
each of the representations and warranties set forth in Section 3.14 and, with respect to each of
the Guarantors becoming party to the Guaranty after the Bridge Funding Date and on or prior to the
Transaction Closing Date, each of the representations and warranties set forth in Sections 3.01(a),
3.02, 3.03(a), 3.03(b) and 3.08 applicable to such Guarantors:
SECTION 3.01. Organization; Powers. (a) Each of the Loan Parties is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, and
has all requisite corporate power, limited liability company power or limited partnership power and
authority, as applicable, to carry on its business as now conducted and, except where the failure
to do so, individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required.
(b) Schedule 3.01(b) sets forth the name and jurisdiction of organization of each Material
Subsidiary that is expected to be a Material Subsidiary after the Transaction Closing Date,
pursuant to the Separation Documents as modified in accordance with Section 3.14(d). On the
Transaction Closing Date, each Material Subsidiary will be a wholly-owned Subsidiary of the
Borrower.
SECTION 3.02. Authorization; Enforceability. The Financing Transactions are within
each Loan Party’s corporate powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. Each of this Agreement and the other Loan Documents has been duly
executed and delivered by each Loan Party and constitutes a legal, valid and binding obligation of
such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. (a) The Financing Transactions
(i) do not require any consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except such as have been obtained or made and are in full force and
effect, (ii) will not violate the charter, by-laws or other organizational documents of the
Borrower or of any other Loan Party, (iii) will not violate any applicable law (including ERISA and
Environmental Laws) or regulation or any order of any Governmental Authority, and (iv) will not
violate or result in a default under any indenture, agreement or other instrument binding upon the
Borrower or of any other Loan Party or its assets or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its Subsidiaries, except in the case of clauses (i),
(iii) and (iv) above for any such violations or defaults that, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(b) The Financing Transactions will not (i) violate the charter, by-laws or other
organizational documents of Cadbury or any subsidiary of Cadbury that owns or, immediately prior to
the Separation Transactions, has owned, the Borrower, (ii) violate or result in a default or a
right to require any payment under any material indenture or other material debt agreement binding
upon Cadbury or any subsidiary of Cadbury that owns or, immediately prior to the Separation
Transactions, has owned, the Borrower or any of their respective assets or give rise to a right
thereunder to require any payment to be made by such Person and (iii) violate or result in a
default under any agreement or other instrument
(excluding those referred to in clause (ii) above) binding upon Cadbury or any subsidiary of
Cadbury that owns or, immediately prior to the Separation Transactions, has owned, the Borrower or
any of their respective assets or give rise to a right thereunder to require any payment to be made
by such Person,
32
except in the case of this clause (iii), for any such violations or defaults that,
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(c) The Separation Transactions (i) will not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority, except such as have been (or
will be prior to consummation of the Separation Transactions) obtained or made and are (or will be
at the time of the consummation of the Separation Transactions) in full force and effect, (ii) will
not violate the charter, by-laws or other organizational documents of Cadbury or any subsidiary of
Cadbury involved in the Separation Transactions or identified in Schedule 2.01(a) of the Separation
and Distribution Agreement, (iii) will not violate any applicable law (including ERISA and
Environmental Laws) or regulation or any order of any Governmental Authority and (iv) will not
violate in any material respect or result in a material default or a right to require a material
payment under any material indenture, any other agreement or other instrument binding upon Cadbury
or any subsidiary of Cadbury involved in the Separation Transactions or identified in Schedule
2.01(a) of the Separation and Distribution Agreement, or any of their respective assets, or give
rise to a right thereunder to require any material payment to be made by any such Person, except in
the case of clauses (i), (iii) and (iv) above (other than, in the case of clause (iv), with regards
to any indentures and other material debt agreements) for any such violations or defaults that,
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect or a Cadbury Material Adverse Effect.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower has
heretofore furnished (or, with respect to the fiscal year ended December 31, 2007 and the Pro Forma
Financial Statements, will furnish prior to the Bridge Funding Date) to the Lenders its (i) Audited
Financial Statements, all reported on by Deloitte & Touche LLP and (ii) the Pro Forma Financial
Statements. The Audited Financial Statements described in clause (i) above, present fairly, in all
material respects the combined financial position, results of operations and cash flows of the
Borrower as of such dates and for such periods in accordance with GAAP and have been prepared in
all material respects in accordance with Regulation S-X. The Pro Forma Financial Statements have
been prepared in all material respects in accordance with Regulation S-X and related SEC and other
applicable guidance and based on assumptions which are reasonable and set forth therein.
(b) Since December 31, 2007, there has been no Material Adverse Change (other than the
Disclosed Matters set out on Part II of Schedule 3.06).
SECTION 3.05. Properties. (a) The Borrower and its Subsidiaries have good title to,
or valid leasehold interests in, all its real and personal property material to their business,
except for (i) minor defects in title that do not interfere with their ability to conduct their
business as currently conducted or to utilize such properties for their intended purposes and (ii)
except for other defects to title that, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(b) The Borrower and its Subsidiaries collectively own, or are licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property used in their business,
and such use by the Borrower and its Subsidiaries, to the best of knowledge of the Borrower, does
not infringe upon the material rights of any other Person except as could not reasonably be
expected to have a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There shall be no
investigation or review pending by any Governmental Authority with respect to, or actions, suits,
inquiries, investigations or proceedings pending (or, to the best of knowledge of the
Borrower, threatened) before, or orders, judgments or decrees of, any governmental entity, (i) that
could reasonably be expected to restrain, prevent or impose materially adverse conditions upon the
Transactions (which for
33
the avoidance of doubt shall not be deemed to include the SEC review of the
Form 10 or similar regulatory review under United Kingdom securities law) or (ii) that could
reasonably be expected to have a Material Adverse Effect (other than the Disclosed Matters set out
in Part I of Schedule 3.06, to the extent that they do not result in aggregate payments, damages,
losses or liabilities of the Borrower and its Subsidiaries in excess of $50,000,000 in the
aggregate).
(b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, the Borrower and its Subsidiaries (i) have not failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) have not become subject to any Environmental Liability, and (iii) have not
received notice of any claim with respect to any Environmental Liability.
SECTION 3.07. Compliance with Laws and Agreements. The Borrower and its Subsidiaries
are in compliance with (a) their charter, by-laws or other organizational documents, (b) all laws,
regulations and orders of any Governmental Authority applicable to them or their property and (c)
all indentures, agreements and other instruments binding upon them or their property, except, in
the case of clauses (b) and (c) of this Section, where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.08. Investment Company Status. No Loan Party is a “registered investment
company” or a company “controlled” by a “registered investment company” or a “principal
underwriter” of a “registered investment company” as such terms are defined in, or subject to
regulation under, the Investment Company Act of 1940.
SECTION 3.09. Taxes. The Borrower and its Subsidiaries have timely filed or caused to
be filed all Tax returns and reports required to have been filed and have paid or caused to be paid
all Taxes required to have been paid, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside
on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to have a Material Adverse Effect. The present
value of all accumulated benefit obligations under each Plan (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market value of the assets of
such Plan, and the present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such amounts, exceed the
fair market value of the assets of all such underfunded Plans, in each case by an amount that, if
required to be paid by the Borrower and its Subsidiaries, could reasonably be expected to have a
Material Adverse Effect.
SECTION 3.11. Disclosure. The written information (including, without limitation, the
Information Memorandum, the Registration Statement and of the other reports, financial statements,
certificates or other information) and oral information (with any such oral information being
limited to formal due diligence meetings and calls) furnished by or on behalf of the Borrower,
Cadbury, and their
respective Affiliates to the Administrative Agent or any Lender in connection with the
Transactions (including the sale of the Business considered in 2007) or the negotiation of this
Agreement or delivered hereunder, taken as a whole (as modified or supplemented by other
information so furnished prior to the
34
relevant measurement date for this representation and
warranty), does not contain any material misstatement of fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial information, the
Borrower represents only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time; it being recognized by the Lenders that such projections are
as to future events and are not to be viewed as facts and that actual results during the period or
periods covered by any such projections may differ significantly from the projected results and
such differences may be material.
SECTION 3.12. Margin Regulations. No Loan Party is engaged principally, as one of its
important activities, in the business of extending credit for the purpose of carrying any margin
stock (as such term is defined in Regulation U of the Board as in effect from time to time). No
more than 25% of the value of the assets of either the Borrower or the Borrower and its
Subsidiaries on a Consolidated basis, respectively, is represented by margin stock.
SECTION 3.13. Labor Matters. (a) There are no strikes, work stoppages, slowdowns or
lockouts pending or threatened against or involving the Borrower or any of its Subsidiaries, other
than those that, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(b) There are no unfair labor practices, grievances, complaints or arbitrations pending, or,
to the best knowledge of the Borrower, threatened, against or involving the Borrower or any of its
Subsidiaries, nor are there any arbitrations or grievances threatened involving the Borrower or any
of the Material Subsidiaries, other than those that, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
SECTION 3.14. Separation Transactions. As of the Transaction Closing Date:
(a) The Separation Transactions have been consummated in all material respects in accordance
with each of the Separation Documents and substantially in the manner described in the Registration
Statement.
(b) The Separation Transactions are within each Loan Party’s corporate powers and have been
duly authorized by all necessary corporate and, if required, stockholder action. Each of the
Separation Documents has been duly executed and delivered by each Loan Party party thereto and
constitutes a legal, valid and binding obligation of such Loan Party, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors’ rights generally and subject to general principles of equity, regardless
of whether considered in a proceeding in equity or at law.
(c) The Separation Transactions (i) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (ii) will not violate the charter, by-laws or other
organizational documents of the Borrower or any other Loan Party, (iii) will not violate any
applicable law (including ERISA and Environmental Laws) or regulation or any order of any
Governmental Authority and (iv) will not violate in any material respect or result in a material
default or a right to require a material payment under any material indenture, any other agreement
or other instrument binding upon the Borrower or any other Loan Party, or any of their respective
assets, or give rise to a right thereunder to require any material payment to be made by any such
Person, except in the case of clauses
(i), (iii) and (iv) above (other than, in the case of clause (iv), with regards to any
indentures and other material debt agreements) for any such violations or defaults that,
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
35
(d) Each of the Separation Documents has been entered into and is effective in substantially
the same form as the draft agreements set forth in the definition thereof. None of the Separation
Documents has been amended or otherwise modified in any material respect and no material provision
therein has been waived, except as otherwise agreed to by the Bookrunners and except for such
waivers, amendments or modifications that do not materially adversely affect the interests of the
Lenders (it being understood that, any change to the Separation Documents whereby an
indemnification obligation of Cadbury or any of its subsidiaries existing on the Effective Date for
which the Borrower or any of its Subsidiaries are indirectly liable is transferred to the Borrower
or any of its Subsidiaries so that the Borrower or such Subsidiary is directly liable to Cadbury’s
(or its subsidiary’s) counterparty under the underlying contract pursuant to which such
indemnification obligation arose, shall not be considered to materially and adversely affect the
interests of the Lenders so long as the scope and terms of such indemnification obligation are not
changed following such transfer).
ARTICLE IV
Conditions
SECTION 4.01. Reserved.
SECTION 4.02. Bridge Funding Date. This Agreement and the obligations of the Lenders
to make the Loan hereunder shall not become effective until the time and date (such time and date,
the “Bridge Funding Date”) on which each of the following conditions is satisfied (or
waived in accordance with Section 9.02); provided that the Bridge Funding shall occur no
earlier than April 10, 2008 (it being understood and agreed that if on the Bridge Funding Date the
Transaction Closing Date has not occurred, then the proceeds of the Loans shall be deposited
directly into the Collateral Account on such date):
(a) The Administrative Agent shall have received a copy of the articles or certificate of
incorporation (or equivalent organizational document) of the Borrower, certified as of a recent
date by the Secretary of State of the state of organization of the Borrower, together with
certificates of such official attesting to the good standing of the Borrower;
(b) The Administrative Agent shall have received a certificate, dated the Bridge Funding Date,
of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true
signatures of each officer of the Borrower that has been authorized to execute and deliver any Loan
Document or other document required hereunder to be executed and delivered by or on behalf of the
Borrower, (B) the by-laws (or equivalent organizational document) of the Borrower as in effect on
the date of such certification, (C) the resolutions of the Borrower’s board of directors approving
and authorizing the execution, delivery and performance of the Loan Documents to which it is a
party, and (D) that there have been no changes in the certificate of incorporation (or equivalent
organizational document) of the Borrower from the certificate of incorporation (or equivalent
organizational document) delivered pursuant to paragraph (a) above;
(c) The Administrative Agent shall have received, for the account of each Lender requesting
the same at least two (2) Business Days prior to the Bridge Funding Date, a Promissory Note (which
may for purposes of this Section 4.02(c) be a copy delivered by facsimile or electronic “.pdf”
transmission to be followed promptly with an original of such Promissory Note by overnight
courier or messenger) of the Borrower conforming to the requirements of Section 2.09(e) herein;
(d) The Borrower, Cadbury and their respective Affiliates shall have complied in all material
respects (and shall be deemed to have so complied if they have not received written notice of
36
any
material non-compliance) with the Fee and Syndication Letter; provided, however,
that if, on or prior to the Transaction Closing Date, (i) the Borrower, Cadbury or any such
Affiliate failed to comply with Section 3 thereof (other than the requirements set forth in clauses
(c) and (d) of the second paragraph and in the last paragraph thereunder) and (ii) the Borrower,
Cadbury and/or their respective Affiliates cured such non-compliance within two (2) Business Days
of receipt of such notice, then the Borrower shall be deemed to have complied with the Fee and
Syndication Letter for purposes of this clause (d);
(e) At least five (5) Business Days prior to the Bridge Funding Date, the Lenders shall have
received all documentation and other information required by bank regulatory authorities under
applicable “know-your-customer” and anti-money laundering rules and regulations, including the
Patriot Act, to the extent requested by the Lenders at least ten (10) Business Days prior to the
Bridge Funding Date;
(f) The Administrative Agent shall have received a favorable written opinion dated the Bridge
Funding Date (addressed to the Administrative Agent and the Lenders and dated the Bridge Funding
Date) of Shearman & Sterling LLP, counsel for the Loan Parties, substantially in the form of
Exhibit B. The Administrative Agent also shall have received a copy of a written opinion dated the
Bridge Funding Date (addressed to Cadbury) of Shearman & Sterling LLP, counsel to Cadbury, covering
such matters as have been previously agreed between Shearman & Sterling LLP and each of the
Bookrunners, in form and substance satisfactory to the Administrative Agent. The Borrower hereby
requests such counsel to deliver such opinions;
(g) The Administrative Agent shall have received a certificate from a Financial Officer of the
Borrower dated the Bridge Funding Date certifying that on such date, the Borrower and its
Subsidiaries (on a consolidated basis) are Solvent, both before, and on a pro forma basis after
giving effect to, the Transactions;
(h) (A) The representations and warranties set forth in Sections 3.01(a), 3.02, 3.03, 3.04(a),
3.05, 3.06(a)(i), 3.07, 3.08, 3.09, 3.10, 3.11 and 3.12 shall be true and correct in all material
respects on and as of the Bridge Funding Date; (B) at the time of and immediately after giving
effect to the Borrowing on the Bridge Funding Date, (x) no Default as a result of the Borrower’s
failure to observe or perform any covenant, condition or agreement contained in Sections 5.02,
5.03(a) (with respect to the Borrower’s existence only), 5.03(b), 5.04, 5.05, 5.08 or in Article VI
(other than for avoidance of doubt, Section 6.04) shall have occurred and be continuing, (y) no
Event of Default under clause (c) of Article VII with respect to any representation and warranty
under Article III made by the Borrower on the Effective Date shall have occurred, and (z) no Event
of Default under clauses (h), (i) or (j) of Article VII shall have occurred and be continuing and
(C) the Administrative Agent shall have received a certificate, dated the Bridge Funding Date and
signed by the president, a vice president or Financial Officer of the Borrower, confirming
compliance with the conditions contained in clauses (A) and (B) above.
(i) The Index Debt and the corporate ratings of the Borrower shall be rated at least “BBB-”,
which rating may be subject to a “negative outlook” from S&P but not subject to “negative watch” or
“development” and “Baa3” from Xxxxx’x, which rating shall be stable and not subject to “negative
watch”, “negative outlook” or “development”;
(j) The Borrower has received proceeds from the term loan borrowings under the Revolver and
Term Loan Agreement of at least $2,200,000,000 (less transaction costs and original issue discount
incurred in connection therewith);
(k) Each of the Bookrunners shall have received and be satisfied with (i) the audited combined
financial statements of the Borrower for the fiscal year ending December 31, 2007,
37
which such
audited financial statements may exclude (A) guarantor/non-guarantor financial information and (B)
quarterly financial information for completed fiscal periods (it being understood that the
financial information for the fiscal years ending December 31, 2006 and January 1, 2006 presented
with the financial information for the fiscal year ending December 31, 2007 will be the same in all
material respects as that contained in the Registration Statement) (the “Audited Financial
Statements”) and (ii) unaudited pro forma combined balance sheets of the Borrower and its
Subsidiaries as of December 31, 2007 and unaudited pro forma statement of operations for the fiscal
year ended December 31, 2007, adjusted to give effect to the consummation of the Transactions as if
such Transactions, with respect to the pro forma combined balance sheets had occurred on December
31, 2007 and with respect to the pro forma statement of operations had occurred on January 1, 2007,
to the extent permitted under Regulation S-X and related SEC and other applicable guidance
(together, the “Pro Forma Financial Statements”). The Audited Financial Statements shall
be prepared, in all material respects in accordance with GAAP and with Regulation S-X and the
Pro-Forma Financial Statements shall be prepared, in all material respects in accordance with
Regulation S-X and related SEC and other applicable guidance and based on assumptions which are
reasonably set forth therein. The Bookrunners shall be deemed to be satisfied with the Audited
Financial Statements if no Bookrunner shall have contacted the Borrower indicating such Bookrunner
is not satisfied with the Audited Financial Statements within three (3) Business Days following
delivery of the Audited Financial Statements. Following the delivery of the Audited Financial
Statements, the Borrower shall provide the Bookrunners with an opportunity, by telephone or
otherwise, to conduct customary auditor due diligence with representatives of the Borrower during
which representatives of Deloitte & Touche LLP will be present (in person or by telephone) and
participate in a customary manner, the result of which the Bookrunners shall be satisfied with.
Each of the Bookrunners agrees to have its representatives available for the auditor due diligence
promptly following the delivery of the Audited Financial Statements and each of the Bookrunners
agrees to not unreasonably delay the completion of the auditor due diligence. The Bookrunners
shall be deemed to be satisfied with the auditor due diligence if no Bookrunner shall have
contacted the Borrower indicating such Bookrunner is not satisfied with the results of the auditor
due diligence within two (2) Business Days following completion of the auditor due diligence; and
(l) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Bridge Funding Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses (including reasonable fees and expenses of counsel) required to be
reimbursed or paid by the Borrower hereunder.
Notwithstanding the foregoing, the obligations of the Lenders to make the Loans shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02)
at or prior to 3:00 p.m., New York City time, on the Early Commitment Termination Date (and, in the
event such conditions are not so satisfied or waived, the Commitments shall terminate at such
time). Notwithstanding any other provision of this Agreement, the only condition precedent to the
making of the Loans on the Bridge Funding Date are those set forth in this Section 4.02.
Notwithstanding any other provision of this Agreement, the only conditions precedent to the
depositing of the Loans into the Collateral Account on the Bridge Funding Date are those set forth
in this Section 4.02 and, if such conditions are satisfied, no additional conditions, including
without limitation the absence of any other breaches or defaults under the Loan Documents or the
making of any other representations under the Loan Documents or the Separation Documents, shall be a condition precedent to the depositing of the
Loans into the Collateral Account on the Bridge Funding Date.
SECTION 4.03. Conditions to Transaction Closing Date. The obligation of the
Administrative Agent (i) to release the funds deposited into the Collateral Account pursuant to
Section 4.02 (if applicable) and (ii) to apply the proceeds of the Loans for the purposes specified
in Section 5.08(a) shall not become effective until the time and date (such time and date, the
“Transaction Closing Date”) on which each of the following conditions is satisfied (or
waived in accordance with Section 9.02):
38
(a) The Bridge Funding Date shall have occurred or shall occur on the Transaction Closing
Date;
(b) (A) The representations and warranties set forth in Section 3.14 shall be true and correct
on and as of such date, and, with respect to each of the Guarantors becoming party to the Guaranty
after the Bridge Funding Date and on or prior to the Transaction Closing Date, each of the
representations and warranties set forth in Sections 3.01(a), 3.02, 3.03(a), 3.03(b) and 3.08
applicable to such Guarantors shall be true and correct in all material respects on and as of the
Transaction Closing Date; (B) at the time of and immediately after giving effect to the
consummation of the Transactions on the Transaction Closing Date, no Default specified under clause
(h) (other than an Immaterial Insolvency Event) or clause (i) of Article VII shall have occurred
and be continuing with respect to the Borrower or a Guarantor and (C) the Administrative Agent
shall have received a certificate, dated the Transaction Closing Date and signed by the president,
a vice president or Financial Officer of the Borrower, confirming compliance with the conditions
contained in clauses (A) and (B) above;
(c) No orders, judgments or decrees of any governmental entity, enjoining or prohibiting the
consummation of the Financing Transactions shall have been issued and remain outstanding on the
Transaction Closing Date;
(d) The Index Debt and the corporate ratings of the Borrower are rated “BBB-“ or higher from
S&P which rating may be subject to “negative outlook” but not subject to “negative watch” or
“development” and “Baa3” or higher from Xxxxx’x, which rating shall be stable or stable subject to
“development” but not subject to “negative watch” or “negative outlook” from the Bridge Funding
Date through April 30, 2008; and
(e) There shall have occurred a period of at least five (5) consecutive Business Days prior to
the Transaction Closing Date commencing on or after the later of (i) the date which the SEC
confirms it is prepared to declare the Registration Statement effective and (ii) the date the
Borrower has furnished to the Administrative Agent an Offering Memorandum.
(f) The Administrative Agent shall have received a Guaranty, duly executed by the Borrower and
each Material Subsidiary that is not an Excluded Subsidiary, together with (i) a copy of the
articles or certificate of incorporation (or equivalent organizational document) of the Borrower
and such Material Subsidiaries, certified as of a recent date by the Secretary of State of the
state of organization of each such Material Subsidiary, together with certificates of such official
attesting to the good standing of such Material Subsidiaries, (ii) a certificate of the Secretary
or an Assistant Secretary of each such Material Subsidiary certifying (A) the names and true
signatures of each officer of the Borrower and such Material Subsidiary that has been authorized
to execute and deliver the Guaranty or other document required hereunder to be executed and
delivered by or on behalf of such Material Subsidiary, (B) the by-laws (or equivalent
organizational document) of the Borrower and such Material Subsidiary as in effect on the date of
such certification, (C) the resolutions the Borrower and of such
Material Subsidiary’s board of directors approving and authorizing the execution, delivery and
performance of the Guaranty, and (D) that there have been no changes in the certificate of
incorporation (or equivalent organizational document) of the Borrower and such Material Subsidiary
from the certificate of incorporation (or equivalent organizational document) delivered pursuant to
clause (i) above and (iii) a favorable written opinion (addressed to the Administrative Agent and
the Lenders and dated the Transaction Closing Date) of Shearman & Sterling LLP, counsel for the
Borrower and such Material Subsidiaries, and/or local counsel in the jurisdiction of such Material
Subsidiaries’ formations,
39
collectively, covering such matters with respect to each Guarantor as are
contemplated in the form of opinion attached as Exhibit B (with reasonable variation to account for
local law and opinion practice).
Notwithstanding the foregoing, the obligations of the Administrative Agent to release proceeds of
the Loans deposited in the Collateral Account or, if the Bridge Funding Date has not occurred, to
apply the proceeds of the Loans directly as contemplated in Section 5.08(a), shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02)
at or prior to 3:00 p.m., New York City time, on the Early Commitment Termination Date (and, in the
event such conditions are not so satisfied or waived, the funds on deposit in the Collateral
Account shall be applied towards the repayment of the Obligations in accordance with Section
2.10(c) and all of the Commitments shall terminate at such time). Notwithstanding any other
provision of this Agreement, the only conditions precedent to the making of Loans or the release of
Loans from the Collateral Account on the Transaction Closing Date are those set forth in this
Section 4.03 and, if such conditions are satisfied, no additional conditions, including without
limitation the absence of any other breaches or defaults or the making of any other representation
under the Loan Documents or the Separation Documents, shall be a condition precedent to the release
of Loans from the Collateral Account on the Transaction Closing Date.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full, the Borrower covenants and
agrees with the Lenders that (it being understood that, for purposes of the covenants made by the
Borrower as set forth below, such covenants shall be construed as though the Separation
Transactions have been consummated):
SECTION 5.01. Financial Statements; Ratings Change and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) on or before the date on which such financial statements are required to be filed with the
SEC (after giving effect to any permitted extensions) or, if such financial statements are not
required to be filed with the SEC, on or before the date that is ninety (90) days after the end of
each such fiscal year, its audited consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for such year, all certified by Deloitte &
Touche LLP or other independent public accountants of recognized national standing (without a
“going concern” or like qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) on or before the date on which such financial statements are required to be filed with the
SEC (after giving effect to any permitted extensions) with respect to each of the first three
quarterly accounting periods in each fiscal year of the Borrower or, if such financial statements
are not
required to be filed with the SEC, on or before the date that is forty-five (45) days after
the end of each such quarterly accounting period, its consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of and for such fiscal
quarter and the elapsed portion of the fiscal year ended with the last day of such quarterly
period, setting forth in each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on
a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the
absence of footnotes;
40
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Borrower (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Section 6.04 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial statements referred to in
Section 3.04 and, if any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any Material Subsidiary with
the SEC, or with any national securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be;
(e) promptly after Xxxxx’x or S&P shall have announced a change in the rating established or
deemed to have been established for the Index Debt or the corporate rating of the Borrower, written
notice of such rating change;
(f) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
Information required to be delivered pursuant to subsections (a), (b) and (d) of this Section 5.01
shall be deemed to have been delivered if such information, or one or more annual or quarterly or
other reports or proxy statements containing such information shall have been posted and available
on the website of the SEC at xxxx://xxx.xxx.xxx (and a confirming electronic correspondence
is delivered or caused to be delivered by the Borrower to the Administrative Agent providing notice
of such availability).
SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the Borrower having knowledge of any Default; and
(b) the Borrower having knowledge of the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower
or any Subsidiary that, if adversely determined, could reasonably be expected to have a Material
Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of its Material Subsidiaries and any Loan Party to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect (a) its legal existence and (b) the rights,
licenses, permits, privileges and franchises material to the conduct of its business; except in the
case of clause (b), to the extent that failure to do so, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.02 or any of the Separation Transactions.
41
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of its
Material Subsidiaries and any Loan Party to pay its Tax liabilities, that, if not paid, could
reasonably be expected to have a Material Adverse Effect before the same shall become delinquent or
in default, except where (a) the validity or amount thereof is being contested in good faith by
appropriate proceedings and (b) the Borrower or such Subsidiary or such Loan Party has set aside on
its books adequate reserves with respect thereto in accordance with GAAP.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Material Subsidiaries and any Loan Party to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition, ordinary wear and tear
excepted, and (b) maintain, with financially sound and reputable insurance companies, insurance
(which may include self-insurance and co-insurance) in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses operating in the same
or similar locations, except in the case of clauses (a) and (b), to the extent that the failure to
do so could not, based upon the facts and circumstances existing at the time, reasonably be
expected to have a Material Adverse Effect.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which full, true and
correct (in all material respects) entries are made of all dealings and transactions in relation to
its business and activities, to the extent required by GAAP. The Borrower will, and will cause
each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or
any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times during normal business hours;
provided that, unless an Event of Default shall have occurred and be continuing, only one
(1) visit shall be permitted during any calendar year. The Administrative Agent and the Lenders
shall give the Borrower the opportunity to participate in any discussions with the Borrower’s
independent public accountants. Notwithstanding anything to the contrary in this Section 5.06,
none of the Borrower or any of its Subsidiaries will be required to disclose, permit the
inspection, examination or making copies or abstracts of, or discussion of, any document,
information or other matter that (i) constitutes non-financial trade secrets or non-financial
proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any
Lender (or their respective representatives) is prohibited by Law or (iii) is subject to
attorney-client or similar privilege or constitutes attorney work product.
SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws (including ERISA and Environmental Laws), rules, regulations
and orders of any Governmental Authority applicable to it or its property, except where the failure
to do so, individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
SECTION 5.08. Use of Proceeds. The Borrower (and to the extent distributed to them by
the Borrower, each Loan Party) shall use the entire amount of the proceeds of the Loans (a) on the
Transaction Closing Date, solely to consummate the Transactions in a manner consistent with the
Registration Statement and in all material respects with the Separation Documents, including
retaining at
least $100,000,000 in unrestricted cash on its consolidated balance sheet after giving effect
to the Transactions and (b) thereafter, for working capital and general corporate purposes. No
part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including Regulations U and X.
SECTION 5.09. Additional Guarantors. To the extent not delivered to the
Administrative Agent on or before the Transaction Closing Date (including Persons that become
Material Subsidiaries of the Borrower after the Transaction Closing Date), the Borrower agrees
promptly to do, or
42
cause each Material Subsidiary (other than any Excluded Subsidiary) of the
Borrower to, unless otherwise agreed by the Administrative Agent, deliver to the Administrative
Agent such duly executed supplements and amendments to the Guaranty, in each case in form and
substance reasonably satisfactory to the Administrative Agent and as the Administrative Agent deems
necessary or advisable in order to ensure that each Material Subsidiary (other than any Excluded
Subsidiary) of the Borrower guaranties, as primary obligor and not as surety, the full and punctual
payment when due of the Obligations or any part thereof and to take such other actions necessary or
advisable to ensure the validity or continuing validity of such guaranties as may be required by
law or as may be reasonably requested by the Administrative Agent and, if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions relating to such
guaranties, which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
SECTION 5.10. Ratings. The Borrower will use commercially reasonably efforts to
maintain corporate ratings and ratings in respect of the Index Debt from both Xxxxx’x and S&P.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full, the Borrower covenants and agrees with
the Lenders that (it being understood that, for purposes of the covenants made by the Borrower as
set forth below, such covenants shall be construed as though the Separation Transactions have been
consummated and shall not in any way prohibit the consummation of the Separation Transactions):
SECTION 6.01. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the date
hereof (with all such Liens securing Indebtedness of any Loan Party for borrowed money being set
forth in Schedule 6.01); provided that (i) such Lien shall not apply to any other property
or asset of the Borrower or any Subsidiary (other than the proceeds or products of the property or
asset originally subject to such Lien) and (ii) such Lien shall secure only those obligations which
it secures on the date hereof and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(c) Liens of any Subsidiary in favor of any Loan Party;
(d) Liens securing Indebtedness outstanding in a principal amount not in excess of
$100,000,000 consisting of capital leases or purchase money obligations provided that such Liens do
not encumber any property other than property financed by such Indebtedness or subject to such
capital lease;
(e) Liens on the assets of any Foreign Subsidiary; provided that to the extent such
Liens secure Indebtedness, such Indebtedness is permitted under Section 6.07;
(f) Liens not otherwise permitted by clauses (a) through (d) above securing obligations, the
aggregate outstanding principal amount of which as of the date of any incurrence thereof
43
shall not
exceed (together with all Indebtedness of Subsidiaries that are not Guarantors permitted pursuant
to Section 6.07) 10% of the Consolidated Net Tangible Assets of the Borrower as of such date;
provided that no Lien permitted pursuant to this clause (f) shall encumber any Material
Intellectual Property; and
(g) Liens of the Administrative Agent on the Collateral Account and of the Administrative
Agent under the Revolver and Term Loan Agreement on the “Collateral Account” as referred to in the
Revolver and Term Loan Agreement.
SECTION 6.02. Fundamental Changes. (a) The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction
or in a series of transactions) all or substantially all of the assets of the Loan Parties, taken
as a whole, or the Borrower and its Subsidiaries taken as a whole (in each case, whether now owned
or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be continuing (i) any
Person may merge into the Borrower in a transaction in which the Borrower is the surviving
corporation, (ii) any Subsidiary may merge into any Subsidiary in a transaction in which the
surviving entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or otherwise
dispose of its assets to any Subsidiary; provided that any sale, transfer, lease or other
disposition to any Subsidiary that is not a Guarantor shall not be prohibited by Section 6.03(c),
(iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.
SECTION 6.03. Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower
will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger)
any capital stock, evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or any other interest in,
any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit (“Investments”), except:
(a) cash and Permitted Investments;
(b) Investments existing on the date hereof and any modification, replacement, renewal,
reinvestment or extension thereof;
(c) loans or advances or other Investments made by (i) any Loan Party to any other Loan Party,
(ii) by any Subsidiary that is not a Loan Party to the Borrower or any other Subsidiary and (iii)
by any Loan Party to a Subsidiary that is not a Loan Party in an aggregate amount outstanding not
to exceed $100,000,000 or to the extent constituting Guarantees of Cash Management Obligations
under the Guaranty;
(d) Investments consisting of intercompany cash balances among the Borrower and its
Subsidiaries in connection with liquidity management in the ordinary course of business;
44
(e) loans or advances to officers, directors and employees of the Borrower or the Subsidiaries
(i) for reasonable and customary business-related travel, entertainment, relocation and analogous
ordinary business purposes, (ii) in connection with such Person’s purchase of equity interests of
the Borrower and the Subsidiaries and (iii) for purposes not described in the foregoing clauses (i)
and (ii), to the extent permitted by law, in an aggregate principal amount outstanding not to
exceed $5,000,000;
(f) Investments in Swap Agreements; provided that Investments by any Loan Party that
constitute Guarantees of obligations under Designated Swap Agreements shall only be permitted to
the extent permitted pursuant to clause (b) or (c)(iii) above;
(g) Investments held by a Subsidiary acquired after the date hereof or of a corporation merged
or consolidated with a Subsidiary in accordance with Section 6.02 after the date hereof to the
extent that such investments were not made in contemplation of or in connection with such
acquisition, merger or consolidation and were in existence on the date of such acquisition, merger
or consolidation;
(h) Permitted Acquisitions; provided that, any Permitted Acquisition by any Loan Party
of assets located outside of the United States (or any Investment by a Loan Party in a subsidiary
that is not a Guarantor for the purpose of consummating a Permitted Acquisition) shall only be
permitted if the Investment in such Permitted Acquisition is otherwise permitted pursuant to clause
(i) below; and
(i) Permitted Acquisitions not permitted pursuant to clause (h) above and other Investments in
an aggregate amount not exceed 15% of the Consolidated Net Tangible Assets of the Borrower as of
such date, net of any return representing return of capital or repayment of Indebtedness in respect
of any such investment made pursuant to this clause (i) and valued at the time of the making
thereof.
Notwithstanding anything to herein to the contrary, in the event that (i) Consolidated Total Debt
of the Borrower as of the last day of any fiscal quarter for which financial statements have been
delivered to the Administrative Agent pursuant to clause (a) or (b), as applicable, of Section 5.01
to (ii) Consolidated EBITDA of the Borrower for the last four fiscal quarters ending on the last
day of such fiscal quarter is less than 3.25:1, then the covenant set forth in this Section 6.03
shall cease to be of any further force and effect.
SECTION 6.04. Financial Covenants.
(a) Leverage. The Borrower will not permit the ratio of (i) Consolidated Total Debt
of the Borrower as of the last day of any fiscal quarter ending during any period set forth below
to (ii) Consolidated EBITDA of the Borrower for the last four fiscal quarters ending on the last
day of such fiscal quarter to be greater than the ratio set forth below opposite such period:
45
PERIOD | MAXIMUM LEVERAGE RATIO | |
The Bridge Funding Date through
June 30, 2009 |
3.75 to 1 | |
July 1, 2009 through December 31, 2009 |
3.50 to 1 | |
January 1, 2010 through December 31, 2010
|
3.25 to 1 | |
January 1, 2011 through the Maturity Date
|
3.00 to 1 |
(b) Interest Coverage. The Borrower shall not permit the ratio of (i) Consolidated
EBITDA of the Borrower for any four fiscal quarter period ending on or after June 30, 2008 to (ii)
Consolidated Cash Interest Expense of the Borrower for such period to be less than 3.25 to 1.
SECTION 6.05. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties, (b) compensation to employees,
officers, directors or consultants in the ordinary course of business and reimbursement of
directors’ and officers’ expenses and payment of directors’ and officers’ indemnities, and (c)
transactions between or among the Borrower and any Subsidiary.
SECTION 6.06. Restrictive Agreements. The Borrower will not, and will not permit any
of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or
assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the Borrower or any
other Subsidiary or to guarantee Indebtedness of the Borrower or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions imposed by
law or by this Agreement or the Revolver and Term Loan Agreement and any refinancing or replacement
in whole or in part of the facilities thereunder, (ii) the foregoing shall not apply to
restrictions and conditions existing on the Initial Funding Date (as defined in the Revolver and
Term Agreement) on Schedule 6.06 delivered on or prior to the Initial Funding Date (as defined in
the Revolver and Term Agreement) (but shall apply to any extension or renewal of, or any amendment
or modification expanding the scope of, any such restriction or condition) or at the time any
Subsidiary becomes a Subsidiary of the Borrower, so long as such agreement was not entered into
solely in contemplation of such Person becoming a Subsidiary of the Borrower, (iii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold, (iv) clause (a) of the foregoing shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if
such restrictions or conditions apply only to the property or assets securing such Indebtedness or
to any agreement evidencing Indebtedness if such restriction is no more restrictive than the
provisions of Section 6.01 of this Agreement, (v) the foregoing shall not apply to customary
anti-assignment provisions in contracts restricting the assignment thereof (including customary
provisions in leases restricting assignability or
46
subleasing), (vii) the foregoing shall not apply to restrictions under any documents relating to the formation of any
non-wholly-owned Subsidiary, (viii) clause (a) of the foregoing shall not apply in the case of any Subsidiary of the Borrower that is not a
Guarantor, to restrictions or conditions imposed by any agreement evidencing Indebtedness that is permitted by Section 6.07 of this Agreement
and (ix)the foregoing shall not apply to licenses or contracts which by the terms of such licenses and contracts prohibits the granting of Liens on
the rights contained therein.
SECTION 6.07. Subsidiary Indebtedness. The Borrower will not permit the aggregate
principal amount of Indebtedness of Subsidiaries that are not Guarantors (excluding any
Indebtedness of such Subsidiary owed to the Borrower or another Subsidiary, but including any
Guarantee by such Subsidiary of Indebtedness of the Borrower) at any time to exceed (together with
all secured obligations permitted pursuant to Section 6.01(f)) 10% of the Consolidated Net Tangible
Assets of the Borrower as of such date; provided however, that nothing in this Section 6.07
shall prohibit intercompany Indebtedness of Subsidiaries to the extent outstanding prior to the
Transaction Closing Date.
ARTICLE VII
Events of Default
If
any of the following events (“Events of Default”) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under this Agreement, when
and as the same shall become due and payable, and such failure shall continue unremedied for a
period of five (5) Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Borrower or of
any other Loan Party in or in connection with this Agreement or in any report, certificate,
financial statement or other document furnished pursuant to or in connection with this Agreement or
any amendment or modification hereof or waiver hereunder, shall prove to have been incorrect in any
material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Sections 5.02(a), 5.03 (with respect to the Borrower’s existence) or 5.08 or in
Article VI;
(e) the Borrower or any other Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified in clause (a), (b)
or (d) of this Article) or the other Loan Documents, and such failure shall continue unremedied for
a period of thirty (30) days after the earlier of (i) the day a Financial Officer of the Borrower
first has knowledge of such failure and (ii) the Administrative Agent giving notice thereof to the
Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Material Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable, and such failure shall continue after any
applicable grace period;
47
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material
Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Material Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or
decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii)
consent to the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose
of effecting any of the foregoing;
(j) the Borrower or any Material Subsidiary shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of the
Minimum Threshold (to the extent not covered by independent third-party insurance as to which the
insurer has been notified of such judgment and has not denied coverage thereof) shall be entered
against the Borrower, any Loan Party or any Material Subsidiary and the same shall remain
undischarged for a period of forty-five (45) consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy
upon any assets of the Borrower, such Loan Party or such Material Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that results in liability of the Borrower, any Loan
Party or any Material Subsidiary in an aggregate amount which could reasonably be expected to have
a Material Adverse Effect;
(m) a Change in Control shall occur; or
(n) any Loan Document shall cease to be valid and enforceable against any Loan Party thereto,
or any Loan Party shall so assert in writing;
48
then, and during the continuance of any Event of Default (other than an event with respect to the
Borrower described in clauses (h) or (i) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following actions, at the same or
different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; and in case of any Event of
Default with respect to the Borrower described in clauses (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then outstanding, together
with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower. Notwithstanding the foregoing, in the
event any Event of Default (other than an Event of Default described in clause (h) or (i) above
that is not an Immaterial Insolvency Event) occurs and is continuing during the period after the
Bridge Funding Date and through the Transaction Closing Date, then the rights of the Administrative
Agent to take the actions described pursuant to clauses (i) and (ii) above shall be suspended until
after the Transaction Closing Date has occurred.
ARTICLE VIII
The
Administrative Agent; the Agents and the Collateral Account
SECTION 8.01. The Administrative Agent; the Agents. (a) Each of the Lenders hereby
irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent
to take such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof, together with such actions and powers as are reasonably
incidental thereto.
(b) The bank serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same as though it were
not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
(c) The Administrative Agent shall not have any duties or obligations except those expressly
set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative
49
Agent shall be deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or
any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
(d) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement, instrument, document or
other writing believed by it to be genuine and to have been signed or sent by the proper Person.
The Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
(e) The Administrative Agent may perform any and all its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
(f) Subject to the appointment and acceptance of a successor Administrative Agent as provided
in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right, subject to the
consent of the Borrower (unless an Event of Default under clauses (a), (b), (h) or (i) if Article
VII has occurred and is continuing), to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within sixty (60) days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the Administrative Agent’s resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while it was acting as Administrative
Agent.
(g) Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem
50
appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
(h) Anything herein to the contrary notwithstanding, none of the Agents, the Bookrunners or
the Arrangers listed on the cover page hereof shall have any powers, duties or responsibilities
under this Agreement or any of the other Loan Documents, except in their capacity, as applicable,
as Agent, or a Lender hereunder.
SECTION 8.02. Collateral Account. (a) Each of the Lenders hereby irrevocably appoints
the Administrative Agent as its collateral agent in respect of the Collateral Account and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
(b) On or prior to the Bridge Funding Date, the Administrative Agent shall establish the
Collateral Account. The Collateral Account and all funds and other property therein shall be held
in accordance with this Agreement by the Administrative Agent, until released or applied in
accordance with the terms hereof.
(c) The Borrower, as security for the full, prompt and complete payment and performance when
due (whether at stated maturity or otherwise by operation of Section 2.10 hereunder, by
acceleration or otherwise) of the Obligations, hereby mortgages, pledges and hypothecates to the
Administrative Agent for the benefit of the Lenders, and grants to the Administrative Agent for the
benefit of the Lenders a lien on and security interest in, all of its right, title and interest in,
to and under all funds, cash and any cash equivalents from time to time on deposit or held in the
Collateral Account and all proceeds thereof.
(d) The parties hereto and the Administrative Agent agree: (i) that all items of taxable
income or gain realized on the Collateral Account shall be reported as taxable income or gain of
the Borrower; (ii) that the Administrative Agent shall issue an IRS Form 1099 (or any successor
form) relating to such taxable income or gain to and in the name of the Borrower; and (iii) that
the Borrower shall promptly deliver such certificates and other documents as required by applicable
regulation and as the Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, a completed, executed Form W-9. The Borrower understands that the
failure to provide properly completed applicable withholding tax forms may cause the Administrative
Agent to become obligated to withhold a portion of any distributions of the Collateral Account
pursuant to applicable provisions of the Code. The Administrative Agent shall be responsible only
for income reporting to the Internal Revenue Service with respect to income earned on the
Collateral Account. The Administrative Agent shall have no other duties or responsibilities with
respect to administering tax withholding, payments or reporting for persons receiving distributions
pursuant to this Agreement. Notwithstanding the foregoing, the Administrative Agent may report and
withhold any taxes as it determines may be required by any law or regulation in effect at the time
of the distribution.
(e) It is understood and agreed that the Administrative Agent shall have no obligation to
invest any of the funds in the Collateral Account, provided that all interest and other
amounts earned on the deposits shall be deposited in the Collateral Account and only be released
and applied in accordance with the terms hereof (including Sections 2.10(c) and 4.03).
(f) On the Transaction Closing Date, subject only to the satisfaction of the conditions
specified in Section 4.03 hereof, the Lenders hereby authorize Administrative Agent to release all
funds in the Collateral Account to the Borrower for uses specified in Section 5.08(a);
provided
51
however, if the Transaction Closing Date does not occur on or prior to the Early Commitment
Termination Date, the Borrower irrevocably instructs the Administrative Agent to apply such funds
in the Collateral Account for the prepayment of the Obligations in accordance with Section 2.10(c).
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopy or, to the
extent provided in paragraph (b) below, electronic mail, as follows:
(i) if to the Borrower, to it at Xx Xxxxxx Snapple Group, Inc. 0000 Xxxxxx
Xxxxx, Xxxxx, Xxxxx 00000, Attention of Xxxx Xxxxxxx, Executive Vice President &
Chief Financial Officer (Telecopy No. (000) 000-0000);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and Agency
Services Group, 0000 Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention of Xxxxxx
Xxxxxx (Telecopy No. (000) 000-0000), with a copy to JPMorgan Chase Bank, 000 Xxxx
Xxxxxx, Xxx Xxxx 00000, Attention of Xxxxxxx X. Xxxxx (Telecopy No. (000) 000-0000);
(iii) if to any other Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.
(d) NONE OF THE ADMINISTRATIVE AGENT, THE BOOKRUNNERS, ANY OF THE LENDERS, OR ANY RELATED
PARTY OF ANY OF THE FOREGOING PERSONS OR ANY OF THEIR OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES,
AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, THE “AGENT PARTIES”) SHALL BE LIABLE FOR
ANY DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF ANY INFORMATION OR OTHER MATERIALS
DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS
IN CONNECTION WITH THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY, AND EACH SUCH PARTY EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN SUCH
TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS OR THEREBY, EXCEPT TO THE
EXTENT ARISING
52
FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PARTY IN THE USE OF SUCH SYSTEMS, AS
DETERMINED BY A FINAL, NON- APPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION. NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR CODE DEFECTS IS MADE BY THE AGENT PARTIES IN CONNECTION WITH SUCH
TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless
of whether the Administrative Agent, any Lender may have had notice or knowledge of such Default at
the time.
(b) Neither this Agreement nor any other Loan Document nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing entered into by the
Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent
of the Required Lenders; provided that no such agreement shall (i) increase the Commitment
of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any
Loan or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the
written consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of
the principal amount of any Loan, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of
any Commitment, without the written consent of each Lender affected thereby, (iv)change Section
2.17(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, or (v) change any of the provisions of this Section or
the definition of “Required Lenders” or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent hereunder without the prior written consent of the
Administrative Agent. Notwithstanding the foregoing or any other provision in any Loan Document,
the Borrower shall execute any amendment to this Agreement and any other Loan Document to the
extent required to comply with the terms of the Fee and Syndication Letter.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable and documented out-of-pocket expenses (including due diligence expenses, syndication
expenses, consultant’s fees and expenses, travel expenses, and reasonable fees, charges and
disbursements of one counsel and if reasonably required by the Administrative Agent, local counsel
or specialist counsel, and, if counsel for the Administrative Agent determines in good faith that
there is a conflict of interest that requires separate representation for any Agent, any
Bookrunner, the Issuing Bank or any Lender, one additional counsel for each Person subject to such
conflict of interest) incurred by the Bookrunners, the Administrative Agent, and their respective
Affiliates, in connection with the syndication of the credit facilities provided for herein, the
preparation and administration of this Agreement or any
53
amendments, modifications or waivers of the provisions hereof (whether or not the transactions
contemplated hereby or thereby shall be consummated) and (ii) all reasonable and documented
out-of-pocket expenses incurred by any Agent, the Bookrunners or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the Bookrunners or any
Lender in connection with the enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section, or in connection with the Loans made hereunder,
including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent, the Bookrunners and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement
or instrument contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross
negligence or willful misconduct of such Indemnitee. To the extent that the undertakings to
defend, indemnify, pay and hold harmless as set forth in this Section 9.03(b) may be unenforceable
in whole or in part because they are violative of any law or public policy, the Borrower shall
contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the
payment and satisfaction of all such losses, claims, damages, liabilities and related expenses
incurred by the Indemnitees or any of them.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent or the Bookrunners under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent or the Bookrunners, as the case may be, such
Lender’s Applicable Percentage with respect to the Facilities (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that (i) the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent
or the Bookrunners in its capacity as such and (ii) no such payment shall release any of the
Borrower’s indemnity or reimbursement obligations under the Loan Documents.
(d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions or any Loan or the use of the proceeds thereof.
SECTION
9.04. 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 (i) 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) and
(ii) no Lender may assign or
54
otherwise transfer its rights or obligations hereunder except in accordance with this Section.
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 paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more 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) with the prior
written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower
shall be required for an assignment to (i) any Lender, an Affiliate of a
Lender, an Approved Fund, (ii) any assignee at any time prior to the
completion of a Successful Syndication (as defined in the Fee and
Syndication Letter) or (iii) if an Event of Default under clauses (a), (b),
(h) or (i) of Article VII has occurred and is continuing or at any time
prior to the completion of a Successful Syndication (as defined in the Fee
and Syndication Letter), any other assignee; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of any Commitment
to an assignee that is a Lender with a Commitment immediately prior to
giving effect to such assignment; and
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Loans, the amount of the Commitment or Loans of the
assigning Lender subject to each such assignment (determined as of the date
the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $5,000,000 unless each
of the Borrower and the Administrative Agent otherwise consent,
provided that no such consent of the Borrower shall be required if
an Event of Default under clauses (a), (b), (h) or (i) of Article VII has
occurred and is continuing;
(B) 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;
(C) 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; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more Credit Contacts to whom all syndicate-level
information (which may contain material non-public information about the
Borrower and any of it Subsidiaries, and their related parties or their
respective securities) will be
55
made available and who may receive such information in accordance with
the assignee’s compliance procedures and applicable laws, including Federal
and state securities laws.
For the purposes of this Section 9.04(b), the term “Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and 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. |
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto 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 2.14, 2.15, 2.16 and 9.03) to the extent that
any claim thereunder relates to an event arising prior to such assignment. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 9.04 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 paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices 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 Commitment of, and principal amount of the Loans
and any interest thereon owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be
conclusive absent manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by
an assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the
assigning Lender or the assignee shall have failed to make any payment required to
be made by it pursuant to Sections 2.06(b), 2.17(d) or 9.03(c), the Administrative
Agent shall have no obligation to accept such Assignment and Assumption and record
the information therein in the Register unless and until such payment shall have
been made in full, together with all accrued interest thereon. No assignment shall
be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
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(c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent sell
participations to one or more banks or other entities (a “Participant”) in all or a portion
of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) 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,
modification or waiver described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section.
(ii) A Participant shall not be entitled to receive any greater payment under
Section 2.14 or 2.16 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 2.16 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 2.16(e) as though it were a Lender and in
any event shall not be entitled to any greater payment than the applicable Lender
that sold such participation to such Participant would have been entitled to
receive.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so
long as the Commitments have not expired or terminated. The provisions of Sections 2.14, 2.15,
2.16 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement of any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This
57
Agreement, the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the parties relating to
the subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. This Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof which, when taken together, bear the signatures of each of the other
parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy or other electronic communication shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against
any of and all the obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender to the extent then due and owing, irrespective of whether or not such Lender shall
have made any demand under this Agreement. Each Lender agrees to notify the Borrower promptly of
its exercise of any rights under this Section, but the failure to provide such notice shall not
otherwise limit its rights under this Section or result in any liability to such Lender. The
rights of each Lender under this Section are in addition to other rights and remedies (including
other rights of setoff) which such Lender may have.
SECTION 9.09.
Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
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(d) Each party to this Agreement irrevocably consents to service of process at the address
provided for Section 9.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. (a) Each of the Administrative Agent, the Bookrunners
and the Lenders agrees to maintain the confidentiality of the Information (as defined below in
accordance with such person’s customary procedures for handling confidential information of such
nature), except that Information may be disclosed (i) to its and its Affiliates’ partners,
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),
(ii) to the extent requested by any regulatory authority, (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process (provided that,
unless prohibited by applicable law or court order, such disclosing party shall use reasonable
efforts to notify the Borrower prior to such disclosure), (iv) to any other party to this
Agreement, (v) to any rating agency when required by it, provided that, prior to any
disclosure, such rating agency shall undertake in writing to preserve the confidentiality of any
such information, (vi) 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, (vii)
subject to an agreement containing provisions no less restrictive than those of this Section, to
(1) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (2) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its obligations,
(viii) with the consent of the Borrower or (ix) to the extent such Information (1) becomes publicly
available other than as a result of a breach of this Section or (2) becomes available to the
Administrative Agent, any Bookrunner or any Lender from a source other than the Borrower not known
by such person to be in breach of any legal or contractual obligation not to disclose such
information to the Administrative Agent, the Bookrunners or such Lender. In addition, the
Administrative Agent, each Bookrunner and each Lender may disclose the existence of this Agreement
and the information about this Agreement to market data collectors, similar service providers to
the lending industry, and service providers in connection with the administration and management of
this Agreement and the other Loan Documents; provided that, no such Person shall disclose
the identity of the Borrower. For the purposes of this Section, “Information” means all
information received from the Borrower or any of its Affiliates relating to the Borrower or its
business, other than any such information
that is available to the Administrative Agent, any Bookrunner or any Lender on a
nonconfidential basis prior to disclosure by the Borrower or any of its Affiliates unless the
Administrative Agent has actual knowledge that such information is being made available by a Person
in breach of any legal or contractual
59
obligation not to disclose such information. 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.
(b) Notwithstanding the provisions of Section 9.12(a) or anything contrary set forth herein,
each party to this Agreement (and each of their respective employees, representatives or other
agents) may disclose to any and all persons, without limitation of any kind, the tax treatment and
tax structure of the facilities in relation to the Financing Transactions and all materials of any
kind (including opinions or other tax analyses) that are provided to the Borrower relating to such
tax treatment and tax structure. However, any information relating to the tax treatment or tax
structure will remain subject to the confidentiality provisions set forth above (and the foregoing
sentence will not apply) to the extent reasonably necessary to enable the parties hereto, their
respective affiliates, and their and their respective affiliates’ directors and employees to comply
with applicable securities laws. For this purpose, “tax treatment” means U.S. federal or state
income tax treatment, and “tax structure” is limited to any facts relevant to the U.S. federal
income tax treatment of the transactions contemplated by this Agreement but does not include
information relating to the identity of the parties hereto or any of their respective affiliates.
(c) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND
ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.
(d) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER
OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND ITS SUBSIDIARIES, AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH
LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS
ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this
Section shall be cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount,
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together with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Patriot Act. Each Lender subject to the Patriot Act hereby notifies the
Borrower and each Guarantor that, pursuant to Section 326 of the Patriot Act, it is required to
obtain, verify and record information that identifies the Borrower and each Guarantor, including
the name and address of the Borrower and each Guarantor and other information that will allow such
Lender to identify the Borrower and each Guarantor in accordance with the Patriot Act.
SECTION 9.15. No Advisory or Fiduciary Responsibility. In connection with all aspects
of each transaction contemplated hereby (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees
that: (i) (A) the arranging and other services regarding this Agreement provided by the
Administrative Agent and the Bookrunners are arm’s-length commercial transactions between the
Borrower and its Affiliates, on the one hand, and the Administrative Agent and the Bookrunners, on
the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating,
and understands and accepts, the terms, risks and conditions of the transactions contemplated
hereby and by the other Loan Documents; (ii) (A) each of the Administrative Agent, the Bookrunners
and the Lenders is and has been acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent
or fiduciary for the Borrower or any of its Affiliates, or any other Person, (B) irrespective of
whether any Lender, any Bookrunner, the Administrative Agent or any of their Affiliates has advised
or is advising the Borrower on other matters, the Borrower shall not claim any such fiduciary,
advisory or agency relationship or services and the Borrower acknowledges that none of the
Administrative Agent, any Lender, any Bookrunner or any of their Affiliates owes a fiduciary or
similar duty to Cadbury, Cadbury UK, the Borrower, or the Business in connection with the
Transactions or the process leading thereto and; and (iii) the Administrative Agent, the Lenders
and the Bookrunners and their respective Affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Borrower and its Affiliates, and no Agent nor
any Bookrunner or Lender has any obligation to disclose any of such interests to the Borrower or
its Affiliates.
SECTION 9.16. Release of Guarantors. (a) Notwithstanding anything to the contrary
contained herein or in any other Loan Document, upon request of the Borrower in connection with (i)
any disposition of a Subsidiary that is a Guarantor as permitted by the Loan Documents and
immediately following such disposition such Subsidiary will no longer be a Subsidiary of the
Borrower or (ii) a Subsidiary becoming an Excluded Subsidiary (including by being designated in
writing by the Borrower as an “Immaterial Subsidiary” in accordance with the terms of this
Agreement) as permitted by the Loan Documents, the Administrative Agent shall (without notice to,
or vote or consent of, any Lender) take such actions as shall be required to release any guarantee
obligations under any Loan Document of any Guarantor being disposed of in such disposition, to the
extent necessary to permit consummation of such disposition in accordance with the Loan Documents,
or becoming an Excluded Subsidiary, in accordance with the Loan Documents.
(b) Notwithstanding anything to the contrary contained herein or any other Loan Document, when
the principal and interest with respect to all Loans and all other monetary payment Obligations
which are then due and payable have been paid in full and all Commitments have terminated or
expired, upon request of the Borrower, the Administrative Agent shall (without notice to, or vote
or consent of, any Lender) take such actions as shall be required to release all guarantee
obligations under any Loan Document of any Guarantor. Any such release of guarantee obligations
shall be deemed subject
to the provision that such guarantee obligations shall be reinstated if within 180 days after
such release (or such longer period under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law
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now or hereafter in effect during which any payment in respect of the
Obligations guaranteed thereby can be annulled, avoided, set aside, rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required to be refunded or repaid) any
portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must
otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any
Guarantor or any substantial part of its property, or otherwise, all as though such payment had not
been made; provided, however, that any such reinstated guarantee shall be released
immediately upon the Obligations being indefeasibly paid in full.
SECTION 9.17. Amendment and Restatement.
(a) On the Bridge Funding Date, the Existing Bridge Credit Agreement shall be amended and
restated in its entirety by this Agreement, and the Existing Bridge Credit Agreement shall
thereafter be of no further force and effect, except to evidence (i) the incurrence by the Borrower
of the “Obligations” under and as defined in the Existing Bridge Credit Agreement (whether or not
such “Obligations” are contingent as of the Bridge Funding Date but without duplication of the
Obligations hereunder), (ii) the representations and warranties made by the Borrower prior to the
Bridge Funding Date and (iii) any action or omission performed or required to be performed pursuant
to such Existing Bridge Credit Agreement prior to the Bridge Funding Date (including any failure,
on or prior to the Bridge Funding Date, to comply with the covenants contained in such Existing
Bridge Credit Agreement). The amendments and restatements set forth herein shall not cure any
breach thereof or any “Default” or “Event of Default” under and as defined in the Existing Bridge
Credit Agreement existing on or prior to the Bridge Funding Date. This Agreement is not in any way
intended to constitute a novation of the obligations and liabilities existing under the Existing
Bridge Credit Agreement or evidence payment of all or any portion of such obligations and
liabilities.
(b) The terms and conditions of this Agreement and the Agents’, Lenders’ and Issuing Bank’s
rights and remedies under this Agreement and the other Loan Documents shall apply to all of the
“Obligations” incurred under and as defined in the Existing Bridge Credit Agreement.
(c) On and after the Bridge Funding Date, (i) all references to the Existing Bridge Credit
Agreement in the Loan Documents (other than this Agreement) shall be deemed to refer to the
Existing Bridge Credit Agreement, as amended and restated hereby, (ii) all references to any
Article, Section, paragraph or sub-clause of the Existing Bridge Credit Agreement in any Loan
Document (other than this Agreement) shall be deemed to be references to the corresponding
provisions of this Agreement and (iii) except as the context otherwise provides, on or after the
Bridge Funding Date, all references to this Agreement herein (including for purposes of
indemnification and reimbursement of fees) shall be deemed to be references to the Existing Bridge
Credit Agreement, as amended and restated hereby.
(d) This amendment and restatement is limited as written and is not a consent to any other
amendment, restatement or waiver, whether or not similar and, except as expressly provided herein
or in any other Loan Document, all terms and conditions of the Loan Documents remain in full force
and effect unless otherwise specifically amended hereby or any other Loan Document.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
XX XXXXXX SNAPPLE GROUP, INC., as Borrower |
||||
By | /s/ | |||
Name: | ||||
Title: | ||||
[SIGNATURE PAGE TO BRIDGE CREDIT AGREEMENT]
JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent, a Joint Lead Arranger and a Lender |
||||
By | /s/ | |||
Name: | ||||
Title: | ||||
X.X. XXXXXX SECURITIES INC., as Bookrunner |
||||
By | /s/ | |||
Name: | ||||
Title: | ||||
[SIGNATURE PAGE TO BRIDGE CREDIT AGREEMENT]
BANC OF AMERICA SECURITIES LLC, as a Joint Lead Arranger and a Bookrunner |
||||
By | /s/ | |||
Name: | ||||
Title: | ||||
BANK OF AMERICA, N.A., as Syndication Agent and as a Lender |
||||
By | /s/ | |||
Name: | ||||
Title: | ||||
[SIGNATURE PAGE TO BRIDGE CREDIT AGREEMENT]
XXXXXXX SACHS CREDIT PARTNERS L.P., as a Documentation Agent and Bookrunner |
||||
By | /s/ | |||
Authorized Signatory | ||||
[SIGNATURE PAGE TO BRIDGE CREDIT AGREEMENT]
XXXXXXX XXXXX BANK USA, as Lender |
||||
By | /s/ | |||
Authorized Signatory | ||||
[SIGNATURE PAGE TO BRIDGE CREDIT AGREEMENT]
XXXXXX XXXXXXX SENIOR FUNDING, INC., as a Documentation Agent, a Bookrunner and a Lender |
||||
By | /s/ | |||
Name: | ||||
Title: | ||||
[SIGNATURE PAGE TO BRIDGE CREDIT AGREEMENT]
UBS SECURITIES LLC, as Bookrunner and Documentation Agent |
||||
By | /s/ | |||
Name: | ||||
Title: | ||||
By | /s/ | |||
Name: | ||||
Title: | ||||
UBS LOAN FINANCE LLC, as a Lender |
||||
By | /s/ | |||
Name: | ||||
Title: | ||||
By | /s/ | |||
Name: | ||||
Title: | ||||
[SIGNATURE PAGE TO BRIDGE CREDIT AGREEMENT]
[LENDER], as Lender |
||||
By | /s/ | |||
Authorized Signatory | ||||
[SIGNATURE PAGE TO BRIDGE CREDIT AGREEMENT]