UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
(Mark One)
| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
For the fiscal year ended December 31 , 2021
Or
| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
For the transition period from to
Commission file number 1-12139
 | ||||||||
SEALED AIR CORPORATION (Exact name of registrant as specified in its charter) | ||||||||
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | ||||||||||
| (Address of principal executive offices) | (Zip Code) | ||||||||||
Registrant’s telephone number, including area code: (980 )-221-3235
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class | Trading Symbol(s) | Name of Each Exchange on Which Registered | ||||||
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☒ No ☐
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes ☐ No ☒
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| ☒ | Accelerated filer | ☐ | Emerging growth company | |||||||||||||||||||||||||||||
| Non-accelerated filer | ☐ | Smaller reporting company | ||||||||||||||||||||||||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C.7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
As of the last business day of the registrant’s most recently completed second fiscal quarter, June 30, 2021, the aggregate market value of the registrant’s common stock held by non-affiliates of the registrant was approximately $8,852,200,805 , based on the closing sale price as reported on the New York Stock Exchange.
There were 148,158,143 shares of the registrant’s common stock, par value $0.10 per share, issued and outstanding as of February 15, 2022.
DOCUMENTS INCORPORATED BY REFERENCE:
SEALED AIR CORPORATION AND SUBSIDIARIES
Table of Contents
| PART I | |||||||||||
| Item 1. | |||||||||||
| Item 1A. | |||||||||||
| Item 1B. | |||||||||||
| Item 2. | |||||||||||
| Item 3. | |||||||||||
| Item 4. | |||||||||||
| PART II | |||||||||||
| Item 5. | |||||||||||
| Item 6. | |||||||||||
| Item 7. | |||||||||||
| Item 7A. | |||||||||||
| Item 8. | |||||||||||
| Item 9. | |||||||||||
| Item 9A. | |||||||||||
| Item 9B. | |||||||||||
| Item 9C. | |||||||||||
| PART III | |||||||||||
| Item 10. | |||||||||||
| Item 11. | |||||||||||
| Item 12. | |||||||||||
| Item 13. | |||||||||||
| Item 14. | |||||||||||
| PART IV | |||||||||||
| Item 15. | |||||||||||
| Item 16. | |||||||||||
1
Cautionary Notice Regarding Forward-Looking Statements
This report contains “forward-looking statements” within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995 concerning our business, consolidated financial condition, results of operations, or cash flows. The Securities and Exchange Commission (“SEC”) encourages companies to disclose forward-looking statements so that investors can better understand a company’s future prospects and make informed investment decisions. Forward-looking statements are subject to risks and uncertainties, many of which are outside our control, which could cause actual results to differ materially from these statements. Therefore, you should not rely on any of these forward-looking statements. Forward-looking statements can be identified by such words as “anticipate,” “believe,” “plan,” “assume,” “could,” “should,” “estimate,” “expect,” “intend,” “potential,” “seek,” “predict,” “may,” “will” and similar references to future periods. All statements other than statements of historical facts included in this report regarding our strategies, prospects, financial condition, operations, costs, plans and objectives are forward-looking statements. Examples of forward-looking statements include, among others, statements we make regarding expected future operating results, expectations regarding the results of restructuring and other programs, anticipated levels of capital expenditures and expectations of the effect on our financial condition of claims, litigation, environmental costs, contingent liabilities and governmental and regulatory investigations and proceedings.
Please refer to Part I, Item 1A, “Risk Factors” for important factors that we believe could cause actual results to differ materially from those in our forward-looking statements. Any forward-looking statement made by us in this report is based only on information currently available to us and speaks only as of the date on which it is made. We undertake no obligation to publicly update any forward-looking statements, whether written or oral, that may be made from time to time, whether as a result of new information, future developments or otherwise.
The following are important factors that we believe could cause actual results to differ materially from those in our forward-looking statements: global economic and political conditions, currency translation and devaluation effects, changes in raw material pricing and availability, competitive conditions, the success of new product offerings, consumer preferences, the effects of animal and food-related health issues, the effects of epidemics or pandemics, including the Coronavirus Disease 2019 (COVID-19), changes in energy costs, environmental matters, the success of our restructuring activities, the success of our merger, acquisition and equity investment strategies, the success of our financial growth, profitability, cash generation and manufacturing strategies and our cost reduction and productivity efforts, changes in our credit ratings, the tax benefit associated with the Settlement agreement (as defined in Part I, Item 1A, “Risk Factors”), regulatory actions and legal matters, and the other information referenced in Part I, Item 1A, “Risk Factors.” Any forward-looking statement made by us in this report is based only on information currently available to us and speaks only as of the date on which it is made. We undertake no obligation to publicly update any forward-looking statements, whether written or oral, that may be made from time to time, whether as a result of new information, future developments or otherwise.
2
| PART I | ||
| Item 1. Business | ||
The Company: SEE
| Our Purpose | We are in business to protect, to solve critical packaging challenges, and to make our world better than we find it. | ||||
Sealed Air Corporation (“SEE”, “Sealed Air”, or the “Company”, also referred to as “we”, “us”, or “our”) is a leading global provider of packaging solutions integrating high-performance materials, automation, equipment and services. SEE designs and delivers packaging solutions that preserve food, protect goods, automate packaging processes, and enable e-commerce and digital connectivity for packaged goods. Our packaging solutions are designed to help customers automate their operations to be increasingly touchless and more resilient, safer, less wasteful, and enhance brand engagement with consumers.
We deliver our packaging solutions to an array of end markets including fresh proteins, foods, fluids, medical and healthcare, e-commerce, logistics and omnichannel fulfillment operations, and industrials. We serve customers across 114 countries/territories directly and through a diversified distribution network. We aim to deliver savings to our customers and accelerate payback on their investments. We invest in technology and innovation that transform our industry toward a more sustainable future.
Our portfolio of solutions includes leading brands such as CRYOVAC® brand food packaging, SEALED AIR® brand protective packaging, AUTOBAG® brand automated packaging, BUBBLE WRAP® brand packaging and SEE Automation™ solutions.
In 2021, we generated net sales of $5.5 billion, net earnings from continuing operations of $491 million, and net cash provided by operating activities of $710 million. Please refer to Part II, Item 8, “Financial Statements and Supplementary Data” for financial information about the Company and its subsidiaries, which is incorporated herein by reference.
We have two reportable segments, Food and Protective. Refer to “Reportable Segments” below for additional information.
Vision and Strategy
| Our Vision | To become a world-class, digitally-driven company automating sustainable packaging solutions | ||||
Our strategy is focused on creating an inimitable customer packaging experience by advancing packaging solutions integrating SEE Automation, Digital, and Sustainability.
SEE caring high-performance people + digital culture. We are bringing people together with a future that is more digitally connected. We prioritize our people and recognize the importance they play in realizing our purpose. Through digital platforms, we are accelerating our efforts to retain, attract and motivate top talent, train our leadership teams, develop future leaders, shape a caring, high-performance organization and culture, and drive top benchmark employee engagement.
Creating SEE Touchless Automation™ experience. With our SEE Automation™ solutions, we aim to solve our customers’ automation needs while creating significant return on their investments through savings and increased productivity. We have focused on increasing our equipment offerings which help our customers automate packaging processes. In addition, through our SEE Operating Engine, we are automating our own operations to make them more sustainable and generate productivity savings.
Lead the industry with Digital transformation. We have launched the MySEE digital e-commerce platform to make doing business with SEE easier and more efficient. We are investing in automation and digital technologies that enhance performance, efficiency and monitoring in customers’ and our own operations. We are developing smart packaging that can enable traceability and deliver digital content. We are investing in digital printing to drive customer savings, generate demand and enhance brand image and shelf impact.
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Sustainability is core to our business. Sustainability is embedded in our purpose and vision. We have set ambitious environmental goals aimed to lead the industry towards a better future. We are designing high-performance packaging materials with recyclability in mind, to make sustainability more affordable, and to create a pathway for a circular economy. We are transforming our operations and our customers’ operations with SEE Touchless Automation™ which aims to improve efficiency, eliminate waste, simplify processes, and create a safer working environment.
Purpose driven capital allocation to create value to our shareholders and society. Our capital allocation strategy fuels the SEE Operating Engine and is rooted in economic value add with the goal to drive profitable, above market organic growth, and attractive returns on invested capital. We invest through capital expenditures, research and development spend, acquisitions, and investments aligned with our strategy. SEE Ventures is embedded in our capital allocation strategy. Under SEE Ventures, we invest in entrepreneurial and disruptive technologies that present opportunities to accelerate innovation and increase speed to market. Dividends and share repurchases have been used to return capital to shareholders.
Continuously Reinventing SEE Operating Engine from Innovate to Solve
Since launching our Reinvent SEE business transformation in 2018, we have sought to transform how we innovate, buy, make and solve our customers’ most critical packaging challenges. The capabilities, operational disciplines, and governance processes established through the Reinvent SEE business transformation are embedded in our on-going continuous improvement system, SEE Operating Engine, and demonstrating sustained results. Our Reinvent SEE goal-oriented behaviors are focused on the 4P'SSM:
Performance: World-class
Outperform the markets we serve with our SEE Operating Engine; create customer references by offering the best service and being “at the table and online” with our customers; execute a purpose-driven capital allocation mindset.
People + Digital: SEE caring high-performance culture
Leveraging the power of operating as One SEE, driving productivity, swarming challenges and opportunities; creating a digital connection between people and the customer experience both internally and externally; rewarding value creation, executing talent strategies to develop, retain and attract top talent; focus on diversity, equity and inclusion (DEI) leadership and environmental, social, and governance (ESG) excellence.
Platforms: Best Solutions, right price, make them sustainable
Focus on leading solutions that generate customer savings; SEE Touchless Automation™ - doing more with less by investing and working smarter; aiming to create significant customer savings.
Processes: SEE Operating Engine
Embed SEE Operating Engine into everything we do thereby eliminating waste, automating and simplifying processes, and removing people from harm’s way.
Sustainability: Make our world better than we find it
Drive environmental, social, and governance excellence by focusing on achieving goals that aim to make our world better than we find it. SEE is dedicating innovation, research and development resources to design or advance packaging materials to be recyclable or reusable and contain more recycled and or renewable content and has announced a goal to reach net-zero carbon emissions within our operations by 2040.
The Reinvent SEE business transformation has driven significant structural operating leverage in the business and resulted in incremental Adjusted EBITDA benefits of $64 million during 2021. The restructuring and associated cost component of the Reinvent SEE business transformation is now expected to conclude by mid-2022.
Refer to Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations” for a reconciliation of net earnings from continuing operations based on Generally Accepted Accounting Principles in the United States of America (“U.S. GAAP”) to total company Adjusted EBITDA presented on a basis which does not conform to U.S. GAAP, which we refer to as “non-U.S. GAAP.”
Competitive Strengths
Our growth strategy leverages our competitive strengths in high-performance packaging solutions, well-established customer relationships, iconic brands, and global scale and market access.
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High-performance Packaging Solutions. For food industries we provide packaging materials, automated equipment, and services that extend shelf life, ensure safety, and enhance brand image and shelf impact, while driving operational excellence by eliminating waste, increasing processing speeds and reducing customers’ labor dependency. Within e-commerce and industrial markets, we offer a broad range of protective packaging materials and automation solutions that prevent product damage, increase order fulfillment velocity, and generate savings through reductions in waste, dimensional weight and labor.
Well-established Customer Relationships. We have a broad and diversified customer base which includes the world’s leading food processors, e-commerce/fulfillment companies and industrial manufacturers. We look to create long-term relationships with leaders in the markets we serve. We leverage extensive knowledge of our customers’ businesses when innovating new solutions, and partner with customers to effectively implement our solutions and automate their operations. Our customer base is diverse, with no single customer or affiliated group of customers representing more than 10% of net sales in 2021, 2020 or 2019.
Iconic Brands. Our portfolio of leading packaging solutions includes CRYOVAC® brand food packaging, SEALED AIR® brand protective packaging, AUTOBAG® brand automated systems, BUBBLE WRAP® brand packaging, and SEE Automation™ solutions. Our iconic brands represent long-tenured leadership in the packaging industry and are propelling us forward into the future. We strive to ensure these brands continue to represent our commitment to deliver safety, security, performance and innovation.
Global Scale and Market Access. SEE serves a diverse global customer base with a sales and distribution network reaching 114 countries/territories. In 2021, 47% of net sales were from outside the U.S. Our global scale and agility have enabled us to address the evolving customer needs across our end markets and geographies and position us to capitalize on growth opportunities in markets around the world. We operate through our subsidiaries and have a presence in the U.S. and 45 other countries/territories listed below.
| Argentina | Czech Republic | Ireland | Peru | Sweden | ||||||||||||||||||||||
| Australia | Denmark | Italy | Philippines | Switzerland | ||||||||||||||||||||||
| Belgium | Finland | Japan | Poland | Taiwan | ||||||||||||||||||||||
| Brazil | France | Luxembourg | Portugal | Thailand | ||||||||||||||||||||||
| Canada | Germany | Malaysia | Russia | Ukraine | ||||||||||||||||||||||
| Chile | Greece | Mexico | Singapore | United Arab Emirates | ||||||||||||||||||||||
| China | Guatemala | Netherlands | South Africa | United Kingdom | ||||||||||||||||||||||
| Colombia | Hungary | New Zealand | South Korea | Uruguay | ||||||||||||||||||||||
| Costa Rica | India | Norway | Spain | Vietnam | ||||||||||||||||||||||
We face risks inherent in these international operations, such as currency fluctuations, supply chain disruptions, inflation and political instability. Information on currency exchange risk appears in Part II, Item 7A, “Quantitative and Qualitative Disclosures About Market Risk,” of this Annual Report on Form 10-K, which is incorporated herein by reference. Other risks attendant to our international operations are set forth in Part I, Item 1A, “Risk Factors,” of this Annual Report on Form 10-K, which is incorporated herein by reference. Information on the impact of currency exchange on our Consolidated Financial Statements appears in Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” Financial information showing net sales for the year ended December 31, 2021 and total long-lived assets by geographic region as of December 31, 2021 appears in Note 6, “Segments,” set forth in Part II, Item 8, “Financial Statements and Supplementary Data,” which is incorporated herein by reference.
Innovation, Research and Development
Our innovation, research and development capabilities encompass a broad range of disciplines including food science, materials science, chemical, mechanical, electrical and software engineering, microbiology, digital applications development, digital printing, and packaging automation equipment design and engineering.
Our research and development activities are principally performed in:
•four Packaging Solutions Development and Innovation Centers located in the U.S., Italy and Singapore;
•eight Equipment Design Centers in the U.S., France, Switzerland, Italy and Singapore, targeting innovation in equipment and digital solutions; and
•39 Package Design and Applications Centers for Protective located in a number of different countries.
5
Our research and development expense was $100 million in 2021, $96 million in 2020 and $77 million in 2019. In addition to our direct spend, we also, from time to time, seek to expand our research and development capabilities through acquisitions and strategic equity or other investments made through SEE Ventures.
We own or are the licensee of approximately 2,875 U.S. and foreign patents and patent applications, and approximately 2,480 U.S. and foreign trademark registrations and trademark applications that relate to many of our products, manufacturing processes and equipment. We file annually an average of approximately 270 U.S. and foreign patent applications and approximately 30 U.S. and foreign trademark applications. Our business is not dependent upon any single patent or trademark alone. Rather, we believe that our success depends primarily on our sales and service, marketing, engineering and manufacturing skills and on our ongoing innovation and research and development efforts. We believe that the expiration or unenforceability of any single one of our patents, applications, licenses or trademark registrations would not be material to our business or our consolidated financial condition, results of operations, or cash flows.
Environmental Sustainability
At SEE, environmental sustainability is integrated in our business strategy. Our priorities and commitments represent what we believe is important to creating a future that is more sustainable.
Accelerating the advancement of a circular economy. We are working to achieve our 2025 Sustainability and Materials Pledge aimed to increase materials circularity in the industry through innovation, reducing plastic and other materials waste and collaborating for change. The three components of our 2025 Sustainability and Materials Pledge are:
Invest in Innovation - Dedicating innovation, research and development resources to design or advance packaging materials to be recyclable or reusable and contain more recycled and or renewable content.
Reduce Plastic and Other Materials Waste - Achieving ambitious targets of recycled content across all packaging solutions which maximize recycled content. Specifically, the Company has a commitment to eliminate waste by incorporating a greater percentage of recycled or renewable content into our solutions.
Collaborate for Change - Building strategic partnerships, combining talent, resources and experience to scale solutions that drive a circular economy. This includes technology investments to facilitate the reuse, collection and recycling of plastic. To that end, SEE is a member of the Alliance to End Plastic Waste and an active participant in the American Chemistry Council.
Mitigating climate change. The Company has announced goals designed to mitigate climate change including Science Based Targets, in line with the Science Based Targets initiative ("SBTi"), for our Scopes 1, 2 and 3 greenhouse gas intensity reductions, and a goal to reach net-zero carbon emissions within our operations by 2040.
We are in the process of developing long-term expenditure forecasts to meet our goals. Meeting our net-zero carbon emissions pledge will require significant capital investment in our operations. We also may invest in renewable energy credits, carbon offsets, or similar programs to aid in reaching our goals, the cost of which were not material in the year ended December 31, 2021, but may be so in future years.
Driving SEE Operational Excellence in our own operations. We focus on reducing climate-related emissions, water use, energy use, and waste in our operations and throughout the supply chain while innovating, manufacturing and delivering high-performance packaging solutions.
Our Environmental, Social and Governance (“ESG”) strategy is overseen and directed by a steering committee which is comprised of executive officers of SEE. They meet on a regular basis. At the Board of Directors level, the Board's Nominating and Corporate Governance Committee assists the Board in overseeing our sustainability strategies and other material matters concerning environmental, social and governance and public policy issues affecting the Company.
We face risks inherent in achieving our sustainability goals, such as the cost for each initiative, changes in future regulations and policies that may be more restrictive than our stated goals, and the availability of resources (such as renewable energy credits, renewable energy sources, carbon offsets), among others. Other risks attendant to the environment and climate change are set forth in Part I, Item 1A, “Risk Factors,” of this Annual Report on Form 10-K, which is incorporated herein by reference.
6
Human Capital
Overview
We are bringing people together with a future that is more digitally connected. We prioritize our people and the experience they have being part of SEE as we recognize the importance they play in realizing our purpose, shaping a caring, high-performance organization and culture, and delivering world-class experiences and opportunities for our customers and other stakeholders.
Our purpose-driven high-performance culture is focused on driving operational excellence. We seek to create an employee community comprised of people with desired expertise and talent from diverse backgrounds, and who care about making the world better. We believe improving our workplace diversity and supporting an inclusive culture will make us better. We invest in the total well-being and experience of our people through a variety of initiatives such as our Flexible Way of Work offering, and we strive to help our employees live better, stay healthy, and be more productive.
SEE's management regularly reports and discusses our workforce and people management strategies and related matters with our Board of Directors and the Organization and Compensation Committee (“O&C Committee”) of the Board of Directors, including matters related to compensation, succession planning, corporate culture, employee engagement, and diversity, equity and inclusion.
Our values represent the fundamental beliefs upon which we aim to base our business and behaviors.
| Our Core Values | |||||||||||
| Integrity | Determined | Collaborative | Innovative | ||||||||
| Every day, we intentionally choose to do the right thing no matter the circumstance. | We are empowered to deliver on our commitments. | We operate based on mutual trust and encourage diverse thinking to achieve a common objective. | We think without limits to solve customer, company and societal challenges. | ||||||||
As of December 31, 2021, our employee population was approximately 16,500 people. The largest component of SEE's workforce is approximately 10,300 direct manufacturing employees in our manufacturing facilities. We also generally employ:
•marketing, sales, business development and technical packaging solutions professionals who work in the field and at our customers' facilities;
•innovation, research and development, digital, automation and sustainability focused employees who work in one of our four comprehensive packaging solutions development and innovation centers; and
•customer service and support personnel as well as administrative and management employees who work in our offices and in remote environments.
As of December 31, 2021, we had approximately 7,000 employees in the U.S. and approximately 9,500 employees outside the U.S. Our workforce is relatively stable and does not have significant seasonal fluctuations.
We had approximately 120 U.S. employees and 4,925 non-U.S. employees who were covered by collective bargaining agreements as of December 31, 2021. Many of the covered employees are represented by works councils or industrial boards, as is customary in the jurisdictions in which they are employed. The collective bargaining agreements covering approximately 56% of such employees, primarily outside the U.S., will expire during 2022 and we will be engaged in negotiations to attain new agreements.
Code of Conduct, Ethics and Core Competencies
The Company maintains a written Code of Conduct which reflects our purpose and values as an organization and how we should act. It encourages all employees to promote an ethical culture and to recognize and report integrity and compliance issues. Our Code of Conduct guides us in how to manage our daily processes and interactions with professionalism, respect and integrity. Employees attest annually to reviewing and adhering to the Code of Conduct.
Employees receive regular online education as part of enhanced global ethics and compliance programs. This training includes required and monitored course training for employees in specific roles based on associated risk and function. Required sessions include the Code of Conduct, anti-bribery, anti-corruption, conflicts of interest, and workplace respect, among other legal and compliance subject matters.
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SEE Culture
In 2021, the Company created the Culture Council to assist in leading our culture transformation. The Culture Council is focused on executing six workstreams designed to further embed our high-performance culture throughout our organization. The workstreams are: Community Impact: responsible for establishing a framework and resources to encourage active involvement in global philanthropic efforts, to empower local community engagement and to scale social impact in our communities. Diversity, Equity and Inclusion: helps to promote a diverse, equitable, trusting and inclusive culture for all employees. SEE Academy: helps to nurture a learning culture that thrives on personal growth and development, strengthening our capabilities to deliver world-class results. SEE Operating Engine: capturing our transformation success into a breakthrough operating engine that continues to reinvent our business from within. |  | ||||
Operational Excellence: seeks to embed an intentional mindset where every employee continually pursues opportunities to improve our 4P’SSM behaviors.
Total Wellbeing and Experience: responsible for strengthening our people through total wellbeing, physical and mental health, social, career, financial and community impact.
Our workstreams are supported by Change Champions who comprise a working group made up of global change agents to help drive our culture and provide feedback for areas of improvement.
Health and Safety
As a company with manufacturing operations across the world, protecting the health, safety and well-being of our people is a top priority. We have a goal of zero harm and we intentionally manage our operations to provide employees with a safe and healthy working environment.
SEE maintains an Environmental, Health and Safety (EHS) policy which outlines the Company’s commitment to integrate EHS principles in all aspects of the business including products, operations, and supply chain. The policy requires our employees and contractors to conduct business in accordance with applicable environmental, health and safety laws and understand and comply with company procedures and guidelines to protect the environment, health and safety of themselves and their co-workers.
We have a formal process in place for managing, tracking, and reporting health and safety which includes incident analysis meetings which are conducted with leadership. Reporting is elevated to the regional leadership and global executive level monthly.
Our global safety training program includes more than 150 preventive courses including behavioral-based safety training, hazard identification, and risk assessment. Additionally, we provide access to multiple customized trainings that educate employees on the safe execution of their jobs in an environmentally responsible manner.
All operations are required to implement the relevant elements of our EHS Management System. Implementation of EHS standards and guidelines takes place at the plant/office level and is assessed through a periodic review process.
Throughout the COVID-19 crisis, SEE has followed the recommendations and guidance of health authorities and local governments across the globe and instituted precautionary measures for employees at all its facilities worldwide, including enhanced cleaning procedures, quarantine and testing protocols, temperature checks, face masks, engineered social distancing, remote work arrangements for non-location-dependent employees, restricted visitor access, and travel limitations.
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The Company held vaccine clinics and provided other means of vaccine access to employees and their families at many of its sites across the globe. The vaccine clinic held at SEE’s North Carolina headquarters was open to the public as well as employees.
Diversity, Equity and Inclusion
We are a global company with an employee population representing a broad diversity of cultures, languages, ethnicities, and races. We recognize the value of workplace diversity and support an inclusive culture across the globe. We evaluate talent acquisition, performance management, employee experience, career development, and succession planning processes to identify and remove unintended biases and facilitate increased diversity of our leadership talent pipeline. In 2021, we announced our Diversity, Equity and Inclusion Pledge and 2025 Goals, encompassing the following:
•Championing equal pay for work of equal value across our organization;
•Leading with a senior leadership team that reflects the cultural diversity of our global footprint;
•Increasing gender diversity across employees globally to more than 30%;
•Increasing the representation of racial and ethnic minorities in our United States workforce to above 35%; and
•Building a more inclusive culture with our employees across the globe.
As of December 31, 2021, 25% of our global employee base are female and 34% of our U.S. workforce belong to racial and ethnic minority groups. Biannually, SEE conducts a global comprehensive pay equity analysis to identify compensation disparities by gender across the world and by ethnic and racial diversity within the U.S. Identified inequities are mitigated to close the gaps and compensation processes are evaluated for unintended bias and continuously improved to prevent future adverse impact.
Recruiting, Retaining and Engaging Employees and Learning and Development
We believe that our success depends on our ability to attract, recruit, and retain employees with the desired expertise and talent.
SEE has a strong global talent acquisition model that attracts and places employees. From time to time, we conduct pulse surveys to solicit valuable and timely feedback from our employees on specific topics. We use the results of the pulse surveys for initiatives related to employee engagement including increased communication from managers or leaders, targeted training opportunities or other methods to improve our employees' career experiences.
We are making significant investments to strengthen the skills, capabilities, and leadership potential of our employees. Employees have access to online tools to support ongoing learning and development and career growth. Additionally, the Company sponsors leadership programs targeted at employees of all levels from early-career entrants to executives.
Reportable Segments
We report our segment information in accordance with the provisions of Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 280, “Segment Reporting,” (“FASB ASC Topic 280”). See Note 6, “Segments,” set forth in Part II, Item 8, “Financial Statements and Supplementary Data” for further information.
Food
Food solutions are sold to food processors in fresh red meat, smoked and processed meats, poultry, seafood, plant-based and dairy (solid and liquids) markets worldwide. Food offers integrated packaging solutions combining high-performance materials and automated equipment solutions to increase food safety, extend shelf life, reduce food waste, automate processes and optimize total cost. Its innovative materials, automated equipment and service enables customers to reduce costs and enhance their brands in the marketplace.
Food solutions are utilized by food service businesses (such as restaurants and entertainment venues) (“food service”) and food retailers (such as grocery stores and supermarkets) (“food retail”), among others. Solutions serving the food service market include products such as barrier bags and pouches, primarily marketed under the CRYOVAC® trademark and other highly recognized trade names including CRYOVAC® brand Barrier Bags, CRYOVAC® brand Form-Fill-Seal Films, and CRYOVAC® brand Auto Pouch Systems. Solutions serving the food retail market include products such as barrier bags, film, and trays, primarily marketed under the CRYOVAC® trademark and other highly recognized trade names including CRYOVAC® brand Grip & Tear™, CRYOVAC® brand Darfresh®, OptiDure™, Simple Steps®, and CRYOVAC® brand Barrier Bags.
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Food solutions are well aligned to capitalize on global market dynamics driven by increasing labor scarcity and automation, continued urbanization, growth in ship-to-home food services, growing consumer preference for smaller portions and healthier food choices, and demand for more sustainable, secure packaging. Our solutions, which include high-performance materials, equipment, and services, are designed to preserve nutrition while enhancing food safety.
Food applications are largely sold direct to customers by our sales, marketing and customer service personnel throughout the world. Sales to governments, or government contracts, are not material to our Food segment. No single customer or affiliated group of customers represents more than 10% of segment revenue in 2021.
There are other manufacturers of products similar to those produced by Food, some that operate across multiple regions and others that operate in a single region or single country. Competing manufacturers produce a wide variety of food packaging based on plastic, metals and other materials.
Protective
Protective packaging solutions are utilized across many global markets to protect goods during transit and are especially valuable to e-commerce, consumer goods, pharmaceutical and medical devices and industrial manufacturing. With automated equipment, high-performance materials, and services, our solutions are designed to increase our customers' packaging velocity, minimize packaging waste, reduce labor dependencies and address dimensional weight challenges. Our product breadth combined with our global scale and reach helps support our customers' needs for sustainability, performance excellence, consistency and reliability of supply wherever they operate around the world.
Protective solutions are marketed under SEALED AIR® brand, BUBBLE WRAP® brand, AUTOBAG® brand and other highly recognized trade names and product families including BUBBLE WRAP® brand inflatable packaging, SEALED AIR® brand performance shrink films, AUTOBAG® brand bagging systems, Instapak® polyurethane foam packaging solutions and Korrvu® suspension and retention packaging. In addition, we provide temperature assurance packaging solutions under the Kevothermal™ and TempGuard™ brands.
Protective solutions are sold through a strategic network of distributors as well as directly to end customers, including, but not limited to, fabricators, original equipment manufacturers, contract manufacturers, logistics partners and e-commerce/fulfillment operations. In 2021, approximately 55% of our Protective sales were sold through distributors. We generally do not impose annual minimum purchase volume requirements on our distributors. Product returns from our distributors in 2021 were not material. Sales to governments, or government contracts, are not material to our Protective segment. No single customer or affiliated group of customers represented more than 10% of segment revenue in 2021.
There are other manufacturers of products similar to those produced by Protective. Additionally, there are products made using alternative packaging materials that customers use to provide protection against damage to their products during shipment and storage. Among the competitive materials are paper packaging, expanded plastics, corrugated die cuts, strapping, envelopes, reinforced bags, and corrugated boxes as well as various types of molded foam plastics, fabricated foam plastics, mechanical shock mounts, wood blocking and bracing systems, and an assortment of automated packaging and fulfillment systems. We believe that some of our direct competition within the protective packaging industry has a less diversified global presence.
We believe that a focus on materials circularity, sustainability, and automation and equipment offerings will continue to define the direction of the competitive landscape into the future for both segments. Additionally, some of our Food and Protective competitors have been consolidating in recent years or have been involved in significant merger and acquisition activity, and we believe this trend may continue. Such consolidation could have an adverse impact on the pricing of our products and services and our ability to retain customers, which could in turn adversely affect our business, consolidated financial condition or results of operations.
Raw Materials and Purchasing
Suppliers provide raw materials, packaging components, contract manufactured goods, equipment and other direct materials, such as inks, films and paper. Our principal raw materials are polyolefin and other petrochemical-based resins, as well as paper pulp products. Raw materials typically represent approximately one-third of our consolidated cost of sales. We also purchase corrugated materials, cores for rolls of products such as films and Bubble Wrap® brand cushioning, inks for printed materials, and blowing agents used in the expansion of foam packaging products. In addition, we offer a wide variety of specialized packaging equipment, some of which we manufacture or have manufactured to our specifications, some of which we assemble and some of which we purchase from suppliers. Automated equipment and accessories are designed for e-commerce fulfillment centers, industrial and food packaging equipment.
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The vast majority of the raw materials required for the manufacture of our products and all components related to our equipment and accessories generally have been readily available on the open market and, in most cases, are available from several suppliers and are available in amounts sufficient to meet our manufacturing requirements. However, in some regions we rely on some sole-source suppliers, and the lack of availability of supplies could have a material negative impact on our consolidated financial condition or results of operations. Natural disasters such as hurricanes, tornados, earthquakes or other severe weather events, as well as political instability and terrorist activities, may negatively impact the production or delivery capabilities of refineries and natural gas and petrochemical suppliers and suppliers of other raw materials. Due to by-product/co-product chemical relationships to the automotive and housing markets, several materials may become difficult to source. These factors could lead to increased prices for our raw materials, curtailment of supplies, allocation of raw materials and other force majeure events by our suppliers. For example, throughout 2021, the Company experienced supply chain disruptions and sharp raw material price increases resulting from various factors including general inflationary pressure, limited availability of certain raw materials, global transportation disruptions and natural disasters such as Winter Storm Uri in February 2021. Refer to Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations” for additional discussion of the impact of 2021 supply chain disruptions and raw material price increases.
Some materials used to manufacture our packaging products are sourced from recycled content from our operations or are obtained through our participation in recycling programs. Although we purchase some raw materials under long-term supply arrangements with third parties, these arrangements follow market forces and are in line with our overall global purchasing strategy, which seeks to balance the cost of acquisition and availability of supply.
We have a centralized supply chain organization, which includes centralized management of purchasing and logistic activities. Our objective is to leverage our global scale to achieve purchasing efficiencies and reduce our total delivered cost across all our regions. We do this while adhering to strategic performance metrics and stringent purchasing practices.
Seasonality
On a consolidated basis, there is minimal seasonality in the business, with net sales slightly lower in the first quarter and slightly higher towards the end of the third quarter through the fourth quarter. Our consolidated results of operations typically trend directionally the same as our net sales seasonality. Historically, net sales in our Food segment have tended to be slightly lower in the first quarter and slightly higher towards the end of the third quarter through the fourth quarter, due to holiday events. Net sales in our Protective segment have also tended to be slightly lower in the first quarter and higher in the mid-third quarter and through the fourth quarter due to the holiday shopping season. However, the extent and timing of our results of operations may be difficult to predict if significant one-time transactions, events or non-recurring charges were to impact our business. Cash flow from operations has tended to be lower in the first quarter and higher in the fourth quarter, reflecting seasonality of sales and working capital changes, including the timing of certain annual incentive compensation payments.
The impact of raw material price changes and related pricing actions have impacted the timing of when our total net sales and our consolidated results of operations were earned throughout 2021. Additionally, changes in end-consumer behavior, such as an increase in e-commerce sales, or temporary social distancing restrictions due to COVID-19 or other factors, have in the past impacted the timing and seasonality of results of operations. Refer to Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations” for additional discussion of our 2021 results.
Compliance with Government Regulations
As a manufacturer, we are subject to various laws, rules and regulations in the countries/territories, jurisdictions and localities in which we operate. These cover, among other things, the safe storage and use of raw materials and production chemicals, the release of materials into the environment, and standards for the treatment, storage and disposal of solid and hazardous wastes. We have an environmental management system that aids in our management of environmental, health and safety matters pertaining to our operations. Key elements of this environmental management system are implemented throughout our operations. We believe that compliance with current environmental and workplace health and safety laws and regulations has not had a material effect on our capital expenditures or consolidated financial condition.
In some jurisdictions in which our packaging products are sold or used, laws and regulations have been adopted or proposed that seek to regulate, among other things, minimum levels of recycled or reprocessed content and, more generally, the sale or disposal of packaging materials. We maintain programs designed to comply with these laws and regulations and to monitor their evolution. Various federal, state, local and foreign laws and regulations regulate some of our products and require us to register certain products and comply with specified requirements. We are also subject to various federal, state, local and foreign laws and regulations that regulate products manufactured and sold by us for controlling microbial growth on humans, animals and processed foods. In the U.S., these requirements are generally administered by the U.S. Food and Drug Administration (“FDA”). To date, the cost of complying with product registration requirements and FDA compliance, and similar non-U.S.
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laws, has not had a material adverse effect on our business, consolidated financial condition, results of operations, or cash flows.
We are subject to various federal, state, local and foreign laws and regulations which ensure safe working conditions for our employees. In the U.S., these requirements are generally administered by the U.S. Occupational Safety and Health Administration (“OSHA”). To date, the cost of complying with worker safety requirements and OSHA compliance, and similar non-U.S. laws, has not had a material adverse effect on our business, consolidated financial condition, results of operations, or cash flows.
Our emphasis on environmental, health and safety compliance provides us with risk reduction opportunities and cost savings through asset protection and protection of employees. We have policies in place which guide the Company in environmental, health and safety matters including training, materials conservation, communications, targets and transparency.
Additionally, some of SEE's materials or products will be subject to a tax on certain plastics or plastic components, which are currently scheduled to go into effect in 2022 in jurisdictions such as the United States and the United Kingdom. There is no guarantee that we will be able to recover the impact of plastic taxes from our customers. The cost to establish compliance with these evolving tax on plastics or plastics components were not material in 2021.
We maintain programs to comply with the various laws, rules and regulations related to the protection of the environment that we may be subject to in the many countries/territories in which we operate. See Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations” under the caption “Environmental Matters.”
Available Information
Our Internet address is www.sealedair.com. We make available, free of charge, on or through our website, our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to those reports that we file or furnish pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, or the Exchange Act, as soon as reasonably practicable after we electronically file these materials with, or furnish them to, the Securities and Exchange Commission (“SEC”). The SEC maintains an Internet site that contains these filings and they can be accessed via the Internet address https://www.sec.gov. The information contained on, or that may be accessed through, our website is not incorporated by reference into, and is not a part of, this Form 10-K.
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| Item 1A. Risk Factors | ||
Introduction
The risks described below should be carefully considered before making an investment decision. These are the most significant risk factors, but they are not the only risk factors that should be considered in making an investment decision. This Form 10-K also contains and may incorporate by reference forward-looking statements that involve risks and uncertainties. See the “Cautionary Notice Regarding Forward-Looking Statements,” immediately preceding Part I, of this Form 10-K. Our business, consolidated financial condition, results of operations, or cash flows could be materially adversely affected by any of these risks. The trading price of our securities could decline due to any of these risks, and investors in our securities may lose all or part of their investment.
Strategic Risks
The COVID-19 pandemic could adversely impact the health and safety of our employees, our business continuity, consolidated financial condition, results of operations, or cash flows.
The COVID-19 pandemic, including the outbreak of variants such as Delta and Omicron, and the related containment and mitigation measures that have been put into place across the globe, have had and may continue to have adverse impact on the global economy and our business. We and some of our customers have experienced facility shutdowns or reductions in operations during the pandemic. The outbreak of recent variants has also adversely impacted the staffing level in our operations. The COVID-19 pandemic has and may continue to result in supply chain and operational disruptions such as the availability and transportation of raw materials or the ability for our packaging and equipment specialists to visit customer facilities. Unpredictable disruptions to the Company’s operations or our customers’ operations could reduce our future revenues and negatively impact the Company’s financial condition.
In addition, economic and market volatility due to the COVID-19 pandemic may negatively impact consumer buying habits, which could adversely affect the Company’s financial results.
The extent to which our operations may be impacted by the COVID-19 pandemic in the future will depend largely on continued developments, which are highly uncertain and cannot be accurately predicted, including new information which may emerge concerning the severity of the outbreak, including new variants of the virus, and actions by government authorities to contain the outbreak or treat its impact, including the effectiveness and distribution of vaccines.
The global nature of our operations exposes us to numerous risks that could materially adversely affect our consolidated financial condition, results of operations, or cash flows.
We operate in 46 countries/territories, and our products are distributed in 114 countries/territories around the world. A large portion of our manufacturing operations are located outside of the U.S. and 47% of our net sales are generated outside of the U.S. These operations, particularly those in developing regions, are subject to various risks that may not be present in or as significant for our U.S. operations. Economic uncertainty in some of the geographic regions in which we operate, including developing regions, could result in the disruption of commerce and negatively impact cash flows from our operations in those markets.
Risks inherent in our international operations include:
•inflationary pressures, including wage inflation and input cost inflation, as well as the impact of fiscal policy interventions by national or regional governments to control inflation;
•foreign currency exchange controls and tax rates;
•foreign currency exchange rate fluctuations, including devaluations;
•adverse impacts resulting from regional or global human health related illnesses;
•restrictive governmental actions such as those on transfer or repatriation of funds and trade protection matters, including anti-dumping duties, tariffs, embargoes and prohibitions or restrictions on acquisitions or joint ventures;
•changes in laws and regulations, including the laws and policies of the U.S. and foreign countries affecting trade and foreign investment;
•the impact of customer perceptions or regulatory developments related to sustainability concerns;
•the difficulty of enforcing agreements and collecting receivables through certain foreign legal systems;
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•variations in protection of intellectual property and other legal rights;
•more expansive legal rights of foreign unions or works councils;
•changes in labor conditions and difficulties in staffing and managing international operations;
•import and export delays caused, for example, by an extended strike at the port of entry, could cause a delay in our supply chain operations;
•social plans that prohibit or increase the cost of certain restructuring actions;
•the potential for governmental actions that may result in expropriation or nationalization of our facilities or other assets in that country;
•unsettled political conditions and possible terrorist attacks against U.S. or other interests; and
•potential tax inefficiencies and tax costs in repatriating funds from our non-U.S. subsidiaries.
These and other factors may have a material adverse effect on our international operations and, consequently, on our consolidated financial condition, results of operations, or cash flows.
Uncertain global economic conditions may have an adverse effect on our consolidated financial condition, results of operations, or cash flows.
Uncertain global economic conditions, including the impact of inflationary pressure across the global economy, may have an adverse impact on our business in the form of lower volumes sold due to weakened demand, unfavorable changes in product price/mix, or lower profit margins. For example, in the past, global economic downturns have adversely impacted some of our customers and end-users, such as food processors, distributors, supermarket retailers, restaurants, industrial manufacturers, retail establishments, business service contractors and e-commerce and mail order fulfillment firms, and other end-users that are particularly sensitive to business and consumer spending. Additionally, in 2021, widespread inflationary pressures were experienced across global economies, resulting in higher costs for our raw materials, non-material cost components and labor.
During economic downturns or recessions, there can be a heightened competition for sales and increased pressure to reduce selling prices as our customers may reduce their volume of purchases from us. If we lose significant sales volume or reduce selling prices significantly, there could be a negative impact on our consolidated financial condition, results of operations, profitability or cash flows.
Also, reduced availability of credit may adversely affect the ability of some of our customers and suppliers to obtain funds for operations and capital expenditures. This could negatively impact our ability to obtain necessary supplies as well as our sales of materials and equipment to affected customers. This could also result in reduced or delayed collections of outstanding accounts receivable.
We experience competition in the markets for our products and services and in the geographic areas in which we operate.
Our packaging products and equipment solution offerings compete with similar products made by other manufacturers and with a number of other types of materials or products. We compete on the basis of performance characteristics of our products, as well as service, price, sustainability and innovations in technology. A number of competing domestic and foreign companies are well-established.
Customers in the e-commerce and food service industry and peers in the packaging industry have been consolidating in recent years, and we believe this trend may continue. Such consolidation could have an adverse impact on the pricing of our products and services and our ability to retain customers, which could in turn adversely affect our business, consolidated financial condition, results of operations or cash flows.
Our inability to maintain a competitive advantage could result in lower prices or lower sales volumes for our products. Additionally, we may not successfully implement our pricing actions. These factors may have an adverse impact on our consolidated financial condition, results of operations, or cash flows.
Concerns about the impact that some plastic materials may have on the environment, along with changes in legal or regulatory requirements, development of recycling infrastructure, consumer preferences or market measures to address these concerns, may negatively affect our business and operations.
Public attention to plastic waste and its associated or perceived environmental impact continues to receive attention. Some jurisdictions have laws and regulations that govern the registration, labeling and taxation or surcharges of some of our products. For example, some of our products will be subject to a tax on certain plastics, which is currently scheduled to go into effect in
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2022 in the United Kingdom. Consumer perceptions, preferences and buying behaviors may change as a result of public attention to plastic waste and current and future regulations.
Currently, single-use plastic bans and/or proposals have focused on specific items such as grocery bags, cutlery, beverage straws and stir sticks, expanded polystyrene or oxo-degradable plastic. At present, all of the products we manufacture are in compliance with applicable laws and regulations, but there can be no assurances regarding future laws and regulations.
We maintain programs designed to comply with laws and regulations and to monitor their evolution. We also continue to innovate our packaging solutions to exceed recyclability or reusability requirements, address cube optimization to eliminate non-recyclable plastic waste, and increase the use of recycled and/or renewable materials. We believe that execution of our strategy positions us to exceed sustainability and recyclability demands of our customers with innovative solutions and new formulations of our materials. However, future development of government policies including taxation to restrict waste imports and/or expand bans beyond single-use plastics, as well as changes in customer preferences, may have an adverse effect on our business, consolidated financial condition, results of operations, or cash flows.
The execution of future acquisitions or investments in other companies may be limited by the availability of suitable candidates. Additionally, we may not be able to successfully integrate acquired businesses without significant use of resources or diversion of management’s attention.
Acquisitions and non-controlling or equity investments are subject to the availability of suitable candidates or investment opportunities. Business acquisitions involve numerous risks, including difficulty in determining valuation, integration of acquired operations, technologies, services and products, key personnel turnover, and the diversion of management's attention from other business matters. Ultimately, we may be unable to achieve the expected benefits which could adversely affect our business and execution of our strategy.
As a result of acquisitions, we may record a significant amount of goodwill and other identifiable intangible assets and we may never realize the full carrying value of the related assets.
As a result of acquisitions, we may record a significant amount of goodwill and other identifiable intangible assets, including customer relationships, trademarks and developed technologies.
We test goodwill and intangible assets with indefinite useful lives for possible impairment annually during the fourth quarter of each fiscal year or more frequently if events or changes in circumstances indicate that the asset might be impaired. Amortizable intangible assets are reviewed for possible impairment whenever there is evidence that events or changes in circumstances indicate that the carrying value may not be recoverable. In the event that we determine that events or circumstances exist that indicate that the carrying value of goodwill or identifiable intangible assets may no longer be recoverable, we might have to recognize a non-cash impairment of goodwill or other identifiable intangible assets, which could have a material adverse effect on our consolidated financial condition or results of operations.
Political and economic instability and risk of government actions affecting our business and our customers or suppliers may adversely impact our business, consolidated financial condition, results of operations, or cash flows.
We are exposed to risks inherent in doing business in each of the countries or territories in which we or our customers or suppliers operate including: civil unrest, acts of terrorism, sabotage, epidemics, force majeure, war or other armed conflict and related government actions, including sanctions/embargoes, the deprivation of contract rights, the inability to obtain or retain licenses required by us to operate our plants or import or export our goods or raw materials, the expropriation or nationalization of our assets, and restrictions on travel, payments or the movement of funds. Geopolitical events may have a negative impact on the global industrial macro-economic environment and could materially adversely impact our consolidated financial condition, results of operations, or cash flows.
If we are not able to protect our trade secrets or maintain our trademarks, patents and other intellectual property, we may not be able to prevent competitors from developing similar products or from marketing their products in a manner that capitalizes on our trademarks, and this loss of a competitive advantage may adversely impact our business, consolidated financial condition, results of operations, or cash flows.
Our ability to compete effectively with other companies depends, in part, on our ability to maintain the proprietary nature of our owned and licensed intellectual property. If we were unable to maintain the proprietary nature of our intellectual property and our significant current or future products, the resulting loss of associated competitive advantage could lead to decreased sales or increased operating costs, either of which could have a material adverse effect on our business, consolidated financial condition or results of operations.
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We rely on trade secrets to maintain our competitive position, including protecting the formulation and manufacturing techniques of many of our products. As such, we have not sought U.S. or international patent protection for some of our principal product formulas and manufacturing processes. Accordingly, we may not be able to prevent others from developing products that are similar to or competitive with our products.
We own a large number of patents and pending patent applications on our products, aspects thereof, methods of use and/or methods of manufacturing. There is a risk that our patents may not provide meaningful protection and patents may never be issued for our pending patent applications.
We own, or have licenses to use, all of the material trademark and trade name rights used in connection with the packaging, marketing and distribution of our major products both in the U.S. and in other countries/territories where our products are principally sold. Trademark and trade name protection is important to our business. Although most of our trademarks are registered in the U.S. and in the foreign countries/territories in which we operate, we may not be successful in asserting trademark or trade name protection. In addition, the laws of some foreign countries/territories may not protect our intellectual property rights to the same extent as the laws of the U.S. The costs required to protect our trademarks and trade names may be substantial.
We cannot be certain that we will be able to assert these intellectual property rights successfully in the future or that they will not be invalidated, circumvented or challenged. Other parties may infringe on our intellectual property rights and may thereby dilute the value of our intellectual property in the marketplace. Third parties, including competitors, may assert intellectual property infringement or invalidity claims against us that could be upheld. Intellectual property litigation, which could result in substantial cost to and diversion of effort by us, may be necessary to protect our trade secrets or proprietary technology or for us to defend against claimed infringement of the rights of others and to determine the scope and validity of others’ proprietary rights. We may not prevail in any such litigation, and if we are unsuccessful, we may not be able to obtain any necessary licenses on reasonable terms or at all.
Any failure by us to protect our trademarks and other intellectual property rights may have a material adverse effect on our business, consolidated financial condition, results of operations, or cash flows.
Operational Risks
Raw material pricing, including how our selling prices reflect the cost of raw materials, availability and allocation by suppliers as well as energy-related costs may negatively impact our results of operations, including our profit margins.
We use petrochemical-based raw materials to manufacture many of our products. The prices for these raw materials are cyclical and increases in market demand or fluctuations in the global trade for petrochemical-based raw materials and energy could increase our costs, such as those experienced during 2021.
While historically we have been able to successfully manage the impact of higher raw material costs by increasing our selling prices, if we were unable to minimize the effects of increased raw material costs through sourcing, pricing or other actions, our business, consolidated financial condition or results of operations may be materially adversely affected. A portion of our sales prices, specifically within Food's North American and APAC business, is determined using formula based pricing which reflects changes in underlying raw material indices. On average, formula based pricing lags raw material cost movement by approximately six months. We may experience a benefit (when resin prices decrease) or detriment (when resin prices increase) to our cost of sales before those price changes are reflected in our selling prices. As such, trends in raw material pricing may have a negative impact on future profit margins. We also have some sole-source suppliers, and the lack of availability of supplies could have a material adverse effect on our consolidated financial condition, results of operations, or cash flows.
Natural disasters, such as a hurricane, tornado, earthquake or other severe weather event, as well as political instability and terrorist activities, may negatively impact the production or delivery capabilities of refineries and natural gas and petrochemical suppliers and suppliers of other raw materials in the future. For example, throughout 2021, the Company experienced supply chain disruptions and sharp raw material price increases resulting, in part, from disruptions caused by Winter Storm Uri in February 2021. These factors could lead to increased prices for our raw materials, curtailment of supplies, allocation of raw materials, and other force majeure events of our suppliers and harm relations with our customers which could have a material adverse effect on our consolidated financial condition, results of operations, or cash flows.
Unfavorable customer responses to price increases could have a material adverse impact on our sales and earnings.
From time to time, and especially in periods of rising raw material costs, we increase the prices of our products. For example, throughout 2021, the Company enacted pricing actions, which included price increases across our portfolio. Significant price increases could impact our earnings depending on, among other factors, the pricing by competitors of similar products and the
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response by the customers to higher prices. Such price increases may result in lower volume of sales and a subsequent decrease in gross margin and adversely impact our results of operations.
Demand for our products could be adversely affected by changes in consumer preferences or if we are not able to innovate and bring new products to market.
Our sales depend heavily on the volumes of sales by our customers in food processing and service industries, the industrial manufacturing and electronics sectors, and e-commerce. Consumer preferences for food and durable goods packaging can influence our sales. Consumer preferences for fresh and unpackaged foods and the global e-commerce and industrial market change over time. Changes in consumer behavior, including changes driven by cost, availability, durability, sustainability, innovation, or various health or environmental-related concerns and perceptions, could negatively impact demand for our products.
Innovation, particularly related to our automation, sustainability and digital offerings, is key to our strategy. Our performance and prospects for future growth could be adversely affected if new products do not meet sales or margin expectations and we are not able to meet our innovation rate goals. Our customers' preferences continue to trend towards sustainable and automated packaging solutions. We believe that we are well positioned to offer these solutions to our customers, but our success is dependent on continued innovation in sustainability and our ability to bring new products to market in an efficient manner.
Our competitive advantage is due in part to our ability to develop and introduce new and sustainable products in a timely manner at favorable margins. The development and introduction cycle of new products can be lengthy and involve high levels of investment. New products may not meet sales or margin expectations due to many factors, including our inability to (i) accurately predict demand, end-user preferences and evolving industry and regulatory standards; (ii) resolve technical and technological challenges in a timely and cost-effective manner; or (iii) achieve manufacturing efficiencies.
Cyber risk and the failure to maintain the integrity of our operational or security systems or infrastructure, or those of third parties with which we do business, could have a material adverse effect on our business, consolidated financial condition, results of operations, or cash flows.
We are subject to an increasing number of information technology vulnerabilities, threats and targeted computer crimes which pose a risk to the security of our systems and networks and the confidentiality, availability and integrity of our data. Disruptions or failures in the physical infrastructure or operating systems that support our businesses and customers, or cyber attacks or security breaches of our networks or systems, or networks or systems of our customers and key vendors, could result in the loss of customers and business opportunities, legal liability, regulatory fines, penalties or intervention, reputational damage, reimbursement or other compensatory costs, and additional compliance costs, any of which could materially adversely affect our business, consolidated financial condition and results of operations. To mitigate these threats to our business, we maintain a cybersecurity program aligned with industry frameworks designed to protect, detect, and respond to internal and external threats. While we have experienced, and expect to continue to experience, attacks attempting to breach the security of our network and systems, none have resulted in a breach with material impact or any penalties or settlement for the three years ended December 31, 2021.
We also maintain and have access to sensitive, confidential or personal data or information in certain of our businesses that is subject to privacy and security laws, regulations and customer controls. Despite our efforts to protect such sensitive, confidential or personal data or information, our facilities and systems and those of our customers and third-party service providers may be vulnerable to security breaches, theft, misplaced or lost data, programming and/or human errors that could lead to the compromising of sensitive, confidential or personal data or information, improper use of our systems, software solutions or networks, unauthorized access, use, disclosure, modification or destruction of information, defective products, production downtimes and operational disruptions, which in turn could adversely affect our business, consolidated financial condition, results of operations, or cash flows.
The regulatory environment surrounding cybersecurity and data privacy is increasingly demanding, with new and changing regulations. We could be required to expend additional resources to comply with any such regulations, and failure to comply could subject us to significant penalties or claims.
Supply chain disruptions related to the transport of raw materials and/or finished goods may delay the timing of when we are able to manufacture our product or serve our customers, which could adversely affect our business, consolidated financial condition, results of operations, or cash flows.
We rely on third-party logistics suppliers for the distribution and transportation of raw materials, operating supplies and products. Delays, fluctuations in freight costs, limitations on shipping and receiving capacity, and other disruptions in the transportation and shipping infrastructure may adversely impact our ability to manufacture and distribute products. Specifically,
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many key ports around the world experienced delays and backlogs in 2021. The Company may also incur higher tariffs and duties to obtain materials from suboptimized sourcing locations. Additionally, transportation costs may increase as freight carriers raise prices to address the overall market conditions. There is no guarantee that we will be able to recover any past or future increases in transportation costs. While we have a geographically diverse international presence and are situated in close proximity to many significant customers, continued supply chain disruptions related to the transport of raw materials and/or finished goods could adversely affect our business, consolidated financial condition, results of operations, or cash flows.
Large-scale animal health issues as well as other health issues affecting the food industry and disruptive forces of nature, including those resulting from climate change, such as significant regional droughts, prolonged severe weather conditions, floods, and natural disasters, may lead to decreased revenues.
We manufacture and sell food packaging products, among other products. Various forces of nature affecting the food industry have in the past and may in the future have a negative effect on the sales of food packaging products. Outbreaks of animal diseases may lead governments to restrict exports and imports of potentially affected animals and food products, leading to decreased demand for our products and possibly also to the culling or slaughter of significant numbers of the animal population otherwise intended for food supply. Other disruptive forces of nature such as droughts, floods and other severe weather can lead to agricultural market disruptions resulting in reduced herd size or modifications to the traditional herd cycles which could affect supply or demand for our products. Also, consumers may change their eating habits as a result of perceived problems with certain types of food. These factors may lead to reduced sales of food packaging products, which could have a material adverse effect on our consolidated financial condition, results of operations, or cash flows.
A major loss of or disruption in our manufacturing and distribution operations or our information systems and telecommunication resources could adversely affect our business, consolidated financial condition, results of operations, or cash flows.
If we were to experience a natural disaster, such as a hurricane, tornado, earthquake or other severe weather event, a casualty loss from an event such as a fire or flood, at one of our larger strategic facilities, or experience adverse impacts, such as plant shutdowns or travel restrictions due to regional or global human health related illness or if such events were to affect a key supplier, our supply chain or our information systems and telecommunication resources, then there could be a material adverse effect on our consolidated financial condition or results of operations. We are dependent on internal and third-party information technology networks and systems, including the Internet, to process, transmit and store electronic information. In particular, we depend on our information technology infrastructure for fulfilling and invoicing customer orders, applying cash receipts, and placing purchase orders with suppliers, making cash disbursements, and conducting digital marketing activities, data processing and electronic communications among business locations.
We also depend on telecommunication systems for communications between company personnel and our customers and suppliers. Future system disruptions, security breaches or shutdowns could significantly disrupt our operations or result in lost or misappropriated information and may have a material adverse effect on our business, consolidated financial condition, results of operations, or cash flows.
If we are unable to retain key employees and other personnel, our consolidated financial condition or results of operations may be adversely affected or we may not be able to execute our strategies.
The execution and success of our strategy depends largely on the efforts and abilities of our management team and other key personnel. Their experience and industry contacts significantly benefit us, and we need their expertise to execute our business strategies, including our strategies related to automation, digital and sustainability. If any such employee were to cease working for us and we were unable to replace them, our business, consolidated financial condition, results of operations, or cash flows may be materially adversely affected.
We could experience disruptions in operations and/or increased labor costs.
We depend on the skills, working relationships, and continued services of employees, including our direct manufacturing employees. The labor market in many geographic regions, including the United States, is becoming increasingly competitive. Higher turnover may lead to reductions in operational efficiencies. Additionally, in Europe and Latin America, the majority of our employees are represented by either labor unions or workers' councils and are covered by collective bargaining agreements that are generally renewable on an annual basis. As is the case with any negotiation, we may not be able to negotiate acceptable new collective bargaining agreements, which could result in strikes or work stoppages by affected workers. Renewal of collective bargaining agreements could also result in higher wages or benefits paid to union members. A shortage in the labor pool and other general inflationary pressures or changes, the results of our labor negotiations and changes to applicable laws
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and regulations could increase labor costs, or cause a disruption in operations, which could materially adversely affect our business.
Legal, Regulatory and Compliance Risks
We are the subject of various legal proceedings, and may be subject to future claims and litigation, that could have a material adverse effect on our business, results of operations or cash flows.
We are involved from time to time in various legal proceedings, including the securities class action lawsuit and the stockholder derivative action described in Part I, Item 3, “Legal Proceedings”. Litigation, in general, and securities, derivative actions and class action litigation, in particular, can be expensive and disruptive. Some of these proceedings may involve parties seeking large and/or indeterminate amounts, including punitive or exemplary damages, and may remain unresolved for several years. Litigation and other adverse legal proceedings could have a material adverse effect our businesses, operating results and/or cash flows because of reputational harm to us caused by such proceedings, the cost of defending such proceedings, the cost of settlement or judgments against us or the changes in our operations that could result from such proceedings. Although we maintain legal liability insurance coverage, potential litigation claims could be excluded or exceed coverage limits under the terms of our insurance policies or could result in increased costs for such coverage.
Our operations are subject to a variety of environmental laws that expose us to regulatory scrutiny, potential financial liability and increased operating costs.
Our operations are subject to a number of federal, state, local and foreign environmental, health and safety laws and regulations that govern, among other things, the manufacture of our products, handling, transportation, storage and disposal of hazardous materials, and the discharge of pollutants into the air, soil and water along with similar legislation aimed at addressing climate change issues.
Many jurisdictions require us to have operating permits for our production and warehouse facilities and operations. Any failure to obtain, maintain or comply with the terms of these permits could result in fines or penalties, revocation or nonrenewal of our permits, or orders to cease certain operations, and may have a material adverse effect on our business, financial condition, results of operations, or cash flows.
We generate, use and dispose of hazardous materials in our manufacturing processes. In the event our operations result in the release of hazardous materials into the environment, we may become responsible for the costs associated with the investigation and remediation of sites at which we have released pollutants, or sites where we have disposed or arranged for the disposal of hazardous wastes, even if we fully complied with applicable environmental laws at the time of disposal. We have been, and may continue to be, responsible for the cost of remediation at some locations.
We are also subject to various federal, state, local and foreign laws and regulations that regulate products manufactured and sold by us for controlling microbial growth on humans, animals and processed foods. In the U.S., these requirements are generally administered by the FDA. We maintain programs designed to comply with these laws and regulations and to monitor their evolution. To date, the cost of complying with product registration requirements and FDA compliance has not had a material adverse effect on our business, consolidated financial condition, results of operations, or cash flows.
As countries progress towards long-term environmental stewardship goals, we expect laws and tax policy to continue to advance. For example, in July 2021, the European Union announced "Fit for 55" which is a series of laws and restrictions aimed at reducing greenhouse gas emissions by 55%. SEE has processes in place and internal goals related to operating efficiency in matters such as greenhouse gas emissions, energy usage, and water consumption. There is no guarantee these internal goals will be more restrictive than future legislation in the jurisdictions in which we operate. Additionally, some of SEE's materials or products will be subject to a tax on certain plastics or plastic components, which are currently scheduled to go into effect in 2022 in jurisdictions such as the United States and the United Kingdom. There is no guarantee that we will be able to recover the impact of plastic taxes from our customers. We maintain programs designed to comply with laws and regulations and to monitor their evolution.
We cannot predict with reasonable certainty the future cost to us of environmental compliance, product registration, or environmental remediation. Environmental laws have become more stringent and complex over time. Our environmental costs and operating expenses will be subject to evolving regulatory requirements and will depend on the scope and timing of the effectiveness of requirements in these various jurisdictions. As a result of such requirements, we may be subject to an increased regulatory burden, and we expect significant future environmental compliance obligations in our operations. Increased compliance costs, increasing risks and penalties associated with violations, or our inability to market some of our products in certain jurisdictions may have a material adverse effect on our business, consolidated financial condition, results of operations, or cash flows.
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Product liability claims or regulatory actions could adversely affect our financial results or harm our reputation or the value of our brands.
Claims for losses or injuries purportedly caused by some of our products arise in the ordinary course of our business. In addition to the risk of substantial monetary judgments, product liability claims or regulatory actions could result in negative publicity that could harm our reputation in the marketplace or adversely impact the value of our brands or our ability to sell our products in certain jurisdictions. We could also be required to recall possibly defective products, or voluntarily do so, which could result in adverse publicity and significant expenses. Although we maintain product liability insurance coverage, potential product liability claims could be excluded or exceed coverage limits under the terms of our insurance policies or could result in increased costs for such coverage.
Future changes in global trade policies and regulations, as well as overall uncertainty surrounding international trade relations, could have a material adverse effect our consolidated financial condition, results of operations, or cash flows.
Future changes in global trade policies and regulations, including tariffs on products we import and export, could have an adverse impact on our business. Additionally, future trade policies and regulations are due in part to international relations and other geopolitical factors outside of our control. In order to mitigate the impact of these trade-related increases on our costs of products sold, we may increase prices in certain markets and, over the longer term, make changes in our supply chain and, potentially, our global manufacturing strategy. Implementing price increases may cause our customers to find alternative sources for their products. We may be unable to successfully pass along these costs through price increases; adjust our supply chain without incurring significant costs; or locate alternative suppliers for raw materials or finished goods at acceptable costs or in a timely manner. Our inability to effectively manage the negative impacts of changing U.S. and foreign trade policies could materially adversely impact our consolidated financial condition, results of operations, or cash flows.
The U.S. Internal Revenue Service (the “IRS”) has indicated that it intends to disallow our deduction of the approximately $1.49 billion for the payments made pursuant to the Settlement agreement (as defined below).
In the past, we have reduced taxable income by approximately $1.49 billion for the payments made pursuant to the Settlement agreement and thus have reduced our U.S. federal tax liability by approximately $525 million. The IRS has proposed to disallow, as deductible expense, the entirety of the $1.49 billion settlement payments. Although we believe that we have meritorious defenses to the proposed disallowance and have filed a protest with the IRS, this matter may not be resolved in 2022 and there can be no assurance that it will be resolved in the Company's favor. The matter has been submitted to the IRS Independent Office of Appeals for review of the proposed disallowance. An unfavorable resolution of this matter could have a material adverse effect on our consolidated financial condition and results of operations, or cash flows.
We are subject to taxation and tax controversies in multiple jurisdictions. As a result, any adverse development in the tax laws of any of these jurisdictions or any disagreement by the tax authorities with our tax positions could have a material adverse effect on our business, consolidated financial condition, results of operations, or cash flows.
We are subject to taxation in, and to the tax laws and regulations of, multiple jurisdictions as a result of the international scope of our operations and our corporate and financing structure. Tax laws are dynamic and subject to change as new laws are passed and new interpretations of the law are issued or applied.
There are various jurisdictions in which we operate which are actively considering changes to existing tax laws, that, if enacted, could increase our tax obligations in countries where we do business. Additional changes in tax laws could increase our overall taxes and our business, consolidated financial condition or results of operations could be adversely affected in a material way. The tax authorities in any applicable jurisdiction, including the U.S., may disagree with the positions we have taken or intend to take regarding the tax treatment or characterization of any of our transactions. If any applicable tax authorities, including U.S. tax authorities, were to successfully challenge the tax treatment or characterization of any of our transactions, it could have a material adverse effect on our business, consolidated financial condition, results of our operations, or cash flows.
We are also subject to tax controversies in various jurisdictions that can result in assessments against us. Developments in an audit, investigation, or other tax controversy can have a material effect on our operating results or cash flows in the period or periods in which that development occurs. We regularly assess the likelihood of an adverse outcome resulting from these proceedings to determine the adequacy of our tax accruals. Although we believe our tax estimates are reasonable, the final outcome of audits, investigations, and any other tax controversies could be materially different from our historical accruals.
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Although the Settlement agreement (as defined below) has been implemented and we have been released from the various asbestos-related, fraudulent transfer, successor liability, and indemnification claims made against us arising from a 1998 transaction with Grace (as defined below), if the courts were to refuse to enforce the injunctions or releases contained in the Plan (as defined below) and the Settlement agreement with respect to any claims and if Grace were unwilling or unable to defend and indemnify us for such claims, then we could be required to pay substantial damages, which could have a material adverse effect on our consolidated financial condition and results of operations. We were also a defendant in a number of asbestos-related actions in Canada arising from Grace’s activities in Canada prior to the 1998 transaction.
On March 31, 1998, we completed a multi-step transaction (the “Cryovac transaction”) involving W.R. Grace & Co. (“Grace”) which brought the Cryovac packaging business and the former Sealed Air’s business under the common ownership of the Company. As part of that transaction, Grace and its subsidiaries retained all liabilities arising out of their operations before the Cryovac transaction (including asbestos-related liabilities), other than liabilities relating to Cryovac’s operations, and agreed to indemnify the Company with respect to such retained liabilities. Beginning in 2000, we were served with a number of lawsuits alleging that the Cryovac transaction was a fraudulent transfer or gave rise to successor liability or both, and that as a result we were responsible for alleged asbestos liabilities of Grace and its subsidiaries. On April 2, 2001, Grace and a number of its subsidiaries filed petitions for reorganization under Chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). In connection with Grace’s Chapter 11 case, the Bankruptcy Court issued orders staying all asbestos actions against the Company (the “Preliminary Injunction”) but granted the official committees appointed to represent asbestos claimants in Grace’s Chapter 11 case (the “Committees”) permission to pursue fraudulent transfer, successor liability, and other claims against the Company and its subsidiary Cryovac, Inc. based upon the Cryovac transaction. In November 2002, we reached an agreement in principle with the Committees to resolve all current and future asbestos-related claims made against us and our affiliates, as well as indemnification claims by Fresenius Medical Care Holdings, Inc. and affiliated companies, in each case, in connection with the Cryovac transaction (as memorialized by the parties and approved by the Bankruptcy Court, the “Settlement agreement”). A definitive Settlement agreement was entered into as of November 10, 2003 consistent with the terms of the agreement in principle. On June 27, 2005, the Bankruptcy Court approved the Settlement agreement and the Settlement agreement was subsequently incorporated into the plan of reorganization for Grace filed in September 2008 (as filed and amended from time to time, the "Plan"). Subsequently, the Bankruptcy Court (in January and February 2011) and the United States District Court for the District of Delaware (in January and June 2012) entered orders confirming Grace’s plan of reorganization in its entirety.
On February 3, 2014 (the “Effective Date”), in accordance with the Plan, Grace emerged from bankruptcy. In accordance with the Plan and the Settlement agreement, on the Effective Date, Cryovac, Inc. made aggregate cash payments in the amount of $929.7 million to the WRG Asbestos PI Trust (the “PI Trust”) and the WRG Asbestos PD Trust (the “PD Trust”) and transferred 18 million shares of Sealed Air common stock to the PI Trust. Among other things, the Plan incorporated and implemented the Settlement agreement and provided for the establishment of two asbestos trusts under Section 524(g) of the U.S. Bankruptcy Code to which present and future asbestos-related personal injury and property damage claims are channeled. The Plan also provided injunctions and releases with respect to asbestos claims and certain other claims for our benefit. In addition, under the Plan and the Settlement agreement, Grace is required to indemnify us with respect to asbestos and certain other liabilities. Notwithstanding the foregoing, and although we believe the possibility to be remote, if any courts were to refuse to enforce the injunctions or releases contained in the Plan and the Settlement agreement with respect to any claims, and if, in addition, Grace were unwilling or unable to defend and indemnify us for such claims, then we could be required to pay substantial damages, which could have a material adverse effect on our consolidated financial condition, results of operations, profitability or cash flows.
Financial Risks
Fluctuations between foreign currencies and the U.S. dollar could materially impact our consolidated financial condition or results of operations.
Approximately 47% of our net sales in 2021 were generated outside the U.S. We translate sales and other results denominated in foreign currency into U.S. dollars for our Consolidated Financial Statements. As a result, the Company is exposed to currency fluctuations both in receiving cash from its international operations and in translating its financial results into U.S. dollars. During periods of a strengthening U.S. dollar, our reported international sales and net earnings could be reduced because foreign currencies may translate into fewer U.S. dollars. Foreign exchange rates can also impact the competitiveness of products produced in certain jurisdictions and exported for sale into other jurisdictions. These changes may impact the value received for the sale of our goods versus those of our competitors. The Company cannot predict the effects of exchange rate fluctuations on its future operating results. As exchange rates vary, the Company's results of operations and profitability may be adversely impacted. While we use financial instruments to hedge certain foreign currency exposures, this does not insulate us
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completely from foreign currency effects and exposes us to counterparty credit risk for non-performance. See Note 15, “Derivatives and Hedging Activities,” of the Notes. Such hedging activities may be ineffective or may not offset more than a portion of the adverse financial effect resulting from foreign currency variations. The gains or losses associated with hedging activities may negatively impact the Company's results of operations.
In all jurisdictions in which we operate, we are also subject to laws and regulations that govern foreign investment, foreign trade and currency exchange transactions. These laws and regulations may limit our ability to repatriate cash as dividends or otherwise to the U.S. and may limit our ability to convert foreign currency cash flows into U.S. dollars.
We have recognized foreign exchange losses related to the currency devaluations in Argentina and its designation as a highly inflationary economy under U.S. GAAP. See Note 2, “Summary of Significant Accounting Policies and Recently Issued Accounting Standards,” for additional information.
Our operating results or cash flows can change materially as a result of changes in our geographic mix of U.S. and foreign earnings and other factors, including changes in tax laws and changes made by regulatory authorities.
Our overall effective income tax rate is equal to our total income tax provision as a percentage of total earnings before tax. However, income tax expense and benefits are not recognized on a global basis but rather on a jurisdictional or legal entity basis. Losses in one jurisdiction may not be used to offset profits in other jurisdictions and may cause an increase in our tax rate. Changes in the mix of earnings (or losses) between jurisdictions and assumptions used in the calculation of income taxes, among other factors, could have a significant effect on our overall effective income tax rate. Additionally, changes in tax laws or developments in an audit, investigation, or other tax controversy can have a material effect on our operating results or cash flows in the period or periods in which that development occurs.
We may not be able to generate sufficient cash to service all of our indebtedness and may be forced to take other actions to satisfy our obligations under our indebtedness, which may not be successful.
Our ability to make scheduled payments on time or refinance our debt obligations depends on our financial condition and operating performance, which are subject to prevailing economic and competitive conditions and to certain financial, business, legislative, regulatory and other factors beyond our control. We may be unable to maintain a level of cash flows from operating activities sufficient to permit us to pay the principal, premium, if any, and interest on our indebtedness.
If our cash flows and capital resources are insufficient to fund our debt service obligations, we could face substantial liquidity problems and could be forced to reduce or delay investments and capital expenditures or to dispose of material assets or operations, seek additional debt or equity capital or restructure or refinance our indebtedness. We may not be able to affect any such alternative measures on commercially reasonable terms or at all and, even if successful, those alternative actions may not allow us to meet our scheduled debt service obligations. The credit agreement governing the senior secured credit facilities, the indentures that govern our senior notes and the agreements covering our accounts receivable securitization programs restrict our ability to dispose of assets and use the proceeds from those dispositions and may also restrict our ability to raise debt or equity capital to be used to repay other indebtedness when it becomes due. We may not be able to consummate those dispositions or to obtain proceeds in an amount sufficient to meet any debt service obligations then due.
In addition, we conduct a substantial portion of our operations through our subsidiaries, certain of which are not guarantors of our indebtedness. Accordingly, repayment of our indebtedness is dependent on the generation of cash flow by our subsidiaries and their ability to make such cash available to us, by dividend, debt repayment or otherwise. Unless they are guarantors of our indebtedness, our subsidiaries do not have any obligation to pay amounts due on indebtedness or to make funds available for that purpose. Our subsidiaries may not be able to, or may not be permitted to, make distributions to enable us to make payments in respect of our indebtedness. Each subsidiary is a distinct legal entity, and, under certain circumstances, legal and contractual restrictions may limit our ability to obtain cash from our subsidiaries. The indenture governing certain of our senior notes and the credit agreement governing the senior secured credit facilities limit the ability of certain of our subsidiaries to incur consensual restrictions on their ability to pay dividends or make other intercompany payments to us. These limitations are subject to qualifications and exceptions. In the event that we do not receive distributions from our subsidiaries, we may be unable to make required principal and interest payments on our indebtedness.
Our inability to generate sufficient cash flows to satisfy our debt obligations, or to refinance our indebtedness on commercially reasonable terms or at all, would materially and adversely affect our consolidated financial condition, results of operations, or cash flows.
If we cannot make scheduled payments on our debt, we will be in default, our note holders and lenders could accelerate the repayment of our borrowings, the lenders could terminate their commitments to loan money and/or foreclose against the assets securing the borrowings, and we could be forced into bankruptcy or liquidation.
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The terms of our credit agreement governing our senior secured credit facilities, our accounts receivable securitization programs, our supply chain financing programs, and the indentures governing our senior notes may restrict our current and future operations, particularly our ability to respond to changes in market conditions or to take certain actions.
The indentures governing our senior notes and the credit agreement governing our senior secured credit facilities and our accounts receivable securitization programs contain a number of restrictive covenants that impose significant operating and financial restrictions on us and may limit our ability to engage in acts that may be in our long-term best interest, including restrictions on our ability to:
•incur additional indebtedness;
•pay dividends or make other distributions or repurchase or redeem capital stock;
•prepay, redeem or repurchase certain debt;
•make loans and investments;
•sell assets;
•incur liens;
•enter into transactions with affiliates;
•alter the businesses we conduct;
•enter into agreements restricting our subsidiaries’ ability to pay dividends; and
•consolidate, merge or sell all or substantially all of our assets.
In addition, the restrictive covenants in the credit agreement governing our senior credit facilities require us to maintain a specified net leverage ratio. Our ability to meet this financial ratio can be affected by events beyond our control.
A breach of the covenants under the indenture governing our senior notes or under the credit agreement governing our senior secured credit facilities could result in an event of default under the applicable indebtedness. Such a default may allow the creditors to accelerate the related debt and may result in the acceleration of any other debt to which a cross-acceleration or cross-default provision applies. In addition, an event of default under the credit agreement governing our senior secured credit facilities would permit the lenders under our senior secured credit facilities to terminate all commitments to extend further credit under those facilities. Furthermore, if we were unable to repay the amounts due and payable under our senior secured credit facilities, those lenders could proceed against the collateral granted to them to secure that indebtedness. In the event our lenders or note holders accelerate the repayment of our borrowings, we and our subsidiaries may not have sufficient assets to repay that indebtedness. As a result of these restrictions, we may be:
•limited in how we conduct our business;
•unable to respond to changing market conditions;
•unable to raise additional debt or equity financing to operate during general economic or business downturns or to repay other indebtedness when it becomes due; or
•unable to compete effectively or to take advantage of new business opportunities.
In addition, amounts available under our accounts receivable securitization programs and/or utilization of our supply chain financing programs can be impacted by a number of factors, including but not limited to our credit ratings, accounts receivable or payable balances, the creditworthiness of us or our customers, our receivables collection experience and/or our trade payable payment history. Additionally, if our credit ratings were to be downgraded, particularly our Corporate Rating, there could be a negative impact on our ability to access capital markets and borrowing costs could increase.
Our variable rate indebtedness subjects us to interest rate risk, which could cause our debt service obligations to increase significantly.
Borrowings under our senior secured credit facilities are at variable rates of interest and expose us to interest rate risk. If interest rates increase, our debt service obligations on the variable rate indebtedness will increase even though the amount borrowed will remain the same, and our net income and cash flows, including cash available for servicing our indebtedness, will correspondingly decrease. As of December 31, 2021, we had $512 million of long-term borrowings under our senior secured credit facilities at variable interest rates. A 1/8% increase or decrease in the assumed interest rates on the senior secured credit facilities would result in a $0.6 million increase or decrease in annual interest expense. In the future, we may enter into interest rate swaps that involve the exchange of floating for fixed rate interest payments in order to reduce interest rate volatility. However, we may not maintain interest rate swaps with respect to all of our variable rate indebtedness, and any swaps we enter into may not fully mitigate our interest rate risk.
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The full realization of our deferred tax assets may be affected by a number of factors, including future earnings and the feasibility of on-going planning strategies.
We have deferred tax assets including state and foreign net operating loss carryforwards, accruals not yet deductible for tax purposes, employee benefit items and other items. We have established valuation allowances to reduce the deferred tax assets to an amount that is more likely than not to be realized. Our ability to utilize the deferred tax assets depends in part upon our ability to generate future taxable income within each respective jurisdiction during the periods in which these temporary differences reverse or our ability to carryback any losses created by the deduction of these temporary differences. We expect to realize the assets over an extended period. If we are unable to generate sufficient future taxable income in the U.S. and/or certain foreign jurisdictions, or if there is a significant change in the time period within which the underlying temporary differences become taxable or deductible, we could be required to increase our valuation allowances against our deferred tax assets. Our effective tax rate would increase if we were required to increase our valuation allowances against our deferred tax assets.
Disruption and volatility of the financial and credit markets could affect our external liquidity sources.
Our principal sources of liquidity are accumulated cash and cash equivalents, short-term investments, cash flow from operations and amounts available under our lines of credit, including our senior secured credit facilities, and our accounts receivable securitization programs. We may be unable to refinance any of our indebtedness, including our senior notes, our accounts receivable securitization programs and our senior secured credit facilities, on commercially reasonable terms or at all.
Additionally, conditions in financial markets could affect financial institutions with which we have relationships and could result in adverse effects on our ability to utilize fully our committed borrowing facilities. For example, a lender under the senior secured credit facilities may be unwilling or unable to fund a borrowing request, and we may not be able to replace such lender.
Our insurance policies may not cover all operating risks and a casualty loss beyond the limits of our coverage could materially and adversely impact our business.
Our business is subject to operating hazards and risks relating to handling, storing, transporting and use of the products we sell. We maintain insurance policies in amounts and with coverage and deductibles that we believe are reasonable and prudent. Nevertheless, our insurance coverage may not be adequate to protect us from all liabilities and expenses that may arise from claims for personal injury or death or property damage arising in the ordinary course of business, and our current levels of insurance may not be maintained or available in the future at economical prices. If a significant liability claim is brought against us that is not adequately covered by insurance, we may have to pay the claim with our own funds, which could have a material adverse effect on our business, consolidated financial condition, results of operations, or cash flows.
Item 1B. Unresolved Staff Comments | ||
None.
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| Item 2. Properties | ||
We manufacture products in 98 facilities, with 15 of those facilities serving both of our reportable segments. The following table shows our manufacturing facilities by geographic region and our business segment reporting structure:
| Properties by Geographic Region | Number of Manufacturing Facilities | Food Manufacturing Facilities | Protective Manufacturing Facilities | |||||||||||||||||
Americas(1) | 43 | 13 | 34 | |||||||||||||||||
| Europe, Middle East and Africa ("EMEA") | 27 | 10 | 23 | |||||||||||||||||
| Asia, Australia and New Zealand ("APAC") | 28 | 9 | 24 | |||||||||||||||||
| Total | 98 | 32 | 81 | |||||||||||||||||
(1)As of January 1, 2021, we consolidated the reporting of the North America and South America geographic regions, which are now collectively presented as Americas. No changes were made to EMEA or APAC.
Other Property Information
We own the large majority of our manufacturing facilities. Some of these facilities are subject to secured or other financing arrangements. We lease the balance of our manufacturing facilities, which are generally smaller sites. Our manufacturing facilities are usually located in general purpose buildings that house our specialized machinery for the manufacture of one or more products. Because of the relatively low density of our air cellular, polyethylene foam and protective mailer products, we realize significant freight savings by locating our manufacturing facilities for these products near our customers and distributors.
We also occupy facilities containing sales, distribution, technical, warehouse or administrative functions at a number of locations in the U.S. and in many foreign countries/territories. Some of these facilities are located on the manufacturing sites that we own and some of these are leased. Stand-alone facilities of these types are generally leased. Our global headquarters is located in an owned property in Charlotte, North Carolina. For a list of those countries and territories outside of the U.S. where we have operations, see Global Scale and Market Access within “Competitive Strengths” in Item 1.
We believe that our manufacturing, warehouse, office and other facilities are well maintained, suitable for their purposes and adequate for our needs.
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| Item 3. Legal Proceedings | ||
The information set forth in Note 20, “Commitments and Contingencies,” under the captions “Settlement Agreement Tax Deduction” and “Environmental Matters” is incorporated herein by reference.
On November 1, 2019, purported Company stockholder UA Local 13 & Employers Group Insurance Fund filed a putative class action complaint in the United States District Court for the Southern District of New York against the Company and certain of its current and former officers. On June 4, 2020, the complaint was amended to remove all individual defendants other than the Company’s former CFO and to add a plaintiff, and on July 13, 2020, the complaint was further amended to identify a total of four plaintiffs. The complaint alleges violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 thereunder based on allegedly false and misleading statements and omissions concerning the Company’s hiring of Ernst & Young LLP as its independent auditors and concerning the Company's corporate policies and procedures. The plaintiffs seek to represent a class of purchasers of the Company’s common stock between November 17, 2014 and June 20, 2019. The complaint seeks, among other things, unspecified compensatory damages, including interest, and attorneys’ fees and costs. On September 4, 2020, the Company filed a motion to dismiss the complaint, and on June 1, 2021, the court issued a ruling that granted in part and denied in part the motion to dismiss. The Company filed its answer to the complaint on July 15, 2021.
On January 14, 2020, a stockholder derivative lawsuit was filed in the United States District Court for the District of Delaware by an alleged stockholder of the Company, purportedly on the Company’s behalf. The suit was brought against certain of the Company’s current and former directors and officers and against the Company, as a nominal defendant. The complaint contains allegations against the individual defendants under Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 thereunder similar to those in the class action complaint discussed above, as well as allegations of violations of Section 14(a) under the Exchange Act. The complaint also alleges breach of fiduciary duty, unjust enrichment and waste of corporate assets by the individual defendants for, among other things, failure to correct the alleged false and misleading statements, insider sales of the company’s stock, compensation benefiting from the alleged artificially inflated stock value, company repurchases of shares based on the alleged inflated stock value, and costs in connection with lawsuits and internal investigations. The complaint seeks unspecified damages for Sealed Air, restitution, and reformation and improvement of Sealed Air’s corporate governance and internal procedures regarding compliance with laws. The defendants moved to dismiss the complaint on December 3, 2021. That motion is currently being briefed and remains pending before the court.
The Company has received litigation demand letters from purported stockholders of the Company. In the letters, the stockholders alleged substantially the same wrongdoing as that alleged in the stockholder derivative lawsuit described above. The letters either demand that the Company file suit against the same current and former directors and officers as those named as defendants in that derivative lawsuit or indicate that the Company file suit against Ernst & Young, several of its current or former partners and the Company’s former CFO William Stiehl, as applicable. The Board of Directors is taking appropriate steps to consider these matters.
We are also involved in various other legal actions incidental to our business. We believe, after consulting with counsel, that the disposition of these other legal proceedings and matters will not have a material effect on our consolidated financial condition or results of operations including potential impact to cash flows.
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| Item 4. Mine Safety Disclosures | ||
Not applicable.
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Information About Our Executive Officers
The information appearing in the table below sets forth the current position or positions held by each of our executive officers, the officer’s age as of January 31, 2022, the year in which the officer was first elected to the position currently held with us and the year in which such person was first elected an officer. All of our officers serve at the pleasure of the Board of Directors.
There are no family relationships among any of our executive officers or directors.
| Name and Current Position | Age as of January 31, 2022 | First Elected to Current Position | First Elected an Executive Officer | |||||||||||||||||
| Edward L. Doheny II President and Chief Executive Officer | 59 | 2018 | 2017 | |||||||||||||||||
| Christopher J. Stephens, Jr. Senior Vice President, Chief Financial Officer | 57 | 2021 | 2021 | |||||||||||||||||
| Emile Z. Chammas Senior Vice President, Chief Operating Officer | 53 | 2022 | 2010 | |||||||||||||||||
| Sergio A. Pupkin Senior Vice President, Chief Growth & Strategy Officer | 56 | 2021 | 2020 | |||||||||||||||||
Susan C. Edwards(1) Vice President, Chief Human Resources Officer | 59 | 2019 | 2019 | |||||||||||||||||
| Angel S. Willis Vice President, General Counsel & Secretary | 51 | 2019 | 2020 | |||||||||||||||||
| Michael A. Leon Chief Accounting Officer and Controller | 41 | 2018 | 2018 | |||||||||||||||||
(1) Effective April 1, 2022, Ms. Edwards will retire as Vice President, Chief Human Resources Officer.
Mr. Doheny joined the Company as Chief Operating Officer and CEO-Designate in September 2017 and was elected a Director of Sealed Air Corporation. He became President and CEO effective January 1, 2018. Prior to joining the Company in September 2017, Mr. Doheny served as President and Chief Executive Officer and a Director of Joy Global Inc., a manufacturer and servicer of high productivity mining equipment, from 2013 through 2017. Mr. Doheny also served as Executive Vice President of Joy Global and President and Chief Operating Officer of its Underground Mining Machinery business from 2006 to 2013, where he had global responsibility for the company's underground mining machinery business. Prior to joining Joy Global, Mr. Doheny had a 21-year career with Ingersoll Rand Corporation holding a series of senior executive positions of increasing responsibility, including President of Industrial Technologies from 2003 to 2005 and President of the Air Solutions Group from 2000 to 2003.
Mr. Stephens joined the Company as Senior Vice President and Chief Financial Officer-Designate effective January 1, 2021 and became the Chief Financial Officer on February 26, 2021. Previously, he had served as Senior Vice President, Finance and Chief Financial Officer, of Barnes Group Inc. since January 2009. Barnes Group Inc. is a global provider of engineered products, technologies and solutions to a range of industries including aerospace, transportation, manufacturing, automation and packaging. Prior his role at Barnes Group, Mr. Stephens held key leadership roles at Honeywell International, serving as President of the Consumer Products Group from 2007 to 2008, and Vice President and Chief Financial Officer of Honeywell Transportation Systems from 2003 to 2007. Prior to Honeywell, he held roles with increasing responsibility at The Boeing Company, serving as Vice President and General Manager, Boeing Electron Dynamic Devices; Vice President, Business Operations, Boeing Space and Communications; and Vice President and Chief Financial Officer, Boeing Satellite Systems.
Mr. Chammas was named Senior Vice President and Chief Operating Officer in 2022. He joined the Company in 2010 and had served as Senior Vice President, Chief Transformation and Manufacturing/Supply Chain Officer since 2019. Mr. Chammas leads the global procurement and manufacturing organizations with a focus on SEE Operational Excellence across the Company. He also served as Chief Transformation Officer, reflecting his company-wide leadership of the Reinvent SEE business transformation, and oversees the global IT organization. From 2010 to 2019, Mr. Chammas served as Senior Vice President and Chief Supply Chain Officer. Prior to joining the Company, Mr. Chammas was Vice President, Worldwide Supply Chain, for the Wm. Wrigley Jr. Company, a confectionery company, from 2008 through 2010, and served in management positions of increasing responsibility in supply chain, operations and procurement with the Wm. Wrigley Jr. Company from 2002 through 2008.
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Mr. Pupkin was promoted to Senior Vice President, Chief Growth & Strategy Officer in 2021. He was previously named Vice President and Chief Growth & Strategy Officer and appointed an executive officer of the Company in 2020. In his current role, he is responsible for corporate strategy, global mergers and acquisitions, innovation and development, global marketing, brand communications and our digital business, including e-commerce and SealedAir.com. Prior to his current role, Mr. Pupkin became Chief Strategy Officer in 2019 and served as Vice President, Corporate Strategy, Mergers and Acquisitions from 2016 to 2019. From 2011 to 2016 Mr. Pupkin held leadership positions in our former Diversey Care segment and joined Sealed Air in 2011 as a result of the Diversey acquisition. At the time of the acquisition, Mr. Pupkin had over 14 years of increasing responsibility in strategic marketing, business development, sales, and general management for Diversey, Inc. and predecessor companies.
Ms. Edwards was named Vice President and Chief Human Resources Officer and appointed as an executive officer of the Company in 2019. She has had responsibility for the Company's global human resource function, including under her previous title, Vice President, Human Resources, since January 2017. Ms. Edwards initially joined Sealed Air in 2011 as Vice President, Global HR Business Partner of Food. From 2014 through 2017, she served as Vice President, HR Business Partner. Prior to joining the Company, Ms. Edwards held leadership roles for several global corporations including CIRCOR International, where she was responsible for strategic HR and integration leadership from 2009 until 2011. Prior to CIRCOR, she held many roles with increasing responsibility at Snap-on Incorporated from 2001 until 2009 culminating with her role as Vice President of Rapid Continuous Improvement.
Ms. Willis joined the Company in 2019 as Vice President, General Counsel and Secretary. She was appointed as an executive officer of the Company in 2020. Prior to joining Sealed Air, Ms. Willis served as Vice President & Deputy General Counsel at Ingersoll Rand. In that role, she led the legal aspects of strategic transactions such as mergers and acquisitions and all legal affairs for Europe, Middle East, India and Africa. Overall, Ms. Willis held numerous legal roles with broad scope supporting commercial business units, functions and regions at Ingersoll Rand from 2005 through 2018. Prior to joining Ingersoll Rand, Ms. Willis was Corporate Counsel at Cummins, Inc. and Associate at Ice Miller, LLP.
Mr. Leon was appointed as Chief Accounting Officer and Controller in 2018. Prior to the appointment, he served as the Company’s Assistant Corporate Controller since December 2014. Before joining the Company in 2014, Mr. Leon held various accounting and finance positions with increasing levels of responsibilities at a Big 4 public accounting firm and at several diversified global manufacturing companies, including SPX Corporation from 2012 to 2014, and United Technologies Corporation and its predecessor company, Goodrich Corporation, from 2006 to 2012. He has extensive financial and accounting experience, including financial reporting, financial planning and analysis, mergers and acquisitions, and internal audit, among others.
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| PART II | ||
| Item 5. | Market for Registrant's Common Equity, Related Stockholder Matters and | |||||||
| Issuer Purchases of Equity Securities | ||||||||
Market Information and Holders
Our common stock is listed on the New York Stock Exchange with the trading symbol SEE. As of February 15, 2022, there were approximately 2,967 holders of record of our common stock.
Common Stock Performance Comparisons
The following graph shows, for the five years ended December 31, 2021, the cumulative total return on an investment of $100 assumed to have been made on December 31, 2016 in our common stock. The graph compares this return (“SEE”) with that of comparable investments assumed to have been made on the same date in: (a) the Standard & Poor’s 500 Stock Index (“Composite S&P 500”) and (b) a market capitalization-weighted self-constructed peer group (“Peer Group”).
The Peer Group includes Sealed Air and the following companies: AptarGroup, Inc.; Ashland Global Holdings Inc.; Avery Dennison Corporation; Avient Corporation; Axalta Coating Systems Ltd.; Ball Corporation; Berry Global Group, Inc.; Celanese Corporation; Crown Holdings, Inc.; Graphic Packaging Holding Company; Greif, Inc.; H.B. Fuller Company; Owens-Illinois, Inc.; Packaging Corporation of America; Silgan Holdings Inc.; and Sonoco Products Company. The Peer Group is consistent with the peer companies used by the Organization and Compensation Committee of our Board of Directors (“O&C Committee”) in connection with certain aspects of our executive compensation programs. The O&C Committee includes companies primarily in the materials sector that are comparable to Sealed Air based on sales, number of employees, and market capitalization.
Total return for each assumed investment assumes the reinvestment of all dividends on December 31 of the year in which the dividends were paid.
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Recent Sales of Unregistered Securities
Not applicable.
Issuer Purchases of Equity Securities
The table below sets forth the total number of shares of our common stock, par value $0.10 per share, that we repurchased in each month of the quarter ended December 31, 2021, the average price paid per share and the maximum number of shares that may yet be purchased under our publicly announced plans or programs.
| Period | Total Number of Shares Purchased(1) | Average Price Paid Per Share | Total Number of Shares Purchased as Part of Announced Plans or Programs | Maximum Approximate Dollar Value of Shares that May Yet be Purchased Under the Plans or Programs | ||||||||||||||||||||||
| (a) | (b) | (c) | (d) | |||||||||||||||||||||||
| Balance as of September 30, 2021 | $ | 970,088,842 | ||||||||||||||||||||||||
| October 1, 2021 through October 31, 2021 | 1,232,015 | $ | 56.82 | 1,232,015 | 900,090,020 | |||||||||||||||||||||
| November 1, 2021 through November 30, 2021 | 146 | $ | — | — | 900,090,020 | |||||||||||||||||||||
| December 1, 2021 through December 31, 2021 | 58,280 | $ | 62.66 | 58,280 | 896,438,119 | |||||||||||||||||||||
| Total | 1,290,441 | 1,290,295 | $ | 896,438,119 | ||||||||||||||||||||||
(1)On August 2, 2021, the Board of Directors approved a new share repurchase program of $1.0 billion. This program has no expiration and replaces the previous authorization. From time to time we acquire shares by means of (i) open-market transactions, including through plans complying with Rule 10b5-1 under the Exchange Act, and privately negotiated transactions, including accelerated share repurchase programs, pursuant to our publicly announced program described
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above and (ii) shares withheld from awards under our Omnibus Incentive Plan pursuant to the provision thereof that permits tax withholding obligations or other legally required charges to be satisfied by having us withhold shares from an award under that plan. We report price calculations in column (b) in the table above only for shares purchased as part of our share repurchase program. For shares withheld for tax withholding obligations or other legally required charges, we withhold shares at a price equal to their fair market value.
| Period | Shares withheld for tax obligations and charges | Average withholding price for shares in column “a” | ||||||||||||
| (a) | (b) | |||||||||||||
| October 2021 | — | $ | — | |||||||||||
| November 2021 | 146 | $ | 62.92 | |||||||||||
| December 2021 | — | $ | — | |||||||||||
| Total | 146 | |||||||||||||
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| Item 6. [Reserved] | ||
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| Item 7. | Management's Discussion and Analysis of Financial Condition and Results | |||||||
| of Operations | ||||||||
The information in this MD&A should be read together with our Consolidated Financial Statements and related notes set forth in Part II, Item 8, as well as the discussion included in Part I, Item 1A, “Risk Factors,” of this Annual Report on Form 10-K. All amounts and percentages are approximate due to rounding and all dollars are in millions, except per share amounts.
Business Overview and Reportable Segments
Sealed Air Corporation (“SEE”, “Sealed Air”, or the “Company”, also referred to as “we”, “us”, or “our”) is a leading global provider of packaging solutions integrating high-performance materials, automation, equipment and services. SEE designs and delivers packaging solutions that protect goods, preserve food, automate packaging processes, enable e-commerce and digital connectivity for packaged goods. Our packaging solutions are designed to help our customers automate their operations to be increasingly touchless and more resilient, safer, less wasteful, and enhance brand engagement with consumers. We deliver our packaging solutions to an array of end markets including fresh proteins, foods, fluids, medical and healthcare, e-commerce, logistics and omnichannel fulfillment operations, and industrials. Our portfolio of solutions includes leading brands such as CRYOVAC® brand food packaging, SEALED AIR® brand protective packaging, AUTOBAG® brand automated packaging, BUBBLE WRAP® brand packaging and SEE Automation™ solutions.
The Company’s Food and Protective segments are considered reportable segments under FASB ASC Topic 280. Our reportable segments are aligned with similar groups of products and customers. Corporate includes certain costs that are not allocated to the reportable segments. See Note 6, “Segments,” for additional information.
As of January 1, 2021, we consolidated the reporting of the North America and South America geographic regions, which are now collectively presented as Americas within discussion and analysis of our financial condition and results of operations. No changes were made to EMEA or APAC.
We employ sales, marketing and customer service personnel throughout the world who sell and market our products to and through a widespread distribution network, fabricators, converters, e-commerce and mail order fulfillment firms, and contract packaging firms as well as directly to end-users such as food processors, food service businesses, supermarket retailers, lodging, retail pharmaceutical companies, healthcare facilities, medical device manufacturers, and other manufacturers. We generally do not impose annual minimum purchase volume requirements on our distributors. Product returns from our distributors in 2021 were not material. In 2021, 2020 or 2019, no customer or affiliated group of customers accounted for 10% or more of our consolidated net sales.
On a consolidated basis, there normally is minimal seasonality in the business, with net sales slightly lower in the first quarter and slightly higher towards the end of the third quarter through the fourth quarter. Our consolidated results of operations typically trend directionally the same as our net sales seasonality. In 2021, however, our pricing actions in response to raw material price increases and other inflationary pressures, including freight and labor costs, resulted in a higher portion of net sales in the second half compared to prior years. We expect that net sales and earnings may continue to be impacted by the timing of our pricing actions in response to future fluctuations of raw material costs and other inflationary pressures. Approximately one-third of Food's sales are subject to formula based pricing, predominantly within North America and APAC, which lags raw material cost movement by approximately six months, on average. Additionally, changes in end-consumer behavior, such as an increase in e-commerce sales, or temporary social distancing restrictions due to COVID-19 or other factors, have in the past impacted the timing and seasonality of results of operations.
Cash flow from operations tends to be lower in the first quarter and higher in the fourth quarter, reflecting seasonality of sales and working capital changes, including the timing of certain annual incentive compensation payments. During 2021, the Company generated $510 million in cash flow from operations in the second half, compared to $200 million in the first half of 2021. The proportion of cash generated in the second half of the year was relatively consistent with 2020.
The extent and timing of our results of operations may be difficult to predict if significant one-time transactions, events or non-recurring charges were to impact our business.
Competition for most of our packaging products is based primarily on packaging performance characteristics, automation, sustainability-related characteristics of the materials, service, and price. Since competition is also based upon innovations in packaging technology, we maintain ongoing research and development programs to enable us to maintain technological leadership. Competition is both global and regional in scope and includes numerous smaller, local competitors with limited product portfolios and geographic reach.
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Our net sales are sensitive to developments in our customers’ business or market conditions, changes in the global economy, and the effects of foreign currency translation. Our costs can vary materially due to changes in input costs, including petrochemical-related costs (primarily resin costs), which are not within our control. Consequently, our management focuses on reducing those costs that we can control and using petrochemical-based and other raw materials efficiently. We also believe that our global presence helps to mitigate the impact of localized changes in business conditions.
We manage our businesses with a strategic capital allocation mindset to create economic value. We are making investments to create value while generating operating cash flow that will permit us to continue to spend on innovative research and development and to invest in our business by means of capital expenditures for property, equipment and acquisitions. Moreover, we expect that our ability to generate substantial operating cash flow should provide us with the flexibility to repay debt and to return capital to our stockholders.
Each issue of our outstanding senior notes imposes limitations on our operations and those of specified subsidiaries. Our Senior Secured Credit Facility contains customary affirmative and negative covenants for credit facilities of this type, including limitations on our indebtedness, liens, investments, restricted payments, mergers and acquisitions, dispositions of assets, transactions with affiliates, amendment of documents and sale leasebacks, and a covenant specifying a maximum leverage ratio of debt to EBITDA. We expect continued compliance with our debt covenants including the covenant leverage ratio over the next 12 months. See Note 14, “Debt and Credit Facilities” for further details.
Non-U.S. GAAP Information
We present financial information that conforms to U.S. GAAP. We also present financial information that does not conform to U.S. GAAP, as our management believes it is useful to investors. In addition, non-U.S. GAAP financial measures are used by management to review and analyze our operating performance and, along with other data, as internal measures for setting annual budgets and forecasts, assessing financial performance, providing guidance and comparing our financial performance with our peers. Non-U.S. GAAP financial measures also provide management with additional means to understand and evaluate the core operating results and trends in our ongoing business by eliminating certain expenses and/or gains (which may not occur in each period presented) and other items that management believes might otherwise make comparisons of our ongoing business with prior periods and peers more difficult, obscure trends in ongoing operations or reduce management’s ability to make useful forecasts. Non-U.S. GAAP information does not purport to represent any similarly titled U.S. GAAP information and is not an indicator of our performance under U.S. GAAP. Investors are cautioned against placing undue reliance on these non-U.S. GAAP financial measures. Further, investors are urged to review and consider carefully the adjustments made by management to the most directly comparable U.S. GAAP financial measure to arrive at these non-U.S. GAAP financial measures, described below.
The non-U.S. GAAP financial metrics exclude certain specified items (“Special Items”), including restructuring charges and restructuring associated costs, adjustments in the valuation of our "SEE Ventures" portfolio (which may include debt or equity investments), certain transactions and other charges related to acquisitions and divestitures, gains and losses related to acquisitions and divestitures, special tax items or tax benefits (collectively, “Tax Special Items”) and certain other items. We evaluate unusual or Special Items on an individual basis. Our evaluation of whether to exclude an unusual or special item for purposes of determining our non-U.S. GAAP financial measures considers both the quantitative and qualitative aspects of the item, including among other things (i) its nature, (ii) whether or not it relates to our ongoing business operations, and (iii) whether or not we expect it to occur as part of our normal business on a regular basis.
When we present non-U.S. GAAP forward-looking guidance, we do not also provide guidance for the most directly comparable U.S. GAAP financial measures, as they are not available without unreasonable effort due to the high variability, complexity, and low visibility with respect to certain Special Items, including gains and losses on the disposition of businesses, the ultimate outcome of certain legal or tax proceedings, foreign currency gains or losses resulting from the volatile currency market in Argentina, and other unusual gains and losses. These items are uncertain, depend on various factors, and could be material to our results computed in accordance with U.S. GAAP.
Adjusted EBITDA and Adjusted EBITDA Margin
Adjusted EBITDA is defined as Earnings before Interest Expense, Taxes, Depreciation and Amortization, adjusted to exclude the impact of Special Items. Management uses Adjusted EBITDA as one of many measures to assess the performance of the business. Additionally, Adjusted EBITDA is the performance metric used by the Company's chief operating decision maker to evaluate performance of our reportable segments. Adjusted EBITDA is also a metric used to determine performance in the Company's Annual Incentive Plan. We do not believe there are estimates underlying the calculation of Adjusted EBITDA, other than those inherent in our U.S. GAAP results of operations, which would render the use and presentation of Adjusted EBITDA misleading. While the nature and amount of individual Special Items vary from period to period, we believe our calculation of
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Adjusted EBITDA is applied consistently to all periods and, in conjunction with other U.S. GAAP and non-U.S. GAAP financial measures, Adjusted EBITDA provides a useful and consistent comparison of our Company's performance to other periods.
The following table shows a reconciliation of U.S. GAAP Net Earnings from continuing operations to non-U.S. GAAP Consolidated Adjusted EBITDA from continuing operations:
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Net earnings from continuing operations | $ | 491.2 | $ | 484.1 | $ | 293.7 | ||||||||||||||
| Interest expense, net | 167.8 | 174.4 | 184.1 | |||||||||||||||||
| Income tax provision | 225.0 | 142.1 | 76.6 | |||||||||||||||||
Depreciation and amortization, net of adjustments(1) | 232.2 | 216.5 | 184.5 | |||||||||||||||||
| Special Items: | ||||||||||||||||||||
Restructuring charges | 14.5 | 11.0 | 41.9 | |||||||||||||||||
Other restructuring associated costs | 16.5 | 19.5 | 60.3 | |||||||||||||||||
Foreign currency exchange loss due to highly inflationary economies | 3.6 | 4.7 | 4.6 | |||||||||||||||||
Loss on debt redemption and refinancing activities | 18.6 | — | 16.1 | |||||||||||||||||
| Increase in fair value of equity investments | (6.6) | (15.1) | — | |||||||||||||||||
| Impairment of debt investment | 8.0 | — | — | |||||||||||||||||
Charges related to acquisition and divestiture activity | 2.6 | 7.1 | 14.9 | |||||||||||||||||
Charges related to the Novipax settlement agreement | — | — | 59.0 | |||||||||||||||||
| Gain on sale of Reflectix | (45.3) | — | — | |||||||||||||||||
| Other Special Items | 3.5 | 6.8 | 29.1 | |||||||||||||||||
| Pre-tax impact of Special Items | 15.4 | 34.0 | 225.9 | |||||||||||||||||
| Non-U.S. GAAP Consolidated Adjusted EBITDA from continuing operations | $ | 1,131.6 | $ | 1,051.1 | $ | 964.8 | ||||||||||||||
(1)Includes depreciation and amortization adjustment of $(0.8) million for the year ended December 31, 2019.
The Company may also assess performance using Adjusted EBITDA Margin. Adjusted EBITDA Margin is calculated as Adjusted EBITDA divided by net sales. We believe that Adjusted EBITDA Margin is a useful measure to assess the profitability of sales made to third parties and the efficiency of our core operations.
Adjusted Net Earnings and Adjusted Earnings Per Share
Adjusted Net Earnings and Adjusted Earnings Per Share (“Adjusted EPS”) are also used by the Company to measure total company performance. Adjusted Net Earnings is defined as U.S. GAAP net earnings from continuing operations excluding the impact of Special Items. Adjusted EPS is defined as our Adjusted Net Earnings divided by the number of diluted shares outstanding. We believe that Adjusted Net Earnings and Adjusted EPS are useful measurements of Company performance, along with other U.S. GAAP and non-U.S. GAAP financial measures, because they incorporate non-cash items of depreciation and amortization, including stock-based compensation, which impact the overall performance and net earnings of our business. Additionally, Adjusted Net Earnings and Adjusted EPS reflect the impact of our Adjusted Tax Rate and interest expense on a net and per share basis. While the nature and amount of individual Special Items vary from period to period, we believe our calculation of Adjusted Net Earnings and Adjusted EPS is applied consistently to all periods and, in conjunction with other U.S. GAAP and non-U.S. GAAP financial measures, Adjusted Net Earnings and Adjusted EPS provide a useful and consistent comparison of our Company's performance to other periods.
The following table shows a reconciliation of U.S. GAAP Net Earnings and Diluted Earnings per Share from continuing operations to non-U.S. GAAP Adjusted Net Earnings and Adjusted EPS from continuing operations.
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| Year Ended December 31, | ||||||||||||||||||||||||||||||||||||||
| 2021 | 2020 | 2019 | ||||||||||||||||||||||||||||||||||||
| (In millions, except per share data) | Net Earnings | Diluted EPS | Net Earnings | Diluted EPS | Net Earnings | Diluted EPS | ||||||||||||||||||||||||||||||||
U.S. GAAP net earnings and diluted EPS from continuing operations(1) | $ | 491.2 | $ | 3.22 | $ | 484.1 | $ | 3.10 | $ | 293.7 | $ | 1.89 | ||||||||||||||||||||||||||
Special Items(2) | 49.6 | 0.33 | 14.3 | 0.09 | 145.0 | 0.93 | ||||||||||||||||||||||||||||||||
| Non-U.S. GAAP adjusted net earnings and adjusted diluted EPS from continuing operations | $ | 540.8 | $ | 3.55 | $ | 498.4 | $ | 3.19 | $ | 438.7 | $ | 2.82 | ||||||||||||||||||||||||||
Weighted average number of common shares outstanding – Diluted | 152.4 | 156.0 | 155.2 | |||||||||||||||||||||||||||||||||||
(1)Net earnings per common share are calculated under the two-class method.
(2)Includes pre-tax Special Items, less Tax Special Items and the tax impact of Special Items as seen in the following calculation of non-U.S. GAAP Adjusted income tax rate.
Adjusted Tax Rate
We also present our adjusted income tax rate (“Adjusted Tax Rate”). The Adjusted Tax Rate is a measure of our U.S. GAAP effective tax rate, adjusted to exclude the tax impact from the Special Items that are excluded from our Adjusted Net Earnings and Adjusted EPS metrics as well as expense or benefit from any special taxes or Tax Special Items. The Adjusted Tax Rate is an indicator of the taxes on our core business. The tax circumstances and effective tax rate in the specific countries where the Special Items occur will determine the impact (positive or negative) to the Adjusted Tax Rate. While the nature and amount of Tax Special Items vary from period to period, we believe our calculation of the Adjusted Tax Rate is applied consistently to all periods and, in conjunction with our U.S. GAAP effective income tax rate, the Adjusted Tax Rate provides a useful and consistent comparison of the impact that tax expense has on our Company's performance.
The following table shows our calculation of the non-U.S. GAAP Adjusted income tax rate:
| Year Ended December 31, | ||||||||||||||||||||
| (In millions, except per share data) | 2021 | 2020 | 2019 | |||||||||||||||||
| U.S. GAAP Earnings before income tax provision from continuing operations | $ | 716.2 | $ | 626.2 | $ | 370.3 | ||||||||||||||
| Pre-tax impact of Special Items | 15.4 | 34.0 | 225.9 | |||||||||||||||||
| Non-U.S. GAAP Adjusted Earnings before income tax provision from continuing operations | $ | 731.6 | $ | 660.2 | $ | 596.2 | ||||||||||||||
| U.S. GAAP Income tax provision from continuing operations | $ | 225.0 | $ | 142.1 | $ | 76.6 | ||||||||||||||
Tax Special Items(1) | (31.9) | 12.1 | 25.5 | |||||||||||||||||
Tax impact of Special Items(2) | (2.3) | 7.6 | 55.4 | |||||||||||||||||
| Non-U.S. GAAP Adjusted Income tax provision from continuing operations | $ | 190.8 | $ | 161.8 | $ | 157.5 | ||||||||||||||
| U.S. GAAP Effective income tax rate | 31.4 | % | 22.7 | % | 20.7 | % | ||||||||||||||
| Non-U.S. GAAP Adjusted income tax rate | 26.1 | % | 24.5 | % | 26.4 | % | ||||||||||||||
(1)For the year ended December 31, 2021, Tax Special Items reflect interest and other adjustments to existing unrecognized tax positions and deferred tax revaluations associated with legislative changes and administrative interpretations to enacted statutes. For the year ended December 31, 2020, Tax Special Items reflect net benefits from audit settlements and retroactive application of new GILTI regulations, offset by withholding expense related to cash repatriation initiatives. For the year ended December 31, 2019, Tax Special Items reflect net benefits from tax optimization initiatives and research and development credits.
(2)The tax rate used to calculate the tax impact of Special Items is based on the jurisdiction in which the item was recorded.
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Organic and Constant Dollar Measures
In our “Net Sales by Geographic Region,” “Net Sales by Segment” and in some of the discussions and tables that follow, we exclude the impact of foreign currency translation when presenting net sales information, which we define as “constant dollar”, and we exclude acquisitions in the first year after closing, divestiture activity from the time of sale, and the impact of foreign currency translation when presenting net sales information, which we define as “organic.” Changes in net sales excluding the impact of foreign currency translation and/or acquisition and divestiture activity are non-U.S. GAAP financial measures. As a worldwide business, it is important that we consider the effects of foreign currency translation when we view our results and plan our strategies. Nonetheless, we cannot control changes in foreign currency exchange rates. Consequently, when our management analyzes our financial results including performance metrics such as sales, cost of sales or selling, general and administrative expense, to measure the core performance of our business, we may exclude the impact of foreign currency translation by translating our current period results at prior period foreign currency exchange rates. We also may exclude the impact of foreign currency translation when making incentive compensation determinations. As a result, our management believes that these presentations are useful internally and may be useful to investors.
Refer to these specific tables presented later in our Management’s Discussion and Analysis of Financial Condition and Results of Operations for reconciliations of these non-U.S. GAAP financial measures to their most directly comparable U.S. GAAP measures.
Free Cash Flow
In addition to net cash provided by operating activities, we use free cash flow as a useful measure of performance and an indication of the strength and ability of our operations to generate cash. We define free cash flow as cash provided by operating activities less capital expenditures (which is classified as an investing activity). Free cash flow is not defined under U.S. GAAP. Therefore, free cash flow should not be considered a substitute for net income or cash flow data prepared in accordance with U.S. GAAP and may not be comparable to similarly titled measures used by other companies. Free cash flow does not represent residual cash available for discretionary expenditures, including certain debt servicing requirements or non-discretionary expenditures that are not deducted from this measure.
Refer to the specific tables presented later in our Management’s Discussion and Analysis of Financial Condition and Results of Operations under Analysis of Historical Cash Flow for reconciliations of this non-U.S. GAAP financial measure to its most directly comparable U.S. GAAP measure.
Net Debt
In addition to total debt, we use Net Debt, which we define as total debt less cash and cash equivalents, as a useful measure of our total debt exposure. Net Debt is not defined under U.S. GAAP. Therefore, Net Debt should not be considered a substitute for amounts owed to creditors or other balance sheet information prepared in accordance with U.S. GAAP, and it may not be comparable to similarly titled measures used by other companies.
Refer to the specific tables presented later in our Management’s Discussion and Analysis of Financial Condition and Results of Operations under Outstanding Indebtedness for reconciliations of this non-U.S. GAAP financial measure to its most directly comparable U.S. GAAP measures.
Executive Summary for 2021
Throughout 2021, we continued to focus on executing our strategies to drive growth through automation, digital, and sustainability solutions. Despite challenges, including the on-going COVID-19 pandemic, supply chain and raw material disruptions, and a tight labor market, SEE continued to work collaboratively across functions and countries. Net sales and net earnings grew in the current year, as we continued to deliver for our customers.
Automation - Since launching our SEE Automation Solutions strategy in 2020, we have experienced growth in equipment sales. We aim to solve our customers’ automation needs while creating significant return on their investments through savings and increased productivity. With SEE Automation, we are taking an integrated solutions approach and looking for opportunities to help customers eliminate waste, simplify processes, remove people from harm's way and drive 'touchless' operations.
Digital - We have launched the MySEE digital e-commerce platform to make doing business with SEE easier and more efficient. We are investing in automation and digital technologies that enhance performance, efficiency and monitoring in customers’ and our own operations. We are developing smart packaging that can enable traceability and
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deliver digital content. We are investing in digital printing to drive customer savings, generate demand and enhance brand image and shelf impact.
Sustainability - Sustainability is embedded in our purpose and vision. We are designing high-performance packaging materials with recyclability in mind, to make sustainability more affordable, and to create a pathway for a circular economy.
We strive to deploy a purpose driven capital allocation strategy. As part of that strategy we invest and acquire to meet our strategic priorities. On November 1, 2021, the Company completed the sale of Reflectix, Inc. (“Reflectix”), a non-strategic business within the Protective reporting segment that sells reflective insulation solutions. The business was sold for $82.5 million in cash proceeds. We recorded a $45 million pre-tax gain on the sale of Reflectix, within Gain (Loss) on sale of businesses and property and equipment on the Consolidated Statements of Operations.
Throughout 2021, we continued to invest in disruptive technologies and innovations through our SEE Ventures initiative. For the year ended December 31, 2021, we invested $18 million in strategic equity and debt instruments.
We continue to execute our Reinvent SEE business transformation, focused on the 4P'SSM: Performance, People + Digital, Platforms, Processes and Sustainability. During the year, the Reinvent SEE business transformation delivered incremental Adjusted EBITDA benefits of $64 million. The restructuring component of the Reinvent SEE business transformation is now expected to conclude by mid-2022. The capabilities, operational disciplines, and governance processes established through the Reinvent SEE business transformation are embedded in our on-going continuous improvement system and demonstrating sustained results. For the year ended December 31, 2021, we incurred approximately $31 million, or $23 million net of tax, in restructuring and restructuring associated charges primarily related to our Reinvent SEE business transformation initiatives. Cash payments, including restructuring payments, primarily related to our Reinvent SEE business transformation, were $28 million. See Note 12, “Restructuring Activities,” for additional details regarding each of the Company’s restructuring programs.
Supply Chain Disruptions and Raw Material Price Increases
Throughout 2021, the Company experienced supply chain disruptions and sharp raw material price increases resulting from various factors including general inflationary pressure, limited availability of certain raw materials, global transportation disruptions and natural disasters such as Winter Storm Uri in February 2021. In addition to higher raw material costs, we have incurred higher freight costs associated with the sourcing and movement of raw materials due to overall tight market conditions. As a result, cost of sales increased from 67.2% of sales to 69.6% of sales during the year ended December 31, 2021, as compared to the prior year.
The Company implemented price increases throughout the year. The associated timing lag on these increases and formula-based pricing has resulted in compressed gross margins (defined as the gross profit divided by net sales) during the year ended December 31, 2021. On average, our formula-based pricing lags raw material cost movement by approximately six months. Approximately one-third of Food's sales are subject to formula-based pricing, predominantly within the Americas and APAC. Formula-based pricing does not comprise a significant portion of sales in our Protective segment.
We continue to work closely with our customers and have been leveraging our global supply network and supplier relationships and implementing material substitution where available to meet customers' demands and mitigate supply continuity risks. However, the current environment continues to negatively impact the price and supply of certain raw materials. Additionally, the supply disruptions may result in longer lead times for some of our customers, the loss and/or delay of sales, or the inability to fulfill customer orders. Any of these developments may have a material adverse impact on our consolidated financial condition, results of operations, or cash flows.
Refer to Part I, Item 1A, “Risk Factors,” for information concerning operational risks, including customer responses to price increases, raw material pricing and availability.
Impact of COVID-19
The COVID-19 pandemic, including the outbreak of variants such as Delta and Omicron, and the related containment and mitigation measures that have been put into place across the globe, have had and may continue to have an adverse impact on the global economy and our business.
We continue to monitor the impact that COVID-19 has on all aspects of our business and geographies, including the impact on our employees, customers, suppliers, business partners and distribution channels.
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We and some of our customers have experienced facility shutdowns or reductions in operations during the pandemic. The outbreak of recent variants has adversely impacted staffing levels in our operations as affected employees recover from illness or contagious periods.
Our diverse end-markets and geographies continue to experience varying degrees of impact from COVID-19. The food service market, including restaurants, entertainment venues and hotels, experienced higher activity in 2021 as compared to the prior year when it was more adversely impacted by government mandated shut-downs and social distancing measures. This resulted in year-over-year volume growth for many of our products that support this market. Protective experienced year-over-year volume increases in 2021, particularly within industrial segments, as economies continued to reopen.
However, the environment remains volatile, and we cannot predict the future impacts of the pandemic on our business and the markets we serve. Government agencies may impose future restrictions on commercial activities to limit the spread of the virus, including new variants. Future developments of the pandemic, including future spikes or areas of significant regional spread, may cause uneven impacts to our geographies around the world.
The health and safety of SEE’s employees, suppliers and customers globally continues to be the Company’s top priority. Safety measures remain in place at our sites such as: enhanced cleaning procedures, employee temperature checks, use of personal protective equipment for location-dependent workers, social distancing measures within operating sites, and remote/flexible work arrangements for non-location dependent employees.
In remote working environments, we continue our efforts to mitigate information technology risks including failures in the physical infrastructure or operating systems that support our businesses and customers, or cyber attacks and security breaches of our networks or systems. Additionally, we continue to execute all activities related to our internal control over financial reporting in remote working environments. There has not been any change in our internal control over financial reporting during the year ended December 31, 2021 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
See Part I, Item 1A, “Risk Factors,” above for additional risks related to the COVID-19 pandemic.
Current Trends and Forward Looking Expectations
We expect overall demand for our solutions will continue to be strong in 2022. We expect sales for our automated solutions and digital offerings, as well as sales through our online enterprise digital commerce channel, to continue to increase, as we execute on our growth strategies. We expect disciplines developed through our Reinvent SEE business transformation to continue to transform into our on-going continuous improvement program, SEE Operating Engine, driving operational efficiencies and benefits in 2022 and beyond.
However, supply chain disruptions and raw material availability will continue to pose challenges. We will continue to leverage our global supply network, although we expect continued higher freight costs and possible delays in our operations. Overall, we expect higher raw materials costs in 2022 in addition to higher non-material costs and labor inflation. In addition, inflation, labor challenges, the impact of COVID-19, and overall supply chain disruptions are expected to continue to impact our business in 2022.
In the future some of SEE's products will be subject to a tax on certain plastics, which is currently scheduled to go into effect in 2022 in the United Kingdom and other European countries in 2023. While we expect to pass through the plastics tax, there is no guarantee that we will be able to recover the impact of plastic taxes from our customers. Not all of our products are subject to the tax, as the tax is dependent on various factors including, weight, gauge, material recyclability and recycled content, among other factors. Even if we were not successful in passing through the expense, we do not believe the impact of the plastic taxes, as planned to go in effect in 2022 or 2023, would have a material impact on our results of operations. However, the impact of legislation or tax policies that may be amended or proposed and passed in the future is unknown. We maintain programs designed to comply with laws and regulations and to monitor their evolution.
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Highlights of Financial Performance
Below are the highlights of our financial performance for the three years ended December 31, 2021, 2020 and 2019.
| Year Ended December 31, | % Change | |||||||||||||||||||||||||||||||
| (In millions, except per share amounts) | 2021 | 2020 | 2019 | 2021 vs. 2020 | 2020 vs. 2019 | |||||||||||||||||||||||||||
| Net sales | $ | 5,533.8 | $ | 4,903.2 | $ | 4,791.1 | 12.9 | % | 2.3 | % | ||||||||||||||||||||||
| Gross profit | $ | 1,680.9 | $ | 1,609.3 | $ | 1,564.8 | 4.4 | % | 2.8 | % | ||||||||||||||||||||||
| As a % of net sales | 30.4 | % | 32.8 | % | 32.7 | % | ||||||||||||||||||||||||||
| Operating profit | $ | 900.9 | $ | 788.1 | $ | 578.5 | 14.3 | % | 36.2 | % | ||||||||||||||||||||||
| As a % of net sales | 16.3 | % | 16.1 | % | 12.1 | % | ||||||||||||||||||||||||||
| Net earnings from continuing operations | $ | 491.2 | $ | 484.1 | $ | 293.7 | 1.5 | % | 64.8 | % | ||||||||||||||||||||||
| Gain (Loss) on sale of discontinued operations, net of tax | 15.6 | 18.8 | (30.7) | (17.0) | % | # | ||||||||||||||||||||||||||
| Net earnings | $ | 506.8 | $ | 502.9 | $ | 263.0 | 0.8 | % | 91.2 | % | ||||||||||||||||||||||
| Basic: | ||||||||||||||||||||||||||||||||
| Continuing operations | $ | 3.26 | $ | 3.12 | $ | 1.90 | 4.5 | % | 64.2 | % | ||||||||||||||||||||||
| Discontinued operations | 0.10 | 0.12 | (0.20) | (16.7) | % | # | ||||||||||||||||||||||||||
| Net earnings per common share - basic | $ | 3.36 | $ | 3.24 | $ | 1.70 | 3.7 | % | 90.6 | % | ||||||||||||||||||||||
| Diluted: | ||||||||||||||||||||||||||||||||
| Continuing operations | $ | 3.22 | $ | 3.10 | $ | 1.89 | 3.9 | % | 64.0 | % | ||||||||||||||||||||||
| Discontinued operations | 0.10 | 0.12 | (0.20) | (16.7) | % | # | ||||||||||||||||||||||||||
| Net earnings per common share - diluted | $ | 3.32 | $ | 3.22 | $ | 1.69 | 3.1 | % | 90.5 | % | ||||||||||||||||||||||
Weighted average number of common shares outstanding: | ||||||||||||||||||||||||||||||||
| Basic | 150.9 | 155.2 | 154.3 | |||||||||||||||||||||||||||||
| Diluted | 152.4 | 156.0 | 155.2 | |||||||||||||||||||||||||||||
Non-U.S. GAAP Consolidated Adjusted EBITDA from continuing operations(1) | $ | 1,131.6 | $ | 1,051.1 | $ | 964.8 | 7.7 | % | 8.9 | % | ||||||||||||||||||||||
Non-U.S. GAAP Adjusted EPS from continuing operations(2) | $ | 3.55 | $ | 3.19 | $ | 2.82 | 11.3 | % | 13.1 | % | ||||||||||||||||||||||
# Denotes a variance greater than or equal to 100% or equal to or less than (100)%.
(1)See “Non-U.S. GAAP Information” for a reconciliation of U.S. GAAP net earnings from continuing operations to non-U.S. GAAP Consolidated Adjusted EBITDA from continuing operations.
(2)See “Non-U.S. GAAP Information” for a reconciliation of U.S. GAAP net earnings and diluted earnings per share from continuing operations to non-U.S. GAAP Adjusted Net Earnings and Adjusted EPS from continuing operations.
Foreign Currency Translation Impact on Consolidated Financial Results
Since we are a U.S. domiciled company, we translate our foreign currency-denominated financial results into U.S. dollars. Due to the changes in the value of foreign currencies relative to the U.S. dollar, translating our financial results from foreign currencies to U.S. dollars may result in a favorable or unfavorable impact. Historically, the most significant currencies that have impacted the translation of our consolidated financial results are the euro, the Australian dollar, the British pound, the Canadian dollar, the Chinese Renminbi, the Mexican peso, the Brazilian real and the New Zealand dollar.
The following table presents the approximate favorable or (unfavorable) impact that foreign currency translation had on certain components of our consolidated financial results:
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| (In millions) | 2021 vs. 2020 | 2020 vs. 2019 | ||||||||||||
| Net sales | $ | 67.9 | $ | (81.8) | ||||||||||
| Cost of sales | (48.6) | 60.0 | ||||||||||||
| Selling, general and administrative expenses | (9.2) | 5.6 | ||||||||||||
| Net earnings | 9.0 | (8.7) | ||||||||||||
| Non-U.S. GAAP Adjusted EBITDA | 13.1 | (15.6) | ||||||||||||
Net Sales by Geographic Region
The following tables present the components of the change in net sales by geographic region for the year ended December 31, 2021 compared with 2020 and for the year ended December 31, 2020 compared with 2019.
| (In millions) | Americas(1) | EMEA | APAC | Total | ||||||||||||||||||||||||||||||||||||||||||||||
| 2020 Net Sales | $ | 3,135.6 | 64.0 | % | $ | 1,031.6 | 21.0 | % | $ | 736.0 | 15.0 | % | $ | 4,903.2 | 100.0 | % | ||||||||||||||||||||||||||||||||||
| Price | 262.4 | 8.4 | % | 26.7 | 2.6 | % | 7.2 | 1.0 | % | 296.3 | 6.0 | % | ||||||||||||||||||||||||||||||||||||||
Volume(2) | 139.9 | 4.4 | % | 100.3 | 9.7 | % | 33.6 | 4.5 | % | 273.8 | 5.6 | % | ||||||||||||||||||||||||||||||||||||||
| Total organic change (non-U.S. GAAP) | 402.3 | 12.8 | % | 127.0 | 12.3 | % | 40.8 | 5.5 | % | 570.1 | 11.6 | % | ||||||||||||||||||||||||||||||||||||||
| Divestiture | (7.4) | (0.2) | % | — | — | % | — | — | % | (7.4) | (0.1) | % | ||||||||||||||||||||||||||||||||||||||
| Total constant dollar change (non-U.S. GAAP) | 394.9 | 12.6 | % | 127.0 | 12.3 | % | 40.8 | 5.5 | % | 562.7 | 11.5 | % | ||||||||||||||||||||||||||||||||||||||
| Foreign currency translation | (8.2) | (0.3) | % | 41.4 | 4.0 | % | 34.7 | 4.7 | % | 67.9 | 1.4 | % | ||||||||||||||||||||||||||||||||||||||
| Total change (U.S. GAAP) | 386.7 | 12.3 | % | 168.4 | 16.3 | % | 75.5 | 10.2 | % | 630.6 | 12.9 | % | ||||||||||||||||||||||||||||||||||||||
| 2021 Net Sales | $ | 3,522.3 | 63.6 | % | $ | 1,200.0 | 21.7 | % | $ | 811.5 | 14.7 | % | $ | 5,533.8 | 100.0 | % | ||||||||||||||||||||||||||||||||||
| (In millions) | Americas(1) | EMEA | APAC | Total | ||||||||||||||||||||||||||||||||||||||||||||||
| 2019 Net Sales | $ | 3,061.9 | 63.9 | % | $ | 1,010.4 | 21.1 | % | $ | 718.8 | 15.0 | % | $ | 4,791.1 | 100.0 | % | ||||||||||||||||||||||||||||||||||
| Price | (1.5) | — | % | 1.7 | 0.2 | % | (1.0) | (0.1) | % | (0.8) | — | % | ||||||||||||||||||||||||||||||||||||||
Volume(2) | 25.6 | 0.8 | % | (14.8) | (1.5) | % | 11.5 | 1.6 | % | 22.3 | 0.4 | % | ||||||||||||||||||||||||||||||||||||||
| Total organic change (non-U.S. GAAP) | 24.1 | 0.8 | % | (13.1) | (1.3) | % | 10.5 | 1.5 | % | 21.5 | 0.4 | % | ||||||||||||||||||||||||||||||||||||||
| Acquisition | 133.8 | 4.4 | % | 33.0 | 3.3 | % | 5.6 | 0.7 | % | 172.4 | 3.6 | % | ||||||||||||||||||||||||||||||||||||||
| Total constant dollar change (non-U.S. GAAP) | 157.9 | 5.2 | % | 19.9 | 2.0 | % | 16.1 | 2.2 | % | 193.9 | 4.0 | % | ||||||||||||||||||||||||||||||||||||||
| Foreign currency translation | (84.2) | (2.8) | % | 1.3 | 0.1 | % | 1.1 | 0.2 | % | (81.8) | (1.7) | % | ||||||||||||||||||||||||||||||||||||||
| Total change (U.S. GAAP) | 73.7 | 2.4 | % | 21.2 | 2.1 | % | 17.2 | 2.4 | % | 112.1 | 2.3 | % | ||||||||||||||||||||||||||||||||||||||
| 2020 Net Sales | $ | 3,135.6 | 64.0 | % | $ | 1,031.6 | 21.0 | % | $ | 736.0 | 15.0 | % | $ | 4,903.2 | 100.0 | % | ||||||||||||||||||||||||||||||||||
(1)As of January 1, 2021, we consolidated the reporting of the North America and South America geographic regions, which are now collectively presented as Americas. No changes were made to EMEA or APAC. This change has no impact on our prior period consolidated results and is only the aggregation of the previously bifurcated continents. Prior periods have been retrospectively adjusted to reflect the new geographic regions.
(2)Our volume reported above includes the net impact of changes in unit volume as well as the period-to-period change in the mix of products sold.
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Net Sales by Segment
The following tables present the components of change in net sales by our segment reporting structure for the year ended December 31, 2021 compared with 2020, and for the year ended December 31, 2020 compared with 2019.
| (In millions) | Food | Protective | Total Company | |||||||||||||||||||||||||||||||||||
| 2020 Net Sales | $ | 2,825.5 | 57.6 | % | $ | 2,077.7 | 42.4 | % | $ | 4,903.2 | 100.0 | % | ||||||||||||||||||||||||||
| Price | 141.9 | 5.0 | % | 154.4 | 7.5 | % | 296.3 | 6.0 | % | |||||||||||||||||||||||||||||
Volume(1) | 113.1 | 4.0 | % | 160.7 | 7.7 | % | 273.8 | 5.6 | % | |||||||||||||||||||||||||||||
| Total organic change (non-U.S. GAAP) | 255.0 | 9.0 | % | 315.1 | 15.2 | % | 570.1 | 11.6 | % | |||||||||||||||||||||||||||||
| Divestiture | — | — | % | (7.4) | (0.4) | % | (7.4) | (0.1) | % | |||||||||||||||||||||||||||||
Total constant dollar change (non-U.S. GAAP) | 255.0 | 9.0 | % | 307.7 | 14.8 | % | 562.7 | 11.5 | % | |||||||||||||||||||||||||||||
| Foreign currency translation | 32.3 | 1.2 | % | 35.6 | 1.7 | % | 67.9 | 1.4 | % | |||||||||||||||||||||||||||||
| Total change (U.S. GAAP) | 287.3 | 10.2 | % | 343.3 | 16.5 | % | 630.6 | 12.9 | % | |||||||||||||||||||||||||||||
| 2021 Net Sales | $ | 3,112.8 | 56.3 | % | $ | 2,421.0 | 43.7 | % | $ | 5,533.8 | 100.0 | % | ||||||||||||||||||||||||||
| (In millions) | Food | Protective | Total Company | |||||||||||||||||||||||||||||||||||
| 2019 Net Sales | $ | 2,880.5 | 60.1 | % | $ | 1,910.6 | 39.9 | % | 4,791.1 | 100.0 | % | |||||||||||||||||||||||||||
| Price | 14.2 | 0.5 | % | (15.0) | (0.8) | % | $ | (0.8) | — | % | ||||||||||||||||||||||||||||
Volume(1) | 6.6 | 0.2 | % | 15.7 | 0.8 | % | 22.3 | 0.4 | % | |||||||||||||||||||||||||||||
| Total organic change (non-U.S. GAAP) | 20.8 | 0.7 | % | 0.7 | — | % | 21.5 | 0.4 | % | |||||||||||||||||||||||||||||
| Acquisitions | 6.5 | 0.2 | % | 165.9 | 8.7 | % | 172.4 | 3.6 | % | |||||||||||||||||||||||||||||
Total constant dollar change (non-U.S. GAAP) | 27.3 | 0.9 | % | 166.6 | 8.7 | % | 193.9 | 4.0 | % | |||||||||||||||||||||||||||||
| Foreign currency translation | (82.3) | (2.8) | % | 0.5 | — | % | (81.8) | (1.7) | % | |||||||||||||||||||||||||||||
| Total change (U.S. GAAP) | (55.0) | (1.9) | % | 167.1 | 8.7 | % | 112.1 | 2.3 | % | |||||||||||||||||||||||||||||
| 2020 Net Sales | $ | 2,825.5 | 57.6 | % | $ | 2,077.7 | 42.4 | % | $ | 4,903.2 | 100.0 | % | ||||||||||||||||||||||||||
(1)Our volume reported above includes the net impact of changes in unit volume as well as the period-to-period change in the mix of products sold.
Food
2021 compared with 2020
As reported, net sales increased $287 million, or 10%, in 2021 compared with 2020. Foreign currency had a positive impact of $32 million. On a constant dollar basis, net sales increased $255 million, or 9%, in 2021 compared with 2020 primarily due to the following:
•favorable pricing of $142 million, primarily in the Americas, due to pricing actions and the impact of formula-based pricing to offset rising costs on inputs, non-material components, and labor; and
•higher volumes of $113 million, with increases across all regions, on higher demand in the food service industries and increased automated equipment sales.
2020 compared with 2019
As reported, net sales decreased $55 million, or 2% in 2020 compared with 2019. Foreign currency had a negative impact of $82 million. On a constant dollar basis, net sales increased $27 million, or 1% in 2020 compared with 2019 primarily due to the following:
•favorable pricing of $14 million, primarily in the Americas, driven by U.S. dollar-based indexed pricing in South America, partially offset by formula-based pricing declines in North America;
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•higher volumes of $7 million, primarily driven by increased demand for retail protein packaging and equipment sales, partially offset by a decline in global food service sales driven by COVID-19 stay-at-home restrictions; and
•contributions from acquisition activities of approximately $7 million.
Protective
2021 compared with 2020
As reported, net sales increased $343 million, or 17%, in 2021 compared with 2020. Foreign currency had a positive impact of approximately $36 million. On a constant dollar basis, net sales increased $308 million, or 15% in 2021 compared with 2020 primarily due to the following:
•higher volumes of $161 million, with increases across all regions on higher industrial segment demand, strength in automated equipment and continued momentum in fulfillment;
•favorable pricing of $154 million, primarily in the Americas, due to price actions to offset rising costs on inputs, non-material components, and labor; and
•a decrease of $7 million due to the divestiture of Reflectix in November 2021.
2020 compared with 2019
As reported, net sales increased $167 million, or 9%, in 2020 compared with 2019. The impact of foreign currency translation during the year was negligible. On a constant dollar basis, net sales increased $167 million, or 9% in 2020 compared with 2019 primarily due to the following:
•the contribution of $166 million in sales from the Automated Packaging Systems acquisition through July 2020, which was the 12 month anniversary of the acquisition;
•higher volumes of $16 million, primarily in Americas and APAC due to increased demand in e-commerce, fulfillment and automated equipment, partially offset by global softness in industrial end-markets due to COVID-19; and
•unfavorable pricing of $15 million, primarily in Americas.
Cost of Sales
Cost of sales for the years ended December 31, 2021, 2020 and 2019 were as follows:
| Year Ended December 31, | % Change | |||||||||||||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | 2021 vs. 2020 | 2020 vs. 2019 | |||||||||||||||||||||||||||
| Net sales | $ | 5,533.8 | $ | 4,903.2 | $ | 4,791.1 | 12.9 | % | 2.3 | % | ||||||||||||||||||||||
| Cost of sales | 3,852.9 | 3,293.9 | 3,226.3 | 17.0 | % | 2.1 | % | |||||||||||||||||||||||||
| As a % of net sales | 69.6 | % | 67.2 | % | 67.3 | % | ||||||||||||||||||||||||||
2021 compared with 2020
As reported, cost of sales increased by $559 million, or 17.0%, in 2021 as compared to 2020. Cost of sales was impacted by unfavorable foreign currency translation of $49 million. As a percentage of net sales, cost of sales increased by 240 basis points, from 67.2% in 2020 to 69.6% in 2021, primarily due to higher input costs resulting from raw material price increases and higher freight costs associated with global supply chain disruptions. Additionally, labor inflation negatively impacted cost of sales. Higher input, labor and freight costs were partially offset by productivity improvements resulting from our Reinvent SEE business transformation initiatives and the benefit of higher volumes on fixed cost components.
2020 compared with 2019
As reported, cost of sales increased by $68 million, or 2.1%, in 2020 as compared to 2019. Cost of sales was impacted by favorable foreign currency translation of $60 million. As a percentage of net sales, cost of sales decreased by 10 basis points, from 67.3% in 2019 to 67.2% in 2020, primarily due to productivity improvements resulting from our Reinvent SEE business transformation initiatives and lower input costs during the year. Improvements were partially offset by the impact of inflationary cost increases including non-material and labor costs and additional expenses, related to COVID-19, higher employment costs and incremental freight due to sourcing changes along with other higher manufacturing related costs.
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Selling, General and Administrative Expenses
Selling, general and administrative (“SG&A”) expenses for the years ended December 31, 2021, 2020 and 2019 are included in the table below.
| Year Ended December 31, | % Change | |||||||||||||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | 2021 vs. 2020 | 2020 vs. 2019 | |||||||||||||||||||||||||||
| Selling, general and administrative expenses | $ | 772.4 | $ | 773.7 | $ | 913.3 | (0.2) | % | (15.3) | % | ||||||||||||||||||||||
| As a % of net sales | 14.0 | % | 15.8 | % | 19.1 | % | ||||||||||||||||||||||||||
2021 compared with 2020
As reported, SG&A expenses decreased $1 million in 2021 as compared to 2020. SG&A expenses were impacted by unfavorable foreign currency translation of $9 million. On a constant dollar basis, SG&A expenses decreased approximately $10 million, or 1%. The decrease in SG&A expenses was primarily the result of lower cash-based incentive compensation expense due to the achieved payout relative to the prior year and benefits from actions associated with our Reinvent SEE business transformation. Additionally, one-time or non-recurring items charged to SG&A were lower in 2021 as compared to 2020, primarily due to lower expenses associated with acquisition and divestiture activity and lower restructuring associated items in support of our Reinvent SEE business transformation. Lower expenses resulting from these items were partially offset by labor inflation.
2020 compared with 2019
As reported, SG&A expenses decreased $140 million, or 15%, in 2020 as compared to 2019. SG&A expenses were impacted by favorable foreign currency translation of $6 million. On a constant dollar basis, SG&A expenses decreased approximately $134 million, or 15%. The decrease was primarily driven by a $59 million charge related to a settlement agreement with Novipax in 2019, as well as lower restructuring associated costs and lower professional service fees, including legal fees, associated with Special Items. Travel and entertainment related expenses within SG&A were $19 million lower in 2020 compared to the prior year, primarily resulting from COVID-19 stay-at-home orders and travel restrictions. SG&A also benefited from reductions driven by our Reinvent SEE business transformation, including restructuring associated savings. These improvements were partially offset by the impact of higher incentive compensation expense and labor inflation.
Amortization Expense of Intangible Assets
Amortization expense of intangible assets for the years ended December 31, 2021, 2020 and 2019 were as follows:
| Year Ended December 31, | % Change | |||||||||||||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | 2021 vs. 2020 | 2020 vs. 2019 | |||||||||||||||||||||||||||
| Amortization expense of intangible assets | $ | 38.8 | $ | 37.5 | $ | 28.9 | 3.5 | % | 29.8 | % | ||||||||||||||||||||||
| As a % of net sales | 0.7 | % | 0.8 | % | 0.6 | % | ||||||||||||||||||||||||||
The increase in amortization expense of intangibles in 2021 was primarily due to an increase in amortization for capitalized software.
The increase in amortization expense of intangibles in 2020 was primarily due to an increase in amortization for capitalized software and the full year impact of intangible amortization associated with the acquisition of Automated Packaging Systems in August 2019.
See Note 5, “Divestiture and Acquisition Activity,” for additional details regarding the Company's recent acquisition activity.
Reinvent SEE Business Transformation and Restructuring Activities
See Note 12, “Restructuring Activities,” for additional details regarding the Company’s restructuring programs discussed below.
In December 2018 the Sealed Air Board of Directors approved a three-year restructuring program (the "Program") related to the Reinvent SEE business transformation. In December 2021, the Board of Directors approved a six-month extension of the
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program primarily in consideration of on-going initiatives, including those related to SEE's continued transformation to increase digital platforms and offerings. The six-month extension did not expand the authorized spend of the program of $220 million. We now expect the program to be substantially completed by June 30, 2022.
We expect the continuous improvement capabilities and governance processes established through Reinvent SEE will continue to transform the SEE Operating Engine, which is rooted in economic value add with the goal to drive profitable, above market organic growth and attractive returns on invested capital.
For the year ended December 31, 2021, the Program generated incremental cost benefits of $60 million related to reductions in operating costs, of which $19 million was related to restructuring actions, and $4 million in benefits related to actions impacting price/cost spread.
For the year ended December 31, 2020, the Program generated incremental cost benefits of $118 million. Of the incremental cost benefits in 2020, $104 million related to reductions in operating costs, of which $33 million was related to restructuring actions, and $14 million in benefits related to actions impacting price/cost spread.
The decrease in cost benefits generated by the Program in 2021, as compared to 2020, primarily relates to the timing of when Program initiatives were implemented and the year-over-year incremental cost benefits already realized by the Program.
For the year ended December 31, 2021, the Company incurred restructuring associated expenses of $17 million, which were primarily related to third party fees in support of the Reinvent SEE business transformation. For the year ended December 31, 2021, we recorded restructuring expense of $15 million.
Cash outlay for restructuring and restructuring related activities was $28 million during the year ended December 31, 2021, compared to $74 million during the year ended December 31, 2020. We expect cash outlay for restructuring and restructuring associated costs to be approximately $20 million to $25 million during the year ending December 31, 2022.
The actual timing of future costs and cash payments related to the Program described above are subject to change due to a variety of factors that may cause a portion of the costs, spending and benefits to occur later than expected. In addition, changes in foreign exchange rates may impact future costs, spending, benefits and cost synergies.
Interest Expense, net
Interest expense, net includes the interest expense on our outstanding debt, as well as the net impact of capitalized interest, interest income, the effects of terminated interest rate swaps and the amortization of capitalized senior debt issuance costs and credit facility fees, bond discounts, and terminated treasury locks.
Interest expense, net for the years ended December 31, 2021, 2020 and 2019 was as follows:
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| Year Ended December 31, | Change | |||||||||||||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | 2021 vs. 2020 | 2020 vs. 2019 | |||||||||||||||||||||||||||
Interest expense on our various debt instruments: | ||||||||||||||||||||||||||||||||
Term Loan A due August 2022(1) | $ | 6.1 | $ | 8.8 | $ | 6.8 | $ | (2.7) | $ | 2.0 | ||||||||||||||||||||||
Term Loan A due July 2023(2) | 2.6 | 4.9 | 8.5 | (2.3) | (3.6) | |||||||||||||||||||||||||||
| Revolving credit facility due July 2023 | 1.4 | 1.4 | 1.4 | — | — | |||||||||||||||||||||||||||
6.50% Senior Notes due December 2020(3) | — | — | 25.4 | — | (25.4) | |||||||||||||||||||||||||||
4.875% Senior Notes due December 2022(2) | 16.3 | 21.6 | 21.5 | (5.3) | 0.1 | |||||||||||||||||||||||||||
| 5.25% Senior Notes due April 2023 | 23.2 | 23.2 | 23.1 | — | 0.1 | |||||||||||||||||||||||||||
| 4.50% Senior Notes due September 2023 | 21.9 | 21.2 | 20.7 | 0.7 | 0.5 | |||||||||||||||||||||||||||
| 5.125% Senior Notes due December 2024 | 22.5 | 22.4 | 22.4 | 0.1 | — | |||||||||||||||||||||||||||
| 5.50% Senior Notes due September 2025 | 22.4 | 22.4 | 22.4 | — | — | |||||||||||||||||||||||||||
1.573 % Senior Secured Notes due October 2026(2) | 2.7 | — | — | 2.7 | — | |||||||||||||||||||||||||||
4.00% Senior Notes due December 2027(3) | 17.5 | 17.5 | 1.7 | — | 15.8 | |||||||||||||||||||||||||||
| 6.875% Senior Notes due July 2033 | 31.1 | 31.3 | 31.1 | (0.2) | 0.2 | |||||||||||||||||||||||||||
| Other interest expense | 13.8 | 15.5 | 19.4 | (1.7) | (3.9) | |||||||||||||||||||||||||||
| Less: capitalized interest | (6.8) | (5.6) | (8.4) | (1.2) | 2.8 | |||||||||||||||||||||||||||
| Less: interest income | (6.9) | (10.2) | (11.9) | 3.3 | 1.7 | |||||||||||||||||||||||||||
| Total | $ | 167.8 | $ | 174.4 | $ | 184.1 | $ | (6.6) | $ | (9.7) | ||||||||||||||||||||||
(1)On August 1, 2019, Sealed Air Corporation, on behalf of itself and certain of its subsidiaries, and Sealed Air Corporation (US) entered into an amendment to its existing senior secured credit facility with Bank of America, N.A., as agent, and the other financial institutions party thereto. The amendment provided for a new incremental term facility in an aggregate principal amount of up to $475 million, to be used, in part, to finance the acquisition of Automated Packaging Systems. See Note 14, "Debt and Credit Facilities," for further details.
(2)In September 2021, Sealed Air issued $600 million of 1.573% Senior Secured Notes due 2026. The proceeds were used to retire the Company's 4.875% Senior Notes due 2022 and to repay the U.S. dollar tranche of Term Loan A due 2023. See Note 14, “Debt and Credit Facilities,” for further details.
(3)In November 2019, the Company issued $425 million of 4.00% Senior Notes due 2027 and used the proceeds to retire the existing $425 million of 6.50% Senior Notes due 2020. See Note 14, "Debt and Credit Facilities," for further details.
Other (Expense) Income, net
Increase in fair value of equity investments
We hold strategic investments in other companies. As of December 31, 2021, these investments qualified and were accounted for under the measurement alternative, described in ASC 321, for equity investments that do not have readily determinable fair values. These investments are measured at cost, less impairment, if any, plus or minus changes resulting from observable price changes in orderly transactions for identical or similar investments of the same issuer. We do not exercise significant influence over these companies. For the years ended December 31, 2021 and 2020, we recorded an increase in the fair value of these investments of $7 million and $15 million, respectively. The increases in fair value during 2021 and 2020 were directly related to an additional round of equity issuance from certain investees, issued during the third quarter of 2021 and fourth quarter of 2020, respectively. We concluded that these increases were attributable to observable price changes in orderly transactions for a similar investment of the same issuer. See Note 16, "Fair Value Measurements, Equity Investments and Other Financial Instruments," for further details.
Impairment of debt investment
During the year ended December 31, 2021, SEE made investments totaling $8 million in another company's convertible debt. The investments were made for strategic purposes as part of the SEE Ventures initiative. The principal and interest were due to Sealed Air in 2022. Alternatively, the debt was convertible into equity of the investee, at SEE's determination, upon maturity or based on the occurrence of qualifying conversion events. Based on information available to SEE and our current expectations of
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recoverability, we recorded a credit loss resulting in an $8 million impairment of the convertible debt investment during the fourth quarter of 2021. SEE maintains no other available-for-sale debt securities as of December 31, 2021.
Brazil Tax Credits
Certain of our subsidiaries in Brazil received a decision from the Brazilian court regarding a claim in which SEE contended that certain indirect taxes paid were calculated on an incorrect amount. During the second quarter of 2019, the Company filed a return claim for the tax years of 2015 through 2018, resulting from a lower court decision regarding the matter, as such, the Company recorded a $5 million gain in the year ended December 31, 2019.
In 2021, the Supreme Court of Brazil issued a final decision that clarified the methodology companies should use in the indirect tax recovery calculation. This decision was published and certified by the courts during the third quarter of 2021. As a result of the court's actions, the Company recognized a benefit of $5 million primarily related to recovery for tax years not previously claimed. The claims related to indirect taxes will be used to offset future Brazilian indirect tax liabilities.
As a result of this activity, the Company has been utilizing credits on indirect tax payments.
Loss on debt redemptions
In September 2021, Sealed Air issued $600 million of 1.573% Senior Secured Notes due 2026. A portion of the proceeds were used to repurchase the Company's 4.875% Senior Notes due 2022. We recognized a $19 million pre-tax loss on such repurchase, primarily driven by the tender offer consideration beyond the principal amount of the notes tendered. See Note 14, "Debt and Credit Facilities," for further details.
In November 2019, Sealed Air issued $425 million of 4.00% Senior Notes due 2027. The proceeds were used to repurchase $425 million 6.50% Senior Notes due 2020. We recognized a $16 million pre-tax loss on such repurchase. The loss was primarily driven by the tender offer consideration beyond the principal amount of the notes tendered. See Note 14, "Debt and Credit Facilities," for further details on debt activity.
See Note 23, “Other (Expense) Income, net,” for the components of other (expense) income, net.
Income Taxes
The table below shows our effective income tax rate (“ETR”).
| Year Ended | Effective Tax Rate | |||||||
| 2021 | 31.4 | % | ||||||
| 2020 | 22.7 | % | ||||||
| 2019 | 20.7 | % | ||||||
Our ETR for the year ended December 31, 2021 was 31.4%. The difference between the Company's ETR and the U.S. statutory rate of 21% related primarily to state income tax expense, foreign earnings subject to higher tax rates, an increase in unrecognized tax benefits and legislative and administrative changes to enacted statutes, partially offset by the benefit of research credits.
Our ETR for the year ended December 31, 2020 was 22.7%. The difference between the Company's ETR and the U.S. statutory rate of 21% related primarily to state income tax expense and foreign earnings subject to higher tax rates, partially offset by the benefit from GILTI regulations issued by the IRS in 2020, research credits, and a reduction in valuation allowance due to increased profitability in EMEA.
Our ETR for the year ended December 31, 2019 was 20.7%. The difference between the Company's ETR and the U.S. statutory rate of 21% related primarily to benefits related to tax optimization initiatives associated with the Reinvent SEE business transformation and restructuring activities, prior year research credits and a reduction in valuation allowance, offset by expense related to unrecognized tax benefits and the GILTI provisions.
Our ETR depends upon the realization of our net deferred tax assets. We have deferred tax assets related to accruals not yet deductible for tax purposes, state and foreign net operating loss carryforwards, tax credits, employee benefit items, intangible assets and other items.
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The IRS completed its field examination of our U.S. federal income tax returns for the years 2011 through 2014 in the third quarter of 2020. As previously disclosed, the IRS has proposed to disallow for the 2014 taxable year the entirety of the deduction of the approximately $1.49 billion in settlement payments made pursuant to the Settlement agreement (as defined in Note 20, “Commitments and Contingencies”) and the resulting reduction of our U.S. federal tax liability by approximately $525 million. We continue to believe that we have meritorious defenses to the proposed disallowance and have filed a protest with the IRS. The matter has been submitted to the IRS Independent Office of Appeals for review of the proposed disallowance, and we cannot predict when the Appeals Process will conclude, or the outcome of such process. It is possible that future developments in this matter could have a material impact on the Company's uncertain tax position balances and results of operations, including cash flows, within the next twelve months.
We have established valuation allowances to reduce our deferred tax assets to an amount that is more likely than not to be realized. Our ability to utilize our deferred tax assets depends in part upon our ability to carryback any losses created by the deduction of these temporary differences, the future income from existing temporary differences, and the ability to generate future taxable income within the respective jurisdictions during the periods in which these temporary differences reverse. If we are unable to generate sufficient future taxable income in the U.S. and certain foreign jurisdictions, or if there is a significant change in the time period within which the underlying temporary differences become taxable or deductible, we could be required to increase our valuation allowances against our deferred tax assets. Conversely, if we have sufficient future taxable income in jurisdictions where we have valuation allowances, we may be able to reduce those valuation allowances. We reported a net decrease in our valuation allowance for the year ended December 31, 2021 of $18 million, primarily related to foreign exchange revaluation on foreign net operating losses. See Note 19, “Income Taxes,” for additional information.
We reported a net expense for unrecognized tax benefits in the year ended December 31, 2021 of $20 million, primarily related to North America tax positions. Interest and penalties on tax assessments are included in Income tax provision on the Consolidated Statements of Operations.
Net Earnings from Continuing Operations
Net earnings from continuing operations for the years ended December 31, 2021, 2020 and 2019 are included in the table below.
| Year Ended December 31, | % Change | |||||||||||||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | 2021 vs. 2020 | 2020 vs. 2019 | |||||||||||||||||||||||||||
| Net earnings from continuing operations | $ | 491.2 | $ | 484.1 | $ | 293.7 | 1.5 | % | 64.8 | % | ||||||||||||||||||||||
For 2021, net earnings were unfavorably impacted by $50 million of Special Items, which were primarily the result of Tax Special Items of $32 million, restructuring and other restructuring associated costs of $31 million ($23 million net of taxes), loss on debt redemption of $19 million ($14 million net of taxes), and impairment of debt investment of $8 million ($6 million net of taxes). Tax Special Items primarily consisted of interest and other adjustments to existing unrecognized tax positions and deferred tax revaluations associated with legislative changes and administrative interpretations to enacted statutes. These expense items were partially offset by a gain on sale of Reflectix of $45 million ($28 million net of taxes) and an increase in the fair value of equity investments of $7 million ($5 million net of taxes).
For 2020, net earnings were unfavorably impacted by $14 million of Special Items after tax, which were primarily the result of restructuring and other restructuring associated costs primarily related to our Reinvent SEE business transformation of $31 million ($23 million net of taxes) and charges related to acquisition integrations and divestiture activities of $7 million ($5 million net of taxes), partially offset by an increase in the fair value of equity investments of $15 million ($11 million net of taxes). Tax Special Items included the benefit of $12 million, primarily due to benefits from audit settlements and retroactive application of the new GILTI regulations.
For 2019, net earnings were unfavorably impacted by $145 million of Special Items after tax, which were primarily the result of restructuring and other restructuring associated costs primarily related to our Reinvent SEE business transformation of $102 million ($76 million net of taxes), a $59 million ($44 million net of taxes) charge related to the Novipax settlement, loss on debt redemption and refinancing activities of $16 million ($12 million net of taxes) and charges related to acquisition integrations and divestiture activities of $15 million ($11 million net of taxes).
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Gain (Loss) on Sale of Discontinued Operations, net of tax
Gain (loss) on sale of discontinued operations, net of tax for the years ended December 31, 2021, 2020 and 2019 were as follows:
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Gain (Loss) on sale of discontinued operations, net of tax | $ | 15.6 | $ | 18.8 | $ | (30.7) | ||||||||||||||
On March 25, 2017, we entered into a definitive agreement to sell our Diversey Care division and the food hygiene and cleaning business within our Food Care division (collectively, "Diversey") for gross proceeds of $3.2 billion. The transaction was completed on September 6, 2017. The sale of Diversey qualified as discontinued operations.
During 2021, we recorded a net gain of $16 million on the sale of discontinued operations. The gain relates primarily to the expiration of statutes on Diversey tax-related indemnification liabilities and tax benefit associated with the remaining tax indemnification liabilities.
During 2020, we recorded a net gain of $19 million on the sale of discontinued operations. The gain primarily relates to changes in balance sheet positions associated with the settlement and release reached with Diversey related to a clawback claim connected with the sale of the business.
During 2019, we recorded a net loss of $31 million on sale of discontinued operations. The loss relates primarily to changes in balance sheet positions associated with the sale of Diversey including tax-related indemnification reserves and other receivable or payable positions arising from the sale.
Adjusted EBITDA by Segment
The Company evaluates performance of the reportable segments based on the results of each segment. The performance metric used by the Company's chief operating decision maker to evaluate performance of our reportable segments is Segment Adjusted EBITDA. We allocate and disclose depreciation and amortization expense to our segments, although depreciation and amortization are not included in the segment performance metric Segment Adjusted EBITDA. We also allocate and disclose restructuring and other charges and impairment of goodwill and other intangible assets by segment, although these items are not included in the segment performance metric Segment Adjusted EBITDA since restructuring and other charges and impairment of goodwill and other intangible assets are categorized as Special Items. The accounting policies of the reportable segments and Corporate are the same as those applied to the Consolidated Financial Statements.
See “Non-U.S. GAAP Information” for a reconciliation of U.S. GAAP net earnings from continuing operations to non-U.S. GAAP Consolidated Adjusted EBITDA from continuing operations.
| Year Ended December 31, | % Change | |||||||||||||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | 2021 vs. 2020 | 2020 vs. 2019 | |||||||||||||||||||||||||||
| Food | $ | 688.4 | $ | 647.5 | $ | 629.3 | 6.3 | % | 2.9 | % | ||||||||||||||||||||||
| Adjusted EBITDA Margin | 22.1 | % | 22.9 | % | 21.8 | % | ||||||||||||||||||||||||||
| Protective | 446.2 | 408.0 | 349.9 | 9.4 | % | 16.6 | % | |||||||||||||||||||||||||
| Adjusted EBITDA Margin | 18.4 | % | 19.6 | % | 18.3 | % | ||||||||||||||||||||||||||
| Corporate | (3.0) | (4.4) | (14.4) | (31.8) | % | (69.4) | % | |||||||||||||||||||||||||
| Non-U.S. GAAP Consolidated Adjusted EBITDA | $ | 1,131.6 | $ | 1,051.1 | $ | 964.8 | 7.7 | % | 8.9 | % | ||||||||||||||||||||||
| Adjusted EBITDA Margin | 20.4 | % | 21.4 | % | 20.1 | % | ||||||||||||||||||||||||||
The following is a discussion of the factors that contributed to the change in Segment Adjusted EBITDA in the year ended December 31, as compared with the prior year.
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Food
2021 compared with 2020
On a reported basis, Segment Adjusted EBITDA increased $41 million in 2021 as compared to 2020. Segment Adjusted EBITDA was impacted by favorable foreign currency translation of $6 million. On a constant dollar basis, Segment Adjusted EBITDA increased approximately $34 million, or 5%, in 2021 as compared to 2020 primarily due to the impact of:
•Reinvent SEE benefits of $50 million driven by actions reducing operating costs by $48 million, including restructuring savings of $9 million, and improvements to price/cost spread of $2 million; and
•higher volumes and favorable product mix of $47 million due to strength in automated equipment sales and higher food service demand.
These increases were partially offset by:
•higher input costs resulting in unfavorable price/cost of $37 million; and
•higher operating costs of $26 million, primarily due to inflationary pressures, including labor and non-material inflation, and other costs associated with supply chain disruptions.
2020 compared with 2019
On a reported basis, Segment Adjusted EBITDA increased $18 million in 2020 as compared to 2019. Segment Adjusted EBITDA was impacted by unfavorable foreign currency translation of $20 million. On a constant dollar basis, Segment Adjusted EBITDA increased $38 million or 6% in 2020 as compared to 2019 primarily due to the impact of:
•Reinvent SEE benefits of $79 million driven by actions reducing operating costs by $69 million, including restructuring savings of $21 million, and improvements to price/cost spread of $10 million; and
•lower input costs resulting in favorable price/cost of $19 million.
These increases were partially offset by:
•higher operating costs of $49 million, including labor inflation, higher incentive compensation and investments in the business; and
•unfavorable product mix of $11 million.
Protective
2021 compared with 2020
On a reported basis, Segment Adjusted EBITDA increased $38 million in 2021 as compared to 2020. Segment Adjusted EBITDA was impacted by favorable foreign currency translation of $7 million. On a constant dollar basis, Segment Adjusted EBITDA increased $31 million, or 8%, in 2021 as compared to 2020 primarily due to the impact of:
•higher volumes of $62 million on strength in fulfillment, higher industrial segment demand and increased automated equipment sales; and
•Reinvent SEE benefits of $14 million, driven by actions reducing operating costs, including restructuring savings of $10 million, and improvements to price/cost spread of $2 million.
These increases were partially offset by:
•higher operating costs of $41 million, primarily due to inflationary pressures, including labor and non-material inflation, and other costs associated with supply chain disruptions; and
•unfavorable price/cost spread of $4 million.
2020 compared with 2019
On a reported basis, Segment Adjusted EBITDA increased $58 million in 2020 as compared to 2019. Segment Adjusted EBITDA was impacted by favorable foreign currency translation of $1 million. On a constant dollar basis, Segment Adjusted EBITDA increased $57 million, or 16%, in 2020 as compared to 2019 primarily due to the impact of:
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•Reinvent SEE benefits of $39 million driven by actions reducing operating costs of $34 million, including restructuring savings of $12 million, and improvements to price cost spread of $5 million;
•contributions of $31 million from seven months of incremental Adjusted EBITDA from the Automated Packaging Systems acquisition; and
•the 2019 impact of a $7 million non-cash inventory step-up charge associated with the Automated Packaging Systems acquisition.
These increases were partially offset by:
•higher operating costs of $12 million, including labor inflation, higher incentive compensation expense and investments in the business;
•unfavorable price/cost spread of $5 million; and
•unfavorable product mix of $3 million.
Corporate
2021 compared with 2020
Corporate expenses decreased by $1 million on an as reported basis and constant dollar basis as compared to 2020, primarily driven by an increase in non-operating income on closed defined benefit plans which are not attributable to either reporting segment.
2020 compared with 2019
Corporate expenses decreased by $10 million on an as reported basis and $7 million on a constant dollar basis as compared to 2019, primarily driven by currency transaction gains in 2020 compared to currency transaction losses in 2019.
Material Commitments and Contingencies
Settlement Agreement Tax Deduction
The information set forth in Note 20, “Commitments and Contingencies,” under the caption “Settlement Agreement Tax Deduction” is incorporated herein by reference.
Contractual Obligations
Our contractual obligations primarily consist of short-term borrowings, principal and interest payments on long-term debt, operating and financing leases, dividend payments, compensation and benefit related obligations, including defined benefit pension plans and other post-employment benefit plans, and other contractual obligations that arise in the normal course of business.
SEE has other principal contractual obligations which include agreements to purchase an estimated amount of goods, including raw materials, or services, including energy, assumed in the normal course of business. These obligations are enforceable and legally binding and specify all significant terms, including fixed or minimum quantities to be purchased, minimum or variable price provisions and the approximate timing of the purchase. We may purchase additional goods or services above the minimum requirements of these obligations and, as a result use additional cash. See Note 20, “Commitments and Contingencies,” of the Notes for additional information.
Liability for Unrecognized Tax Benefits
At December 31, 2021, we had liabilities for unrecognized tax benefits and related interest of $403 million. Because of the inherent uncertainty regarding the timing of future cash outflows associated with some of our liabilities for unrecognized tax benefits, we are not able to make reasonable estimates of the period of cash settlement with the respective taxing authority. See Note 19, “Income Taxes,” of the Notes for further discussion.
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Off-Balance Sheet Arrangements
We have reviewed our off-balance sheet arrangements and have determined that none of those arrangements have a material current effect or is reasonably likely to have a material future effect on our Consolidated Financial Statements, liquidity, capital expenditures or capital resources.
Income Tax Payments
We expect tax payments on our operations and the sale of Reflectix to be approximately $205 million to $215 million in 2022. Future payments are uncertain and dependent on a number of factors including the amount of future taxable income. The results of on-going appeals or audits by various taxing authorities, including the IRS, could increase our tax payments.
Interest Payments
Estimated future interest payments on the Company’s senior notes and senior secured credit facility through the fiscal 2033 are expected to be $715 million based on interest rates at December 31, 2021, including $148 million expected in 2022.
Contributions to Defined Benefit Pension Plans and Other Post-Employment Benefit Plans
We maintain defined benefit pension plans and other post-employment benefit plans for some of our U.S. and our non-U.S. employees. We currently expect our contributions to these plans to be approximately $5 million in 2022. Additionally, we expect benefits related to these plans paid directly by the Company to be $9 million in 2022. Future contributions and benefits paid directly by the Company are uncertain and rely on a number of factors including performance of underlying assets, future cash out flows of the plans, actuarial assumptions and funding discussions with boards charged with governance for some of our international plans. Refer to Note 17, “Profit Sharing, Retirement Savings Plans and Defined Benefit Pension Plans,” and Note 18, “Other Post-Employment Benefits and Other Employee Benefit Plans,” for additional information related to these plans.
Environmental Matters
We are subject to loss contingencies resulting from environmental laws and regulations, and we accrue for anticipated costs associated with investigatory and remediation efforts when an assessment has indicated that a loss is probable and can be reasonably estimated. These accruals do not take into account any discounting for the time value of money and are not reduced by potential insurance recoveries, if any. We do not believe that it is reasonably possible that the liability in excess of the amounts that we have accrued for environmental matters will be material to our consolidated financial position and results of operations. We reassess environmental liabilities whenever circumstances become better defined or we can better estimate remediation efforts and their costs. We evaluate these liabilities periodically based on available information, including the progress of remedial investigations at each site, the current status of discussions with regulatory authorities regarding the methods and extent of remediation and the apportionment of costs among potentially responsible parties. As some of these issues are decided (the outcomes of which are subject to uncertainties) or new sites are assessed and costs can be reasonably estimated, we adjust the recorded accruals, as necessary. We believe that these exposures are not material to our consolidated financial condition and results of operations. We believe that we have adequately reserved for all probable and estimable environmental exposures.
Indemnification obligations
We are a party to many contracts containing guarantees and indemnification obligations. These contracts include indemnities in connection with the sale of businesses, primarily related to the sale of Diversey in 2017. Because of the conditional nature of these obligations and the unique facts and circumstances involved in each particular agreement, we are unable to reasonably estimate the potential maximum exposure associated with these items
Capital Expenditures
We expect payments for capital expenditures to be in the range of $240 million to $260 million in 2022.
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Liquidity and Capital Resources
Principal Sources of Liquidity
Our primary sources of cash are the collection of trade receivables generated from the sales of our products and services to our customers and amounts available under our existing lines of credit, including our senior secured credit facility, and our accounts receivable securitization programs. Our primary uses of cash are payments for operating expenses, investments in working capital, capital expenditures, interest, taxes, stock repurchases, dividends, debt obligations, restructuring expenses and other long-term liabilities. We believe that our current liquidity position and future cash flows from operations will enable us to fund our operations, including all of the items mentioned above, in the next twelve months.
As of December 31, 2021, we had cash and cash equivalents of $561 million, of which approximately $265 million, or 47%, was located outside of the U.S. We believe our U.S. cash balances and committed liquidity facilities available to U.S. borrowers are sufficient to fund our U.S. operating requirements and capital expenditures, current debt obligations and dividends. The Company does not expect that, in the near term, cash located outside of the U.S. will be needed to satisfy our obligations, dividends and other demands for cash in the U.S. In addition, an immaterial amount of our non-U.S. cash balance is deemed to be trapped as of December 31, 2021.
Cash and Cash Equivalents
The following table summarizes our accumulated cash and cash equivalents:
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Cash and cash equivalents | $ | 561.0 | $ | 548.7 | ||||||||||
See “Analysis of Historical Cash Flow” below.
Accounts Receivable Securitization Programs
At December 31, 2021, we had $141 million available to us and no outstanding borrowings under our U.S. and European accounts receivable securitization programs. At December 31, 2020, we had $146 million available to us and no outstanding borrowings under the such programs.
Our trade receivable securitization programs represent borrowings secured by outstanding customer receivables. Therefore, the use and repayment of borrowings under such programs are classified as financing activities in our Consolidated Statements of Cash Flows. We do not recognize the cash flow within operating activities until the underlying invoices have been paid by our customer. The trade receivables that served as collateral for these borrowings are reclassified from trade receivables, net to prepaid expenses and other current assets on the Consolidated Balance Sheets. See Note 10, “Accounts Receivable Securitization Programs” for further details.
Accounts Receivable Factoring Agreements
We account for our participation in our customers' supply chain financing arrangements and our trade receivable factoring program in accordance with ASC 860 which allows the ownership transfer of accounts receivable to qualify for sale treatment when the appropriate criteria are met. As such, the Company excludes the balances sold under such programs from Trade receivables, net on the Consolidated Balance Sheets. We recognize cash flow from operating activities at the point the receivables are sold under such programs. See Note 11, “Accounts Receivable Factoring Agreements” for further details.
Gross amounts received under these programs for the year ended December 31, 2021 were $687 million, of which $207 million was received in the fourth quarter. Gross amounts received under these programs for the year ended December 31, 2020 were $466 million, of which $157 million was received in the fourth quarter. If these programs had not been in effect for the year ended December 31, 2021, we would have been required to collect the invoice amounts directly from the relevant customers in accordance with the agreed payment terms. Approximately $148 million in incremental trade receivables would have been outstanding at December 31, 2021 if collection on such invoice amounts were made directly from our customers on the invoice due date and not through our customers' supply chain financing arrangements or our factoring program.
The increase in gross amounts factored under these programs from 2020 to 2021 primarily relates to a customer supply chain financing arrangement used throughout 2021 which we entered during the fourth quarter of 2020, as well as increased usage of
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our trade receivable factoring program. During the fourth quarter 2020, we increased the maximum amount available to be sold under that factoring program from $20 million per month to $35 million per month.
Payments received through customers' supply chain financing arrangements tend to be higher in the fourth quarter. The increased use of our trade receivable factoring program had a favorable impact on cash provided by operating activities during the year.
Lines of Credit
At December 31, 2021 and 2020, we had a $1 billion revolving credit facility. We had no outstanding borrowings under the facility at December 31, 2021 or 2020. At December 31, 2021 and 2020, we had $1 million and $7 million, respectively, outstanding under various lines of credit extended to our subsidiaries. See Note 14, “Debt and Credit Facilities,” for further details.
LIBOR Phase Out
In July 2017, the United Kingdom's Financial Conduct Authority (FCA), which regulates LIBOR, announced the phase out LIBOR. In March 2021, the FCA announced that specific U.S. dollar LIBOR tenors (overnight, 1-month, 3-month, 6-month and 12-month) will continue to be published until June 30, 2023, while the 1-week and 2-month tenors are no longer being published effective December 31, 2021. Similarly, all tenors for EUR, CHF, JPY and GBP LIBOR currencies are no longer being published effective December 31, 2021. Regulators in the U.S. and other jurisdictions have worked to replace these rates with alternative reference interest rates that are supported by transactions in liquid and observable markets, such as the Secured Overnight Financing Rate. The phase-out of LIBOR will not have a material impact on our financing or liquidity. In March 2020, the FASB issued ASU 2020-04. This ASU, along with subsequently issued ASU 2021-01, are designed to ease the potential burden in accounting for reference rate reform; however, neither the LIBOR phase-out nor these ASUs had a material impact on the Company.
Covenants
At December 31, 2021, we were in compliance with our financial covenants and limitations, as discussed in “Covenants” within Note 14, “Debt and Credit Facilities”, which require us, among other things, to maintain a maximum leverage ratio of debt to EBITDA of 4.50 to 1.00. At December 31, 2021, our leverage ratio of debt to EBITDA, as calculated under the covenant, was 2.41 to 1.00. We expect to be in continued compliance with all of our debt covenants including the covenant leverage ratio over the next 12 months.
Supply Chain Financing Programs
As part of our ongoing efforts to manage our working capital and improve our cash flow, we work with suppliers to optimize our purchasing terms and conditions, including extending payment terms. We also facilitate a voluntary supply chain financing program to provide some of our suppliers with the opportunity to sell receivables due from us (our accounts payables) to participating financial institutions at the sole discretion of both the suppliers and the financial institutions. These programs are administered by participating financial institutions. Should the supplier choose to participate in the program, it will receive payment from the financial institution in advance of agreed payment terms; our responsibility is limited to making payments to the respective financial institutions on the terms originally negotiated with our supplier. The range of payment terms is consistent regardless of a vendor's participation in the program. We monitor our days payable outstanding relative to our peers and industry trends in order to assess our conclusion that these programs continue to be trade payable programs and not indicative of borrowing arrangements. The liabilities continue to be presented as trade payables in our Consolidated Balance Sheets until they are paid, and they are reflected as cash flows from operating activities when settled.
As of December 31, 2021, our accounts payable balance included $161 million related to invoices from suppliers participating in the programs. As of December 31, 2020, our accounts payable balance included $149 million related to invoices from suppliers participating in the programs. The cumulative amounts settled through the supply chain financing programs for the year ended December 31, 2021 were $417 million, compared to $423 million for the year ended December 31, 2020. These programs did not significantly improve our cash provided by operating activities or free cash flow for the year ended December 31, 2021 as compared to the year ended December 31, 2020.
Debt Ratings
Our cost of capital and ability to obtain external financing may be affected by our debt ratings, which the credit rating agencies review periodically. Below is a table that details our credit ratings by the various types of debt by rating agency.
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| Moody’s Investor Services | Standard & Poor’s | |||||||||||||
| Corporate Rating | Ba1 | BB+ | ||||||||||||
| Senior Unsecured Rating | Ba2 | BB+ | ||||||||||||
| Senior Secured Rating | Baa2 | BBB- | ||||||||||||
| Senior Secured Credit Facility Rating | Baa2 | BBB- | ||||||||||||
| Outlook | Stable | Stable | ||||||||||||
In September 2021, upon the issuance of our 1.573% Senior Secured Notes due 2026, Moody’s Investor Services updated our Senior Secured Credit Facility Rating from Baa1 to Baa2. See Note 14, “Debt and Credit Facilities,” for further details related to the note issuance.
In May 2021, Moody's Investor Services updated our Corporate Rating from Ba2 to Ba1, our Senior Unsecured Rating from Ba3 to Ba2 and our Senior Secured Credit Facility Rating from Baa3 to Baa1.
These credit ratings are considered to be below investment grade (with the exception of the Baa2 and BBB- Senior Secured Credit Facility Rating and Senior Secured Rating from Moody’s Investor Services and Standard & Poor’s, respectively, which are classified as investment grade). A credit rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time by the rating organization. Each rating should be evaluated independently of any other rating.
Outstanding Indebtedness
At December 31, 2021 and 2020, our total debt outstanding and our non-U.S. GAAP net debt consisted of the amounts set forth in the following table.
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Short-term borrowings | $ | 1.3 | $ | 7.2 | ||||||||||
| Current portion of long-term debt | 487.2 | 22.3 | ||||||||||||
| Total current debt | 488.5 | 29.5 | ||||||||||||
Total long-term debt, less current portion(1) | 3,219.6 | 3,731.4 | ||||||||||||
| Total debt | 3,708.1 | 3,760.9 | ||||||||||||
| Less: Cash and cash equivalents | (561.0) | (548.7) | ||||||||||||
| Non-U.S. GAAP net debt | $ | 3,147.1 | $ | 3,212.2 | ||||||||||
(1) Amounts are net of unamortized discounts and debt issuance costs of $19 million and $20 million as of December 31, 2021 and 2020, respectively.
See Note 14, “Debt and Credit Facilities,” for further details.
Analysis of Historical Cash Flow
The following table shows the changes in our Consolidated Statements of Cash Flows in the years ended December 31, 2021, 2020 and 2019.
| Year Ended December 31, | Change | |||||||||||||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | 2021 vs. 2020 | 2020 vs. 2019 | |||||||||||||||||||||||||||
| Net cash provided by operating activities | $ | 709.7 | $ | 737.0 | $ | 511.1 | $ | (27.3) | $ | 225.9 | ||||||||||||||||||||||
| Net cash used in investing activities | (125.7) | (159.8) | (665.6) | 34.1 | 505.8 | |||||||||||||||||||||||||||
| Net cash (used in) provided by financing activities | (575.8) | (261.7) | 139.9 | (314.1) | (401.6) | |||||||||||||||||||||||||||
| Effect of foreign currency exchange rate changes on cash and cash equivalents | 4.1 | (29.2) | 5.3 | 33.3 | (34.5) | |||||||||||||||||||||||||||
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In addition to net cash provided by operating activities, we use free cash flow as a useful measure of performance and as an indication of the strength and ability of our operations to generate cash. We define free cash flow as cash provided by operating activities less capital expenditures (which is classified as an investing activity). Free cash flow is not defined under U.S. GAAP. Therefore, free cash flow should not be considered a substitute for net income or cash flow data prepared in accordance with U.S. GAAP and may not be comparable to similarly titled measures used by other companies. Free cash flow does not represent residual cash available for discretionary expenditures, including certain debt servicing requirements or non-discretionary expenditures that are not deducted from this measure. We historically have generated the majority of our annual free cash flow in the second half of the year. Below are the details of non-U.S. GAAP free cash flow for the years ended December 31, 2021, 2020 and 2019.
| Year Ended December 31, | Change | |||||||||||||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | 2021 vs. 2020 | 2020 vs. 2019 | |||||||||||||||||||||||||||
| Cash flow provided by operating activities | $ | 709.7 | $ | 737.0 | $ | 511.1 | $ | (27.3) | $ | 225.9 | ||||||||||||||||||||||
| Capital expenditures | (213.1) | (181.1) | (189.7) | (32.0) | 8.6 | |||||||||||||||||||||||||||
| Non-U.S. GAAP free cash flow | $ | 496.6 | $ | 555.9 | $ | 321.4 | $ | (59.3) | $ | 234.5 | ||||||||||||||||||||||
Operating Activities
2021 vs. 2020
Net cash provided by operating activities was $710 million during 2021, as compared to $737 million during 2020.
Net cash used by our working capital accounts (inventories, trade receivables, and accounts payable) was $74 million unfavorable during 2021, as compared to 2020. The impact of inventory on cash flow from operating activities was $141 million unfavorable compared to the prior year, as a result of higher balances due primarily to raw material cost inflation, coupled with business growth and stock build to mitigate continued global supply chain disruptions. Trade receivables was $138 million unfavorable to prior year, due to the impact of higher sales and the year over year impact of our accounts receivable factoring program (2020 year over year increase was more significant than the 2021 increase). The unfavorable cash flow impact of inventory and trade receivables was partially offset by accounts payable, which generated $205 million higher cash flow than the prior year. Accounts payable was favorable due to continued raw material price increases throughout 2021 compared to price decreases during 2020, as well as higher logistic and freight balances throughout 2021 due to global supply chain disruptions.
The impact of incentive compensation had a $46 million unfavorable impact on operating cash flow. Specifically, on an indirect basis, the December 31, 2021 accrual for payout in the first quarter 2022 was approximately $30 million lower than the accrual at December 31, 2020. The lower accrual is due to achievement of performance metrics in the respective years. Additionally, incentive compensation cash payments made during the first quarter 2021 were approximately $16 million higher than those made in first quarter 2020. Indirect Taxes were unfavorable by $25 million compared to the prior year primarily due to the timing of payments and business performance.
This activity was partially offset by a $46 million decrease in restructuring and restructuring associated payments made for our Reinvent SEE business transformation, as compared to 2020, as well as $77 million favorable indirect cash flow benefit for income taxes, year over year, driven by changes in the income tax receivable balance.
2020 vs. 2019
Net cash provided by operating activities improved by $226 million during 2020 compared to 2019. This was primarily the result of higher net earnings including non-cash add backs in the comparative years.
Net earnings were $503 million in 2020 as compared to $263 million in 2019.
Non-cash add backs to reconcile net earnings to net cash provided by operating activities were $307 million during 2020 compared to $221 million during 2019. The increase in non-cash add backs was primarily driven by the change in deferred tax balances generating $137 million, year over year. Depreciation and amortization increased $23 million in 2020 compared to 2019, due to amortization of intangibles for capitalized software and the full year impact of intangible amortization from our acquisition of Automated Packaging Systems. These non-cash add-backs were partially offset by the non-cash gain on sale of businesses which was $19 million in 2020 compared to a loss of $31 million in 2019, representing a change of $50 million. The increase in non-cash add backs during 2020 was also partially offset by a gain on an equity investment of $15 million in 2020.
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The year over year improvement in cash provided by operating activities was also due to decreased cash payments made for our Reinvent SEE business transformation including restructuring and restructuring associated payments, which were $74 million during 2020 compared to $91 million during 2019.
Working capital, which represents cash generated by trade receivables, inventories and accounts payable, represented a source of cash of $3 million during 2020 compared to $14 million during 2019. Cash generation from working capital during 2020 declined primarily due to an increase in cash used for inventory, driven by a purposeful build in 2020 for contingency planning against the risk of raw material shortages or supply disruptions resulting from the COVID-19 pandemic. Cash generated from trade receivables benefited from improved days sales outstanding, resulting partially from the increased use of our trade receivable factoring program. The year over year changes in accounts payable were largely due to the timing of payments to suppliers. Cash generated from customer advance payments increased $8 million, as the Company increased automation and equipment sales.
Investing Activities
2021 vs. 2020
Net cash used in investing activities was $126 million during 2021, compared to net cash used in investing activities of $160 million during 2020.
In 2021, SEE generated a total of $89 million from the sale of businesses and property and equipment. This was primarily driven by the fourth quarter 2021 sale of Reflectix, Inc. which generated proceeds of $83 million. Cash received from the sale of businesses and property and equipment was $12 million in 2020.
Additionally, the settlement of foreign currency forward contracts generated $8 million during 2021 and Corporate Owned Life Insurance contracts generated $8 million during 2021, this compares to cash generation from foreign currency forward contracts of $2 million during 2020. The Company previously maintained a corresponding asset on the Consolidated Balance Sheets for the Corporate Owned Life Insurance. There was no impact to the Statements of Operations during the year ended December 31, 2021 related to the Corporate Owned Life Insurance proceeds.
These investing cash sources were offset by investments in the business under our SEE Ventures initiative as well as higher capital expenditures as we invest in our growth strategies.
Capital expenditures were $32 million higher during 2021 than compared to 2020. The increase reflects the Company's continued investment in assets which support growth coupled with lower spending in the prior year due to the impact of COVID-19.
During 2021, we invested a total of $18 million in SEE Ventures, comprised of the following activity:
•$9 million as an additional equity investment in a previously existing investee focused on e-commerce and fulfillment operations;
•$8 million made in the form of a convertible debt of an investee company focused on developing digital advancements in packaging; and
•$1 million investment in a fund aimed to advance scalable recycling technologies, equipment upgrades and infrastructure solutions, which is being accounted for as an equity method investment.
See Note 16, “Fair Value Measurements, Equity Investments and Other Financial Instruments,” for more information on our equity investments.
Investing activity in 2020 also included cash generation of $14 million from the maturity of cash deposits greater than 90 days (marketable securities), with no similar activity in the current year.
2020 vs. 2019
Net cash used in investing activities was $160 million during 2020, compared to net cash used in investing activities of $666 million during 2019. The change in net cash used in investing activities was primarily due to 2019 business acquisitions activity of $454 million, predominately related to the Automated Packaging Systems acquisition. A favorable purchase price adjustment of $4 million was received during the first quarter 2020 related to the Automated Packaging Systems acquisition.
In 2019, the Company invested in cash deposits with maturities greater than 90 days (marketable securities) which matured in 2020 and then converted back into a cash equivalent, generating a net favorable impact to investing activities of $26 million during 2020 compared to 2019.
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Proceeds related to the sale of businesses and property increased $15 million compared to 2019, resulting from the sale of two discrete properties in EMEA generating $6 million cash inflow during 2020 as well as the impact of recoveries of tax refund amounts related to Diversey entities which were owed to us.
During 2020, we made a total investment of $8 million in an equity holding. This is classified as an investing cash flow activity based on our strategic investment thesis of anticipated partnership in increasing plastic circularity.
Financing Activities
2021 vs. 2020
Net cash used in financing activities was $576 million during 2021, compared to net cash used in financing activities of $262 million during 2020. The increase in cash outflows for financing activities was primarily related to increased share repurchases, dividend payments and payments for debt extinguishment costs.
During 2021, the Company paid $403 million for share repurchases, compared to $33 million during in 2020.
Dividends paid of $116 million were $15 million higher than the prior year due to the increase in quarterly dividend announced in the second quarter 2021.
Debt related activities was a cash use of $32 million during 2021, compared to a use of cash of $105 million during 2020. Cash used for debt related activities during 2020 was primarily related to payment of the outstanding balance on the Company's revolving credit facility from 2019 utilization. Current year cash activity related to debt primarily relates to receipts from the issuance of $600 million 1.573% Senior Secured Notes due 2026, net of $5 million in capitalized issuance costs. This partially was offset by the payment of $442 million related to the early extinguishment of the 4.875% Senior Note due 2022 (including early payment premium of $17 million), and $183 million in payments on the Company's Term Loan A, which includes the scheduled quarterly payments and the early repayment of $175 million in principal amount using the proceeds of the 1.573% Senior Secured Notes issuance.
We continue to employ a purpose-driven capital allocation strategy to determine the best use of cash, including decisions regarding share repurchases, our debt-leverage ratio, acquisitions, and investments in growth and operational efficiency.
2020 vs. 2019
Net cash used in financing activities was $262 million during 2020, compared to net cash provided by financing activities of $140 million during 2019. The change in net cash (used in) provided by financing activities was primarily due to borrowing activity in 2019. Specifically, during 2019 we received proceeds from the issuance of long-term debt of $895 million, including the $475 million representing the Term Loan A due 2022 and the issuance of $425 million of 4.00% of senior notes, which were partially offset by the $425 million repurchase of the 6.50% senior notes. Lower repayments of short-term borrowings of $29 million were primarily due to higher payments on our revolving credit facility in 2019 compared to 2020. At December 31, 2020, we had no amounts outstanding on our revolving credit facility.
Cash outlay for share repurchases were $33 million during 2020 compared to $67 million during 2019.
Changes in Working Capital
| December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | Change | |||||||||||||||||
| Working capital (current assets less current liabilities) | $ | 62.3 | $ | 514.1 | $ | (451.8) | ||||||||||||||
| Current ratio (current assets divided by current liabilities) | 1.0 | x | 1.4 | x | ||||||||||||||||
| Quick ratio (current assets, less inventories divided by current liabilities) | 0.7 | x | 0.9 | x | ||||||||||||||||
The $452 million, or 88%, decrease in working capital was primarily due to the following:
•increase in Current portion of long-term debt of $465 million primarily due to the reclassification of $475 million related to the Term Loan A due August 2022;
•increase in Accounts payable of $206 million, primarily due to higher raw material prices and freight expense; and
•decrease in Income tax receivables of $42 million.
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The decreases in working capital were partially offset by:
•increase in Inventory of $129 million, primarily on rising input costs;
•increase in Trade receivables of $79 million, primarily on higher sales in the current year;
•decrease in Other current liabilities of $23 million, primarily on lower incentive compensation related accruals at year-end; and
•increases in the Cash and cash equivalents and Other receivable balances of $12 million and $14 million, respectively.
Changes in Stockholders’ Equity
The $76 million increase in stockholders’ equity in 2021 compared with 2020 was due to:
•net earnings of $507 million;
•a net decrease in accumulated other comprehensive loss of $35 million on unrecognized pension items due primarily to market conditions impacting actuarial assumptions as of our annual pension valuation date;
•unrealized gains on derivative instruments of $33 million;
•the effect of share-based incentive compensation of $30 million, including the impact of share-based compensation expense and netting of shares to cover the employee tax withholding amounts; and
•stock issued for profit sharing contribution paid in stock of $28 million.
These increases were partially offset by:
•repurchases of 7.9 million shares of our common stock for $402 million, including commissions paid (See Note 21, “Stockholders’ (Deficit) Equity” for further details);
•dividends paid on our common stock and dividend equivalent accruals related to unvested equity awards of $117 million; and
•Cumulative Translation Adjustment (“CTA”) loss of $39 million.
Derivative Financial Instruments
Interest Rate Swaps
The information set forth in Note 15, “Derivatives and Hedging Activities,” under the caption “Interest Rate Swaps” is incorporated herein by reference.
Net Investment Hedge
The information set forth in Note 15, “Derivatives and Hedging Activities,” under the caption “Net Investment Hedge” is incorporated herein by reference.
Other Derivative Instruments
The information set forth in Note 15, “Derivatives and Hedging Activities,” under the caption “Other Derivative Instruments” is incorporated herein by reference.
Foreign Currency Forward Contracts
At December 31, 2021, we were party to foreign currency forward contracts, which did not have a significant impact on our liquidity.
The information set forth in Note 15, “Derivatives and Hedging Activities,” under the caption “Foreign Currency Forward Contracts Designated as Cash Flow Hedges” and “Foreign Currency Forward Contracts Not Designated as Hedges” is incorporated herein by reference.
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For further discussion about these contracts and other financial instruments, see Item 7A, “Quantitative and Qualitative Disclosures About Market Risk.”
Recently Issued Statements of Financial Accounting Standards, Accounting Guidance and Disclosure Requirements
We are subject to numerous recently issued statements of financial accounting standards, accounting guidance and disclosure requirements. Note 2, “Summary of Significant Accounting Policies and Recently Issued Accounting Standards,” which is contained in the Notes to Consolidated Financial Statements, describes these new accounting standards and is incorporated herein by reference.
Critical Accounting Policies and Estimates
Our discussion and analysis of our consolidated financial condition and results of operations are based upon our Consolidated Financial Statements, which are prepared in accordance with U.S. GAAP. The preparation of Consolidated Financial Statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities.
Our estimates and assumptions are evaluated on an ongoing basis and are based on all available evidence, including historical experience and other factors believed to be reasonable under the circumstances. To derive these estimates and assumptions, management draws from those available sources that can best contribute to its efforts. These sources include our officers and other employees, outside consultants and legal counsel, third-party experts and actuaries. In addition, we use internally generated reports and statistics, such as aging of trade receivables, as well as outside sources such as government statistics, industry reports and third-party research studies. The results of these estimates and assumptions may form the basis of the carrying value of assets and liabilities and may not be readily apparent from other sources. Actual results may differ from estimates under conditions and circumstances different from those assumed, and any such differences may be material to our Consolidated Financial Statements.
We believe the following accounting policies are critical to understanding our consolidated results of operations and affect the more significant judgments and estimates used in the preparation of our Consolidated Financial Statements. The critical accounting policies discussed below should be read together with our significant accounting policies set forth in Note 2, “Summary of Significant Accounting Policies and Recently Issued Accounting Standards”.
Commitments and Contingencies — Litigation
On an ongoing basis, we assess the potential liabilities and costs related to any lawsuits or claims brought against us. We accrue a liability when we believe a loss is probable and when the amount of loss can be reasonably estimated. Litigation proceedings are evaluated on a case-by-case basis considering the available information, including that received from internal and outside legal counsel, to assess potential outcomes. While it is typically very difficult to determine the timing and ultimate outcome of these actions, we use our best judgment to determine if it is probable that we will incur an expense related to the settlement or final adjudication of these matters and whether a reasonable estimation of the probable loss, if any, can be made. In assessing probable losses, we consider insurance recoveries, if any. We expense legal costs, including those legal costs expected to be incurred in connection with a loss contingency, as incurred. We have historically adjusted existing accruals as proceedings have continued, been settled or for which additional information has been provided on which to review the probability and measurability of outcomes, and will continue to do so in future periods. Due to the inherent uncertainties related to the eventual outcome of litigation and potential insurance recovery, it is possible that disputed matters may be resolved for amounts materially different from any provisions or disclosures that we have previously made.
Impairment of Long-Lived Assets
For finite-lived intangible assets, such as customer relationships, contracts, and intellectual property, and for other long-lived assets, such as property, plant and equipment, whenever impairment indicators are present, we perform a review for impairment. The impairment model is a two step test under which we first calculate the recoverability of the carrying value by comparing the undiscounted value of the projected cash flows associated with the asset or asset group, including its estimated residual value, to the carrying amount. If the cash flows associated with the asset or asset group are less than the carrying value, we would perform a fair value assessment of the asset, or asset group. If the carrying amount is found to be greater than the fair value, we record an impairment loss for the excess of book value over the fair value. In addition, in all cases of an impairment review, we re-evaluate the remaining useful lives of the assets and modify them, as appropriate.
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For indefinite–lived intangible assets, such as trademarks and trade names, each year and whenever impairment indicators are present, we determine the fair value of the asset and record an impairment loss for the excess of book value over fair value, if any. In addition, in all cases of an impairment review we re-evaluate whether continuing to characterize the asset as indefinite–lived is appropriate. We recorded no impairment to indefinite lived assets in the current year.
Goodwill
Goodwill is reviewed for possible impairment at least annually on a reporting unit level during the fourth quarter of each year. A review of goodwill may be initiated before or after conducting the annual analysis if events or changes in circumstances indicate the carrying value of goodwill may no longer be recoverable.
A reporting unit is the operating segment unless, at businesses one level below that operating segment - the “component” level - discrete financial information is prepared and regularly reviewed by management, and the component has economic characteristics that are different from the economic characteristics of the other components of the operating segment, in which case the component is the reporting unit.
In our annual impairment review, we may elect to first assess qualitative factors to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying amount. In a qualitative assessment, we would consider the macroeconomic conditions, including any deterioration of general economic conditions, industry and market conditions, including any deterioration in the environment where the reporting unit operates, increased competition, changes in the products/services and regulatory and political developments; cost of doing business; overall financial performance, including any declining cash flows and performance in relation to planned revenues and earnings in past periods; other relevant reporting unit specific facts, such as changes in management or key personnel or pending litigation; and events affecting the reporting unit, including changes in the carrying value of net assets.
If the results of our qualitative assessment indicate it is more likely than not that the fair value of a reporting unit is less than its carrying amount, we are required to perform a quantitative assessment to determine the fair value of the reporting unit.
Alternatively, if an optional qualitative goodwill impairment assessment is not performed, we may perform a quantitative assessment. Under the quantitative assessment, we compare the fair value of each reporting unit to its carrying value, including the goodwill allocated to the reporting unit. If the fair value of the reporting unit exceeded its carrying value, there would be no indication of impairment. If the fair value of the reporting unit were less than the carrying value, an impairment charge would be recognized for the difference.
Under the quantitative assessment, we derive an estimate of fair values for each of our reporting units using a combination of an income approach and appropriate market approaches. Absent an indication of fair value from a potential buyer or similar specific transactions, we believe that the use of these methods provides a reasonable estimate of a reporting unit’s fair value. Fair value computed by these models is arrived at using a number of factors and inputs. There are inherent uncertainties, however, related to fair value models, the inputs and our judgment in applying them to this analysis. Nonetheless, we believe that the combination of these methods provides a reasonable approach to estimate the fair value of our reporting units.
We believe the most significant inputs while performing a quantitative assessments include:
•Forecasted future operating results: On an annual basis, the Company prepares annual and medium-term financial projections. These projections are based on input from the Company's leadership, strategy, commercial leadership and finance teams and presented to our Board of Directors annually.
•Discount rate: Our third-party valuation specialists provide inputs into management's determination of the discount rate. The rate is dependent on a number of underlying assumptions, the most impactful of which are the risk-free rate, tax rate, equity risk premium, debt to equity ratio and pre-tax cost of debt.
•Long-term growth rate: Long-term growth rates are applied to the terminal year of our cash flow valuation approach. The long-term growth rates are tied to growth rates we expect to achieve beyond the years for which we have forecasted operating results. We also consider external benchmarks, including forecasted long-term GDP growth and other data points which we believe are applicable to our industry and the composition of our global operations.
The Company performed a qualitative assessment of the goodwill by reporting unit as of October 1, 2021. Based on our qualitative assessment, we believe it is more likely than not that the fair value of each of our reporting units sufficiently exceeds the carrying value. As part of our analysis, we performed a look back over the key assumptions impacting the quantitative test performed in 2020, including forecasted operating results and discount rates.
The Company also assesses its goodwill for impairment from time to time when warranted by the facts and circumstances surrounding individual reporting units. Subsequent to our annual reporting period, we continued to assess whether there were
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changes in facts or circumstances that would lead us to believe goodwill may be impaired. No indication of goodwill impairment has been identified subsequent to our annual testing date.
In the fourth quarter of 2020 and 2019, we performed quantitative assessments for our annual impairment test. No indication of goodwill impairment was identified in either 2020 or 2019.
See Note 9, “Goodwill and Identifiable Intangible Assets, net,” for details of our goodwill balances as of 2021, 2020 and 2019 and additional information related to the qualitative assessment performed in 2021.
Pensions
For a number of our current and former U.S. and international employees, we maintain defined benefit pension plans. Under current accounting standards, we are required to make assumptions regarding the valuation of projected benefit obligations and the performance of plan assets for our defined benefit pension plans.
The projected benefit obligation and the net periodic benefit cost are based on third-party actuarial assumptions and estimates that are reviewed and approved by management on a plan-by-plan basis each fiscal year. We believe the most significant assumptions are the discount rate used to measure the projected benefit obligation and the expected future rate of return on plan assets. We revise these assumptions based on an annual evaluation of long-term trends and market conditions that may have an impact on the cost of providing retirement benefits.
In determining the discount rate, we utilize market conditions and other data sources management considers reasonable based upon the profile of the remaining service life or expected life of eligible employees. The expected long-term rate of return on plan assets is determined by taking into consideration the weighted-average expected return on our asset allocation, asset return data, historical return data, and the economic environment. We believe these considerations provide the basis for reasonable assumptions of the expected long-term rate of return on plan assets. The measurement date used to determine the benefit obligation and plan assets is December 31.
At December 31, 2021, the total projected benefit obligation for our U.S. pension plan was $185 million, and the total benefit income for the year ended December 31, 2021 was $3 million. At December 31, 2021, the total projected benefit obligation for our international pension plans was $714 million, and the total benefit cost for the year ended December 31, 2021 was $2 million. The employer service cost of our pension plans is charged to Cost of sales and Selling, general and administrative expenses. All other components of benefits expense are recorded to Other (expense) income, net.
Material changes to the principal assumptions could have a material impact on the costs and liabilities recognized on our Consolidated Financial Statements. A 25 basis point change in the assumed discount rate and a 100 basis point change in the expected long-term rate of return on plan assets would have resulted in the following increases (decreases) in the projected benefit obligation at December 31, 2021 and the expected net periodic benefit cost for the year ending December 31, 2022:
| United States | 25 Basis Point Increase (In millions) | 25 Basis Point Decrease (In millions) | ||||||||||||
| Discount Rate | ||||||||||||||
| Effect on 2021 projected benefit obligation | $ | (4.7) | $ | 4.9 | ||||||||||
| Effect on 2022 expected net periodic benefit cost | 0.1 | (0.1) | ||||||||||||
100 Basis Point Increase (In millions) | 100 Basis Point Decrease (In millions) | |||||||||||||
| Return on Assets | ||||||||||||||
| Effect on 2022 expected net periodic benefit cost | $ | (1.4) | $ | 1.4 | ||||||||||
| International | 25 Basis Point Increase (In millions) | 25 Basis Point Decrease (In millions) | ||||||||||||
| Discount Rate | ||||||||||||||
| Effect on 2021 projected benefit obligation | $ | (26.0) | $ | 27.5 | ||||||||||
| Effect on 2022 expected net periodic benefit cost | — | 0.1 | ||||||||||||
100 Basis Point Increase (In millions) | 100 Basis Point Decrease (In millions) | |||||||||||||
| Return on Assets | ||||||||||||||
| Effect on 2022 expected net periodic benefit cost | $ | (6.5) | $ | 6.5 | ||||||||||
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During the fourth quarter of 2021, the Company purchased a buy-in insurance contract which covered the remaining portion of the liability for one of our defined benefit pension plans in the U.K. The total projected benefit obligation of the plan is $15 million. The projected benefit obligation was developed using actuarial assumptions that would be used in a plan termination or buy-out basis. Under a full buy-out, the liabilities are fully transferred to an insurance or annuity provider and SEE would no longer maintain the liability or administrative responsibilities. We expect this plan to move to full buy-out in 2022 or 2023. As of December 31, 2021, the fair value of the assets for this plan matched the projected benefit obligation and there was no material net balance sheet position for this plan recorded within our assets or liabilities. The plan has an accumulated comprehensive loss of $7 million, recorded within Accumulated Other Comprehensive Loss in Stockholders' Equity on our balance sheet as of December 31, 2021. Upon plan termination or full buy-out, the accumulated comprehensive loss would be recognized to other (expense) income within the statement of operations.
Income Taxes
Estimates and judgments are required in the calculation of tax liabilities and in the determination of the recoverability of our deferred tax assets. Our deferred tax assets arise from net deductible temporary differences, carryforwards of tax losses, and tax credits. We provide a valuation allowance on deferred tax assets when it is more likely than not that all or some portion of the deferred tax asset will not be realized.
In assessing the need for a valuation allowance on deferred tax assets, we estimate future taxable earnings and consider the feasibility of ongoing planning strategies, the realizability of tax loss carryforwards, and past operating results to determine which deferred tax assets are more likely than not to be realized in the future. Changes to tax laws, statutory tax rates and future taxable earnings can have an impact on valuation allowances related to deferred tax assets. In the event that actual results differ from these estimates in future periods, we may need to adjust the valuation allowance, which could have a material impact on our consolidated financial position and results of operations.
In calculating our worldwide provision for income taxes, we also evaluate our tax positions for years where the statutes of limitations have not expired. Based on this review, we may establish a liability for additional taxes and interest that could be assessed upon examination by relevant tax authorities. We adjust this liability to take into account changing facts and circumstances, including the results of tax audits and changes in tax law. If the payment of additional taxes and interest ultimately proves unnecessary or less than the amount of the liability, the reversal of the liability would result in tax benefit being recognized in the period when we determine the liability is no longer necessary. If an estimate of the tax liability proves to be less than the ultimate assessment, a further charge to the income tax provision would result. These adjustments to liabilities and related expenses could materially affect our consolidated financial position and results of operations.
We recognize the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authorities, based on the technical merits of the position. The tax benefits recognized on the Consolidated Financial Statements from such positions are measured based on the largest amount of benefit that has a greater than fifty percent likelihood of being realized upon settlement with tax authorities. See Note 19, “Income Taxes,” for further discussion.
| Item 7A. Quantitative and Qualitative Disclosures About Market Risk | ||
We are exposed to market risk from changes in the conditions in the global financial markets, interest rates, foreign currency exchange rates and commodity prices and the creditworthiness of our customers and suppliers, which may adversely affect our consolidated financial condition and results of operations. We seek to minimize these risks through regular operating and financing activities and, when deemed appropriate, through the use of derivative financial instruments. We do not purchase, hold or sell derivative financial instruments for trading purposes.
Interest Rates
From time to time, we may use interest rate swaps, collars or options to manage our exposure to fluctuations in interest rates. At December 31, 2021, we had no outstanding interest rate swaps, collars or options.
The information set forth in Note 15, “Derivatives and Hedging Activities,” under the caption “Interest Rate Swaps,” is incorporated herein by reference.
See Note 16, “Fair Value Measurements, Equity Investments and Other Financial Instruments,” for details of the methodology and inputs used to determine the fair value of our fixed rate debt. The fair value of our fixed rate debt varies with changes in
64
interest rates. Generally, the fair value of fixed rate debt will increase as interest rates fall and decrease as interest rates rise. A hypothetical 10% increase in interest rates would result in a decrease of $36 million in the fair value of the total debt balance at December 31, 2021. These changes in the fair value of our fixed rate debt do not alter our obligations to repay the outstanding principal amount or any related interest of such debt.
Foreign Exchange Rates
Operations
As a large global organization, we face exposure to changes in foreign currency exchange rates. These exposures may change over time as business practices evolve and could materially impact our consolidated financial condition and results of operations in the future. See Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” above for the impacts foreign currency translation had on our operations.
Argentina
Economic events in Argentina, including the default on some of its international debt obligations, which have subsequently been renegotiated, exposed us to heightened levels of foreign currency exchange risks. Despite some debt restructuring, fluctuations in foreign exchange rates on the Argentine Peso continue to impact our financial results. As of July 1, 2018, Argentina was designated as a highly inflationary economy. For the years ended December 31, 2021, 2020 and 2019, we recognized a remeasurement loss of $4 million, $5 million and $5 million, respectively, within Other (expense) income, net on the Consolidated Statements of Operations, related to the designation of Argentina as a highly inflationary economy under U.S. GAAP. See Note 2, “Summary of Significant Accounting Policies and Recently Issued Accounting Standards,” for additional information. As of December 31, 2021, 1% of our consolidated net sales were derived from our products sold in Argentina and net assets include $5 million of cash and cash equivalents domiciled in Argentina. Also, as of December 31, 2021, our Argentina subsidiaries had cumulative translation losses of $24 million.
Russia and Ukraine
The U.S. and the EU have imposed sanctions on various sectors of the Russian economy and on transactions with certain Russian nationals and entities. Russia has also announced economic sanctions against the U.S. and other nations that include a ban on imports of certain products.
Additionally, escalating geopolitical activity between Russia and Ukraine may have regional impacts on the business environment in Europe.
This activity is not expected to have a material impact on our business as much of our operations within both countries are supported by local production; however, they may limit the amount of future business the Company does with customers involved in activities in Russia or Ukraine. As of December 31, 2021, we do not anticipate these events will have a material impact to our 2022 results of operations. As of December 31, 2021, 2% of our consolidated net sales were derived from products sold in Russia and less than 1% of our consolidated net sales were derived from products sold in Ukraine. Assets include $4 million of cash and cash equivalents domiciled in Russia and less than $1 million in Ukraine. Also, as of December 31, 2021, our Russia subsidiaries had cumulative translation losses of $39 million while our Ukrainian subsidiary had cumulative translation losses of $5 million.
Brazil
Recent economic events in Brazil, including changes in the benchmark interest rate set by the Brazilian Central Bank, have exposed us to heightened levels of foreign currency exchange risks. However, as of December 31, 2021, we do not anticipate these events will have a material impact on our 2022 results of operations. As of December 31, 2021, 2% of our consolidated net sales were derived from products sold into Brazil and net assets include $11 million of cash and cash equivalents. Also, as of December 31, 2021, our Brazil subsidiaries had cumulative translation losses of $70 million.
Impact of Inflation and Currency Fluctuation
Economic and political events in certain countries have exposed us to heightened levels of inflation and foreign currency exchange risks. The effects of these could adversely impact our financial condition and results of operations. See Note 2,
65
“Summary of Significant Accounting Policies and Recently Issued Accounting Standards,” for details regarding the impact of inflation and currency fluctuation. Also, for a discussion of our risk factors, please refer to Part I, Item 1A, “Risk Factors.”
Foreign Currency Forward Contracts
We use foreign currency forward contracts to fix the amounts payable or receivable on some transactions denominated in foreign currencies. A hypothetical 10% adverse change in foreign exchange rates at December 31, 2021 would have caused us to pay approximately $28 million to terminate these contracts. Based on our overall foreign exchange exposure, we estimate this change would not materially affect our financial position and liquidity. The effect on our results of operations would be substantially offset by the impact of the hedged items.
Our foreign currency forward contracts are described in Note 15, “Derivatives and Hedging Activities,” which is incorporated herein by reference.
Net Investment Hedge
The €400 million 4.50% notes issued in June 2015 are designated as a net investment hedge, hedging a portion of our net investment in a certain European subsidiary against fluctuations in foreign exchange rates. The decrease in the translated value of the debt was $2 million net of tax as of December 31, 2021, and is reflected in long-term debt on our Consolidated Balance Sheets.
For derivative instruments that are designated and qualify as hedges of net investments in foreign operations, settlements and changes in fair values of the derivative instruments are recognized in unrealized net gains or loss on derivative instruments for net investment hedge, a component of accumulated other comprehensive loss, net of taxes, to offset the changes in the values of the net investments being hedged. Any portion of the net investment hedge that is determined to be ineffective is recorded in other (expense) income, net on the Consolidated Statements of Operations.
Other Derivative Instruments
We may use other derivative instruments from time to time to manage exposure to foreign exchange rates and to access to international financing transactions. These instruments can potentially limit foreign exchange exposure by swapping borrowings denominated in one currency for borrowings denominated in another currency.
Outstanding Debt
Our outstanding debt is generally denominated in the functional currency of the borrower or in euros as is the case with the issuance of €400 million of 4.50% senior notes due 2023. We believe that this enables us to better match operating cash flows with debt service requirements and to better match the currency of assets and liabilities. The U.S. dollar equivalent amount of outstanding debt denominated in a functional currency other than the U.S. dollar was $492 million and $541 million at December 31, 2021 and 2020, respectively.
Customer Credit
Effective January 1, 2020, the Company adopted ASU 2016-13, which requires us to measure all expected credit losses for trade receivables held at the reporting date based on an expected loss model which includes historical experience, current conditions, and reasonable and supportable forecasts.
We are exposed to credit risk from our customers. In the normal course of business, we extend credit to our customers if they satisfy pre-defined credit criteria. We maintain an allowance for credit losses on trade receivables for estimated losses resulting from the failure of our customers to make required payments. An additional allowance may be required if the financial condition of our customers deteriorates. Our customers may default on their obligations to us due to bankruptcy, lack of liquidity, operational failure or other reasons.
Pensions
Many of our U.S. and International defined benefit pension plans are invested in assets which will be used to cover future benefit payments. Assets may include investments in mutual funds, collective investment trusts, index-funds, corporate bonds, government-backed bonds and insurance contracts or annuity "buy-ins." The assets include both return seeking assets and
66
liability-hedging assets. As the population of the plan participants age and future cash flows become more certain, we undertake asset de-risking initiatives, including the purchase of buy-in contracts, particularly in the United Kingdom. These investments provide a stream of income equal to future benefit payments for pre-defined groups of participants; however, the Company maintains the primary liability for the projected benefit obligation related to these groups. As of December 31, 2021 and 2020, buy-in contracts represented $135 million, or 16% and $131 million, or 16%, of the Company's total plan assets, respectively. Additionally, our plan assets may, from time to time, be invested in assets designed to diversify the investment portfolio and protect against equity market movements. Some of these assets may only be redeemed on a quarterly basis. As of December 31, 2021 and 2020, equity diversifying assets represented $95 million, or 11% and $86 million, or 10%, of the Company's total plan assets, respectively. Other than the buy-in contracts and equity diversifiers noted above, we believe that our plan assets are highly liquid and may be readily redeemed to cover necessary plan payments. There is a high degree of predictability of payments made from our defined benefit plans.
Based upon the annual valuation of our defined benefit pension plans at December 31, 2021, we expect net periodic benefit income to be approximately $3 million in 2022. See Note 17, “Profit Sharing, Retirement Savings Plans and Defined Benefit Pension Plans,” for further details on our defined benefit pension plans.
Commodities
We use various commodity raw materials such as plastic resins and energy products such as electric power and natural gas in conjunction with our manufacturing processes. Generally, we acquire these components at market prices in the region in which they will be used and do not use financial instruments to hedge commodity prices. Moreover, we seek to maintain appropriate levels of commodity raw material inventories thus minimizing the expense and risks of carrying excess inventories. We do not typically purchase substantial quantities in advance of production requirements. As a result, we are exposed to market risks related to changes in commodity prices of these components.
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| Item 8. Financial Statements and Supplementary Data | ||
The following Consolidated Financial Statements and notes are filed as part of this report.
Sealed Air Corporation
| Page | ||||||||
Report of Independent Registered Public Accounting Firm - Auditor Firm ID: | ||||||||
| Financial Statements | ||||||||
| Notes to Consolidated Financial Statements | ||||||||
| Financial Statement Schedule | ||||||||
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Stockholders of Sealed Air Corporation
Opinions on the Financial Statements and Internal Control over Financial Reporting
We have audited the accompanying consolidated balance sheets of Sealed Air Corporation and its subsidiaries (the “Company”) as of December 31, 2021 and 2020, and the related consolidated statements of operations, comprehensive income, stockholders’ (deficit) equity and cash flows for each of the three years in the period ended December 31, 2021, including the related notes and schedule of valuation and qualifying accounts and reserves for each of the three years in the period ended December 31, 2021 listed in the index appearing under Item 15(a)(2) (collectively referred to as the “consolidated financial statements”). We also have audited the Company's internal control over financial reporting as of December 31, 2021, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2021 and 2020, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2021 in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2021, based on criteria established in Internal Control - Integrated Framework (2013) issued by the COSO.
Basis for Opinions
The Company's management is responsible for these consolidated financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in Management's Annual Report on Internal Control over Financial Reporting appearing under Item 9A. Our responsibility is to express opinions on the Company’s consolidated financial statements and on the Company's internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.
Our audits of the consolidated financial statements included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Critical Audit Matters
The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that was communicated or required to be communicated to the audit committee and that (i) relates to accounts or disclosures that are material to the consolidated financial statements and (ii) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
Unrecognized Tax Benefits from Uncertain Tax Positions
As described in Notes 2 and 19 to the consolidated financial statements, the Company has recorded unrecognized tax benefits from uncertain tax positions of $389.0 million as of December 31, 2021. The Company is subject to income taxes in the U.S. and in various foreign jurisdictions. Judgment is required by management in calculating the Company’s worldwide provision for income taxes. As disclosed by management, the Company recognizes the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authorities, based on the technical merits of the position. If the payment of additional taxes and interest ultimately proves unnecessary or less than the amount of the reserve, the reversal of the reserves would result in tax benefits being recognized in the period when management determines the reserves are no longer necessary. If an estimate of tax reserves proves to be less than the ultimate assessment, a further charge to the income tax provision would result.
The principal considerations for our determination that performing procedures relating to unrecognized tax benefits from uncertain tax positions is a critical audit matter are (i) the significant judgment exercised by management in identifying and recognizing the tax benefits from uncertain tax positions, including determining whether it is more likely than not that the tax position will be sustained upon examination by the applicable taxing authorities, based on the technical merits of the position; (ii) a high degree of auditor judgment, subjectivity and effort in performing procedures and evaluating management’s timely identification and accurate measurement of unrecognized tax benefits from uncertain tax positions; (iii) the evaluation of audit evidence available to support unrecognized tax benefits from uncertain tax positions is complex and results in significant auditor judgment as the nature of the evidence is often highly subjective; and (iv) the audit effort involved the use of professionals with specialized skill and knowledge.
Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included testing the effectiveness of controls relating to the identification and recognition of unrecognized tax benefits from uncertain tax positions, controls addressing completeness of the unrecognized tax benefits from uncertain tax positions, as well as controls over measurement of the unrecognized tax benefit from uncertain tax positions. These procedures also included, among others, (i) testing the information used in the calculation of the unrecognized tax benefits from uncertain tax positions, including certain federal, foreign and state filing positions, and the related final tax returns; (ii) testing the calculation of the unrecognized tax benefits from uncertain tax positions by jurisdiction, including management’s assessment of the technical merits of tax positions and estimates of the amount of tax benefit expected to be sustained; (iii) testing the completeness of management’s assessment of both the identification of unrecognized tax benefits from uncertain tax positions and possible outcomes of each unrecognized tax benefit from an uncertain tax position; and (iv) evaluating the status and results of income tax audits with the relevant taxing authorities. Professionals with specialized skill and knowledge were used to assist in the evaluation of the completeness and measurement of the Company’s unrecognized tax benefits from uncertain tax positions, including evaluating the reasonableness of management’s assessment of whether tax positions are more-likely-than-not of being sustained and the amount of potential benefit to be realized, the application of relevant tax laws, and estimated interest and penalties.
/s/ PricewaterhouseCoopers LLP
Charlotte, North Carolina
February 22, 2022
We have served as the Company's auditor since 2019.
SEALED AIR CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
| (In USD millions, except share and per share data) | December 31, 2021 | December 31, 2020 | ||||||||||||
| ASSETS | ||||||||||||||
| Current assets: | ||||||||||||||
| Cash and cash equivalents | $ | $ | ||||||||||||
Trade receivables, net of allowance for credit losses of $ | ||||||||||||||
| Income tax receivables | ||||||||||||||
| Other receivables | ||||||||||||||
Inventories, net of inventory reserves of $ | ||||||||||||||
| Assets held for sale | ||||||||||||||
| Prepaid expenses and other current assets | ||||||||||||||
| Total current assets | ||||||||||||||
| Property and equipment, net | ||||||||||||||
| Goodwill | ||||||||||||||
| Identifiable intangible assets, net | ||||||||||||||
| Deferred taxes | ||||||||||||||
| Non-current assets held for sale | ||||||||||||||
| Operating lease right-of-use-assets | ||||||||||||||
| Other non-current assets | ||||||||||||||
| Total assets | $ | $ | ||||||||||||
| LIABILITIES AND STOCKHOLDERS’ EQUITY | ||||||||||||||
| Current liabilities: | ||||||||||||||
| Short-term borrowings | $ | $ | ||||||||||||
| Current portion of long-term debt | ||||||||||||||
| Current portion of operating lease liabilities | ||||||||||||||
| Accounts payable | ||||||||||||||
| Accrued restructuring costs | ||||||||||||||
| Income tax payable | ||||||||||||||
| Other current liabilities | ||||||||||||||
| Total current liabilities | ||||||||||||||
| Long-term debt, less current portion | ||||||||||||||
| Long-term operating lease liabilities, less current portion | ||||||||||||||
| Deferred taxes | ||||||||||||||
| Non-current liabilities held for sale | ||||||||||||||
| Other non-current liabilities | ||||||||||||||
| Total liabilities | ||||||||||||||
| Commitments and Contingencies - Note 20 | ||||||||||||||
| Stockholders’ equity: | ||||||||||||||
Preferred stock, $ | ||||||||||||||
Common stock, $ | ||||||||||||||
| Additional paid-in capital | ||||||||||||||
| Retained earnings | ||||||||||||||
Common stock in treasury, | ( | ( | ||||||||||||
| Accumulated other comprehensive loss, net of taxes: | ||||||||||||||
| Unrecognized pension items | ( | ( | ||||||||||||
| Cumulative translation adjustment | ( | ( | ||||||||||||
| Unrealized net loss on net investment hedges | ( | ( | ||||||||||||
| Unrealized net gain (loss) on cash flow hedges | ( | |||||||||||||
| Total accumulated other comprehensive loss, net of taxes | ( | ( | ||||||||||||
| Total stockholders’ equity | ||||||||||||||
| Total liabilities and stockholders’ equity | $ | $ | ||||||||||||
See accompanying Notes to Consolidated Financial Statements.
71
SEALED AIR CORPORATION AND SUBSIDIARIES
Consolidated Statements of Operations
| Year Ended December 31, | ||||||||||||||||||||
| (In USD millions, except per share data) | 2021 | 2020 | 2019 | |||||||||||||||||
| Net sales | $ | $ | $ | |||||||||||||||||
| Cost of sales | ||||||||||||||||||||
| Gross profit | ||||||||||||||||||||
| Selling, general and administrative expenses | ||||||||||||||||||||
| Gain (Loss) on sale of businesses and property and equipment | ( | |||||||||||||||||||
| Amortization expense of intangible assets | ||||||||||||||||||||
| Restructuring charges | ||||||||||||||||||||
| Operating profit | ||||||||||||||||||||
| Interest expense, net | ( | ( | ( | |||||||||||||||||
| Other (expense) income, net | ( | ( | ||||||||||||||||||
| Earnings before income tax provision | ||||||||||||||||||||
| Income tax provision | ||||||||||||||||||||
| Net earnings from continuing operations | ||||||||||||||||||||
| Gain (Loss) on sale of discontinued operations, net of tax | ( | |||||||||||||||||||
| Net earnings | $ | $ | $ | |||||||||||||||||
| Basic: | ||||||||||||||||||||
| Continuing operations | $ | $ | ||||||||||||||||||
| Discontinued operations | ( | |||||||||||||||||||
| Net earnings per common share - basic | $ | $ | $ | |||||||||||||||||
| Diluted: | ||||||||||||||||||||
| Continuing operations | $ | $ | $ | |||||||||||||||||
| Discontinued operations | ( | |||||||||||||||||||
| Net earnings per common share - diluted | $ | $ | $ | |||||||||||||||||
| Weighted average number of common shares outstanding in millions: | ||||||||||||||||||||
| Basic | ||||||||||||||||||||
| Diluted | ||||||||||||||||||||
See accompanying Notes to Consolidated Financial Statements.
72
SEALED AIR CORPORATION AND SUBSIDIARIES
Consolidated Statements of Comprehensive Income
| Year Ended December 31, | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2021 | 2020 | 2019 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| (In USD millions) | Gross | Taxes | Net | Gross | Taxes | Net | Gross | Taxes | Net | |||||||||||||||||||||||||||||||||||||||||||||||
| Net earnings | $ | $ | $ | |||||||||||||||||||||||||||||||||||||||||||||||||||||
| Other comprehensive income (loss): | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Unrecognized pension items | $ | $ | ( | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||||||||||||||||||||||||||||||||||||||
| Unrealized gains (losses) on derivative instruments for net investment hedge | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||
| Unrealized gains (losses) on derivative instruments for cash flow hedge | ( | ( | ( | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||
Foreign currency translation adjustments | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||
| Other comprehensive income (loss) | $ | $ | ( | $ | ( | $ | ( | $ | $ | |||||||||||||||||||||||||||||||||||||||||||||||
| Comprehensive income, net of taxes | $ | $ | $ | |||||||||||||||||||||||||||||||||||||||||||||||||||||
See accompanying Notes to Consolidated Financial Statements.
73
SEALED AIR CORPORATION AND SUBSIDIARIES
Consolidated Statements of Stockholders’ (Deficit) Equity
| (In USD millions) | Common Stock | Additional Paid-in Capital | Retained Earnings | Common Stock in Treasury | Accumulated Other Comprehensive Loss, Net of Taxes | Total Stockholders’ (Deficit) Equity | ||||||||||||||||||||||||||||||||
| Balance at December 31, 2018 | $ | $ | $ | $ | ( | $ | ( | $ | ( | |||||||||||||||||||||||||||||
| Effect of share-based incentive compensation | — | — | — | — | ||||||||||||||||||||||||||||||||||
| Stock issued for profit sharing contribution paid in stock | — | — | — | |||||||||||||||||||||||||||||||||||
| Repurchases of common stock | — | — | — | ( | — | ( | ||||||||||||||||||||||||||||||||
| Unrecognized pension items, net of taxes | — | — | — | — | ( | ( | ||||||||||||||||||||||||||||||||
| Foreign currency translation adjustments, net of taxes | — | — | — | — | ||||||||||||||||||||||||||||||||||
| Unrealized gain on derivative instruments, net of taxes | — | — | — | — | ||||||||||||||||||||||||||||||||||
| Net earnings | — | — | — | — | ||||||||||||||||||||||||||||||||||
Dividends on common stock ($ | — | — | ( | — | — | ( | ||||||||||||||||||||||||||||||||
| Balance at December 31, 2019 | $ | $ | $ | $ | ( | $ | ( | $ | ( | |||||||||||||||||||||||||||||
| Effect of share-based incentive compensation | — | — | — | — | ||||||||||||||||||||||||||||||||||
| Stock issued for profit sharing contribution paid in stock | — | ( | — | — | ||||||||||||||||||||||||||||||||||
| Repurchases of common stock | — | — | — | ( | — | ( | ||||||||||||||||||||||||||||||||
| Unrecognized pension items, net of taxes | — | — | — | — | ( | ( | ||||||||||||||||||||||||||||||||
| Foreign currency translation adjustments, net of taxes | — | — | — | — | ||||||||||||||||||||||||||||||||||
| Unrealized loss on derivative instruments, net of taxes | — | — | — | — | ( | ( | ||||||||||||||||||||||||||||||||
| Net earnings | — | — | — | — | ||||||||||||||||||||||||||||||||||
Dividends on common stock ($ | — | — | ( | — | — | ( | ||||||||||||||||||||||||||||||||
| Balance at December 31, 2020 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||
| Effect of share-based incentive compensation | — | — | — | — | ||||||||||||||||||||||||||||||||||
| Stock issued for profit sharing contribution paid in stock | — | — | — | |||||||||||||||||||||||||||||||||||
| Repurchases of common stock | — | — | — | ( | — | ( | ||||||||||||||||||||||||||||||||
| Unrecognized pension items, net of taxes | — | — | — | — | ||||||||||||||||||||||||||||||||||
| Foreign currency translation adjustments, net of taxes | — | — | — | — | ( | ( | ||||||||||||||||||||||||||||||||
| Unrealized gain on derivative instruments, net of taxes | — | — | — | — | ||||||||||||||||||||||||||||||||||
| Net earnings | — | — | — | — | ||||||||||||||||||||||||||||||||||
Dividends on common stock ($ | — | — | ( | — | — | ( | ||||||||||||||||||||||||||||||||
| Balance at December 31, 2021 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||
See accompanying Notes to Consolidated Financial Statements.
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SEALED AIR CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows
| Year Ended December 31, | ||||||||||||||||||||
| (In USD millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Net earnings | $ | $ | $ | |||||||||||||||||
| Adjustments to reconcile net earnings to net cash provided by operating activities | ||||||||||||||||||||
| Depreciation and amortization | ||||||||||||||||||||
| Share-based incentive compensation | ||||||||||||||||||||
| Profit sharing expense | ||||||||||||||||||||
| Loss on debt redemption and refinancing activities | ||||||||||||||||||||
| Impairment of debt investment | ||||||||||||||||||||
| Provision for allowance for credit losses on trade receivables | ||||||||||||||||||||
| Provisions for inventory obsolescence | ||||||||||||||||||||
| Deferred taxes, net | ( | |||||||||||||||||||
| Net (gain) loss on sale of businesses | ( | ( | ||||||||||||||||||
| Gain on equity investment | ( | ( | ||||||||||||||||||
| Other non-cash items | ||||||||||||||||||||
| Changes in operating assets and liabilities: | ||||||||||||||||||||
| Trade receivables, net | ( | |||||||||||||||||||
| Inventories | ( | ( | ||||||||||||||||||
| Income tax receivable/payable | ( | |||||||||||||||||||
| Accounts payable | ( | |||||||||||||||||||
| Customer advance payments | ||||||||||||||||||||
| Other assets and liabilities | ( | ( | ( | |||||||||||||||||
| Net cash provided by operating activities | $ | $ | $ | |||||||||||||||||
| Cash flows from investing activities: | ||||||||||||||||||||
| Capital expenditures | $ | ( | $ | ( | $ | ( | ||||||||||||||
| Investment in marketable securities | ( | |||||||||||||||||||
| Proceeds (payments) related to sale of businesses and property and equipment, net | ( | |||||||||||||||||||
| Businesses acquired in purchase transactions, net of cash acquired | ( | ( | ||||||||||||||||||
| Payments associated with debt, equity, and equity method investments | ( | ( | ||||||||||||||||||
| Settlement of foreign currency forward contracts | ( | |||||||||||||||||||
| Proceeds of corporate owned life insurance | ||||||||||||||||||||
| Other investing activities | ||||||||||||||||||||
| Net cash used in investing activities | $ | ( | $ | ( | $ | ( | ||||||||||||||
| Cash flows from financing activities: | ||||||||||||||||||||
| Net payments of short-term borrowings | $ | ( | $ | ( | $ | ( | ||||||||||||||
| Proceeds from long-term debt | ||||||||||||||||||||
| Payments of long-term debt | ( | ( | ( | |||||||||||||||||
| Dividends paid on common stock | ( | ( | ( | |||||||||||||||||
| Repurchases of common stock | ( | ( | ( | |||||||||||||||||
| Payments for debt extinguishment costs | ( | ( | ||||||||||||||||||
| Impact of tax withholding on share-based compensation | ( | ( | ( | |||||||||||||||||
| Principal payments related to financing leases | ( | ( | ( | |||||||||||||||||
| Other financing activities | ( | ( | ||||||||||||||||||
| Net cash (used in) provided by financing activities | $ | ( | $ | ( | $ | |||||||||||||||
| Effect of foreign currency exchange rate changes on cash and cash equivalents | $ | $ | ( | $ | ||||||||||||||||
| Cash Reconciliation: | ||||||||||||||||||||
| Cash and cash equivalents | $ | $ | $ | |||||||||||||||||
| Restricted cash and cash equivalents | ||||||||||||||||||||
| Balance, beginning of period | $ | $ | $ | |||||||||||||||||
| Net change during the period | ( | |||||||||||||||||||
| Cash and cash equivalents | $ | $ | $ | |||||||||||||||||
| Restricted cash and cash equivalents | ||||||||||||||||||||
| Balance, end of period | $ | $ | $ | |||||||||||||||||
| Supplemental Cash Flow Information: | ||||||||||||||||||||
| Interest payments, net of amounts capitalized | $ | $ | $ | |||||||||||||||||
| Income tax payments, net of cash refunds | $ | $ | $ | |||||||||||||||||
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SEALED AIR CORPORATION AND SUBSIDIARIES
| Year Ended December 31, | ||||||||||||||||||||
| (In USD millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Restructuring payments including associated costs | $ | $ | $ | |||||||||||||||||
| Non-cash items: | ||||||||||||||||||||
Transfers of shares of common stock from treasury for profit-sharing plan contributions | $ | $ | $ | |||||||||||||||||
See accompanying Notes to Consolidated Financial Statements.
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SEALED AIR CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Note 1 Organization and Nature of Operations
We are a leading global provider of packaging solutions integrating high-performance materials, automation, equipment and services. SEE designs and delivers packaging solutions that protect goods, preserve food, automate packaging processes, enable e-commerce and digital connectivity for packaged goods. Our packaging solutions help customers automate their operations to be increasingly touchless and more resilient, safer, less wasteful, and enhance brand engagement with consumers. We deliver our packaging solutions to an array of end markets including fresh proteins, foods, fluids, medical and healthcare, e-commerce, logistics and omnichannel fulfillment operations, and industrials.
Our portfolio of packaging solutions includes CRYOVAC® brand food packaging, SEALED AIR® brand protective packaging, AUTOBAG® brand automated packaging, BUBBLE WRAP® brand packaging and SEE Touchless Automation™ solutions. We have established leading market positions through our differentiated packaging solutions, well-established customer relationships, iconic brands, and global scale and market access.
We conduct substantially all of our business through two wholly-owned subsidiaries, Cryovac, LLC and Sealed Air Corporation (US). Throughout this report, when we refer to “Sealed Air,” “SEE,” the “Company,” “we,” “our,” or “us,” we are referring to Sealed Air Corporation and all of our subsidiaries, except where the context indicates otherwise.
Note 2 Summary of Significant Accounting Policies and Recently Issued Accounting Standards
Summary of Significant Accounting Policies
Basis of Presentation
Our Consolidated Financial Statements include all of the accounts of the Company and our subsidiaries. We have eliminated all significant intercompany transactions and balances in consolidation. Some prior period amounts, including the geographic regions described below, have been reclassified to conform to the current year presentation. These reclassifications, individually and in the aggregate, did not have a material impact on our consolidated financial condition, results of operations or cash flows. All amounts are in U.S. dollar denominated in millions, except per share amounts and unless otherwise noted, and are approximate due to rounding.
As of January 1, 2021, we consolidated the reporting of the North America and South America geographic regions, which are now collectively presented as Americas within Note 3, “Revenue Recognition, Contracts with Customers” and Note 6, “Segments.” No changes were made to EMEA or APAC. This change has no impact on our prior period consolidated results and is only the aggregation of the previously bifurcated continents. Where applicable, prior periods have been retrospectively adjusted to reflect the new geographic regions.
When we cross reference to a “Note,” we are referring to our “Notes to Consolidated Financial Statements,” unless the context indicates otherwise.
Use of Estimates
The preparation of our Consolidated Financial Statements and related disclosures in conformity with U.S. GAAP requires our management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the financial statements and revenue and expenses during the period reported. These estimates include, among other items, assessing the expected credit losses of receivables, asset retirement obligations, the use and recoverability of inventory, the estimation of fair value of financial instruments, assumptions used in the calculation of income taxes, useful lives and recoverability of tangible assets and goodwill and other intangible assets, assumptions used in our defined benefit pension plans and other post-employment benefit plans, estimates related to self-insurance such as the aggregate liability for uninsured claims using historical experience, insurance and actuarial estimates and estimated trends in claim values, fair value measurement of assets, costs for incentive compensation, and accruals for commitments and contingencies. We review these estimates and assumptions periodically using historical experience and other factors and reflect the effects of any revisions in the Consolidated Financial Statements in the period we determine any revisions to be necessary. Actual results could differ from these estimates.
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Financial Instruments
We may use financial instruments, such as cross-currency swaps, interest rate swaps, caps and collars, U.S. Treasury lock agreements and foreign currency exchange forward contracts and options related to our borrowing and trade activities. We may use these financial instruments from time to time to manage our exposure to fluctuations in interest rates and foreign currency exchange rates. We do not purchase, hold or sell derivative financial instruments for trading purposes. We face credit risk if the counterparties to these transactions are unable to perform their obligations. Our policy is to have counterparties to these contracts that have at least an investment grade rating.
We report derivative instruments at fair value and establish criteria for designation and effectiveness of transactions entered into for hedging purposes. Before entering into any derivative transaction, we identify our specific financial risk, the appropriate hedging instrument to use to reduce this risk, and the correlation between the financial risk and the hedging instrument. We use forecasts and historical data as the basis for determining the anticipated values of the transactions to be hedged. We do not enter into derivative transactions that do not have a high correlation with the underlying financial risk we are trying to reduce. We regularly review our hedge positions and the correlation between the transaction risks and the hedging instruments.
We account for derivative instruments as hedges of the related underlying risks if we designate these derivative instruments as hedges and the derivative instruments are effective as hedges of recognized assets or liabilities, forecasted transactions, unrecognized firm commitments or forecasted intercompany transactions.
We record gains and losses on derivatives qualifying as cash flow hedges in Accumulated other comprehensive loss (“AOCL”), to the extent that hedges are effective and until the underlying transactions are recognized on the Consolidated Statements of Operations, at which time we also recognize the gains or losses of the derivatives on the Consolidated Statements of Operations. We recognize gains and losses on qualifying fair value hedges and the related loss or gain on the hedged item attributable to the hedged risk on the Consolidated Statements of Operations.
Generally, our practice is to terminate derivative transactions if the underlying asset or liability matures or is sold or terminated, or if we determine the underlying forecasted transaction is no longer probable of occurring. Any deferred gains or losses associated with derivative instruments are recognized on the Consolidated Statements of Operations over the period in which the income or expense on the underlying hedged transaction is recognized.
See Note 15, “Derivatives and Hedging Activities,” for further details.
Foreign Currency Translation
In non-U.S. locations that are not considered highly inflationary, we translate the balance sheets at the end of period exchange rates with translation adjustments accumulated in stockholders’ equity on our Consolidated Balance Sheets. We translate the statements of operations at the average exchange rates during the applicable period.
We translate assets and liabilities of our operations in countries with highly inflationary economies at the end of period exchange rates, except that nonmonetary asset and liability amounts are translated at historical exchange rates. In countries with highly inflationary economies, we translate items reflected in the statements of operations at average rates of exchange prevailing during the period, except that nonmonetary amounts are translated at historical exchange rates.
Impact of Highly Inflationary Economies: Argentina - Economic and political events in Argentina have continued to expose us to heightened levels of foreign currency exchange risk. As of July 1, 2018, Argentina was designated as a highly inflationary economy under U.S. GAAP, and the U.S. dollar replaced the Argentine peso as the functional currency for our subsidiaries in Argentina. All Argentine peso-denominated monetary assets and liabilities were remeasured into U.S. dollars using the current exchange rate available to us. The impact of any changes in the exchange rate are reflected in within Other (expense) income, net on the Consolidated Statements of Operations. For the years ended December 31, 2021, 2020 and 2019, the Company recorded remeasurement losses of $3.6 million, $4.7 million, and $4.6 million, respectively. The exchange rate as of December 31, 2021, 2020 and 2019 was 102.7 , 84.1 and 59.9 , respectively.
We will continue to evaluate each reporting period the appropriate exchange rate to remeasure our financial statements based on the facts and circumstances as applicable.
Commitments and Contingencies — Litigation
On an ongoing basis, we assess the potential liabilities related to any lawsuits or claims brought against us. While it is typically very difficult to determine the timing and ultimate outcome of these actions, we use our best judgment to determine if it is probable that we will incur an expense related to the settlement or final adjudication of these matters and whether a reasonable
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Revenue Recognition
Revenue from contracts with customers is recognized using a five-step model consisting of the following: (1) identify the contract with a customer; (2) identify the performance obligations in the contract; (3) determine the transaction price; (4) allocate the transaction price to the performance obligations in the contract; and (5) recognize revenue when (or as) the Company satisfies a performance obligation.
(1) Identify Contract with Customer:
For SEE, the determination of whether an arrangement meets the definition of a contract under ASC 606 (“Topic 606”) depends on whether it creates enforceable rights and obligations. While enforceability is a matter of law, we believe that enforceable rights and obligations in a contract must be substantive in order for the contract to be in scope of Topic 606. That is, the penalty for noncompliance must be significant relative to the minimum obligation. Fixed or minimum purchase obligations with penalties for noncompliance are the most common examples of substantive enforceable rights present in our contracts. We determined that the contract term is the period of enforceability outlined by the terms of the contract. This means that in many cases, the term stated in the contract is different than the period of enforceability. After the minimum purchase obligation is met, subsequent sales are treated as separate contracts on a purchase order by purchase order basis. If no minimum purchase obligation exists, the next level of enforceability is determined, which often represents the individual purchase orders and the agreed upon terms.
The customer’s ability and intent to pay the transaction price is assessed in determining whether a contract exists with the customer. If collectability of substantially all of the consideration in a contract is not probable, consideration received is not recognized as revenue unless the consideration is nonrefundable and the Company no longer has an obligation to transfer additional goods or services to the customer or collectability becomes probable.
(2) Identify the Performance Obligations in the Contract:
The most common goods and services determined to be distinct performance obligations are materials, equipment sales, and maintenance. Free on loan and leased equipment is typically identified as a separate lease component within the scope of ASC 842. The other goods or services promised in the contract with the customer in most cases do not represent performance obligations because they are neither separate nor distinct, or they are not material in the context of the contract.
Performance obligations are satisfied when the Company transfers control of a good or service to a customer, which can occur over time or at a point in time. The amount of revenue recognized is based on the consideration to which the Company expects to be entitled in exchange for those goods or services, including the expected value of variable consideration.
(3) Determine the Transaction Price:
SEE has many forms of variable consideration present in its contracts with customers, including rebates and other discounts. SEE estimates variable consideration using either the expected value method or the most likely amount method as described in the standard. We include in the transaction price some or all of an amount of variable consideration estimated to the extent that it is probable that a significant reversal in the amount of cumulative revenue recognized will not occur when the uncertainty associated with the variable consideration is subsequently resolved.
For all contracts that contain a form of variable consideration, SEE estimates at contract inception, and periodically throughout the term of the contract, what volume of goods and/or services the customer will purchase in a given period and determines how much consideration is payable to the customer or how much consideration we would be able to recover from the customer based on the structure of the type of variable consideration. In most cases the variable consideration in contracts with customers results in amounts payable to the customer by SEE. We adjust the contract transaction price based on any changes in estimates each reporting period and record an inception to date cumulative adjustment to the amount of revenue previously recognized. When the contract with a customer contains a minimum
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purchase obligation, SEE only has enforceable rights to the amount of consideration promised in the minimum purchase obligation through the enforceable term of the contract. This amount of consideration, plus any variable consideration, makes up the transaction price for the contract.
Charges for rebates and other allowances are recognized as a deduction from revenue on an accrual basis in the period in which the associated revenue is recorded. When we estimate our rebate accruals, we consider customer-specific contractual commitments including stated rebate rates and history of actual rebates paid. Our rebate accruals are reviewed at each reporting period and adjusted to reflect data available at that time. We adjust the accruals to reflect any differences between estimated and actual amounts. These adjustments of transaction price impact the amount of net sales recognized by us in the period of adjustment.
The Company expects the time between when a good or service is transferred to a customer and when the customer pays for that good or service to be one year or less for the vast majority of the Company’s contracts. In this instance the Company does not adjust consideration for a significant financing component.
Sales taxes collected from customers and remitted to governmental authorities are accounted for on a net basis and therefore are excluded from net sales on the Consolidated Statements of Operations.
(4) Allocate the Transaction Price to the Performance Obligations in the Contract:
We determine the standalone selling price for a performance obligation by first looking for observable selling prices of that performance obligation sold on a standalone basis. If an observable price is not available, we estimate the standalone selling price of the performance obligation using one of the three suggested methods in the following order of preference: adjusted market assessment approach, expected cost plus a margin approach, and residual approach.
SEE often offers rebates to customers in their contracts that are related to the amount of materials purchased. We believe that this form of variable consideration should only be allocated to materials because the entire amount of variable consideration relates to the customer’s purchase of and our efforts to provide materials. Additionally, Sealed Air has many contracts that have pricing tied to third-party indices. We believe that variability from index-based pricing should be allocated specifically to materials because the pricing formulas in these contracts are related to the cost to produce materials.
(5) Recognize Revenue when (or as) the Company satisfies a performance obligation
Revenue is recognized upon transfer of control to the customer. Revenue for materials and equipment sales is recognized based on shipping terms, which is the point in time the customer obtains control of the promised goods. Maintenance revenue is recognized straight-line on the basis that the level of effort is consistent over the term of the contract. Lease components within contracts with customers are recognized in accordance with ASC 842.
Refer to Note 3, “Revenue Recognition, Contracts with Customers,” for further discussion of revenue.
Costs to obtain or fulfill a Contract and Shipping and Handling Costs
The Company recognizes incremental costs to obtain a contract as an expense when incurred if the amortization period of the asset that otherwise would have been recognized is one year or less. For example, the Company generally expenses sales commissions when incurred because the amortization period would have been one year or less. These costs are recorded within selling, general and administrative expenses on the Consolidated Statements of Operations.
Costs for shipping and handling activities performed after a customer obtains control of a good are accounted for as costs to fulfill a contract and are included in cost of sales.
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Share-Based Incentive Compensation
At the 2014 Annual Meeting, the 2014 Omnibus Incentive Plan (the “Omnibus Plan”) was approved by our stockholders. Subsequently, the Board of Directors adopted, and at the Annual Stockholder's meetings in both 2018 and 2021, our stockholders approved, amendments and restatements to the 2014 Omnibus Incentive Plan. See Note 21, “Stockholders’ (Deficit) Equity,” of the Notes for further information on this plan.
Income Taxes
We file a consolidated U.S. federal income tax return and our non-U.S. subsidiaries file income tax returns in their respective local jurisdictions. We provide for income taxes on those portions of our foreign subsidiaries’ accumulated earnings that we believe are not reinvested indefinitely in our businesses.
We account for income taxes under the asset and liability method to provide for income taxes on all transactions recorded in the Consolidated Financial Statements. We recognize deferred tax assets and liabilities for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and tax benefit carryforwards. We determine deferred tax assets and liabilities at the end of each period using enacted tax rates.
In assessing the need for a valuation allowance, we estimate future reversals of existing temporary differences, future taxable earnings, and also consider the feasibility of ongoing planning strategies, taxable income in carryback periods and past operating results to determine which deferred tax assets are more likely than not to be realized in the future. Changes to tax laws, statutory tax rates and future taxable earnings can have an impact on valuation allowances related to deferred tax assets.
We recognize the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authorities based on the technical merits of the position. The tax benefits recognized in the financial statements from such positions are measured based on the largest amount of benefit that has a greater than fifty percent likelihood of being realized upon settlement with tax authorities. We recognize interest and penalties related to unrecognized tax benefits in Income tax provision on our Consolidated Statements of Operations. See Note 19, “Income Taxes,” for further discussion.
Cash and Cash Equivalents
We consider highly liquid investments with original maturities of 90 days or less to be cash equivalents. Our policy is to invest cash in excess of short-term operating and debt service requirements in cash equivalents. Cash equivalents are stated at cost, which approximates fair value because of the short-term maturity of the instruments. Our policy is to transact with counterparties that are rated at least A- by Standard & Poor’s and A3 by Moody’s. Some of our operations are located in countries that are rated below A- or A3. In this case, we try to minimize our risk by holding cash and cash equivalents at financial institutions with which we have existing global relationships whenever possible, diversifying counterparty exposures and minimizing the amount held by each counterparty and within the country in total.
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Accounts Receivable Securitization Programs
We and a group of our U.S. operating subsidiaries maintain an accounts receivable securitization program under which they sell eligible U.S. accounts receivable to an indirectly wholly-owned subsidiary that was formed for the sole purpose of entering into this program. The wholly-owned subsidiary in turn may sell an undivided fractional ownership interest in these receivables with two banks and an issuer of commercial paper administered by these banks. The wholly-owned subsidiary retains the receivables it purchases from the operating subsidiaries. Any transfers of undivided fractional ownership interests of receivables under the U.S. receivables securitization program to the two banks and an issuer of commercial paper administered by these banks are considered secured borrowings with pledge of collateral and will be classified as short-term borrowings on our Consolidated Balance Sheets. The net trade receivables that served as collateral for these borrowings are reclassified from trade receivables, net to prepaid expenses and other current assets on the Consolidated Balance Sheets.
The Company has entered into factoring agreements and customers' supply chain financing arrangements to sell certain trade receivables to unrelated third-party financial institutions. These programs are entered into in the normal course of business. We account for these transactions in accordance with ASC Topic 860, "Transfers and Servicing" ("ASC 860"). ASC 860 allows for the ownership transfer of accounts receivable to qualify for true-sale treatment when the appropriate criteria is met, which permits the balances sold under the program to be excluded from Trade receivables, net on the Consolidated Balance Sheets. Receivables are considered sold when (i) they are transferred beyond the reach of the Company and its creditors, (ii) the purchaser has the right to pledge or exchange the receivables, and (iii) the Company has no continuing involvement in the transferred receivables. In addition, the Company provides no other forms of continued financial support to the purchaser of the receivables once the receivables are sold. See Note 11, “Accounts Receivable Factoring Agreements,” for further details.
Allowance for Credit Losses
We are exposed to credit losses primarily through our sales of packaging solutions to third-party customers. Our customers' (the counterparty) ability to pay is assessed through our internal credit review processes. Based on the dollar value of credit extended, we assess our customers' credit by reviewing the total expected receivable exposure, expected timing of payments and the customers' established credit ratings. In determining customer creditworthiness, we assess our customers' credit utilizing different resources including external credit validations and/or our own assessment through analysis of the customers' financial statements and review of trade/bank references. We also consider contract terms and conditions, country and political risk, and the customer's mix of products purchased (for example: equipment vs. materials) in our evaluation. A credit limit is established for each customer based on the outcome of this review. Credit limits are reviewed at least annually for existing customers.
We monitor our ongoing credit exposure through active review of counterparty balances against contract terms and due dates. Our activities are performed at both the country/entity level as well as the regional level. Monitoring and review activities include account reconciliations, analysis of aged receivables, resolution status review for disputed amounts, and identification and remediation of counterparties experiencing payment issues. Our management reviews current credit exposure at least quarterly based on level of risk and amount of exposure.
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Supply Chain Financing Arrangements
We facilitate a voluntary supply chain financing program to provide some of our suppliers with the opportunity to sell receivables due from us (our accounts payables) to participating financial institutions at the sole discretion of both the suppliers and the financial institutions. These programs are administered by participating financial institutions. Should the supplier choose to participate in the program, it will receive payment from the financial institution in advance of agreed payment terms; our responsibility is limited to making payments to the respective financial institutions on the terms originally negotiated with our supplier. The range of payment terms is consistent regardless of a vendor's participation in the program. We monitor our days payable outstanding relative to our peers and industry trends in order to assess our conclusion that these programs continue to be trade payable programs and not indicative of borrowing arrangements. The liabilities continue to be presented as trade payables in our consolidated balance sheets until they are paid, and they are reflected as cash flows from operating activities when settled.
Inventories, Net
Our inventories are determined using the FIFO method or a weighted average for some raw materials. We state inventories at the lower of cost or net realizable value. Costs related to inventories include raw materials, direct labor and manufacturing overhead which are included in cost of sales on the Consolidated Statements of Operations.
Property and Equipment, Net
We state property and equipment at cost, except for property and equipment that have been impaired, for which we reduce the carrying amount to the estimated fair value at the impairment date. We capitalize significant improvements and charge repairs and maintenance costs that do not extend the lives of the assets to expense as incurred. We remove the cost and accumulated depreciation of assets sold or otherwise disposed of from the accounts and recognize any resulting gain or loss upon the disposition of the assets.
We depreciate the cost of property and equipment over their estimated useful lives on a straight-line basis as follows: buildings, including leasehold improvements — 10 to 40 years; machinery and equipment — 5 to 10 years; and other property and equipment — 2 to 10 years.
Leases
SEE is involved in leasing activity as both a lessee and a lessor. SEE is the lessor primarily for equipment used by our customers to meet their packaging needs. SEE is the lessee of property used for production and for sales and administrative functions, including real property, buildings, manufacturing and office equipment, offices and automobiles.
We recognize a right-of-use (“ROU”) asset and lease liability for all leases with terms of more than 12 months, in accordance with ASC 842. We utilize the short-term lease recognition exemption for all asset classes as part of our on-going accounting under ASC 842. This means, for those leases that qualify, we will not recognize ROU assets or lease liabilities. Recognition, measurement and presentation of expenses depends on classification as a finance or operating lease.
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As a lessee, we utilize the reasonably certain threshold criteria in determining which options we will exercise. Furthermore, some of our lease payments are based on index rates with minimum annual increases. These represent fixed payments and are captured in the future minimum lease payments calculation. In determining the discount rate to use in calculating the present value of lease payments, we estimate the rate of interest we would pay on a collateralized loan with the same payment terms as the lease by utilizing our bond yields traded in the secondary market to determine the estimated cost of funds for the particular tenor. We update our assumptions and discount rates on a quarterly basis.
We have also elected the practical expedient to not separate lease and non-lease components for all asset classes, meaning all consideration that is fixed, or in-substance fixed, will be captured as part of our lease components for balance sheet purposes. Furthermore, all variable payments included in lease agreements will be disclosed as variable lease expense when incurred. Generally, variable lease payments are based on usage and common area maintenance. These payments will be included as variable lease expense when recognized.
Our contractual obligations for operating leases as a lessor can include termination and renewal options. Our contractual obligations for sales-type leases tend to have fixed terms and can include purchase options. We utilize the reasonably certain threshold criteria in determining which options our customers will exercise.
Goodwill and Identifiable Intangible Assets, Net
Goodwill represents the excess of the purchase price over the estimated fair value of the net assets acquired, including the amount assigned to identifiable intangible assets.
Identifiable intangible assets consist primarily of patents, licenses, trademarks, trade names, customer lists and relationships, non-compete agreements, software and technology-based intangibles and other contractual agreements. We amortize finite lived identifiable intangible assets over the shorter of their stated or statutory duration or their estimated useful lives, currently ranging from 1 to 28 years, on a straight-line basis to their estimated residual values, and we review them for impairment upon the identification of events or changes in circumstances that indicate the carrying amount of the asset may not be recoverable.
Impairment and Disposal of Long-Lived Assets
For finite-lived intangible assets, such as customer relationships, contracts, intellectual property, and for other long-lived assets, such as property, plant and equipment, whenever impairment indicators are present, we perform a review for impairment. The impairment model is a two-step test under which we first calculate the recoverability of the carrying value by comparing the undiscounted value of the projected cash flows associated with the asset or asset group, including its estimated residual value, to the carrying amount. If the cash flows associated with the asset or asset group are less than the carrying value, we calculate the fair value of the asset, or asset group. If the carrying amount is found to be greater than the fair value, we record an impairment loss for the excess of carrying value over the fair value. In addition, in all cases of an impairment review, we re-evaluate the remaining useful lives of the assets and modify them, as appropriate.
Self-Insurance
We retain the obligation for specified claims and losses related to property, casualty, workers’ compensation and employee benefit claims. We accrue for outstanding reported claims and claims that have been incurred but not reported based upon management’s estimates of the aggregate liability for retained losses using historical experience, insurance company estimates and the estimated trends in claim values. Our estimates include management’s and independent insurance companies’ assumptions regarding economic conditions, the frequency and severity of claims and claim development patterns and settlement practices. These estimates and assumptions are monitored and evaluated on a periodic basis by management and are adjusted when warranted by changing circumstances. Although management believes it has the ability to adequately project and record estimated claim payments, actual results could differ significantly from the recorded liabilities.
Pensions
For a number of our U.S. and international employees, we maintain defined benefit pension plans. We are required to make assumptions regarding the valuation of projected benefit obligations and the performance of plan assets for our defined benefit pension plans.
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See Note 17, “Profit Sharing, Retirement Savings Plans and Defined Benefit Pension Plans,” for information about the Company’s benefit plans.
Net Earnings per Common Share
The Company presents both basic and diluted earnings per share amounts. Basic earnings per share is calculated by dividing net earnings attributable to the Company by the weighted average number of common shares outstanding during the year. Diluted earnings per share is based upon the weighted average number of common and common equivalent shares outstanding during the year, which is calculated using the treasury-stock method for outstanding share-based compensation awards.
See Note 24, “Net Earnings Per Common Share,” for further discussion.
Recently Adopted Accounting Standards
In January 2021, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) ASU 2021-01, Reference Rate Reform (Topic 848): Scope (“ASU 2021-01”). ASU 2021-01 provides temporary optional expedients and exceptions to certain guidance in U.S. GAAP to ease the financial reporting burdens related to the expected market transition from London Interbank Offered Rate (“LIBOR”) and other interbank offered rates to alternative reference rates, such as the Secured Overnight Financing Rate (“SOFR”). The guidance is effective, and was adopted, upon issuance, on January 7, 2021, and can be applied through December 31, 2022. This update did not have a material impact on the Company's Consolidated Financial Statements.
In January 2020, the FASB issued ASU 2020-01, Investments - Equity Securities (Topic 321), Investments - Equity Method and Joint Ventures (Topic 323) and Derivatives and Hedging (Topic 815) - Clarifying the Interactions Between Topic 321, Topic 323, and Topic 815 (“ASU 2020-01”). ASU 2020-01 makes improvements related to accounting for certain equity securities when the equity method of accounting is applied or discontinued and provides scope considerations related to forward contracts and purchased options on certain securities. The Company adopted ASU 2020-01 on January 1, 2021. The adoption did not have a material impact on the Company's Consolidated Financial Statements.
In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740), Simplifying the Accounting for Income Taxes (“ASU 2019-12”). ASU 2019-12 eliminates certain exceptions to the guidance in Topic 740 related to the approach for intra-period tax allocation, the methodology for calculating income taxes in an interim period and the recognition of deferred tax liabilities for outside basis differences. The new guidance also simplifies aspects of the accounting for franchise taxes, enacted change in tax laws or rates and clarifies the accounting transactions that result in a step-up in the tax basis of goodwill. The Company adopted ASU 2019-12 on January 1, 2021. The adoption did not have a material impact on the Company's Consolidated Financial Statements.
Recently Issued Accounting Standards
In November 2021, the FASB issued ASU 2021-10, Government Assistance (Topic 832): Disclosures by Business Entities about Government Assistance. ASU 2021-10 requires business entities to disclose information about certain types of government assistance received in the notes to the financial statements. ASU 2021-10 is effective for annual periods beginning after December 15, 2021. We do not believe that the adoption of ASU 2021-10 will have an impact on the Company's Consolidated Financial Statements with the exception of new disclosures, if government assistance provided to the Company were to be material in the future.
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Note 3 Revenue Recognition, Contracts with Customers
Description of Revenue Generating Activities
We employ sales, marketing and customer service personnel throughout the world who sell and market our equipment and systems, products, and services to and/or through a large number of distributors, fabricators, converters, e-commerce and mail order fulfillment firms, and contract packaging firms as well as directly to end-users such as food processors, food service businesses, supermarket retailers, pharmaceutical companies, healthcare facilities, medical device manufacturers, and other manufacturers.
As discussed in Note 6, “Segments,” our reporting segments are Food and Protective. Our Food applications are largely sold directly to end customers, while our Protective products are sold through business supply distributors and directly to the end customer.
Food:
Food solutions are sold to food processors in fresh red meat, smoked and processed meats, poultry, seafood, plant-based and dairy (solid and liquids) markets worldwide. Food offers integrated packaging materials and automated equipment solutions to increase food safety, extend shelf life, reduce food waste, automate processes and optimize total cost. Its materials, automated equipment and service enables customers to reduce costs and enhance their brands in the marketplace.
Food solutions are utilized by food service businesses (such as restaurants and entertainment venues) (“food service”) and food retailers (such as grocery stores and supermarkets) (“food retail”), among others. Solutions serving the food service market include products such as barrier bags and pouches, and are primarily marketed under the CRYOVAC® trademark and other highly recognized trade names including CRYOVAC® brand Barrier Bags, CRYOVAC® brand Form-Fill-Seal Films, and CRYOVAC® brand Auto Pouch System. Solutions serving the food retail market include products such as barrier bags, film, and trays, and are primarily marketed under the CRYOVAC® trademark and other highly recognized trade names including CRYOVAC® brand Grip & Tear™, CRYOVAC® brand Darfresh®, OptiDure™, Simple Steps®, and CRYOVAC® brand Barrier Bags.
Protective:
Protective packaging solutions are utilized across many global markets to protect goods during transit and are especially valuable to e-commerce, consumer goods, pharmaceutical and medical devices and industrial manufacturing. Protective solutions are designed to increase our customers' packaging velocity, minimize packaging waste, reduce labor dependencies and address dimensional weight challenges.
Protective solutions are sold through a strategic network of distributors as well as directly to our customers, including, but not limited to, fabricators, original equipment manufacturers, contract manufacturers, logistics partners and e-commerce/fulfillment operations. Protective solutions are marketed under SEALED AIR® brand, BUBBLE WRAP® brand, AUTOBAG® brand and other highly recognized trade names and product families including BUBBLE WRAP® brand inflatable packaging, SEALED AIR® brand performance shrink films, AUTOBAG® brand bagging systems, Instapak® polyurethane foam packaging solutions
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and Korrvu® suspension and retention packaging. In addition, we provide temperature assurance packaging solutions under the Kevothermal™ and TempGuard™ brands.
Revenue recognition:
Disaggregated Revenue
For the years ended December 31, 2021, 2020 and 2019, revenues from contracts with customers summarized by Segment and Geography were as follows:
| Year Ended December 31, 2021 | ||||||||||||||||||||
| (In millions) | Food | Protective | Total | |||||||||||||||||
Americas(1) | $ | $ | $ | |||||||||||||||||
| EMEA | ||||||||||||||||||||
| APAC | ||||||||||||||||||||
| Topic 606 Segment Revenue | ||||||||||||||||||||
| Non-Topic 606 Revenue (Leasing: Sales-type and Operating) | ||||||||||||||||||||
| Total | $ | $ | $ | |||||||||||||||||
| Year Ended December 31, 2020 | ||||||||||||||||||||
| (In millions) | Food | Protective | Total | |||||||||||||||||
Americas(1) | $ | $ | $ | |||||||||||||||||
| EMEA | ||||||||||||||||||||
| APAC | ||||||||||||||||||||
| Topic 606 Segment Revenue | ||||||||||||||||||||
| Non-Topic 606 Revenue (Leasing: Sales-type and Operating) | ||||||||||||||||||||
| Total | $ | $ | $ | |||||||||||||||||
| Year Ended December 31, 2019 | ||||||||||||||||||||
| (In millions) | Food | Protective | Total | |||||||||||||||||
Americas(1) | $ | $ | $ | |||||||||||||||||
| EMEA | ||||||||||||||||||||
| APAC | ||||||||||||||||||||
| Topic 606 Segment Revenue | ||||||||||||||||||||
| Non-Topic 606 Revenue (Leasing: Sales-type and Operating) | ||||||||||||||||||||
| Total | $ | $ | $ | |||||||||||||||||
(1)As of January 1, 2021, we consolidated the reporting of the North America and South America geographic regions, which are now collectively presented as Americas. No changes were made to EMEA or APAC. This change has no impact on our
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| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Contract assets | $ | $ | ||||||||||||
| Contract liabilities | $ | $ | ||||||||||||
The contract liability balances represent deferred revenue, primarily related to equipment accruals. Revenue recognized in the years ended December 31, 2021, 2020 and 2019, that was included in the contract liability balance at the beginning of the period was $15.4 million, $14.0 million, and $5.6 million, respectively. This revenue was driven primarily by equipment performance obligations being satisfied.
Remaining Performance Obligations
The following table summarizes the estimated transaction price from contracts with customers allocated to performance obligations or portions of performance obligations that have not yet been satisfied as of December 31, 2021 and 2020, as well as the expected timing of recognition of that transaction price.
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
Short-Term (12 months or less)(1) | $ | $ | ||||||||||||
| Long-Term | ||||||||||||||
| Total transaction price | $ | $ | ||||||||||||
(1)Our enforceable contractual obligations tend to be short term in nature. The table above does not include the transaction price of any remaining performance obligations that are part of the contracts with expected durations of one year or less.
Note 4 Leases
Lessor
SEE has contractual obligations as a lessor with respect to some of our automated and equipment solutions including "free on loan" equipment and leased equipment, both sales-type and operating. The consideration in a contract that contains both lease and non-lease components is allocated based on the standalone selling price.
Our contractual obligations for operating leases can include termination and renewal options. Our contractual obligations for sales-type leases tend to have fixed terms and can include purchase options. We utilize the reasonably certain threshold criteria in determining which options our customers will exercise.
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| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Short-Term (12 months or less) | $ | $ | ||||||||||||
| Long-Term | ||||||||||||||
| Lease receivables | $ | $ | ||||||||||||
Sales-type and operating lease revenue was less than 1
Lessee
SEE has contractual obligations as a lessee with respect to warehouses, offices, manufacturing facilities, IT equipment, automobiles, and material production equipment.
The following table details our lease obligations included in our Consolidated Balance Sheets.
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Other non-current assets: | ||||||||||||||
| Finance leases - ROU assets | $ | $ | ||||||||||||
| Finance leases - Accumulated depreciation | ||||||||||||||
| Operating lease right-of-use-assets: | ||||||||||||||
| Operating leases - ROU assets | ||||||||||||||
| Operating leases - Accumulated depreciation | ( | ( | ||||||||||||
| Total lease assets | $ | $ | ||||||||||||
| Current portion of long-term debt: | ||||||||||||||
| Finance leases | $ | $ | ||||||||||||
| Current portion of operating lease liabilities: | ||||||||||||||
| Operating leases | ( | ( | ||||||||||||
| Long-term debt, less current portion: | ||||||||||||||
| Finance leases | ||||||||||||||
| Long-term operating lease liabilities, less current portion: | ||||||||||||||
| Operating leases | ( | ( | ||||||||||||
| Total lease liabilities | $ | ( | $ | ( | ||||||||||
At December 31, 2021, estimated future minimum annual rental commitments under non-cancelable real and personal property leases were as follows:
| (In millions) | Finance leases | Operating leases | ||||||||||||
| 2022 | $ | $ | ||||||||||||
| 2023 | ||||||||||||||
| 2024 | ||||||||||||||
| 2025 | ||||||||||||||
| 2026 | ||||||||||||||
| Thereafter | ||||||||||||||
| Total lease payments | ||||||||||||||
| Less: Interest | ( | ( | ||||||||||||
| Present value of lease liabilities | $ | $ | ||||||||||||
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The following lease cost is included in our Consolidated Statements of Operations:
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
Lease cost(1) | ||||||||||||||
| Finance leases | ||||||||||||||
| Amortization of ROU assets | $ | $ | ||||||||||||
| Interest on lease liabilities | ||||||||||||||
| Operating leases | ||||||||||||||
| Short-term lease cost | ||||||||||||||
| Variable lease cost | ||||||||||||||
| Total lease cost | $ | $ | ||||||||||||
(1) With the exception of Interest on lease liabilities, we record lease costs to Cost of sales or Selling, general and administrative expenses on the Consolidated Statements of Operations, depending on the use of the leased asset. Interest on lease liabilities is recorded to Interest expense, net on the Consolidated Statements of Operations.
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Other information: | ||||||||||||||
| Cash paid for amounts included in the measurement of lease liabilities: | ||||||||||||||
| Operating cash flows - finance leases | $ | $ | ||||||||||||
| Operating cash flows - operating leases | $ | $ | ||||||||||||
| Financing cash flows - finance leases | $ | $ | ||||||||||||
| ROU assets obtained in exchange for new finance lease liabilities | $ | $ | ||||||||||||
| ROU assets obtained in exchange for new operating lease liabilities | $ | $ | ||||||||||||
| December 31, | ||||||||||||||
| 2021 | 2020 | |||||||||||||
| Weighted average information: | ||||||||||||||
| Finance leases | ||||||||||||||
| Remaining lease term (in years) | ||||||||||||||
| Discount rate | % | % | ||||||||||||
| Operating leases | ||||||||||||||
| Remaining lease term (in years) | ||||||||||||||
| Discount rate | % | % | ||||||||||||
Note 5 Divestiture and Acquisition Activity
Divestiture of Reflectix, Inc.
On November 1, 2021, the Company completed the sale of Reflectix, Inc. (“Reflectix”), a wholly-owned subsidiary that sells branded reflective insulation solutions, with operations located in Markleville, Indiana. The decision to sell this business was consistent with the Company's overall strategic priorities focused on packaging solutions. Reflectix was previously included within the Protective reporting segment.
The disposal does not represent a strategic shift that will have a major effect on our operations and financial results and therefore did not qualify as a discontinued operation.
The selling price of the business was $82.5 million, paid in cash received during the fourth quarter 2021. We recorded a $45.3 million pre-tax gain on the sale of the business, within Gain (Loss) on sale of businesses and property and equipment on the Consolidated Statements of Operations. The business had a net carrying value of $35.8 million, which included inventory of
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$6.8 million, trade receivables of $6.6 million, property and equipment of $1.0 million, and goodwill of $23.2 million. The goodwill is not deductible for tax purposes. The assets were partially offset by accrued liabilities which were individually immaterial. We recorded $17.3 million in tax expense related to the gain from the sale of Reflectix within Income tax provision on the Consolidated Statements of Operations for the year ended December 31, 2021.
The sales price is subject to final and customary purchase price true-ups. We maintain no on-going investment or relationship that would result in the sold business becoming a related party.
Acquisition of Automated Packaging Systems, LLC
On August 1, 2019 the Company acquired 100 % of the limited liability company interest in Automated Packaging Systems, LLC, formerly Automated Packaging Systems, Inc., a manufacturer of automated bagging systems. The acquisition is included in our Protective reporting segment. Automated Packaging Systems has provided opportunities to expand the Company's automated solutions and into adjacent markets.
Consideration paid for Automated Packaging Systems was $441.4 million in cash. The opening balance sheet included $58.2 million of assumed liabilities in connection with a deferred incentive compensation plan for Automated Packaging Systems' European employees. Of this amount, payments of $17.4 million, $19.0 million and $19.7 million were made during the years ended December 31, 2021, 2020 and 2019, respectively. Sealed Air is expected to make the remaining payment to the deferred incentive compensation plan participants in 2022.
The purchase price was primarily funded with proceeds from the incremental term facility provided for under an amendment to our Third Amended and Restated Credit Agreement, as described in Note 14, "Debt and Credit Facilities," of the Notes. For the years ended December 31, 2020 and 2019, transaction expenses recognized for the Automated Packaging Systems acquisition were $0.3 million and $3.3 million, respectively. These expenses are included within selling, general and administrative expenses in the Consolidated Statements of Operations.
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| Revised Preliminary Allocation | Measurement Period | Final Allocation | ||||||||||||||||||
| (In millions) | As of August 1, 2019 | Adjustments | As of September 30, 2020 | |||||||||||||||||
| Total consideration transferred | $ | $ | ( | $ | ||||||||||||||||
| Assets: | ||||||||||||||||||||
| Cash and cash equivalents | ( | |||||||||||||||||||
| Trade receivables, net | — | |||||||||||||||||||
| Other receivables | — | |||||||||||||||||||
| Inventories, net | ( | |||||||||||||||||||
| Prepaid expenses and other current assets | — | |||||||||||||||||||
| Property and equipment, net | ||||||||||||||||||||
| Identifiable intangible assets, net | ( | |||||||||||||||||||
| Goodwill | ( | |||||||||||||||||||
| Operating lease right-of-use-assets | — | |||||||||||||||||||
| Other non-current assets | ||||||||||||||||||||
| Total assets | $ | $ | ( | $ | ||||||||||||||||
| Liabilities: | ||||||||||||||||||||
| Accounts payable | — | |||||||||||||||||||
| Current portion of long-term debt | ( | |||||||||||||||||||
| Current portion of operating lease liabilities | — | |||||||||||||||||||
| Other current liabilities | ( | |||||||||||||||||||
| Long-term debt, less current portion | ( | |||||||||||||||||||
| Long-term operating lease liabilities, less current portion | — | |||||||||||||||||||
| Deferred taxes | — | |||||||||||||||||||
| Other non-current liabilities | ||||||||||||||||||||
| Total liabilities | $ | $ | $ | |||||||||||||||||
Measurement period adjustments recorded in the year ended December 31, 2020 through finalization of the purchase price allocation on August 1, 2020 were primarily a result of a favorable net working capital and purchase price settlement with the seller of $4.3 million during the first quarter of 2020.
The following table summarizes the identifiable intangible assets, net and their useful lives.
| Amount | Useful life | |||||||||||||
| (In millions) | (In years) | |||||||||||||
| Customer relationships | $ | |||||||||||||
| Trademarks and tradenames | ||||||||||||||
| Capitalized software | ||||||||||||||
| Technology | ||||||||||||||
| Backlog | ||||||||||||||
Total intangible assets with definite lives | $ | |||||||||||||
Goodwill is a result of the expected synergies and cross-selling opportunities that this acquisition is expected to provide for the Company, as well as the expected growth potential in acquired automated and sustainable solutions. Goodwill allocated to Automated Packaging Systems' U.S. entities is deductible for tax purposes. Goodwill allocated to Automated Packaging Systems' foreign entities is not deductible for tax purposes. The goodwill balance associated with Automated Packaging Systems is included in the Protective reportable segment.
Other non-current assets at the opening balance sheet date included the net overfunded position of a closed defined benefit pension plan in the United Kingdom. Refer to Note 17, "Profit Sharing, Retirement Savings Plans and Defined Benefit Pension Plans," for additional information on the Company's other defined benefit pension plans.
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In conjunction with the acquisition and subsequent integration of Automated Packaging Systems, the Company incurred restructuring charges. No restructuring accrual was included in our opening balance sheet as the liability did not exist at the time of acquisition. Refer to Note 12, "Restructuring Activities," for more detail on the Company's restructuring activity.
The inclusion of Automated Packaging Systems in our consolidated financial statements was not deemed material with respect to the requirement to provide pro forma results of operations in ASC 805. As such, pro forma information is not presented.
Other 2019 Acquisition Activity
During the second quarter of 2019, Food had acquisition activity resulting in a total purchase price paid of $23.4 million. The Company allocated the consideration transferred to the fair value of assets acquired and liabilities assumed, resulting in an allocation to goodwill of $6.0 million. The final purchase price adjustments resulting in an increase to goodwill of $0.3 million were recorded in the third quarter of 2019. Identifiable intangible assets acquired were not material.
Acquisitions Subsequent to December 31, 2021
On February 2, 2022, SEE acquired Foxpak Flexibles Ltd. (“Foxpak”), a privately-owned Irish packaging solutions company. Foxpak is a digital printing pioneer that partners with brands to deliver highly decorated packaging solutions; stand-up and spout pouches, and sachets that serve a variety of markets including food retail, pet food, seafood, and snacks. Established in 2001, Foxpak is located in Collon, Ireland. This transaction is not material to SEE’s financial results.
Note 6 Segments
The Company’s segment reporting structure consists of two reportable segments as follows and a Corporate category:
•Food
•Protective.
The Company’s Food and Protective segments are considered reportable segments under FASB ASC Topic 280. Our reportable segments are aligned with similar groups of products. Corporate includes certain costs that are not allocated to the reportable segments. The Company evaluates performance of the reportable segments based on the results of each segment. The performance metric used by the Company's chief operating decision maker to evaluate performance of our reportable segments is Segment Adjusted EBITDA. The Company allocates expense to each segment based on various factors including direct usage of resources, allocation of headcount, allocation of software licenses or, in cases where costs are not clearly delineated, costs may be allocated on portion of either net trade sales or an expense factor such as cost of sales.
We allocate and disclose depreciation and amortization expense to our segments, although depreciation and amortization are not included in the segment performance metric, Segment Adjusted EBITDA. We also allocate and disclose restructuring charges by segment, although they are not included in the segment performance metric Segment Adjusted EBITDA since restructuring charges are categorized as Special Items (as identified below). The accounting policies of the reportable segments and Corporate are the same as those applied to the Consolidated Financial Statements.
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| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Net sales | ||||||||||||||||||||
| Food | $ | $ | $ | |||||||||||||||||
| As a % of Consolidated net sales | % | % | % | |||||||||||||||||
| Protective | ||||||||||||||||||||
| As a % of Consolidated net sales | % | % | % | |||||||||||||||||
| Consolidated Net sales | $ | $ | $ | |||||||||||||||||
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Segment Adjusted EBITDA | ||||||||||||||||||||
| Food | $ | $ | $ | |||||||||||||||||
| Food Adjusted EBITDA Margin | % | % | % | |||||||||||||||||
| Protective | ||||||||||||||||||||
| Protective Adjusted EBITDA Margin | % | % | % | |||||||||||||||||
| Total Segment Adjusted EBITDA | $ | $ | $ | |||||||||||||||||
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Food Adjusted EBITDA | $ | $ | $ | |||||||||||||||||
| Protective Adjusted EBITDA | ||||||||||||||||||||
| Corporate Adjusted EBITDA | ( | ( | ( | |||||||||||||||||
| Interest expense, net | ( | ( | ( | |||||||||||||||||
Depreciation and amortization, net of adjustments(1) | ( | ( | ( | |||||||||||||||||
| Special Items: | ||||||||||||||||||||
Restructuring charges(2) | ( | ( | ( | |||||||||||||||||
Other restructuring associated costs(3) | ( | ( | ( | |||||||||||||||||
Foreign currency exchange loss due to highly inflationary economies | ( | ( | ( | |||||||||||||||||
Loss on debt redemption and refinancing activities | ( | ( | ||||||||||||||||||
| Increase in fair value of equity investment | ||||||||||||||||||||
| Impairment of debt investment | ( | |||||||||||||||||||
Charges related to acquisition and divestiture activity | ( | ( | ( | |||||||||||||||||
Charges related to the Novipax settlement agreement | ( | |||||||||||||||||||
| Gain on sale of Reflectix | ||||||||||||||||||||
Other Special Items(4) | ( | ( | ( | |||||||||||||||||
| Pre-tax impact of Special Items | ( | ( | ( | |||||||||||||||||
| Earnings before income tax provision | $ | $ | $ | |||||||||||||||||
(1) Depreciation and amortization by segment were as follows:
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| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Food | $ | $ | $ | |||||||||||||||||
| Protective | ||||||||||||||||||||
Total Company depreciation and amortization(i) | ||||||||||||||||||||
Depreciation and amortization adjustments(ii) | ( | |||||||||||||||||||
| Depreciation and amortization, net of adjustments | $ | $ | $ | |||||||||||||||||
(i)Includes share-based incentive compensation of $45.8 million in 2021, $42.3 million in 2020 and $34.4 million in 2019.
(ii)Represents depreciation and amortization which is considered to be related to a Special Item and is also included in the Special Items presented in the above table.
(2) Restructuring charges by segment were as follows:
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Food | $ | $ | $ | |||||||||||||||||
| Protective | ||||||||||||||||||||
| Total Company restructuring charges | $ | $ | $ | |||||||||||||||||
(3) Other restructuring associated costs for the year ended December 31, 2021, primarily relate to fees paid to third-party consultants in support of our Reinvent SEE business transformation, including a one-time, non-cash cumulative translation adjustment (CTA) loss recognized due to the wind-up of one of our legal entities. Other restructuring associated costs for the year ended December 31, 2020, primarily relate to fees paid to third-party consultants in support of our Reinvent SEE business transformation.
(4) Other Special Items for the years ended December 31, 2021, 2020 and 2019, primarily included fees related to professional services, including legal fees, directly associated with Special Items of events that are considered one-time or infrequent in nature.
Assets by Reportable Segments
The following table shows assets allocated by reportable segment. Assets allocated by reportable segment include: trade receivables, net; inventory, net; property and equipment, net; goodwill; intangible assets, net; and leased systems, net.
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Assets allocated to segments: | ||||||||||||||
| Food | $ | $ | ||||||||||||
| Protective | ||||||||||||||
| Total segments | $ | $ | ||||||||||||
| Assets not allocated: | ||||||||||||||
| Cash and cash equivalents | ||||||||||||||
Assets held for sale(1) | ||||||||||||||
| Income tax receivables | ||||||||||||||
| Other receivables | ||||||||||||||
| Deferred taxes | ||||||||||||||
| Other | ||||||||||||||
| Total | $ | $ | ||||||||||||
(1)Includes current and non-current assets held for sale.
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Geographic Information
The following table shows net sales and total long-lived assets allocated by geography. Sales are attributed to the country/geography in which they originate.
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
Net sales(1): | ||||||||||||||||||||
Americas(1)(2) | $ | $ | $ | |||||||||||||||||
| EMEA | ||||||||||||||||||||
| APAC | ||||||||||||||||||||
| Total | $ | $ | $ | |||||||||||||||||
Total long-lived assets(3)(4): | ||||||||||||||||||||
Americas(2)(3) | $ | $ | ||||||||||||||||||
| EMEA | ||||||||||||||||||||
| APAC | ||||||||||||||||||||
| Total | $ | $ | ||||||||||||||||||
(1)U.S. net sales were $2,925.4 million, $2,607.3 million and $2,501.6 million for the years ended December 31, 2021, 2020 and 2019, respectively. No non-U.S. country accounted for net sales in excess of 10% of consolidated net sales for the years ended December 31, 2021, 2020 or 2019. Sales are allocated to the country/region based on where each sale originated.
(2)As of January 1, 2021, we consolidated the reporting of the North America and South America geographic regions, which are now collectively presented as Americas. No changes were made to EMEA or APAC. This change has no impact on our prior period consolidated results and is only the aggregation of the previously bifurcated continents. Prior periods have been retrospectively adjusted to reflect the new geographic regions.
(3)Total long-lived assets in the U.S. were $970.4 million and $921.4 million at December 31, 2021 and 2020, respectively. No non-U.S. country had long-lived assets in excess of 10% of consolidated long-lived assets at December 31, 2021 or 2020.
Note 7 Inventories, net
The following table details our inventories, net:
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Raw materials | $ | $ | ||||||||||||
| Work in process | ||||||||||||||
| Finished goods | ||||||||||||||
| Total | $ | $ | ||||||||||||
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Note 8 Property and Equipment, net
The following table details our property and equipment, net.
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Land and improvements | $ | $ | ||||||||||||
| Buildings | ||||||||||||||
Machinery and equipment | ||||||||||||||
| Other property and equipment | ||||||||||||||
| Construction-in-progress | ||||||||||||||
| Property and equipment, gross | ||||||||||||||
Accumulated depreciation and amortization | ( | ( | ||||||||||||
| Property and equipment, net | $ | $ | ||||||||||||
The following table details our interest cost capitalized and depreciation and amortization expense for property and equipment.
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Interest cost capitalized | $ | $ | $ | |||||||||||||||||
| Depreciation and amortization expense for property and equipment | $ | $ | $ | |||||||||||||||||
Note 9 Goodwill and Identifiable Intangible Assets, net
Goodwill
The following table shows our goodwill balances by reportable segment. We review goodwill for impairment on a reporting unit basis annually during the fourth quarter of each year and whenever events or changes in circumstances indicate the carrying value of goodwill may not be recoverable. The Company performed a qualitative assessment by reporting unit as of October 1, 2021. This assessment included consideration of key factors including macroeconomic conditions, industry and market considerations, cost factors and other relevant entity-and reporting unit-specific events. Based on our qualitative assessment, we determined it was not more likely than not that the fair value of any reporting unit was less than its carrying amount. As such, it was not necessary to perform a quantitative test. There have been no significant events or circumstances affecting the valuation of goodwill subsequent to the qualitative assessment performed as of October 1, 2021.
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Allocation of Goodwill to Reporting Segment
The following table shows our goodwill balances by reportable segment:
| (In millions) | Food | Protective | Total | |||||||||||||||||
| Gross Carrying Value at December 31, 2019 | $ | $ | $ | |||||||||||||||||
| Accumulated amortization | ( | ( | ( | |||||||||||||||||
| Carrying Value at December 31, 2019 | $ | $ | $ | |||||||||||||||||
| Acquisition, purchase price and other adjustments | ( | ( | ||||||||||||||||||
| Currency translation | ||||||||||||||||||||
| Gross Carrying Value at December 31, 2020 | $ | $ | $ | |||||||||||||||||
| Accumulated amortization | ( | ( | ( | |||||||||||||||||
| Carrying Value at December 31, 2020 | $ | $ | $ | |||||||||||||||||
Divestiture(1) | ( | ( | ||||||||||||||||||
| Currency translation | ( | ( | ( | |||||||||||||||||
| Gross Carrying Value at December 31, 2021 | $ | $ | $ | |||||||||||||||||
Accumulated amortization(2) | ( | ( | ( | |||||||||||||||||
| Carrying Value at December 31, 2021 | $ | $ | $ | |||||||||||||||||
(1) $23.2 million of goodwill was allocated to Reflectix, as part of the business divestiture. Refer to Note 5, "Divestiture and Acquisition Activity," for more detail on the Company's divestiture and acquisition activity.
(2) The change in accumulated amortization from December 31, 2020 to December 31, 2021 is due to the impact of foreign currency translation.
As noted above, it was determined under a qualitative assessment that there was no
Identifiable Intangible Assets, net
The following tables summarize our identifiable intangible assets, net with definite and indefinite useful lives:
| December 31, 2021 | December 31, 2020 | |||||||||||||||||||||||||||||||||||||
| (In millions) | Gross Carrying Value | Accumulated Amortization | Net | Gross Carrying Value | Accumulated Amortization | Net | ||||||||||||||||||||||||||||||||
| Customer relationships | $ | $ | ( | $ | $ | $ | ( | $ | ||||||||||||||||||||||||||||||
| Trademarks and tradenames | ( | ( | ||||||||||||||||||||||||||||||||||||
| Software | ( | ( | ||||||||||||||||||||||||||||||||||||
| Technology | ( | ( | ||||||||||||||||||||||||||||||||||||
| Contracts | ( | ( | ||||||||||||||||||||||||||||||||||||
| Total intangible assets with definite lives | ( | ( | ||||||||||||||||||||||||||||||||||||
| Trademarks and tradenames with indefinite lives | — | — | ||||||||||||||||||||||||||||||||||||
| Total identifiable intangible assets, net | $ | $ | ( | $ | $ | $ | ( | $ | ||||||||||||||||||||||||||||||
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| Year | Amount (in millions) | |||||||
| 2022 | $ | |||||||
| 2023 | ||||||||
| 2024 | ||||||||
| 2025 | ||||||||
| 2026 | ||||||||
| Thereafter | ||||||||
| Total | $ | |||||||
Amortization expense was $38.8 million in 2021, $37.5 million in 2020 and $28.9 million in 2019.
The following table shows the remaining weighted average useful life of our definite lived intangible assets as of December 31, 2021.
| Remaining weighted average useful lives | |||||
| Customer relationships | |||||
| Trademarks and tradenames | |||||
| Software | |||||
| Technology | |||||
| Contracts | |||||
| Total identifiable intangible assets, net with definite lives | |||||
Expected future cash flows associated with the Company's intangible assets are not expected to be materially affected by the Company's intent or ability to renew or extend the arrangements. Based on our experience with similar agreements, we expect to continue to renew contracts held as intangibles through the end of the remaining useful lives.
During the fourth quarter of 2020, we identified a triggering event related to our foam fabrication producing asset group within our Protective segment. The asset group's primary asset was determined to be the intangible asset of Customer Relationships, which had a remaining useful life of approximately 12 years, as of the testing date. The triggering event was related to the finalization of the financial projections and budget which indicated short-term deterioration in the profitability of the specific asset group's North American operations. As of October 1, 2020, we performed a quantitative analysis of the recoverability of the net asset group and determined that the assets were not impaired, as the expected cash flows, including the residual value of the net asset group exceeded the carrying value. Actual performance of the asset group for the year ended December 31, 2021 was consistent with the financial projections utilized in the prior year recoverability test. Additionally, financial projections developed for 2022 exceed those previously used in the prior year impairment test across the asset group. No triggering events were identified during the year ended December 31, 2021.
Note 10 Accounts Receivable Securitization Programs
U.S. Accounts Receivable Securitization Program
We and a group of our U.S. operating subsidiaries maintain an accounts receivable securitization program under which they sell eligible U.S. accounts receivable to a wholly-owned subsidiary that was formed for the sole purpose of entering into this program. The wholly-owned subsidiary in turn may sell an undivided fractional ownership interest in these receivables to two banks and issuers of commercial paper administered by these banks. The wholly-owned subsidiary retains the receivables it purchases from the operating subsidiaries. Any transfers of fractional ownership interests of receivables under the U.S. receivables securitization program to the two banks and issuers of commercial paper administered by these banks are considered secured borrowings with the underlying receivables as collateral and will be classified as short-term borrowings on our Consolidated Balance Sheets. These banks do not have any recourse against the general credit of the Company. The net trade receivables that served as collateral for these borrowings are reclassified from trade receivables, net to prepaid expenses
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and other current assets on the Consolidated Balance Sheets. There were no borrowings or corresponding net trade receivables maintained as collateral as of December 31, 2021 or December 31, 2020.
As of December 31, 2021, the maximum purchase limit for receivable interests was $50.0 million, subject to the availability limits described below.
The amounts available from time to time under this program may be less than $50.0 million due to a number of factors, including but not limited to our credit ratings, trade receivable balances, the creditworthiness of our customers and our receivables collection experience. As of December 31, 2021, the amount available to us under the program was $50.0 million. Although we do not believe restrictions under this program presently materially restrict our operations, if an additional event occurs that triggers one of these restrictive provisions, we could experience a decline in the amounts available to us under the program or termination of the program.
The program expires annually and is renewable.
European Accounts Receivable Securitization Program
We and a group of our European subsidiaries maintain an accounts receivable securitization program with a special purpose vehicle, or SPV, two banks and issuers of commercial paper administered by these banks. The European program is structured to be a securitization of certain trade receivables that are originated by certain of our European subsidiaries. The SPV borrows funds from the banks to fund its acquisition of the receivables and provides the banks with a first priority perfected security interest in the accounts receivable. We do not have an equity interest in the SPV. We concluded the SPV is a variable interest entity because its total equity investment at risk is not sufficient to permit the SPV to finance its activities without additional subordinated financial support from the bank via loans or via the collections from accounts receivable already purchased. Additionally, we are considered the primary beneficiary of the SPV since we control the activities of the SPV, and are exposed to the risk of uncollectible receivables held by the SPV. Therefore, the SPV is consolidated in our Consolidated Financial Statements. Any activity between the participating subsidiaries and the SPV is eliminated in consolidation. Loans from the banks to the SPV will be classified as short-term borrowings on our Consolidated Balance Sheets. The net trade receivables that served as collateral for these borrowings are reclassified from trade receivables, net to prepaid expenses and other current assets on the Consolidated Balance Sheets. There were no borrowings or corresponding net trade receivables maintained as collateral as of December 31, 2021 or December 31, 2020.
As of December 31, 2021, the maximum purchase limit for receivable interests was €80.0 million ($90.6 million equivalent), subject to availability limits. The terms and provisions of this program are similar to our U.S. program discussed above. As of December 31, 2021, the amount available under this program before utilization was €80.0 million ($90.6 million equivalent).
This program expires annually and is renewable.
Utilization of Our Accounts Receivable Securitization Programs
As of December 31, 2021 and 2020, there were no no interest paid for these programs for the year ended December 31, 2021, and $0.4 million and $0.8 million for the years ended December 31, 2020 and 2019, respectively.
Under limited circumstances, the banks and the issuers of commercial paper can end purchases of receivables interests before the above expiration dates. A failure to comply with debt leverage or various other ratios related to our receivables collection experience could result in termination of the receivables programs. We were in compliance with these ratios at December 31, 2021.
Note 11 Accounts Receivable Factoring Agreements
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involvement in the transferred receivables. In addition, the Company provides no other forms of continued financial support to the purchaser of the receivables once the receivables are sold.
Gross amounts factored under this program for the years ended December 31, 2021, 2020 and 2019 were $687.3 million, $465.6 million, and $351.3 million, respectively. The fees associated with transfer of receivables for all programs were approximately $4.1 million, $2.2 million and $3.5 million for the years ended December 31, 2021, 2020 and 2019, respectively.
Note 12 Restructuring Activities
For the year ended December 31, 2021, the Company incurred $14.5 million of restructuring charges and $16.5 million of other related costs for our restructuring program. These charges resulted from restructuring and associated costs incurred in connection with the Company’s Reinvent SEE business transformation.
In December 2018, the Board of Directors approved our Reinvent SEE business transformation, which included the related -year restructuring program (“Program”). Spend associated with our previously existing restructuring programs at the time of Reinvent SEE’s approval was substantially completed as of December 31, 2020 and is no longer included in the restructuring program totals below.
The Board of Directors originally approved cumulative restructuring spend of $190 to $220 million. As of December 31, 2021, the Company has incurred $188 million of spend. In December 2021, the Board of Directors approved a -month extension to the original -year estimate. The -month extension does not expand the original total Program spend and is primarily related to on-going initiatives, including those related to SEE's continued digital transformation. We now expect restructuring activities associated with the Program to be substantially complete by June 30, 2022.
Restructuring spend is estimated to be incurred as follows:
| Total Restructuring Program Range | Less Program Spend to Date | Remaining Restructuring Spend | ||||||||||||||||||||||||||||||
| (In millions) | Low | High | Low | High | ||||||||||||||||||||||||||||
| Costs of reduction in headcount as a result of reorganization | $ | $ | $ | ( | $ | $ | ||||||||||||||||||||||||||
| Other expenses associated with the Program | ( | |||||||||||||||||||||||||||||||
| Total expense | ( | |||||||||||||||||||||||||||||||
| Capital expenditures | ( | |||||||||||||||||||||||||||||||
Total estimated cash cost(1) | $ | $ | $ | ( | $ | $ | ||||||||||||||||||||||||||
(1) Total estimated cash cost excludes the impact of proceeds expected from the sale of property and equipment and foreign currency impact.
The Company also incurred expense related to a restructuring program associated with our 2019 acquisition of Automated Packaging Systems of $1.7 million and $2.3 million during the years ended December 31, 2020 and 2019, respectively. There were no charges incurred for the acquisition related program for the year ended December 31, 2021. See Note 5, "Divestiture and Acquisition Activity," of the Notes for additional information related to our acquisitions.
The following table details our aggregate restructuring activities incurred under the Company's Program or prior restructuring programs at the time the expense was recorded as reflected in the Consolidated Statements of Operations:
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Other associated costs | $ | $ | $ | |||||||||||||||||
| Restructuring charges | ||||||||||||||||||||
| Total charges | $ | $ | $ | |||||||||||||||||
| Capital expenditures | $ | $ | $ | |||||||||||||||||
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The aggregate restructuring accrual, spending and other activity for the years ended December 31, 2021, 2020 and 2019 and the accrual balance remaining at those year-ends were as follows:
| (In millions) | |||||
| Restructuring accrual at December 31, 2018 | $ | ||||
| Accrual and accrual adjustments | |||||
| Cash payments during 2019 | ( | ||||
| Effects of changes in foreign currency exchange rates | ( | ||||
| Restructuring accrual at December 31, 2019 | $ | ||||
| Accrual and accrual adjustments | |||||
| Cash payments during 2020 | ( | ||||
| Effect of changes in foreign currency exchange rates | ( | ||||
| Restructuring accrual at December 31, 2020 | $ | ||||
| Accrual and accrual adjustments | |||||
| Cash payments during 2021 | ( | ||||
| Effect of changes in foreign currency exchange rates | ( | ||||
| Restructuring accrual at December 31, 2021 | $ | ||||
We expect to pay $10.2 million of the accrual balance remaining at December 31, 2021 within the next twelve months. This amount is included in accrued restructuring costs on the Consolidated Balance Sheets at December 31, 2021. The remaining accrual of $1.1 million, is expected to primarily be paid in 2023. These amounts are included in other non-current liabilities on our Consolidated Balance Sheets at December 31, 2021.
One of the components of the Reinvent SEE business transformation was to enhance the operational efficiency of the Company by acting as "One SEE". The Program was approved by our Board of Directors as a consolidated program benefiting both Food and Protective, and accordingly the expected program spend by reporting segment is not available. However, of the total remaining restructuring accrual of $11.3 million as of December 31, 2021, $3.4 million was attributable to Food and $7.9 million was attributable to Protective.
Note 13 Other Current and Non-Current Liabilities
The following tables detail our other current liabilities and other non-current liabilities at December 31, 2021 and 2020:
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Other current liabilities: | ||||||||||||||
| Accrued salaries, wages and related costs | $ | $ | ||||||||||||
| Accrued operating expenses | ||||||||||||||
| Accrued customer volume rebates | ||||||||||||||
| Accrued interest | ||||||||||||||
| Accrued employee benefit liability | ||||||||||||||
| Total | $ | $ | ||||||||||||
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Other non-current liabilities: | ||||||||||||||
| Accrued employee benefit liability | $ | $ | ||||||||||||
| Other postretirement liability | ||||||||||||||
| Uncertain tax position liability | ||||||||||||||
| Other various liabilities | ||||||||||||||
| Total | $ | $ | ||||||||||||
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Note 14 Debt and Credit Facilities
Our total debt outstanding consisted of the amounts set forth below:
| December 31, | ||||||||||||||||||||
| (In millions) | Interest rate | 2021 | 2020 | |||||||||||||||||
Short-term borrowings(1) | $ | $ | ||||||||||||||||||
Current portion of long-term debt(2) | ||||||||||||||||||||
| Total current debt | ||||||||||||||||||||
| Term Loan A due August 2022 | ||||||||||||||||||||
| Term Loan A due July 2023 | ||||||||||||||||||||
| Senior Notes due December 2022 | % | |||||||||||||||||||
| Senior Notes due April 2023 | % | |||||||||||||||||||
| Senior Notes due September 2023 | % | |||||||||||||||||||
| Senior Notes due December 2024 | % | |||||||||||||||||||
| Senior Notes due September 2025 | % | |||||||||||||||||||
| Senior Secured Notes due October 2026 | % | |||||||||||||||||||
| Senior Notes due December 2027 | % | |||||||||||||||||||
| Senior Notes due July 2033 | % | |||||||||||||||||||
Other(2) | ||||||||||||||||||||
Total long-term debt, less current portion(3) | ||||||||||||||||||||
Total debt(4) | $ | $ | ||||||||||||||||||
(1)Short-term borrowings of $1.3 million and $7.2 million at December 31, 2021 and December 31, 2020, respectively, were comprised of short-term borrowings from various lines of credit.
(2)Current portion of long-term debt included $475 million related to the Term Loan A due August 2022, as well as finance lease liabilities of $ at December 31, 2021. Current portion of long-term debt included finance lease liabilities of $ at December 31, 2020. The Other debt balance included $ and $ for long-term liabilities associated with our finance leases as of December 31, 2021 and 2020, respectively. See Note 4, “Leases,” for additional information on finance and operating lease liabilities.
(3)Amounts are net of unamortized discounts and issuance costs of $19.0 million and $20.1 million as of December 31, 2021 and 2020, respectively.
(4)As of December 31, 2021, our weighted average interest rate on our short-term borrowings outstanding was 3.6 % and on our long-term debt outstanding was 4.1 %. As of December 31, 2020, our weighted average interest rate on our short-term borrowings outstanding was 2.2 % and on our long-term debt outstanding was 4.4 %.
Debt Maturities
The following table summarizes the scheduled annual maturities for the next five years and thereafter of our long-term debt, including the current portion of long-term debt and finance leases. This schedule represents the principal portion amount outstanding of our debt, and therefore excludes debt discounts, effect of present value discounting for finance lease obligations, interest rate swaps and lender and finance fees.
| Year | Amount (In millions) | |||||||
| 2022 | $ | |||||||
| 2023 | ||||||||
| 2024 | ||||||||
| 2025 | ||||||||
| 2026 | ||||||||
| Thereafter | ||||||||
| Total | $ | |||||||
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Senior Secured Notes
2021 Activity
On September 29, 2021, Sealed Air issued $600 million aggregate principal amount of 1.573 % Senior Secured Notes due 2026 (the “2026 Notes”). The 2026 Notes will mature on October 15, 2026. Interest is payable on April 15 and October 15 of each year, commencing April 15, 2022. The 2026 Notes and related guarantees are secured on a first-priority basis by liens on substantially all of the Company's and the Guarantors' personal property securing obligations that the Company owes to lenders under the Company's senior secured credit facilities on a pari passu basis, in each case excluding certain property and subject to certain other exceptions.
Prior to the date that is one month prior to the scheduled maturity date of the 2026 Notes (the “Par Call Date”), Sealed Air may redeem the 2026 Notes, in whole or in part, at any time, at a redemption price equal to the greater of (i) 100 % of the principal amount of such 2026 Notes or (ii) the sum of the present values of the remaining scheduled payments of principal and interest on such 2026 Notes (assuming for this purpose that interest accrued to the Par Call Date is scheduled to be paid on the Par Call Date) from the redemption date to the Par Call Date discounted to the redemption date on a semiannual basis, plus in either (i) or (ii), any interest accrued but not paid to the date of redemption.
At any time on or after the Par Call Date, Sealed Air may redeem the 2026 Notes, in whole or in part, at a redemption price equal to 100 % of the principal amount thereof, plus any interest accrued but not paid to, but not including, the date of redemption.
We capitalized $5.3 million of non-lender fees incurred in connection with the 2026 Notes which are included in long-term debt, less current portion on our Consolidated Balance Sheets.
The net proceeds from the offering of the 2026 Notes were used (i) to repurchase the outstanding 4.875 % Senior Notes due 2022 (the “2022 Notes”) tendered pursuant to the tender offer commenced by the Company on September 15, 2021, (ii) to satisfy and discharge all of the remaining outstanding 2022 Notes in accordance with the terms of the indenture governing the 2022 Notes, and (iii) to repay a portion of the U.S. dollar tranche of Term Loan A due 2023. A pre-tax loss of $18.6 million was recognized on the repurchase and cancellation of the 2022 Notes, including a premium of $17.0 million and accelerated amortization of non-lender fees of $1.6 million, within Other (expense) income, net on our Consolidated Statement of Operations during the year ended December 31, 2021.
Additionally, the Company repaid an aggregate principal amount of $177.2 million of the U.S. dollar tranche of Term Loan A due 2023, plus accrued interest of $0.2 million.
Senior Notes
2019 Activity
On November 26, 2019, Sealed Air issued $425 million aggregate principal amount of 4.00 % Senior Notes due 2027. The proceeds were used to repurchase and discharge the Company's $425 million 6.50 % Senior Notes due 2020. The aggregate repurchase price was $452.0 million, which included the principal amount of $425 million, a premium of $15.5 million and accrued interest of $11.5 million. We recognized a pre-tax loss of $16.1 million on the extinguishment, including the premium mentioned above and $1.2 million of accelerated amortization of non-lender fees partially offset by a $0.6 million gain on the settlement of interest rate swaps. We also capitalized $3.5 million of non-lender fees incurred in connection with the 4.00 % Senior Notes due 2027 which are included in long-term debt, less current portion on our Consolidated Balance Sheets.
Amended and Restated Senior Secured Credit Facility
The Company maintains a senior secured credit facility. On August 1, 2019, Sealed Air Corporation, on behalf of itself and certain of its subsidiaries, and Sealed Air Corporation (US) entered into an amendment and incremental assumption agreement (“the Amendment”). The Amendment provided for a new incremental term facility in an aggregate principal amount of $475 million, that was used, in part, to finance the acquisition of Automated Packaging Systems. See Note 5, “Divestiture and Acquisition Activity,” for additional information related to the Automated Packaging Systems acquisition.
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Lines of Credit
The following table summarizes our available lines of credit and committed and uncommitted lines of credit, including the revolving credit facility discussed above, and the amounts available under our accounts receivable securitization programs.
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
Used lines of credit(1) | $ | $ | ||||||||||||
| Unused lines of credit | ||||||||||||||
Total available lines of credit(2) | $ | $ | ||||||||||||
(1)Includes total borrowings under the accounts receivable securitization programs, the revolving credit facility and borrowings under lines of credit available to several subsidiaries.
Covenants
Each issue of our outstanding senior notes imposes limitations on our operations and those of specified subsidiaries. Our Senior Secured Credit Facility contains customary affirmative and negative covenants for credit facilities of this type, including limitations on our indebtedness, liens, investments, restricted payments, mergers and acquisitions, dispositions of assets, transactions with affiliates, amendment of documents and sale leasebacks, and a covenant specifying a maximum leverage ratio to EBITDA. We were in compliance with the above financial covenants and limitations at December 31, 2021 and 2020.
Note 15 Derivatives and Hedging Activities
We report all derivative instruments on our Consolidated Balance Sheets at fair value and establish criteria for designation and effectiveness of transactions entered into for hedging purposes.
As a global organization, we face exposure to market risks, such as fluctuations in foreign currency exchange rates and interest rates. To manage the volatility relating to these exposures, we enter into various derivative instruments from time to time under our risk management policies. We designate derivative instruments as hedges on a transaction basis to support hedge accounting. The changes in fair value of these hedging instruments offset in part or in whole corresponding changes in the fair value or cash flows of the underlying exposures being hedged. We assess the initial and ongoing effectiveness of our hedging relationships in accordance with our policy. We do not purchase, hold or sell derivative financial instruments for trading purposes. Our practice is to terminate derivative transactions if the underlying asset or liability matures or is sold or terminated, or if we determine the underlying forecasted transaction is no longer probable of occurring.
We record the fair value positions of all derivative financial instruments on a net basis by counterparty for which a master netting arrangement is utilized.
Foreign Currency Forward Contracts Designated as Cash Flow Hedges
The primary purpose of our cash flow hedging activities is to manage the potential changes in value associated with the amounts receivable or payable on equipment and raw material purchases that are denominated in foreign currencies in order to minimize the impact of the changes in foreign currencies. We record gains and losses on foreign currency forward contracts qualifying as cash flow hedges in AOCL to the extent that these hedges are effective and until we recognize the underlying transactions in net earnings, at which time we recognize these gains and losses in cost of sales on our Consolidated Statements of Operations. Cash flows from derivative financial instruments designated as cash flow hedges are classified as cash flows from operating activities in the Consolidated Statements of Cash Flows. These contracts generally have original maturities of less than 12 months.
Net unrealized after-tax gains/losses related to cash flow hedging activities included in AOCL were a $4.5 million gain, a $1.6 million loss and a $2.8 million loss for the years ended December 31, 2021, 2020 and 2019, respectively. The unrealized amount in AOCL will fluctuate based on changes in the fair value of open contracts during each reporting period.
We estimate that $1.6 million of net unrealized gains related to cash flow hedging activities included in AOCL will be reclassified into earnings within the next twelve months.
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Foreign Currency Forward Contracts Not Designated as Hedges
Our subsidiaries have foreign currency exchange exposure from buying and selling in currencies other than their functional currencies. The primary purposes of our foreign currency hedging activities are to manage the potential changes in value associated with the amounts receivable or payable on transactions denominated in foreign currencies and to minimize the impact of the changes in foreign currencies related to foreign currency-denominated interest-bearing intercompany loans and receivables and payables. The changes in fair value of these derivative contracts are recognized in other (expense) income, net, on our Consolidated Statements of Operations and are largely offset by the remeasurement of the underlying foreign currency-denominated items indicated above. Cash flows from derivative financial instruments not designated as hedges are classified as cash flows from investing activities in the Consolidated Statements of Cash Flows. These contracts generally have original maturities of less than 12 months.
Interest Rate Swaps
From time to time, we may use interest rate swaps to manage our fixed and floating interest rates on our outstanding indebtedness. At December 31, 2021 and 2020, we had no
Net Investment Hedge
The €400.0 million 4.50 % notes issued in June 2015 are designated as a net investment hedge, hedging a portion of our net investment in a certain European subsidiary against fluctuations in foreign exchange rates. The decrease in the translated value of the debt was $3.1 million ($2.3 million net of tax) as of December 31, 2021, and is reflected in AOCL on our Consolidated Balance Sheets.
For derivative instruments that are designated and qualify as hedges of net investments in foreign operations, changes in fair values of the derivative instruments are recognized in unrealized net gain or loss on derivative instruments for net investment hedge, a component of AOCL, net of taxes, to offset the changes in the values of the net investments being hedged. Any portion of the net investment hedge that is determined to be ineffective is recorded in other (expense) income, net on the Consolidated Statements of Operations.
Other Derivative Instruments
We may use other derivative instruments from time to time to manage exposure to foreign exchange rates and to access international financing transactions. These instruments can potentially limit foreign exchange exposure by swapping borrowings denominated in one currency for borrowings denominated in another currency.
Fair Value of Derivative Instruments
See Note 16, “Fair Value Measurements, Equity Investments and Other Financial Instruments,” of the Notes for a discussion of the inputs and valuation techniques used to determine the fair value of our outstanding derivative instruments.
The following table details the fair value of our derivative instruments included on our Consolidated Balance Sheets.
| Cash Flow Hedge | Non-Designated as Hedging Instruments | Total | ||||||||||||||||||||||||||||||||||||
| December 31, | December 31, | December 31, | ||||||||||||||||||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2021 | 2020 | 2021 | 2020 | ||||||||||||||||||||||||||||||||
| Derivative Assets | ||||||||||||||||||||||||||||||||||||||
| Foreign currency forward contracts and options | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||
| Total Derivative Assets | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||
| Derivative Liabilities | ||||||||||||||||||||||||||||||||||||||
Foreign currency forward contracts | $ | ( | $ | ( | $ | ( | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||||||||
Total Derivative Liabilities(1) | $ | ( | $ | ( | $ | ( | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||||||||
Net Derivatives (2) | $ | $ | ( | $ | $ | $ | $ | |||||||||||||||||||||||||||||||
(1)Excludes €400.0 million of euro-denominated debt ($451.9 million equivalent at December 31, 2021 and $490.2 million equivalent at December 31, 2020), which is designated as a net investment hedge.
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(2)The following table reconciles gross positions without the impact of master netting agreements to the balance sheet classification:
| Other Current Assets | Other Current Liabilities | |||||||||||||||||||||||||
| December 31, | December 31, | |||||||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2021 | 2020 | ||||||||||||||||||||||
| Gross position | $ | $ | $ | ( | $ | ( | ||||||||||||||||||||
Impact of master netting agreements | ( | ( | ||||||||||||||||||||||||
Net amounts recognized on the Consolidated Balance Sheets | $ | $ | $ | ( | $ | ( | ||||||||||||||||||||
The following table details the effect of our derivative instruments on our Consolidated Statements of Operations.
| Location of Gain (Loss) Recognized on | Amount of Gain (Loss) Recognized in Earnings on Derivatives | |||||||||||||||||||||||||
| Consolidated Statements of Operations | Year Ended December 31, | |||||||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||||||||
| Derivatives designated as hedging instruments: | ||||||||||||||||||||||||||
| Cash Flow Hedges: | ||||||||||||||||||||||||||
| Foreign currency forward contracts | Cost of sales | $ | ( | $ | ( | $ | ||||||||||||||||||||
| Treasury locks | Interest expense, net | |||||||||||||||||||||||||
| Sub-total cash flow hedges | ( | ( | ||||||||||||||||||||||||
| Fair Value Hedges: | ||||||||||||||||||||||||||
| Interest rate swaps | Interest expense, net | |||||||||||||||||||||||||
| Derivatives not designated as hedging instruments: | ||||||||||||||||||||||||||
| Foreign currency forward contracts and options | Other (expense) income, net | ( | ||||||||||||||||||||||||
| Total | $ | $ | $ | ( | ||||||||||||||||||||||
Note 16 Fair Value Measurements, Equity Investments and Other Financial Instruments
Fair Value Measurements
Fair value represents the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. There are three levels to the fair value hierarchy as follows:
Level 1 - observable inputs that reflect quoted prices (unadjusted) for identical assets or liabilities in active markets;
Level 2 - inputs other than quoted prices included in Level 1 that are observable for the asset or liability either directly or indirectly; and
Level 3 - unobservable inputs for which there is little or no market data, which may require the reporting entity to develop its own assumptions.
The fair value, measured on a recurring basis, of our financial instruments, using the fair value hierarchy under U.S. GAAP are included in the table below.
| December 31, 2021 | ||||||||||||||||||||||||||
| (In millions) | Total Fair Value | Level 1 | Level 2 | Level 3 | ||||||||||||||||||||||
| Cash equivalents | $ | $ | $ | $ | ||||||||||||||||||||||
| Derivative financial and hedging instruments net asset: | ||||||||||||||||||||||||||
| Foreign currency forward contracts | $ | $ | $ | $ | ||||||||||||||||||||||
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| December 31, 2020 | ||||||||||||||||||||||||||
| (In millions) | Total Fair Value | Level 1 | Level 2 | Level 3 | ||||||||||||||||||||||
| Cash equivalents | $ | $ | $ | $ | ||||||||||||||||||||||
| Derivative financial and hedging instruments net asset: | ||||||||||||||||||||||||||
| Foreign currency forward and option contracts | $ | $ | $ | $ | ||||||||||||||||||||||
Cash equivalents - Our cash equivalents consisted of bank time deposits. Since these are short-term highly liquid investments with remaining maturities of 3 months or less, they present negligible risk of changes in fair value due to changes in interest rates and are classified as Level 1 financial instruments.
Derivative financial instruments - Our foreign currency forward contracts, foreign currency options, interest rate swaps and cross-currency swaps are recorded at fair value on our Consolidated Balance Sheets using a discounted cash flow analysis that incorporates observable market inputs. These market inputs include foreign currency spot and forward rates, and various interest rate curves, and are obtained from pricing data quoted by various banks, third-party sources and foreign currency dealers involving identical or comparable instruments. Such financial instruments are classified as Level 2.
Counterparties to these foreign currency forward contracts have at least an investment grade rating. Credit ratings on some of our counterparties may change during the term of our financial instruments. We closely monitor our counterparties’ credit ratings and, if necessary, will make any appropriate changes to our financial instruments. The fair value generally reflects the estimated amounts that we would receive or pay to terminate the contracts at the reporting date.
Foreign currency forward contracts and options are included in Prepaid expenses and other current assets and Other current liabilities on the Consolidated Balance Sheets as of December 31, 2021 and 2020.
Equity Investments
SEE maintains equity investments in companies which are accounted for under the measurement alternative described in ASC 321-10-35-2 ("ASC 321") for equity investments that do not have readily determinable fair values. We do not exercise significant influence over these companies. The following carrying value of these investments were included within Other non-current assets in our Consolidated Balance Sheets.
| December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Carrying value at the beginning of period | $ | $ | $ | |||||||||||||||||
| Purchases | ||||||||||||||||||||
| Impairments or downward adjustments | ||||||||||||||||||||
| Upward adjustments | ||||||||||||||||||||
| Currency translation on investments | ( | |||||||||||||||||||
| Carrying value at the end of period | $ | $ | $ | |||||||||||||||||
During the third quarter of 2021, SEE recorded an upward adjustment of $6.6 million, based on the valuation of additional equity issued by an investee which was deemed to be an observable transaction of a similar investment under ASC 321. The gain was recorded within Other (expense) income, net on the Consolidated Statements of Operations.
During the fourth quarter of 2020, SEE made an additional investment in one of our investees of $5.7 million, based on the balance sheet foreign exchange rate as of December 31, 2020. The equity issuance by the investee was subject to customary regulatory and statutory approval which was received during the first quarter of 2021. Upon approval, this investment converted to equity and is held as an equity investment valued under the measurement alternative in ASC 321.
Additionally, during the second quarter of 2021, SEE made an additional investment in another investee of $9.0 million. The investment continues to be accounted for under the measurement alternative of ASC 321, and SEE did not gain significant influence over the investee with the subsequent investment.
There have been no cumulative impairments or downward adjustments on any equity investments above, as of December 31, 2021. The cumulative upward adjustments of the equity investments was $21.7 million and $15.1 million as of December 31, 2021 and 2020, respectively.
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Other Financial Instruments
The following financial instruments are recorded at fair value or at amounts that approximate fair value: (1) trade receivables, net, (2) certain other current assets, (3) accounts payable and (4) other current liabilities. The carrying amounts reported on our Consolidated Balance Sheets for the above financial instruments closely approximate their fair value due to the short-term nature of these assets and liabilities.
Other liabilities that are recorded at carrying value on our Consolidated Balance Sheets include our credit facilities and senior notes. We utilize a market approach to calculate the fair value of our senior notes. Due to their limited investor base and the face value of some of our senior notes, they may not be actively traded on the date we calculate their fair value. Therefore, we may utilize prices and other relevant information generated by market transactions involving similar securities, reflecting U.S. Treasury yields to calculate the yield to maturity and the price on some of our senior notes. These inputs are provided by an independent third party and are considered to be Level 2 inputs.
We derive our fair value estimates of our various other debt instruments by evaluating the nature and terms of each instrument, considering prevailing economic and market conditions, and examining the cost of similar debt offered at the balance sheet date. We also incorporated our credit default swap rates and currency specific swap rates in the valuation of each debt instrument, as applicable.
These estimates are subjective and involve uncertainties and matters of significant judgment, and therefore we cannot determine them with precision. Changes in assumptions could significantly affect our estimates.
The table below shows the carrying amounts and estimated fair values of our debt, excluding our lease liabilities:
| December 31, 2021 | December 31, 2020 | |||||||||||||||||||||||||||||||
| (In millions) | Interest rate | Carrying Amount | Fair Value | Carrying Amount | Fair Value | |||||||||||||||||||||||||||
| Term Loan A Facility due August 2022 | $ | $ | $ | $ | ||||||||||||||||||||||||||||
Term Loan A Facility due July 2023(1) | ||||||||||||||||||||||||||||||||
| Senior Notes due December 2022 | % | |||||||||||||||||||||||||||||||
| Senior Notes due April 2023 | % | |||||||||||||||||||||||||||||||
Senior Notes due September 2023(1) | % | |||||||||||||||||||||||||||||||
| Senior Notes due December 2024 | % | |||||||||||||||||||||||||||||||
| Senior Notes due September 2025 | % | |||||||||||||||||||||||||||||||
| Senior Secured Notes due October 2026 | % | |||||||||||||||||||||||||||||||
| Senior Notes due December 2027 | % | |||||||||||||||||||||||||||||||
| Senior Notes due July 2033 | % | |||||||||||||||||||||||||||||||
Other foreign borrowings(1) | ||||||||||||||||||||||||||||||||
| Other domestic borrowings | ||||||||||||||||||||||||||||||||
Total debt(2) | $ | $ | $ | $ | ||||||||||||||||||||||||||||
(1)Includes borrowings denominated in currencies other than U.S. dollars.
(2)The carrying amount and estimated fair value of debt exclude lease liabilities.
In addition to the table above, the Company remeasures amounts related to certain equity compensation that are carried at fair value on a recurring basis in the Consolidated Financial Statements or for which a fair value measurement was required. Refer to Note 21, “Stockholders’ (Deficit) Equity,” for additional detail on share-based compensation. Included among our non-financial assets and liabilities that are not required to be measured at fair value on a recurring basis are inventories, net property and equipment, goodwill, intangible assets and asset retirement obligations.
Credit and Market Risk
Financial instruments, including derivatives, expose us to counterparty credit risk for nonperformance and to market risk related to changes in interest or currency exchange rates. We manage our exposure to counterparty credit risk through specific minimum credit standards, establishing credit limits, diversification of counterparties, and procedures to monitor concentrations of credit risk.
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We do not expect any of our counterparties in derivative transactions to fail to perform as it is our policy to have counterparties to these contracts that have at least an investment grade rating. Nevertheless, there is a risk that our exposure to losses arising out of derivative contracts could be material if the counterparties to these agreements fail to perform their obligations. We will replace counterparties if a credit downgrade is deemed to increase our risk to unacceptable levels.
We regularly monitor the impact of market risk on the fair value and cash flows of our derivative and other financial instruments considering reasonably possible changes in interest and currency exchange rates and restrict the use of derivative financial instruments to hedging activities. We do not use derivative financial instruments for trading or other speculative purposes and do not use leveraged derivative financial instruments.
We continually monitor the creditworthiness of our diverse base of customers to which we grant credit terms in the normal course of business and generally do not require collateral. We consider the concentrations of credit risk associated with our trade accounts receivable to be commercially reasonable and believe that such concentrations do not leave us vulnerable to significant risks of near-term severe adverse impacts. The terms and conditions of our credit sales are designed to mitigate concentrations of credit risk with any single customer. Our sales are not materially dependent on a single customer or a small group of customers.
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Note 17 Profit Sharing, Retirement Savings Plans and Defined Benefit Pension Plans
Profit Sharing and Retirement Savings Plans
We have a qualified non-contributory profit sharing plan covering most of our U.S. employees. Contributions to this plan, which are made at the discretion of our Board of Directors, may be made in cash, shares of our common stock, or in a combination of cash and shares of our common stock. We also maintain a qualified contributory retirement savings plan in which most of our U.S. employees are eligible to participate. The qualified contributory retirement savings plans generally provide for our contributions in cash based upon the amount contributed to the plans by the participants.
The expense associated with our contributions to the U.S. profit sharing plan and retirement savings plan are charged to operations and amounted to $42.5 million in 2021, $46.3 million in 2020 and $39.3 million in 2019. In 2021, 633,875 shares were contributed as part of our contribution to the profit sharing plan related to 2020; in 2020, 823,567 shares were contributed as part of our contribution to the profit sharing plan related to 2019, and in 2019, 487,108 shares were contributed as part of our contribution to the profit sharing plan related to 2018. These shares were issued out of treasury stock.
We have various international defined contribution benefit plans which cover certain employees. We have expanded use of these plans in select countries where they have been used to supplement or replace defined benefit plans.
Defined Benefit Pension Plans
We recognize the funded status of each defined pension benefit plan as the difference between the fair value of plan assets and the projected benefit obligation of the employee benefit plans in the Consolidated Balance Sheets, with a corresponding adjustment to accumulated other comprehensive loss, net of taxes. Each overfunded plan is recognized as an asset and each underfunded plan is recognized as a liability on our Consolidated Balance Sheets. Subsequent changes in the funded status are reflected on the Consolidated Balance Sheets in unrecognized pension items, a component of AOCL, which are included in total stockholders’ equity. The amount of unamortized pension items is recorded net of tax.
We amortize actuarial gains or losses over the average future working lifetime (or remaining lifetime of inactive participants if there are no active participants). We use the corridor method, where the corridor is the greater of ten percent of the projected benefit obligation or fair value of assets at year end. If actuarial gains or losses do not exceed the corridor, then there is no amortization of gain or loss.
The following table shows the components of our net periodic benefit (income) cost and cost of special events related to our pension plans for the three years ended December 31:
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Net periodic benefit cost (income): | ||||||||||||||||||||
U.S. and international net periodic benefit cost included in cost of sales(1) | $ | $ | $ | |||||||||||||||||
U.S. and international net periodic benefit cost included in selling, general and administrative expenses | ||||||||||||||||||||
| U.S. and international net periodic benefit income and cost of special events included in other (income) expense | ( | ( | ( | |||||||||||||||||
| Total benefit (income) cost | $ | ( | $ | $ | ( | |||||||||||||||
(1)The amount recorded in inventory for the years ended December 31, 2021, 2020 and 2019 was not material.
A number of our U.S. employees, including some employees who are covered by collective bargaining agreements, participate in defined benefit pension plans. Some of our international employees participate in defined benefit pension plans in their respective countries. The following table presents our funded status for 2021 and 2020 for our U.S. and international pension plans. The measurement date used to determine benefit obligations and plan assets is December 31 for all material plans.
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| December 31, 2021 | December 31, 2020 | |||||||||||||||||||||||||||||||||||||
| (In millions) | U.S. | International | Total | U.S. | International | Total | ||||||||||||||||||||||||||||||||
| Change in benefit obligation: | ||||||||||||||||||||||||||||||||||||||
Projected benefit obligation at beginning of period | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||
| Service cost | ||||||||||||||||||||||||||||||||||||||
| Interest cost | ||||||||||||||||||||||||||||||||||||||
| Actuarial (gain) loss | ( | ( | ( | |||||||||||||||||||||||||||||||||||
| Settlement | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||
| Benefits paid | ( | ( | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||
| Employee contributions | ||||||||||||||||||||||||||||||||||||||
Other | ( | ( | ||||||||||||||||||||||||||||||||||||
| Foreign exchange impact | ( | ( | ||||||||||||||||||||||||||||||||||||
| Projected benefit obligation at end of period | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||
| Change in plan assets: | ||||||||||||||||||||||||||||||||||||||
| Fair value of plan assets at beginning of period | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||
| Actual return on plan assets | ||||||||||||||||||||||||||||||||||||||
| Employer contributions | ||||||||||||||||||||||||||||||||||||||
| Employee contributions | ||||||||||||||||||||||||||||||||||||||
| Benefits paid | ( | ( | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||
| Settlement | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||
| Other | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||
| Foreign exchange impact | ( | ( | ||||||||||||||||||||||||||||||||||||
| Fair value of plan assets at end of period | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||
| Underfunded status at end of year | $ | ( | $ | ( | $ | ( | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||||||||
| Accumulated benefit obligation at end of year | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||
Actuarial gains resulting in a decrease to our projected benefit obligation for the year ended December 31, 2021 were primarily due to an increase in weighted average discount rates for our U.S. and International plans of 40 basis points and 50 basis points, respectively. Actuarial losses resulting in an increase to our projected benefit obligation for the year ended December 31, 2020 were primarily due to a reduction in weighted average discount rates for our U.S. and International plans of 90 basis points and 50 basis points, respectively.
Amounts included in the Consolidated Balance Sheets are summarized in the following table:
| December 31, 2021 | December 31, 2020 | |||||||||||||||||||||||||||||||||||||
| (In millions) | U.S. | International | Total | U.S. | International | Total | ||||||||||||||||||||||||||||||||
| Other non-current assets | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||
| Other current liabilities | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||
| Other non-current liabilities | ( | ( | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||
Net amount recognized(1) | $ | ( | $ | ( | $ | ( | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||||||||
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| December 31, 2021 | December 31, 2020 | December 31, 2019 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| (In millions) | U.S. | International | Total | U.S. | International | Total | U.S. | International | Total | |||||||||||||||||||||||||||||||||||||||||||||||
Components of net periodic benefit (income) cost: | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Service cost | $ | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||||||||||||||||||||
| Interest cost | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Expected return on plan assets | ( | ( | ( | ( | ( | ( | ( | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||
Amortization of net prior service cost | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Amortization of net actuarial loss | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Net periodic benefit (income) cost | ( | ( | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||
Cost of settlement | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total benefit (income) cost | $ | ( | $ | $ | ( | $ | ( | $ | $ | $ | $ | ( | $ | ( | ||||||||||||||||||||||||||||||||||||||||||
The amounts included in AOCL that have not yet been recognized as components of net periodic benefit cost at December 31, 2021 and 2020 are:
| December 31, 2021 | December 31, 2020 | |||||||||||||||||||||||||||||||||||||
| (In millions) | U.S. | International | Total | U.S. | International | Total | ||||||||||||||||||||||||||||||||
| Unrecognized net prior service costs | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||
| Unrecognized net actuarial loss | ||||||||||||||||||||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||
Changes in plan assets and benefit obligations recognized in AOCL for the year ended December 31, 2021 and 2020 were as follows:
| December 31, 2021 | December 31, 2020 | |||||||||||||||||||||||||||||||||||||
| (In millions) | U.S. | International | Total | U.S. | International | Total | ||||||||||||||||||||||||||||||||
| Current year actuarial (gain) loss | $ | ( | $ | ( | $ | ( | $ | $ | $ | |||||||||||||||||||||||||||||
| Prior year service cost occurring during the year | ||||||||||||||||||||||||||||||||||||||
| Amortization of actuarial loss | ( | ( | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||
| Amortization of prior service cost | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||
| Settlement | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||
| Total | $ | ( | $ | ( | $ | ( | $ | $ | $ | |||||||||||||||||||||||||||||
Information for plans with accumulated benefit obligations in excess of plan assets as of December 31, 2021 and 2020 are as follows:
| December 31, 2021 | December 31, 2020 | |||||||||||||||||||||||||||||||||||||
| (In millions) | U.S. | International | Total | U.S. | International | Total | ||||||||||||||||||||||||||||||||
| Accumulated benefit obligation | ||||||||||||||||||||||||||||||||||||||
| Fair value of plan assets | ||||||||||||||||||||||||||||||||||||||
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| December 31, 2021 | December 31, 2020 | |||||||||||||||||||||||||||||||||||||
| (In millions) | U.S. | International | Total | U.S. | International | Total | ||||||||||||||||||||||||||||||||
| Projected benefit obligation | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||
Fair value of plan assets(1) | ||||||||||||||||||||||||||||||||||||||
(1)As of December 31, 2021, the projected benefit obligation for one of our international plans exceeded the fair value of plan assets and is included in this table. However, the corresponding accumulated benefit obligation was not in excess of the fair value of the plan assets, and as such is excluded from the preceding table.
Actuarial Assumptions
Weighted average assumptions used to determine benefit obligations at December 31, 2021 and 2020 were as follows:
| December 31, 2021 | December 31, 2020 | |||||||||||||||||||||||||
| U.S. | International | U.S. | International | |||||||||||||||||||||||
| Benefit obligations | ||||||||||||||||||||||||||
| Discount rate | % | % | % | % | ||||||||||||||||||||||
| Rate of compensation increase | N/A | % | N/A | % | ||||||||||||||||||||||
| Cash balance interest credit rate | % | % | % | % | ||||||||||||||||||||||
Weighted average assumptions used to determine net periodic benefit cost for the years ended December 31, were as follows:
| December 31, 2021 | December 31, 2020 | December 31, 2019 | ||||||||||||||||||||||||||||||||||||
| U.S. | International | U.S. | International | U.S. | International | |||||||||||||||||||||||||||||||||
| Net periodic benefit cost | ||||||||||||||||||||||||||||||||||||||
| Discount rate | % | % | % | % | % | % | ||||||||||||||||||||||||||||||||
| Expected long-term rate of return | % | % | % | % | % | % | ||||||||||||||||||||||||||||||||
| Rate of compensation increase | N/A | % | N/A | % | N/A | % | ||||||||||||||||||||||||||||||||
| Cash balance interest credit rate | % | % | % | % | % | % | ||||||||||||||||||||||||||||||||
Estimated Future Benefit Payments
We expect the following estimated future benefit payments, which reflect expected future service as appropriate, to be paid in the years indicated:
Amount (In millions) | ||||||||||||||||||||
| Year | U.S. | International | Total | |||||||||||||||||
| 2022 | $ | $ | $ | |||||||||||||||||
| 2023 | ||||||||||||||||||||
| 2024 | ||||||||||||||||||||
| 2025 | ||||||||||||||||||||
| 2026 | ||||||||||||||||||||
| 2027 to 2031 (combined) | ||||||||||||||||||||
| Total | $ | $ | $ | |||||||||||||||||
Plan Assets
We review the expected long-term rate of return on plan assets annually, taking into consideration our asset allocation, historical returns, and the current economic environment. The expected return on plan assets is calculated based on the fair value of plan assets at year end. To determine the expected return on plan assets, expected cash flows have been taken into account.
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Our long-term objectives for plan investments are to ensure that (a) there is an adequate level of assets to support benefit obligations to participants over the life of the plans, (b) there is sufficient liquidity in plan assets to cover current benefit obligations, and (c) there is a high level of investment return consistent with a prudent level of investment risk. The investment strategy is focused on a long-term total return in excess of a pure fixed income strategy with short-term volatility less than that of a pure equity strategy. To accomplish these objectives, in many instances the plan assets are invested on a glide-path which reduces the exposure to return-seeking assets as the plan's funded status increases. Overall, we invest assets primarily in a diversified mix of equity and fixed income investments. For our U.S. plan, the target asset allocation includes approximately 65 % in return seeking assets, which are primarily comprised of global equities. The remainder of the assets in the U.S. plan are comprised of liability hedging assets which are primarily fixed income investments.
In some of our international pension plans, we have purchased bulk annuity contracts (buy-ins). These annuity contracts provide cash flows that match the future benefit payments for a specific group of pensioners. These contacts are issued by third party insurance companies with no affiliation to Sealed Air. Insurance companies from which we purchase the annuity contracts are assessed as credit worthy. As of December 31, 2021 and 2020, buy-ins represented $135.1 million and $131.2 million of total plan assets, respectively. The value of these assets is actuarially determined based on the present value of the underlying liabilities.
We currently expect our contributions to the pension plans to be approximately $5.1 million in 2022. Additionally, we expect benefits paid directly by the Company related to our defined benefit pension plans to be $4.2 million in 2022.
The fair values of our U.S. and international pension plan assets, by asset category and by the level of fair values are as follows:
| December 31, 2021 | December 31, 2020 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total | Total | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| (In millions) | Fair Value | Level 1 | Level 2 | Level 3 | NAV(5) | Fair Value | Level 1 | Level 2 | Level 3 | NAV(5) | ||||||||||||||||||||||||||||||||||||||||||||||||||||
Cash and cash equivalents(1) | $ | $ | $ | $ | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||||||||||||||||||||||
Fixed income funds(2)(6) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Equity funds(3) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Other(4) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||||||||||||||||||||||
(1)Short-term investment fund that invests in a collective trust that holds short-term highly liquid investments with principal preservation and daily liquidity as its primary objectives. Investments are primarily comprised of certificates of deposit, government securities, commercial paper, and time deposits.
(2)Fixed income funds that invest in a diversified portfolio primarily consisting of publicly traded government bonds and corporate bonds. There are no restrictions on these investments, and they are valued at the net asset value of shares held at year end.
(3)Equity funds that invest in a diversified portfolio of publicly traded domestic and international common stock. There are no restrictions on these investments, and they are valued at the net asset value of shares held at year end.
(4)The largest component of other assets are bulk annuity contracts (buy-ins). The other assets also include real estate and other alternative investments.
(5)These assets are measured at Net Asset Value (NAV) as a practical expedient under ASC 820.
(6)The December 31, 2020 value for one specific fixed income fund has been reclassified to reflect a change in leveling classification. The change in classification did not impact the fair value of the fund.
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| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Balance at beginning of period | $ | $ | ||||||||||||
| Gain on assets still held at end of year | ||||||||||||||
| Loss on assets sold during the year | ( | |||||||||||||
| Purchases, sales, issuance, and settlements | ||||||||||||||
| Foreign exchange (loss) gain | ( | |||||||||||||
| Balance at end of period | $ | $ | ||||||||||||
Note 18 Other Post-Employment Benefits and Other Employee Benefit Plans
In addition to providing pension benefits, we maintain two Other Post-Employment Benefit Plans which provide a portion of healthcare, dental, vision and life insurance benefits for certain retired legacy employees. These plans are in the U.S. and Canada. Covered employees who retired on or after attaining age 55 and who had rendered at least 10 years of service were entitled to post-retirement healthcare, dental and life insurance benefits. These benefits are subject to deductibles, co-payment provisions and other limitations. The information below relates to these two plans.
Contributions made by us, net of Medicare Part D subsidies received in the U.S., are reported below as benefits paid. We may change the benefits at any time. The status of these plans, including a reconciliation of benefit obligations, a reconciliation of plan assets and the funded status of the plans, follows:
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Change in benefit obligations: | ||||||||||||||
| Benefit obligation at beginning of period | $ | $ | ||||||||||||
| Interest cost | ||||||||||||||
| Actuarial (gain) loss | ( | |||||||||||||
| Benefits paid, net | ( | ( | ||||||||||||
| Benefit obligation at end of period | $ | $ | ||||||||||||
| Change in plan assets: | ||||||||||||||
| Fair value of plan assets at beginning of period | $ | $ | ||||||||||||
| Employer contribution | ||||||||||||||
| Benefits paid, net | ( | ( | ||||||||||||
| Fair value of plan assets at end of period | $ | $ | ||||||||||||
| Net amount recognized: | ||||||||||||||
| Underfunded status | $ | ( | $ | ( | ||||||||||
| Accumulated benefit obligation at end of year | $ | $ | ||||||||||||
| Net amount recognized in consolidated balance sheets consists of: | ||||||||||||||
| Current liability | $ | ( | $ | ( | ||||||||||
| Non-current liability | ( | ( | ||||||||||||
| Net amount recognized | $ | ( | $ | ( | ||||||||||
Amounts recognized in accumulated other comprehensive loss consist of: | ||||||||||||||
| Net actuarial loss | $ | $ | ||||||||||||
| Prior service credit | ( | ( | ||||||||||||
| Total | $ | ( | $ | ( | ||||||||||
Actuarial gains resulting in a decrease to our projected benefit obligation for the year ended December 31, 2021 were primarily due to an increase in the weighted average discount rate of 50 basis points. Actuarial losses resulting in an increase to our projected benefit obligation for the year ended December 31, 2020 were primarily due to a reduction in the weighted average discount rate of 90 basis points. The accumulated post-retirement benefit obligations were determined using a weighted-average discount rate of 2.7 % at December 31, 2021 and 2.2 % at December 31, 2020.
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The components of net periodic benefit cost were as follows:
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Components of net periodic benefit cost: | ||||||||||||||||||||
| Interest cost | ||||||||||||||||||||
| Amortization of net gain | ( | ( | ( | |||||||||||||||||
| Amortization of prior service credit | ( | ( | ( | |||||||||||||||||
| Net periodic benefit cost | $ | $ | $ | |||||||||||||||||
| Impact of settlement/curtailment | ||||||||||||||||||||
| Total benefit cost for fiscal year | $ | $ | $ | |||||||||||||||||
The amortization of any prior service cost is determined using a straight-line amortization of the cost over the average remaining service period of employees expected to receive benefits under the plan. Changes in benefit obligations that were recognized in AOCL for the years ended December 31, 2021 and December 31, 2020 were as follows:
| December 31, 2021 | December 31, 2020 | |||||||||||||||||||||||||||||||||||||
| (In millions) | U.S. | International | Total | U.S. | International | Total | ||||||||||||||||||||||||||||||||
| Current year actuarial (gain) loss | $ | ( | $ | $ | ( | $ | $ | $ | ||||||||||||||||||||||||||||||
| Amortization of actuarial gain | ||||||||||||||||||||||||||||||||||||||
| Amortization of prior service credit | ||||||||||||||||||||||||||||||||||||||
| Total | $ | ( | $ | $ | ( | $ | $ | $ | ||||||||||||||||||||||||||||||
Healthcare Cost Trend Rates
The assumed healthcare cost trend rates have an effect on the amounts recognized in our Consolidated Statements of Operations for the healthcare plans. For the year ended December 31, 2021, healthcare cost trend rates were assumed to be 6.5 % for the U.S. plan and 5.0 % for the Canada plan. The trend rates assumed for 2022 are 6.5 % and 5.0 % for the U.S. and Canada plan, respectively. Rates are expected to decrease to 5.0 % by 2028 for the U.S. plan, and remain unchanged in future years for the Canada plan.
Expected post-retirement benefits (net of Medicare Part D subsidies) for each of the next five years and succeeding five years are as follows:
| Year | Amount (In millions) | |||||||
| 2022 | $ | |||||||
| 2023 | ||||||||
| 2024 | ||||||||
| 2025 | ||||||||
| 2026 | ||||||||
| 2027 to 2031 (combined) | ||||||||
| Total | $ | |||||||
Note 19 Income Taxes
In 2021, 2020 and 2019, we recorded tax provisions of $225.0 million, $142.1 million and $76.6 million, respectively. Cash tax payments, net of refunds were $112.6 million, $102.0 million and $94.7 million for 2021, 2020 and 2019, respectively.
Tax Cuts and Jobs Act
The Tax Cuts and Jobs Act of 2017 (“2017 Tax Act”) provides for a territorial tax system, and includes the global intangible low-taxed income (“GILTI”) provision. The Company has elected to account for GILTI tax in the period in which it is incurred.
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Subject to certain exceptions, the GILTI provisions require the Company to include in its U.S. income tax return the earnings of a foreign subsidiary which are in excess of an allowable return on the foreign subsidiary’s tangible assets.
In the fourth quarter of 2019, as part of our Reinvent SEE business transformation and in order to align our structure with our evolving global operations, we transferred certain intangible assets between wholly-owned subsidiaries. The transfer resulted in the establishment of a deferred tax asset and the corresponding recognition of deferred tax benefit of $49 million.
Coronavirus Aid, Relief and Economic Security Act and Issuance of 2020 Tax Regulations
In response to the COVID-19 pandemic, the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) was signed into law in March 2020. Among other things, the CARES Act raises certain deduction limitations originally imposed by the 2017 Tax Act.
Taxpayers may generally deduct interest expense up to the sum of 50% of adjusted taxable income plus business interest income (30% limit under the 2017 Tax Act) for 2020 and 2019. We had no Federal disallowed interest expense in 2020 and 2019. The limit reverted to 30% of adjusted taxable income in 2021, however the reduced limit did not result in a disallowance in 2021.
In July 2020, the U.S. Department of Treasury issued final tax regulations with respect to the GILTI proposed tax regulations originally published in 2019. Among other changes, these regulations now permit an election to exclude from the GILTI calculation items of income which are subject to a high effective rate of foreign tax. We adopted these final regulations and recorded the net benefit in 2020.
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Domestic | $ | $ | $ | |||||||||||||||||
| Foreign | ||||||||||||||||||||
| Total | $ | $ | $ | |||||||||||||||||
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The components of our income tax provision were as follows:
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Current tax expense: | ||||||||||||||||||||
| Federal | $ | $ | ( | $ | ||||||||||||||||
| State and local | ||||||||||||||||||||
| Foreign | ||||||||||||||||||||
| Total current expense | $ | $ | $ | |||||||||||||||||
| Deferred tax expense (benefit): | ||||||||||||||||||||
| Federal | $ | $ | $ | ( | ||||||||||||||||
| State and local | ||||||||||||||||||||
| Foreign | ( | |||||||||||||||||||
| Total deferred tax expense (benefit) | ( | |||||||||||||||||||
| Total income tax provision | $ | $ | $ | |||||||||||||||||
Deferred tax assets (liabilities) consist of the following:
| December 31, | ||||||||||||||
| (In millions) | 2021 | 2020 | ||||||||||||
| Accruals not yet deductible for tax purposes | $ | $ | ||||||||||||
| Net operating loss carryforwards | ||||||||||||||
| Foreign, federal and state credits | ||||||||||||||
| Employee benefit items | ||||||||||||||
| Capitalized expenses | ||||||||||||||
| Intangibles | ||||||||||||||
| Derivatives and other | ||||||||||||||
| Sub-total deferred tax assets | ||||||||||||||
| Valuation allowance | ( | ( | ||||||||||||
| Total deferred tax assets | $ | $ | ||||||||||||
| Depreciation and amortization | $ | ( | $ | ( | ||||||||||
| Unremitted foreign earnings | ( | |||||||||||||
| Intangible assets | ||||||||||||||
| Other | ( | ( | ||||||||||||
| Total deferred tax liabilities | ( | ( | ||||||||||||
| Net deferred tax assets | $ | $ | ||||||||||||
Valuation allowances have been provided based on the uncertainty of realizing the tax benefits of certain deferred tax assets, primarily:
•$179.6 million of foreign items, primarily net operating losses; and
•$6.2 million of tax credits.
For the year ended December 31, 2021, the valuation allowances decreased by $17.5 million. The change is primarily driven by foreign exchange revaluation on foreign net operating losses, offset by a net increase attributable to certain APAC entities.
As of December 31, 2021, we have foreign net operating loss carryforwards of $830.3 million expiring in years beginning in 2022, with the large majority of losses having an unlimited carryover. The state net operating loss carryforwards totaling $368.4 million expire in various amounts over 1 to 19 years.
As of December 31, 2021, we have $1.7 million of federal tax credit carryforwards and $5.9 million of state credit carryovers expiring in 2022 – 2028. Most of the credit carryovers have a valuation allowance.
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The Company has indefinitely reinvested most of its foreign earnings, which are the principal component of U.S. and foreign outside basis differences. The total amount of unremitted foreign earnings is approximately $5.0 billion upon which the U.S. federal income tax effect has largely been recorded as a result of the one-time mandatory tax on previously deferred foreign earnings of foreign subsidiaries provision (“Transition Tax”) associated with the 2017 Tax Act. Remitting these foreign earnings would result in additional foreign and U.S. income tax consequences, the net tax costs of which are not practicable to determine. As SEE has evaluated its worldwide business under the Reinvent SEE business transformation, the Company has reorganized and simplified its structure in order to align its business operations and optimize cash balances in certain jurisdictions. While the Company continues to evaluate potential future cash repatriations and optimization strategies, no deferred tax liability for future distributions has been recorded as of December 31, 2021.
We have no outstanding liability with respect to Transition Tax.
A reconciliation of the provision for income taxes, with the amount computed by applying the statutory federal income tax rate, 21%, to income before provision for income taxes, is as follows:
| Year Ended December 31, | ||||||||||||||||||||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||||||||||||||||||||
| Computed expected tax | $ | % | $ | % | $ | % | ||||||||||||||||||||||||||||||||
State income taxes, net of federal tax benefit | % | % | % | |||||||||||||||||||||||||||||||||||
Foreign earnings taxed at different rates | % | % | % | |||||||||||||||||||||||||||||||||||
| U.S. tax on foreign earnings | % | % | % | |||||||||||||||||||||||||||||||||||
| Tax credits | ( | ( | % | ( | ( | % | ( | ( | % | |||||||||||||||||||||||||||||
| Unremitted foreign earnings | % | % | % | |||||||||||||||||||||||||||||||||||
| Reorganization and divestitures | % | % | ( | ( | % | |||||||||||||||||||||||||||||||||
| Withholding tax | % | % | % | |||||||||||||||||||||||||||||||||||
| Net change in valuation allowance | % | ( | ( | % | ( | ( | % | |||||||||||||||||||||||||||||||
| Net change in unrecognized tax benefits | % | ( | ( | % | % | |||||||||||||||||||||||||||||||||
| Legislative Changes | % | ( | ( | % | % | |||||||||||||||||||||||||||||||||
| Deferred tax adjustments | % | % | % | |||||||||||||||||||||||||||||||||||
| Other | % | % | % | |||||||||||||||||||||||||||||||||||
| Income tax provision and rate | $ | % | $ | % | $ | % | ||||||||||||||||||||||||||||||||
Unrecognized Tax Benefits
We are providing the following disclosures related to our unrecognized tax benefits and the effect on our effective income tax rate if recognized:
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Beginning balance of unrecognized tax benefits | $ | $ | $ | |||||||||||||||||
| Additions for tax positions of current year | ||||||||||||||||||||
| Additions for tax positions of prior years | ||||||||||||||||||||
| Reductions for tax positions of prior years | ( | ( | ( | |||||||||||||||||
| Reductions for lapses of statutes of limitation and settlements | ( | ( | ( | |||||||||||||||||
| Ending balance of unrecognized tax benefits | $ | $ | $ | |||||||||||||||||
In 2021, our unrecognized tax benefit increased by $9.4 million, primarily related to interest or other adjustments to existing unrecognized tax benefit positions. In 2020, our unrecognized tax benefit decreased by $10.7 million, primarily related to the resolution of audit matters.
If the unrecognized tax benefits at December 31, 2021 were recognized, our income tax provision would decrease by $342.2 million, resulting in a substantially lower effective tax rate. Based on the potential outcome of the Company’s global tax examinations and the expiration of the statute of limitations for specific jurisdictions, it is possible that the unrecognized tax
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benefits could change significantly within the next 12 months. Absent resolution of significant tax controversy, the associated impact on the reserve balance is estimated to be a decrease of approximately $5.0 million during 2022.
We recognize interest and penalties associated with unrecognized tax benefits in our income tax provision in the Consolidated Statements of Operations. Interest and penalties recorded were $10.5 million, $5.6 million, and $13.1 million, respectively in 2021, 2020 and 2019. We had gross liabilities, for interest and penalties, of $80.0 million at December 31, 2021, $65.3 million at December 31, 2020 and $56.2 million at December 31, 2019.
Most of the unrecognized tax benefit amount of $389.0 million relates to the Americas.
Income Tax Returns
The IRS completed its field examination of the U.S. federal income tax returns for the years 2011-2014 in the third quarter of 2020. As previously disclosed, the IRS has proposed to disallow, for the 2014 taxable year, the entirety of the deduction of the approximately $1.49 billion settlement payment made pursuant to the Settlement agreement (as defined in Note 20, “Commitments and Contingencies”) and the resulting reduction of our U.S. federal tax liability by approximately $525 million. We continue to believe that we have meritorious defenses to the proposed disallowance and have filed a protest with the IRS. The matter has been submitted to the IRS Independent Office of Appeals for review of the proposed disallowance, and we cannot predict when the Appeals Process will conclude, or the outcome of such process. It is possible that future developments in this matter could have a material impact on the Company's uncertain tax position balances and results of operations, including cash flows, within the next twelve months.
State income tax returns are generally subject to examination for a period of 3 to 5 years after their filing date. We have various state income tax returns in the process of examination and are generally open to examination for periods after 2015.
Our foreign income tax returns are under examination in various jurisdictions in which we conduct business. Income tax returns in foreign jurisdictions have statutes of limitations generally ranging from 3 to 5 years after their filing date. We have various foreign returns in the process of examination but have largely concluded all other income tax matters for the years prior to 2015.
Management believes that an adequate provision has been made for any adjustments that may result from tax examinations. However, the outcome of tax audits cannot be predicted with certainty. If any of the issues addressed in the Company’s tax audits are resolved in a manner that is inconsistent with management’s expectations, the Company could be required to adjust its provision for income taxes in the period such resolution occurs and could be required to make significant payments as a result.
Note 20 Commitments and Contingencies
Settlement Agreement Tax Deduction
On March 31, 1998, the Company completed a multi-step transaction (the “Cryovac transaction”) involving W.R. Grace & Co. (“Grace”) which brought the Cryovac packaging business and the former Sealed Air’s business under the common ownership of the Company. As part of that transaction, Grace and its subsidiaries retained all liabilities arising out of their operations before the Cryovac transaction (including asbestos-related liabilities), other than liabilities relating to Cryovac’s operations, and agreed to indemnify the Company with respect to such retained liabilities. Beginning in 2000, we were served with a number of lawsuits alleging that the Cryovac transaction was a fraudulent transfer or gave rise to successor liability or both, and that, as a result, we were responsible for alleged asbestos liabilities of Grace and its subsidiaries. On April 2, 2001, Grace and a number of its subsidiaries filed petitions for reorganization under Chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). In connection with Grace’s Chapter 11 case, the Bankruptcy Court granted the official committees appointed to represent asbestos claimants in Grace’s Chapter 11 case (the “Committees”) permission to pursue against the Company and its subsidiary Cryovac, Inc. fraudulent transfer, successor liability, and other claims based upon the Cryovac transaction. In November 2002, we reached an agreement in principle with the Committees to resolve all current and future asbestos-related claims made against us and our affiliates, as well as indemnification claims by Fresenius Medical Care Holdings, Inc. and affiliated companies, in each case, in connection with the Cryovac transaction. A definitive settlement agreement was entered into in 2003 and approved by the Bankruptcy Court in 2005 (such agreement, the "Settlement agreement"). The Settlement agreement was subsequently incorporated into the plan of reorganization for Grace (the "Plan") and the Plan was confirmed by the Bankruptcy Court in 2011 and the U. S. District Court in 2012.
On February 3, 2014 (the “Effective Date”), the Plan implementing the Settlement agreement became effective with Grace emerging from bankruptcy and the injunctions and releases provided by the Plan becoming effective. On the Effective Date, the
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Company’s subsidiary, Cryovac, Inc., made the payments contemplated by the Settlement agreement, consisting of aggregate cash payments in the amount of $929.7 million to the WRG Asbestos PI Trust (the “PI Trust”) and the WRG Asbestos PD Trust (the “PD Trust”) and the transfer of 18 million shares of Sealed Air common stock (the “Settlement Shares”) to the PI Trust, in each case, reflecting adjustments made in accordance with the Settlement agreement.
The IRS completed its field examination of our U.S. federal income tax returns for the years 2011 through 2014 in the third quarter of 2020. As previously disclosed, the IRS has proposed to disallow for the 2014 taxable year the entirety of the deduction of the approximately $1.49 billion settlement payments made pursuant to the Settlement agreement and the resulting reduction of our U.S. federal tax liability by approximately $525 million. We continue to believe that we have meritorious defenses to the proposed disallowance and have filed a protest with the IRS. The matter has been submitted to the IRS Independent Office of Appeals for review of the proposed disallowance, and we cannot predict when the Appeals Process will conclude, or the outcome of such process. It is possible that future developments in this matter could have a material impact on the Company's uncertain tax position balances and results of operations, including cash flows, within the next twelve months.
Environmental Matters
We are subject to loss contingencies resulting from environmental laws and regulations, and we accrue for anticipated costs associated with investigatory and remediation efforts when an assessment has indicated that a loss is probable and can be reasonably estimated. These accruals are not reduced by potential insurance recoveries, if any. We do not believe that it is reasonably possible that our liability in excess of the amounts that we have accrued for environmental matters will be material to our Consolidated Balance Sheets or Statements of Operations. Environmental liabilities are reassessed whenever circumstances become better defined or remediation efforts and their costs can be better estimated.
We evaluate these liabilities periodically based on available information, including the progress of remedial investigations at each site, the current status of discussions with regulatory authorities regarding the methods and extent of remediation and the apportionment of costs among potentially responsible parties. As some of these issues are decided (the outcomes of which are subject to uncertainties) or new sites are assessed and costs can be reasonably estimated, we adjust the recorded accruals, as necessary. We believe that these exposures are not material to our Consolidated Balance Sheets or Statements of Operations. We believe that we have adequately reserved for all probable and estimable environmental exposures.
Guarantees and Indemnification Obligations
We are a party to many contracts containing guarantees and indemnification obligations. These contracts primarily consist of:
•indemnities in connection with the sale of businesses, primarily related to the sale of Diversey in 2017. Our indemnity obligations under the relevant agreements may be limited in terms of time, amount or scope. As it relates to certain income tax related liabilities, the relevant agreements may not provide any cap for such liabilities, and the period in which we would be liable would lapse upon expiration of the statute of limitation for assessment of the underlying taxes. Because of the conditional nature of these obligations and the unique facts and circumstances involved in each particular agreement, we are unable to reasonably estimate the potential maximum exposure associated with these items;
•product warranties with respect to certain products sold to customers in the ordinary course of business. These warranties typically provide that products will conform to specifications. We generally do not establish a liability for product warranty based on a percentage of sales or other formula. We accrue a warranty liability on a transaction-specific basis depending on the individual facts and circumstances related to each sale. Both the liability and annual expense related to product warranties are immaterial to our consolidated financial position and results of operations; and
•licenses of intellectual property by us to third parties in which we have agreed to indemnify the licensee against third-party infringement claims.
As of December 31, 2021, the Company has no reason to believe a loss exceeding amounts already recognized would be incurred.
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Other Matters
We are also involved in various other legal actions incidental to our business. We believe, after consulting with counsel, that the disposition of these other legal proceedings and matters will not have a material effect on our consolidated financial condition or results of operations including potential impact to cash flows.
Other Principal Contractual Obligations
At December 31, 2021, we had other principal contractual obligations, which included agreements to purchase an estimated amount of goods, including raw materials, or services in the normal course of business, aggregating to approximately $134.1 million. The estimated future cash outlays are as follows:
| Year | Amount (In millions) | ||||
| 2022 | $ | ||||
| 2023 | |||||
| 2024 | |||||
| 2025 | |||||
| 2026 | |||||
| Total | $ | ||||
Asset Retirement Obligations
The Company has recorded asset retirement obligations primarily associated with asbestos abatement, lease restitution and the removal of underground tanks. The Company's asset retirement obligation liabilities were $8.1 million and $10.6 million at December 31, 2021 and 2020, respectively. The Company also recorded assets within property and equipment, net which included $3.0 million and $3.8 million related to buildings and $4.1 million and $5.9 million related to leasehold improvements as of December 31, 2021 and 2020, respectively. As of December 31, 2021 and 2020, accumulated depreciation amounts related to buildings was $1.2 million and $1.3 million and leasehold improvements was $3.6 million and $4.4 million, respectively. For the years ended December 31, 2021, 2020 and 2019 accretion expense was $0.3
Note 21 Stockholders’ (Deficit) Equity
Repurchase of Common Stock
On August 2, 2021, the Board of Directors approved a new share repurchase program of $1.0 billion. This current program has no expiration date and replaced all previous authorizations. As of December 31, 2021, there was $896.4 million remaining under the currently authorized program. Share repurchases made prior to August 2, 2021 were under previous Board of Directors share repurchase authorizations, specifically the $1.5 billion authorization made in July 2015, the $1.5 billion authorization made in March 2017 and the $1.0 billion authorization made in May 2018.
During the year ended December 31, 2021, we repurchased 7,875,407 shares for a total of approximately $401.4 million with an average share price of $50.96 . Cash outlay for share repurchases during the year ended December 31, 2021 also includes $1.6 million for 35,100 shares purchased in the fourth quarter 2020 and settled in the first quarter 2021. These repurchases were made under open market transactions, including through plans complying with Rule 10b5-1 under the Exchange Act, and pursuant to the share repurchase program authorized by our Board of Directors.
During the year ended December 31, 2020, we repurchased 856,437 shares, for approximately $34.6 million with an average share price of $40.43 . These repurchases were made under open market transactions, including through plans complying with Rule 10b5-1 under the Exchange Act, and pursuant to the share repurchase program authorized by our Board of Directors. At December 31, 2020, 74,281 shares repurchased had not yet settled or were not yet reflected by our recordkeeper or in our shares outstanding as of December 31, 2020.
During the year ended December 31, 2019, we repurchased 1,560,633 shares, for approximately $67.2 million with an average share price of $43.09 . These repurchases were made under open market transactions, including through plans complying with Rule 10b5-1 under the Exchange Act, and pursuant to the share repurchase program authorized by our Board of Directors.
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Dividends
The following table shows our total cash dividends paid in the years ended December 31, 2021, 2020 and 2019:
| (In millions, except per share amounts) | Total Cash Dividends Paid | Total Cash Dividends Paid per Common Share | ||||||||||||
| 2019 | $ | $ | ||||||||||||
| 2020 | ||||||||||||||
| 2021 | ||||||||||||||
The dividend payments discussed above are recorded as reductions to cash and cash equivalents and retained earnings on our Consolidated Balance Sheets. Our senior secured credit facility and our senior notes contain covenants that restrict our ability to declare or pay dividends and repurchase stock. However, we do not believe these covenants are likely to materially limit the future payment of quarterly cash dividends on our common stock. From time to time, we may consider other means of returning value to our stockholders based on our consolidated financial condition and results of operations. There is no guarantee that our Board of Directors will declare any further dividends.
Common Stock
The following is a summary of changes during the years ended December 31, in shares of our common stock and common stock in treasury:
| 2021 | 2020 | 2019 | ||||||||||||||||||
| Changes in common stock: | ||||||||||||||||||||
| Number of shares, beginning of year | ||||||||||||||||||||
| Restricted stock shares issued for new awards | ||||||||||||||||||||
| Restricted stock shares, forfeited | ( | ( | ( | |||||||||||||||||
| Shares issued for vested restricted stock units | ||||||||||||||||||||
| Shares issued for 2017 Three-Year PSU Awards | ||||||||||||||||||||
| Shares issued for 2018 Three-Year PSU Awards | ||||||||||||||||||||
Shares issued for 2020 Three-Year PSU Awards(3) | ||||||||||||||||||||
Shares issued for Stock Leverage Opportunity Awards (SLO) | ||||||||||||||||||||
Shares granted and issued under the Omnibus Incentive Plan and Directors Stock Plan to Directors | ||||||||||||||||||||
Canceled shares for tax netting(1) | ( | ( | ( | |||||||||||||||||
| Number of shares issued, end of year | ||||||||||||||||||||
| Changes in common stock in treasury: | ||||||||||||||||||||
| Number of shares held, beginning of year | ||||||||||||||||||||
Repurchase of common stock(2) | ||||||||||||||||||||
| Profit sharing contribution paid in stock | ( | ( | ( | |||||||||||||||||
Number of shares held, end of year(2) | ||||||||||||||||||||
Number of common stock outstanding, end of year(2) | ||||||||||||||||||||
(1)Effective January 1, 2019, new share issuances for vested awards are netted by the number of shares required to cover the recipients' portion of income tax. The portion withheld for taxes are canceled. Shares netted for taxes in 2021, 2020 and 2019 primarily relates to vesting activity for restricted stock shares issued in prior years.
(2)Repurchase of common stock for the year ended December 31, 2021, as shown above, includes 74,281 shares of common stock that had been repurchased by the Company in 2020 but were not yet settled or not yet reflected by the Recordkeeper as of December 31, 2020. The table above and our Consolidated Balance Sheets reflect the number of shares held in treasury per our Recordkeeper.
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Share-Based Compensation
In 2014, the Board of Directors adopted, and our stockholders approved, the 2014 Omnibus Incentive Plan (“Omnibus Incentive Plan”). Under the Omnibus Incentive Plan, the maximum number of shares of Common Stock authorized was 4,250,000 , plus total shares available to be issued as of May 22, 2014 under the 2002 Directors Stock Plan and the 2005 Contingent Stock Plan (collectively, the “Predecessor Plans”). The Omnibus Incentive Plan replaced the Predecessor Plans and no further awards were granted under the Predecessor Plans. The Omnibus Incentive Plan provides for the grant of stock options, stock appreciation rights, restricted stock, restricted stock units, unrestricted stock, performance share units known as PSU awards, other stock awards and cash awards to officers, non-employee directors, key employees, consultants and advisors.
In 2018, the Board of Directors adopted, and stockholders approved an amendment and restatement to the Omnibus Incentive Plan. The amendment added 2,199,114 shares of common stock to the share pool previously available under the Omnibus Incentive Plan.
Additionally, in 2021, the Board of Directors adopted, and at the 2021 Annual Stockholders' Meeting our shareholders approved, an additional amendment and restatement to the Omnibus Incentive Plan. The amendment added 2,999,054 shares of common stock to the share pool previously available under the Omnibus Incentive Plan.
A summary of the changes in common shares available for awards under the Omnibus Incentive Plan and Predecessor Plans follows:
| 2021 | 2020 | 2019 | ||||||||||||||||||
| Number of shares available, beginning of year | ||||||||||||||||||||
| Newly approved shares under Omnibus Incentive Plan | ||||||||||||||||||||
| Restricted stock shares forfeited | ||||||||||||||||||||
| Restricted stock units awarded | ( | ( | ( | |||||||||||||||||
| Restricted stock units forfeited | ||||||||||||||||||||
| Shares issued for 2017 Three-Year PSU Awards | ( | |||||||||||||||||||
| Shares issued for 2018 Three-Year PSU Awards | ( | |||||||||||||||||||
| Shares issued for 2020 Three-Year PSU Awards | ( | |||||||||||||||||||
| Restricted stock units awarded for SLO Awards | ( | ( | ( | |||||||||||||||||
| SLO units forfeited | ||||||||||||||||||||
| Director shares granted and issued | ( | ( | ( | |||||||||||||||||
Director units granted and deferred(1) | ( | ( | ( | |||||||||||||||||
Shares withheld for taxes(2) | ||||||||||||||||||||
Number of shares available, end of year(3) | ||||||||||||||||||||
(1)Director units granted and deferred include the impact of share-settled dividends earned and deferred on deferred shares.
(2)The Omnibus Incentive Plan and 2005 Contingent Stock Plan permit withholding of taxes and other charges that may be required by law to be paid attributable to awards by withholding a portion of the shares attributable to such awards.
(3)The above table excludes approximately 1.5 million contingently issuable shares under the PSU awards and SLO awards, which represents the maximum number of shares that could be issued under those awards as of December 31, 2021.
We record share-based incentive compensation expense in selling, general and administrative expenses and cost of sales on our Consolidated Statements of Operations for both equity-classified awards and liability-classified awards. We record a corresponding credit to additional paid-in capital within stockholders’ equity for equity-classified awards, and to either a current or non-current liability for liability-classified awards based on the fair value of the share-based incentive compensation awards at the date of grant. Total expense for the liability-classified awards continues to be remeasured to fair value at the end of each reporting period. We recognize an expense or credit reflecting the straight-line recognition, net of estimated forfeitures, of the expected cost of the share-based award. The number of PSUs earned may equal, exceed or be less than the targeted number of shares depending on whether the performance criteria are met, surpassed or not met.
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The following table summarizes the Company’s pre-tax share-based incentive compensation expense and related income tax benefit for the years ended December 31, 2021, 2020 and 2019 related to the Company’s PSU awards, SLO awards and restricted stock awards.
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| 2021 Three-year PSU Awards | $ | $ | $ | |||||||||||||||||
| 2020 Three-year PSU Awards | ||||||||||||||||||||
| 2019 Three-year PSU Awards | ||||||||||||||||||||
| 2018 Three-year PSU Awards | ||||||||||||||||||||
2017 COO and Chief Executive Officer-Designate New Hire Equity Awards(1) | ||||||||||||||||||||
| SLO Awards | ||||||||||||||||||||
Other long-term share-based incentive compensation programs(2) | ||||||||||||||||||||
Total share-based incentive compensation expense(3) | $ | $ | $ | |||||||||||||||||
| Associated tax benefits recognized | $ | $ | $ | |||||||||||||||||
(1) For the year ended December 31, 2020, this amount includes expense associated with award modifications as described under the section titled “Chief Operating Officer (COO) and Chief Executive Officer-Designate 2017 New Hire Equity Awards and 2020 Award Modifications.”
(2) The amount includes the expenses associated with the restricted stock awards consisting of restricted stock shares, restricted stock units and cash-settled restricted stock unit awards.
(3) The amounts do not include the expense related to our U.S. profit sharing contributions made in the form of our common stock, as these contributions are not considered share-based incentive compensation.
Restricted Stock, Restricted Stock Units and Cash-Settled Restricted Stock Unit Awards
Restricted stock, restricted stock units and cash-settled restricted stock unit awards (cash payment in an amount equal to the value of the shares on the vesting date) provide for a vesting period. Awards vest earlier in the event of the participant’s death or disability. If a participant terminates employment prior to vesting, then the award of restricted stock, restricted stock units or cash-settled restricted stock unit awards is forfeited, except for certain circumstances following a change in control. The O&C Committee may waive the forfeiture of all or a portion of an award. Historically, restricted stock (but not restricted stock units or cash-settled restricted stock unit awards) granted before January 1, 2018 paid dividends on the same basis as other stockholders entitled to receive dividends. Generally, restricted stock, restricted stock units, and cash-settled stock unit awards granted after January 1, 2018 pay dividend equivalents upon vesting.
The following table summarizes activity for unvested restricted stock and restricted stock units for 2021:
| Restricted stock shares | Restricted stock units | |||||||||||||||||||||||||||||||||||||
| Shares | Weighted-Average per Share Fair Value on Grant Date | Aggregate Intrinsic Value (in millions) | Shares | Weighted-Average per Share Fair Value on Grant Date | Aggregate Intrinsic Value (in millions) | |||||||||||||||||||||||||||||||||
| Non-vested at December 31, 2020 | $ | $ | ||||||||||||||||||||||||||||||||||||
| Granted | ||||||||||||||||||||||||||||||||||||||
| Vested | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||
| Forfeited or expired | ( | ( | ||||||||||||||||||||||||||||||||||||
| Non-vested at December 31, 2021 | $ | $ | ||||||||||||||||||||||||||||||||||||
A summary of the Company’s fair values of its vested restricted stock shares and restricted stock units are shown in the following table:
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Fair value of restricted stock shares vested | $ | $ | $ | |||||||||||||||||
| Fair value of restricted stock units vested | $ | $ | $ | |||||||||||||||||
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Unrecognized compensation cost and the weighted average period over which the compensation cost is expected to be recognized for its non-vested restricted stock units are shown in the following table:
| (In millions) | Unrecognized Compensation Cost | Weighted Average to be recognized (in years) | ||||||||||||
| Restricted Stock units | $ | |||||||||||||
The non-vested cash awards excluded from table above had $3.2 million unrecognized compensation costs and weighted-average remaining contractual life of approximately 1 year. We have recognized liabilities of $1.9 million in other current liabilities on our Consolidated Balance Sheets. Cash paid for vested cash-settled restricted stock unit awards was $1.4 million and $0.9 million in 2021 and 2020, respectively.
PSU Awards
-year PSU awards for 2019, 2020 and 2021
During the first 90 days of each year, the O&C Committee of our Board of Directors approves PSU awards for our executive officers and other selected employees, which include for each participant a target number of shares of common stock and performance goals and measures that will determine the percentage of the target award that is earned following the end of the -year performance period. Following the end of the performance period, in addition to shares, participants will also receive a cash payment in the amount of the dividends (without interest) that would have been paid during the performance period on the number of shares that they have earned. Each PSU is subject to forfeiture if the recipient terminates employment with the Company prior to the end of the -year award performance period for any reason other than death, disability or retirement. In the event of death, disability or retirement, a participant will receive a prorated payment based on such participant’s number of full months of service during the award performance period, further adjusted based on the achievement of the performance goals during the award performance period. All PSUs are classified as equity in the Consolidated Balance Sheets, with the exception of awards that are required by local laws or regulations to be settled in cash. This subset of PSU awards are classified as either current or non-current liabilities in the Consolidated Balance Sheets.
The performance goals, weightings and other information regarding PSU awards for 2019, 2020 and 2021 are set forth below:
2019 -year PSU Awards: (i) relative total shareholder return ("Relative TSR") over the -year performance period weighted at 34 33 %; and (iii) Return on Invested Capital ("ROIC") weighted at 33 %. In the third quarter of 2019, the O&C Committee approved PSU awards for an additional pool of individuals in connection with our Reinvent SEE business transformation. The established performance goals are identical to those approved for awards granted to our executive officers and other selected key executives in the first quarter of 2019. The total number of shares to be issued for these awards can range from zero to 200 % of the target number of shares.
| Relative TSR | Adjusted EBITDA Margin | ROIC | ||||||||||||||||||
| February 13, 2019 grant date | ||||||||||||||||||||
| Number of units granted | ||||||||||||||||||||
| Fair value on grant date (per unit) | $ | $ | $ | |||||||||||||||||
| February 14, 2019 grant date | ||||||||||||||||||||
| Number of units granted | ||||||||||||||||||||
| Fair value on grant date (per unit) | $ | $ | $ | |||||||||||||||||
| July 11, 2019 grant date | ||||||||||||||||||||
| Number of units granted | ||||||||||||||||||||
| Fair value on grant date (per unit) | $ | $ | $ | |||||||||||||||||
The PSUs granted based on Relative TSR are contingently awarded and will be payable in shares of the Company’s common stock upon the expiration of a -year award performance period based on the Company’s TSR ranking relative to a peer group of companies. The fair value of the PSUs was estimated on the grant date using a Monte Carlo Simulation. Other assumptions include the expected volatility of all companies included in the Relative TSR, the historical share price returns analysis of all companies included in the Relative TSR and assumes dividends are reinvested. The expected volatility was based on the historical volatility for a period of time that approximates the duration between the valuation date and the end of the performance period. The risk-free interest rate is based on the Zero-Coupon Treasury STRIP yield curve matching the term
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from the valuation date to the end of the performance period. Compensation expense for the PSUs based on Relative TSR (which is considered a market condition) is a fixed amount determined at the grant date fair value and is recognized 100 % over the -year award performance period regardless of whether the performance condition is satisfied.
The assumptions used to calculate the grant date fair values for grants based on Relative TSR are shown in the following table:
| Expected price volatility | Risk-free interest rate | |||||||||||||
| February 13, 2019 grant date | % | % | ||||||||||||
| February 14, 2019 grant date | % | % | ||||||||||||
| July 11, 2019 grant date | % | % | ||||||||||||
The PSUs granted based on Adjusted EBITDA margin and ROIC are contingently awarded and will be payable in shares of the Company’s common stock based on the Company’s Adjusted EBITDA margin at the end of the performance period and the Company's ROIC over the three-year award performance period compared to targets set at the time of the grant by the O&C Committee. The fair value of the PSUs is based on grant date fair value which is equivalent to the closing price of one share of the Company’s common stock on the date of grant. The number of PSUs earned based on Adjusted EBITDA margin and ROIC varies according to the outcome of the performance condition. The Company reassesses at each reporting date whether achievement of the performance condition is probable and accrues compensation expense if and when achievement of the performance condition is probable.
2020 -year PSU Awards: (i) Relative TSR over the -year performance period weighted at 34 %; (ii) Adjusted EBITDA compound annual growth rate (“CAGR”) weighted at 33 %; and (iii) ROIC weighted at 33 %. The total number of shares to be issued for these awards can range from zero to 200 % of the target number of shares.
| Relative TSR | Adjusted EBITDA CAGR | ROIC | ||||||||||||||||||
| February 12, 2020 grant date | ||||||||||||||||||||
| Number of units granted | ||||||||||||||||||||
| Fair value on grant date (per unit) | $ | $ | $ | |||||||||||||||||
| February 13, 2020 grant date | ||||||||||||||||||||
| Number of units granted | ||||||||||||||||||||
| Fair value on grant date (per unit) | $ | $ | $ | |||||||||||||||||
| March 1, 2020 grant date | ||||||||||||||||||||
| Number of units granted | ||||||||||||||||||||
| Fair value on grant date (per unit) | $ | $ | $ | |||||||||||||||||
The PSUs granted based on Relative TSR are contingently awarded and will be payable in shares of the Company’s common stock upon the expiration of a -year award performance period based on the Company’s TSR ranking relative to a peer group of companies. The fair value of the PSUs was estimated on the grant date using a Monte Carlo Simulation. Other assumptions include the expected volatility of all companies included in the Relative TSR, the historical share price returns analysis of all companies included in the Relative TSR and assumes dividends are reinvested. The expected volatility was based on the historical volatility for a period of time that approximates the duration between the valuation date and the end of the performance period. The risk-free interest rate is based on the Zero-Coupon Treasury STRIP yield curve matching the term from the valuation date to the end of the performance period. Compensation expense for the PSUs based on Relative TSR (which is considered a market condition) is a fixed amount determined at the grant date fair value and is recognized 100 % over the -year award performance period regardless of whether the performance condition is satisfied.
The assumptions used to calculate the grant date fair values for grants based on Relative TSR are shown in the following table:
| Expected price volatility | Risk-free interest rate | |||||||||||||
| February 12, 2020 grant date | % | % | ||||||||||||
| February 13, 2020 grant date | % | % | ||||||||||||
| March 1, 2020 grant date | % | % | ||||||||||||
The PSUs granted based on Adjusted EBITDA CAGR and ROIC are contingently awarded and will be payable in shares of the Company’s common stock based on the Company’s Adjusted EBITDA CAGR over the -year award performance period and the Company’s ROIC over the -year award performance period compared to targets set at the time of the grant by the
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O&C Committee. The fair value of the PSUs is based on grant date fair value which is equivalent to the closing price of one share of the Company’s common stock on the date of grant. The number of PSUs earned based on Adjusted EBITDA CAGR and ROIC varies based on the probable outcome of the performance condition. The Company reassesses at each reporting date whether achievement of the performance condition is probable and accrues compensation expense if and when achievement of the performance condition is probable.
2021 -year PSU Awards: (i) -year CAGR of consolidated Adjusted EBITDA weighted at 50 % and (ii) ROIC weighted at 50 %. Calculation of final achievement on each performance metric is subject to an upward or downward adjustment of up to 25% of the overall combined achievement percentage, based on the results of a relative total shareholder return (“TSR”) modifier. The comparator group for the relative TSR modifier is S&P 500 component companies as of the beginning of the performance period. Shareholder return in the top quartile of the comparator group increases overall achievement of performance metrics by 25 % while shareholder return in the bottom quartile of the comparator group decreases overall achievement of the performance metrics by 25 %. The total number of shares to be issued, including the modifier, for these awards can range from zero to 250 % of the target number of shares.
| Adjusted EBITDA CAGR | ROIC | |||||||||||||
| February 10, 2021 grant date | ||||||||||||||
| Number of units granted | ||||||||||||||
| Fair value on grant date (per unit) | $ | $ | ||||||||||||
| February 11, 2021 grant date | ||||||||||||||
| Number of units granted | ||||||||||||||
| Fair value on grant date (per unit) | $ | $ | ||||||||||||
| March 1, 2021 grant date | ||||||||||||||
| Number of units granted | ||||||||||||||
| Fair value on grant date (per unit) | $ | $ | ||||||||||||
The assumptions used to calculate the grant date fair values are shown in the following table:
| Expected price volatility | Risk-free interest rate | |||||||||||||
| February 10, 2021 grant date | % | % | ||||||||||||
| February 11, 2021 grant date | % | % | ||||||||||||
| March 1, 2021 grant date | % | % | ||||||||||||
The following table includes additional information related to estimated earned payout based on the probable outcome of the performance conditions and market condition as of December 31, 2021:
| Estimated Payout % | ||||||||||||||||||||||||||||||||||||||
| Return on Invested Capital | Adjusted EBITDA Margin | Adjusted EBITDA CAGR | Relative TSR(1) | TSR Modifier(1) | Combined | |||||||||||||||||||||||||||||||||
| 2021 Three-year PSU Awards | % | N/A | % | N/A | % | % | ||||||||||||||||||||||||||||||||
| 2020 Three-year PSU Awards | % | N/A | % | % | N/A | % | ||||||||||||||||||||||||||||||||
| 2019 Three-year PSU Awards | % | % | N/A | % | N/A | % | ||||||||||||||||||||||||||||||||
(1) Relative TSR and Relative TSR Modifier are market-based conditions. Accordingly, we make no assumptions related to future performance. The percentages above represent actual rankings as of December 31, 2021. Any portion of outstanding awards based on the achievement of market-based conditions are accrued at 100 % of fair value over the performance period in accordance with ASC 718.
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| Shares | Aggregate Intrinsic Value (In millions) | |||||||||||||
| Outstanding at December 31, 2020 | ||||||||||||||
Granted(1) | ||||||||||||||
| Converted | ( | $ | ||||||||||||
| Forfeited or expired | ( | |||||||||||||
| Outstanding at December 31, 2021 | ||||||||||||||
| Fully vested at December 31, 2021 | $ | |||||||||||||
(1)This represents the target number of performance units granted. Actual number of PSUs earned, if any, is dependent upon performance and may range from 0 % to 250 % percent of the target.
The following table summarizes activity for non-vested -year PSU awards for 2021:
| Shares | Weighted-Average per Share Fair Value on Grant Date | |||||||||||||
| Non-vested at December 31, 2020 | $ | |||||||||||||
| Granted | ||||||||||||||
| Vested | ( | |||||||||||||
| Forfeited or expired | ( | |||||||||||||
| Non-vested at December 31, 2021 | $ | |||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Fair value of Three-year PSU awards vested | $ | $ | $ | |||||||||||||||||
| (In millions) | Unrecognized Compensation Costs | Weighted Average to be recognized (in years) | ||||||||||||
| 2021 Three-year PSU Awards | $ | |||||||||||||
| 2020 Three-year PSU Awards | ||||||||||||||
| 2019 Three-year PSU Awards | ||||||||||||||
Chief Operating Officer (COO) and Chief Executive Officer-Designate 2017 New Hire Equity Awards and 2020 Award Modifications
On September 5, 2017, the Board elected Edward L. Doheny II, Chief Operating Officer and CEO-Designate and elected him as a Director of the Company effective September 18, 2017. Mr. Doheny worked on transitioning with Jerome Peribere until December 31, 2017 and then assumed the role and title of President and Chief Executive Officer effective as of January 1, 2018. Additionally, on September 5, 2017, the Company entered into an offer letter agreement, effective September 18, 2017, with Mr. Doheny. The Letter Agreement provided that Mr. Doheny would be granted on his start date two new-hire equity awards, one that was time-vesting and the other that was performance-vesting (the “New Hire Awards”).
The time-vesting New Hire Award, for 30,000 shares, required Mr. Doheny to remain in service with the Company through December 31, 2020. The grant date fair value for this award was $42.89 per share. The award vested fully on December 31, 2020.
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The performance-vesting New Hire Award, for 70,000 shares, in addition to the time-vesting requirement noted above, required that either (i) the Company’s cumulative total stockholder return for 2018-2020 be in the top 33 % of its peers (using the same peers and methodology under the Company’s performance stock unit (PSU) awards) and the Company’s stock price as of December 31, 2020 equaled at least $60.00 per share, or (ii) the Company’s stock price as of December 31, 2020 equaled at least $75.00 per share. The Letter Agreement provided that the stock price as of December 31, 2020 for this purpose would be determined using a 30-day arithmetic mean of closing prices.
On December 10, 2020, Mr. Doheny entered into a subsequent Letter Agreement with the Company, which modifies the terms of the performance-vesting New Hire Award. This Letter Agreement converts one half of the award, or 35,000 shares, to an award of time-vesting restricted stock units, which requires Mr. Doheny to remain in service with the Company through September 18, 2022. The grant date fair value of this award was $45.40 per share.
The remaining half of the award, or 35,000 shares, remains performance-vesting, subject to the original performance conditions, but measured as of September 18, 2022 which require that either (i) the Company’s cumulative total stockholder return for January 1, 2018 through September 18, 2022 be in the top 33 % of its peers (using the same peers and methodology under the Company’s performance stock unit (PSU) awards) and the Company’s stock price as of September 18, 2022 equals at least $60.00 per share, or (ii) the Company’s stock price as of September 18, 2022 equals at least $75.00 per share. The Letter Agreement provided that the stock price as of September 18, 2022 for this purpose would be determined using a 30-day arithmetic mean of closing prices.
The grant date fair value for this award was determined using a Monte Carlo Simulation model that incorporates predictive modeling techniques using Geometric Brownian Motion and Crystal Ball’s random number generation. Other assumptions include the expected volatility of all companies included in the relative total shareholder return, valuation modeling of vesting payoff determination featuring both performance goals as noted above, the historical share price returns analysis of all companies included in the relative total shareholder return and assumes dividends are reinvested. The expected volatility was based on the historical volatility of peer companies for a period of time that approximates the duration between the beginning and the end of the performance period. The risk-free interest rate was based on the Zero-Coupon Treasury STRIP yield curve matching the term from the valuation date to the end of the performance period. Compensation expense for the performance-vesting award is a fixed amount determined at the grant date and is recognized 100 % from the time of the award to the end of the performance period regardless of whether the performance conditions are satisfied.
The assumptions used to calculate the grant date fair value of the performance-vesting award are shown in the following table:
| 2020 Performance-Vesting Award | ||||||||
| Fair value on grant date | $ | |||||||
| Expected price volatility | % | |||||||
| Risk-free interest rate | % | |||||||
The awards are described in further detail in Mr. Doheny’s Offer Letter filed with the SEC as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on September 7, 2017 and in the Letter Agreement filed with the SEC as Exhibit 10.1 to the Company's Current Report on Form 8-K filed on December 14, 2020.
2018 -year PSU Awards
In February 2021, the O&C Committee reviewed the performance results for the 2018-2020 PSUs. Performance goals for these PSUs were based on Adjusted EBITDA margin, net trade sales CAGR and Relative TSR. Based on overall performance for 2018-2020 PSUs, these awards paid out at 54.6 % of target or 84,696 units. Of this, 36,966 units were withheld for tax, resulting in net share issuances of 47,730 .
Stock Leverage Opportunity Awards
Before the start of each performance year, certain key executives are eligible to elect to receive all or a portion of their annual cash bonus for that year, in increments of 25 % of the annual bonus, as an award of restricted stock units under the Omnibus Incentive Plan in lieu of cash. The portion provided as an equity award may be given a premium to be determined by the O&C Committee each year and will be rounded up to the nearest whole share. The award will be granted following the end of the performance year and after determination by the O&C Committee of the amount of the annual bonus award for each executive officer and other selected key executives who have elected to take all or a portion of his or her annual bonus as an equity award, but no later than the March 15 following the end of the performance year.
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Note 22 Accumulated Other Comprehensive Loss
The following table provides details of comprehensive loss:
| (In millions) | Unrecognized Pension Items | Cumulative Translation Adjustment(1) | Unrecognized Losses on Derivative Instruments for net investment hedge | Unrecognized Gains (Losses) on Derivative Instruments for cash flow hedge | Accumulated Other Comprehensive Loss, Net of Taxes | |||||||||||||||||||||||||||
| Balance at December 31, 2019 | $ | ( | $ | ( | $ | ( | $ | $ | ( | |||||||||||||||||||||||
Other comprehensive (loss) income before reclassifications | ( | ( | ( | ( | ||||||||||||||||||||||||||||
Less: amounts reclassified from accumulated other comprehensive loss | ||||||||||||||||||||||||||||||||
| Net current period other comprehensive (loss) income | ( | ( | ( | ( | ||||||||||||||||||||||||||||
| Balance at December 31, 2020 | $ | ( | $ | ( | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||||
| Other comprehensive income (loss) before reclassifications | ( | |||||||||||||||||||||||||||||||
Less: amounts reclassified from accumulated other comprehensive loss | ||||||||||||||||||||||||||||||||
| Net current period other comprehensive income (loss) | ( | |||||||||||||||||||||||||||||||
| Balance at December 31, 2021 | $ | ( | $ | ( | $ | ( | $ | $ | ( | |||||||||||||||||||||||
(1)Includes gains and losses on intra-entity foreign currency transactions. The intra-entity currency translation adjustments were $(30.2 ) million, $37.0 million and $(4.5 ) million for the years ended December 31, 2021, 2020 and 2019, respectively.
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| (In millions) | 2021 | 2020 | 2019 | Location of Amount Reclassified from AOCL | ||||||||||||||||||||||
Defined benefit pension plans and other post-employment benefits: | ||||||||||||||||||||||||||
| Settlements | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||
| Prior service credits | ||||||||||||||||||||||||||
| Actuarial losses | ( | ( | ( | |||||||||||||||||||||||
| Total pre-tax amount | ( | ( | ( | Other (expense) income, net | ||||||||||||||||||||||
| Tax benefit | ||||||||||||||||||||||||||
| Net of tax | ( | ( | ( | |||||||||||||||||||||||
Net (losses) gains on cash flow hedging derivatives:(1) | ||||||||||||||||||||||||||
| Foreign currency forward contracts | ( | ( | Cost of sales | |||||||||||||||||||||||
| Treasury locks | Interest expense, net | |||||||||||||||||||||||||
| Total pre-tax amount | ( | ( | ||||||||||||||||||||||||
| Tax benefit (expense) | ( | |||||||||||||||||||||||||
| Net of tax | ( | ( | ||||||||||||||||||||||||
| Total reclassifications for the period | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||
(1)These accumulated other comprehensive components are included in our derivative and hedging activities. See Note 15, “Derivatives and Hedging Activities,” for additional details.
Note 23 Other (Expense) Income, net
The following table provides details of other (expense) income, net:
| Year Ended December 31, | ||||||||||||||||||||
| (In millions) | 2021 | 2020 | 2019 | |||||||||||||||||
| Net foreign exchange transaction (loss) gain | $ | ( | $ | $ | ( | |||||||||||||||
| Bank fee expense | ( | ( | ( | |||||||||||||||||
| Pension income other than service costs | ||||||||||||||||||||
| Increase in fair value of equity investments | ||||||||||||||||||||
Impairment of debt investment(1) | ( | |||||||||||||||||||
| Foreign currency exchange loss due to high inflationary economies | ( | ( | ( | |||||||||||||||||
| Loss on debt redemption and refinancing activities | ( | ( | ||||||||||||||||||
Other income(2) | ||||||||||||||||||||
| Other (expense) | ( | ( | ( | |||||||||||||||||
| Other (expense) income, net | $ | ( | $ | $ | ( | |||||||||||||||
(1)During the year ended December 31, 2021, SEE made investments totaling $8.0 million in another company's convertible debt. Based on information available to SEE specific to the investee and our current expectations of recoverability, we recorded a credit loss resulting in an $8.0 million impairment (establishment of allowance) of the convertible debt investment during the fourth quarter of 2021. SEE maintains no other available-for-sale debt securities as of December 31, 2021. The total allowance for credit losses related to available-for-sale debt securities as of December 31, 2021 is $8.0 million.
(2)During the year ended December 31, 2019, we recorded $4.8 million to other income related to a claim for the overpayment of certain indirect taxes paid by Sealed Air subsidiaries in Brazil, resulting from a double taxation calculation. The 2019 income was recorded as a result of a lower court decision regarding the matter. During the year ended December 31, 2021, the Supreme Court of Brazil issued a final decision that clarified the methodology companies should use in the calculation. Based on the updated methodology approved by the Brazilian Supreme Court, we recorded $5.0 million to other income during the year ended December 31, 2021.
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Note 24 Net Earnings per Common Share
The following table shows the calculation of basic and diluted net earnings per common share:
| Year Ended December 31, | ||||||||||||||||||||
| (In millions, except per share amounts) | 2021 | 2020 | 2019 | |||||||||||||||||
| Basic Net Earnings Per Common Share: | ||||||||||||||||||||
| Numerator: | ||||||||||||||||||||
| Net earnings | $ | $ | $ | |||||||||||||||||
Distributed and allocated undistributed net earnings to unvested restricted stockholders | ( | ( | ||||||||||||||||||
| Net earnings available to common stockholders | $ | $ | $ | |||||||||||||||||
| Denominator: | ||||||||||||||||||||
| Weighted average number of common shares outstanding - basic | ||||||||||||||||||||
| Basic net earnings per common share: | ||||||||||||||||||||
| Basic net earnings per common share | $ | $ | $ | |||||||||||||||||
| Diluted Net Earnings Per Common Share: | ||||||||||||||||||||
| Numerator: | ||||||||||||||||||||
| Net earnings available to common stockholders | $ | $ | $ | |||||||||||||||||
| Denominator: | ||||||||||||||||||||
| Weighted average number of common shares outstanding - basic | ||||||||||||||||||||
| Effect of dilutive stock shares and units | ||||||||||||||||||||
Weighted average number of common shares outstanding - diluted under two-class | ||||||||||||||||||||
| Effect of unvested restricted stock - participating security | ||||||||||||||||||||
Weighted average number of common shares outstanding - diluted under treasury stock | ||||||||||||||||||||
| Diluted net earnings per common share | $ | $ | $ | |||||||||||||||||
PSU Awards
We included contingently issuable shares using the treasury stock method for our PSU awards in the diluted weighted average number of common shares outstanding based on the number of contingently issuable shares that would be issued assuming the end of our reporting period was the end of the relevant PSU award contingency period. The calculation of diluted weighted average shares outstanding related to PSUs was 0.6 million shares in 2021, and nominal in 2020 and 2019.
SLO Awards
The shares or units associated with the 2021 SLO awards are considered contingently issuable shares and therefore are not included in the basic or diluted weighted average number of common shares outstanding for the year ended December 31, 2021. These shares or units will not be included in the common shares outstanding until the final determination of the amount of annual incentive compensation is made in the first quarter of 2022. Once this determination is made, the shares or units will be included in diluted weighted average number of common shares outstanding if the impact to diluted net earnings per common share is dilutive. The shares or units associated with SLO awards for 2021, 2020 and 2019 were nominal.
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| Item 9. | Changes in and Disagreements with Accountants on Accounting and | |||||||
| Financial Disclosure | ||||||||
None.
| Item 9A. Controls and Procedures | ||
Disclosure Controls and Procedures
We maintain disclosure controls and procedures, as defined in Rule 13a-15 under the Securities Exchange Act of 1934, as amended, or the Exchange Act, that are designed to ensure that information required to be disclosed in our reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and that our employees accumulate this information and communicate it to our management, including our Chief Executive Officer (our principal executive officer) and our Chief Financial Officer (our principal financial officer), as appropriate, to allow timely decisions regarding the required disclosure. In designing and evaluating the disclosure controls and procedures, our management recognizes that any controls and procedures, no matter how well designed and operated, can provide only “reasonable assurance” of achieving the desired control objectives, and management necessarily must apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.
Evaluation of Disclosure Controls and Procedures
As of the end of the period covered by this report, we carried out an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures under Rule 13a-15. Our management, including our Chief Executive Officer and Chief Financial Officer, supervised and participated in this evaluation. Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective at the “reasonable assurance” level.
Changes in Internal Control over Financial Reporting
There have been no changes in our internal control over financial reporting during the quarter ended December 31, 2021 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act. Management evaluated, with the participation of our Chief Executive Officer and Chief Financial Officer, the effectiveness, as of December 31, 2021, of our internal control over financial reporting. The suitable recognized control framework on which management’s evaluation of our internal control over financial reporting is based is the Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based upon that evaluation under the COSO framework, our management concluded that our internal control over financial reporting as of December 31, 2021 was effective.
Our internal control over financial reporting as of December 31, 2021 has been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, which also audited our Consolidated Financial Statements for the year ended December 31, 2021, as stated in their report included in this Annual Report on Form 10-K, which expresses an unqualified opinion on the effectiveness of our internal control over financial reporting as of December 31, 2021.
| Item 9B. Other Information | ||
None.
| Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections | ||
Not applicable.
135
| PART III | ||
| Item 10. Directors, Executive Officers and Corporate Governance | ||
Part of the information required in response to this Item is set forth in Part I of this Annual Report on Form 10-K under the caption “Information about our Executive Officers,” and the balance will be included in our Proxy Statement for our 2022 Annual Meeting of Stockholders under the captions “Corporate Governance,” “Election of Directors — Information Concerning Nominees” and “Election of Directors - Nominees for Election as Directors”, except as set forth below. All such information is incorporated herein by reference.
We have adopted a Code of Conduct applicable to all of our directors, officers and employees and those of our subsidiaries and a supplemental Code of Ethics for Senior Financial Executives applicable to our Chief Executive Officer, Chief Financial Officer, Controller, Treasurer, and all other employees performing similar functions for us. The Code of Conduct and the Code of Ethics for Senior Financial Executives are posted on our website at www.sealedair.com. We will post any amendments to the Code of Conduct and the Code of Ethics for Senior Financial Executives on our website. We will also post on our website any waivers applicable to any of our directors or officers, including the senior financial officers listed above, from provisions of the Code of Conduct or the Code of Ethics for Senior Financial Executives.
| Item 11. Executive Compensation | ||
The information required in response to this Item will be set forth in our Proxy Statement for our 2022 Annual Meeting of Stockholders under the captions “Director Compensation,” “Executive Compensation,” and “Corporate Governance - Board Meetings, Committee Membership and Attendance.” Such information is incorporated herein by reference.
| Item 12. | Security Ownership of Certain Beneficial Owners and Management | |||||||
| and Related Stockholder Matters | ||||||||
The information required in response to this Item will be set forth in our Proxy Statement for our 2022 Annual Meeting of Stockholders under the captions “Beneficial Ownership Table” and “Equity Compensation Plan Information.” Such information is incorporated herein by reference.
| Item 13. | Certain Relationships and Related Transactions, and Director | |||||||
| Independence | ||||||||
The information required in response to this Item will be set forth in our Proxy Statement for our 2022 Annual Meeting of Stockholders under the captions “Corporate Governance - Board of Directors Overview - Independence of Directors” and “Certain Relationships and Related Person Transactions.” Such information is incorporated herein by reference.
| Item 14. Principal Accounting Fees and Services | ||
The information required in response to this Item will be included in our Proxy Statement for our 2022 Annual Meeting of Stockholders under the captions “Principal Independent Auditor Fees” and “Audit Committee Pre-Approval Policies and Procedures.” Such information is incorporated herein by reference.
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| PART IV | ||
| Item 15. Exhibits and Financial Statement Schedules | ||
(a) Documents filed as a part of this Annual Report on Form 10-K:
(1) Financial Statements
See Index to Consolidated Financial Statements and Schedule of this Annual Report on Form 10-K in Part II Item 8.
(2) Financial Statement Schedule
See Schedule II — Valuation and Qualifying Accounts and Reserves — Years Ended December 31, 2021, 2020 and 2019 of this Annual Report on Form 10-K. The other schedules are omitted as they are not applicable or the amounts involved are not material.
137
(3) Exhibits
Exhibit Number | Description | |||||||
| 2.1 | ||||||||
| 2.2 | ||||||||
| 3.1 | ||||||||
| 3.2 | ||||||||
| 4.1 | ||||||||
| 4.2 | ||||||||
| 4.3 | ||||||||
| 4.4 | ||||||||
| 4.5 | ||||||||
| 4.6 | ||||||||
| 4.7 | ||||||||
| 4.8 | ||||||||
| 4.9 | ||||||||
| 4.10 | ||||||||
| 4.11 | ||||||||
| 4.12 | ||||||||
| 4.13 | ||||||||
138
Exhibit Number | Description | |||||||
| 4.14 | ||||||||
| 4.15 | ||||||||
| 4.16 | ||||||||
| 10.1 | ||||||||
| 10.2 | ||||||||
| 10.3 | ||||||||
| 10.4 | ||||||||
| 10.5 | ||||||||
| 10.6 | ||||||||
| 10.7 | ||||||||
| 10.8 | ||||||||
| 10.9 | ||||||||
| 10.10 | ||||||||
| 10.11 | ||||||||
| 10.12 | ||||||||
| 10.13 | ||||||||
| 10.14 | ||||||||
| 10.15 | ||||||||
139
Exhibit Number | Description | |||||||
| 10.16 | ||||||||
| 10.17 | ||||||||
| 10.18 | ||||||||
| 10.19 | ||||||||
| 10.20 | ||||||||
| 10.21 | ||||||||
| 10.22 | ||||||||
| 10.23 | ||||||||
| 10.24 | ||||||||
| 10.25 | ||||||||
| 10.26 | ||||||||
| 10.27 | ||||||||
| 10.28 | ||||||||
| 10.29 | ||||||||
| 10.30 | ||||||||
140
Exhibit Number | Description | |||||||
| 10.31 | ||||||||
| 10.32 | ||||||||
| 10.33 | ||||||||
| 21 | ||||||||
| 23.1 | ||||||||
| 31.1 | ||||||||
| 31.2 | ||||||||
| 32 | ||||||||
| 101.INS | Inline XBRL Instance Document - the Instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. | |||||||
| 101.SCH | Inline XBRL Taxonomy Extension Schema | |||||||
| 101.CAL | Inline XBRL Taxonomy Extension Calculation Linkbase | |||||||
| 101.LAB | Inline XBRL Taxonomy Extension Label Linkbase | |||||||
| 101.PRE | Inline XBRL Taxonomy Extension Presentation Linkbase | |||||||
| 101.DEF | Inline XBRL Taxonomy Extension Definition Linkbase | |||||||
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained within Exhibit 101). | |||||||
* Compensatory plan or arrangement of management required to be filed as an exhibit to this report on Form 10-K.
In accordance with Rule 406T of Regulation S-T, the XBRL related information in Exhibit 101 shall not be deemed to be “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that section, and shall not be deemed to be “filed” or part of any registration statement or other document filed for purposes of Sections 11 or 12 of the Securities Act or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
In lieu of filing certain instruments with respect to long-term debt of the kind described in Item 601(b)(4)(iii) of Regulation S-K, the Company agrees to furnish a copy of such instruments to the SEC upon request.
141
(2) Financial Statement Schedule
SEALED AIR CORPORATION AND SUBSIDIARIES
SCHEDULE II
Valuation and Qualifying Accounts and Reserves
Years Ended December 31, 2021, 2020 and 2019
| Description | Balance at Beginning of Year | Charged to Costs and Expenses | Deductions | Foreign Currency Translation and Other | Balance at End of Year | |||||||||||||||||||||||||||||||||
| (In millions) | ||||||||||||||||||||||||||||||||||||||
| Year Ended December 31, 2021 | ||||||||||||||||||||||||||||||||||||||
| Allowance for credit losses on trade receivables | $ | $ | $ | ( | (1) | $ | ( | $ | ||||||||||||||||||||||||||||||
| Inventory obsolescence reserve | $ | $ | $ | ( | (2) | $ | ( | $ | ||||||||||||||||||||||||||||||
| Valuation allowance on deferred tax assets | $ | $ | $ | ( | (3) | $ | ( | $ | ||||||||||||||||||||||||||||||
| Allowance for credit loss on debt investment | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||||||
| Year Ended December 31, 2020 | ||||||||||||||||||||||||||||||||||||||
| Allowance for credit losses on trade receivables | $ | $ | $ | ( | (1) | $ | $ | |||||||||||||||||||||||||||||||
| Inventory obsolescence reserve | $ | $ | $ | ( | (2) | $ | $ | |||||||||||||||||||||||||||||||
Valuation allowance on deferred tax assets | $ | $ | ( | $ | ( | (3) | $ | $ | ||||||||||||||||||||||||||||||
| Year Ended December 31, 2019 | ||||||||||||||||||||||||||||||||||||||
| Allowance for credit losses on trade receivables | $ | $ | $ | ( | (1) | $ | $ | |||||||||||||||||||||||||||||||
| Inventory obsolescence reserve | $ | $ | $ | ( | (2) | $ | ( | $ | ||||||||||||||||||||||||||||||
Valuation allowance on deferred tax assets | $ | $ | ( | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||
(1)Primarily accounts receivable balances written off, net of recoveries.
(2)Primarily items removed from inventory.
(3)Primarily includes valuation allowances released as a result of the cessation of operations in certain jurisdictions and write off of related deferred tax asset balances.
142
| Item 16. Form 10-K Summary | ||
Not applicable.
143
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| SEALED AIR CORPORATION (Registrant) | ||||||||
| By: | /S/ EDWARD L. DOHENY II | |||||||
| Edward L. Doheny II | ||||||||
| President and Chief Executive Officer | ||||||||
Date: February 22, 2022
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated:
| Signature | Title | Date | |||||||||||||||
| By: | /S/ EDWARD L. DOHENY II | President, Chief Executive Officer and Director (Principal Executive Officer) | February 22, 2022 | ||||||||||||||
| Edward L. Doheny II | |||||||||||||||||
| By: | /S/ CHRISTOPHER J. STEPHENS, JR. | Senior Vice President and Chief Financial Officer (Principal Financial Officer) | February 22, 2022 | ||||||||||||||
| Christopher J. Stephens, Jr. | |||||||||||||||||
| By: | /S/ MICHAEL A. LEON | Chief Accounting Officer and Controller (Principal Accounting Officer) | February 22, 2022 | ||||||||||||||
| Michael A. Leon | |||||||||||||||||
| By: | /S/ ZUBAID AHMAD | Director | February 22, 2022 | ||||||||||||||
| Zubaid Ahmad | |||||||||||||||||
| By: | /S/ FRANÇOISE COLPRON | Director | February 22, 2022 | ||||||||||||||
| Françoise Colpron | |||||||||||||||||
| By: | /S/ MICHAEL P. DOSS | Director | February 22, 2022 | ||||||||||||||
| Michael P. Doss | |||||||||||||||||
| By: | /S/ HENRY R. KEIZER | Director | February 22, 2022 | ||||||||||||||
| Henry R. Keizer | |||||||||||||||||
| By: | /S/ HARRY A. LAWTON III | Director | February 22, 2022 | ||||||||||||||
| Harry A. Lawton III | |||||||||||||||||
| By: | /S/ NEIL LUSTIG | Director | February 22, 2022 | ||||||||||||||
| Neil Lustig | |||||||||||||||||
| By: | /S/ SUZANNE B. ROWLAND | Director | February 22, 2022 | ||||||||||||||
| Suzanne B. Rowland | |||||||||||||||||
| By: | /S/ JERRY R. WHITAKER | Director | February 22, 2022 | ||||||||||||||
| Jerry R. Whitaker | |||||||||||||||||
144
Exhibit 10.8
Fees to be Paid to the Non-Employee Directors
of
Sealed Air Corporation (the “Corporation”)
2022
Members of the Board of Directors who are not officers or employees of the Corporation or any subsidiary of the Corporation (“non-employee directors”) shall be paid the following directors’ fees in cash, payable quarterly in arrears on or about the first day of the succeeding calendar quarter, which fees shall be in addition to retainers payable to non-employee directors under the 2014 Omnibus Incentive Plan:
(i)for each non-employee director who is designated as chair of the Audit Committee, a fee of Six Thousand Two Hundred Fifty Dollars ($6,250) per calendar quarter for serving as chair, and for each other member of the Audit Committee, a fee of Two Thousand Five Hundred Dollars ($2,500) per calendar quarter for serving as a member;
(ii)for each non-employee director who is designated as chair of the Nominating and Corporate Governance Committee, a fee of Three Thousand Seven Hundred Fifty Dollars ($3,750) per calendar quarter for serving as chair, and for each other member of the Nominating and Corporate Governance Committee, a fee of One Thousand Eight Hundred Seventy Five Dollars ($1,875) per calendar quarter for serving as a member;
(iii)for each non-employee director who is designated as chair of the Organization and Compensation Committee, a fee of Five Thousand Dollars ($5,000) per calendar quarter for serving as chair, and for each other member of the Organization and Compensation Committee, a fee of Two Thousand Five Hundred Dollars ($2,500) per calendar quarter for serving as a member;
(iv)a fee of Two Thousand Dollars ($2,000) per day for special assignments undertaken by a non-employee director at the request of the Board or any committee of the Board or for attending a director education program; and
(v)meeting fees as approved by the Board of Directors for non-employee directors who serve on any special committee or for attendance at special meetings of the Board of Directors or a committee of the Board of Directors in the event of a major transaction, etc.
The amount of the Annual Retainer (as defined in the 2014 Omnibus Incentive Plan) to be paid to the non-employee directors of the Corporation who are elected at the 2022 Annual Meeting of Stockholders is $140,000 payable in shares of Common Stock plus $100,000 payable in cash unless the non-employee director elects payment of the cash portion in shares of Common Stock.
The amount of the Annual Retainer to be paid to the independent Chairman of the Board is $224,000 payable in shares of Common Stock plus $160,000 payable in cash unless the Chairman elects payment of the cash portion in shares of Common Stock.
Under the Sealed Air Corporation Deferred Compensation Plan for Directors, a non-employee director may elect to defer all or part of his or her Annual Retainer until the director retires from the Board. None of the other fees mentioned above are eligible to be deferred.
Exhibit 10.21
AMENDMENT NO. 4 TO
THIRD AMENDED AND RESTATED SYNDICATED FACILITY AGREEMENT
THIRD AMENDED AND RESTATED SYNDICATED FACILITY AGREEMENT
This AMENDMENT NO. 4 TO THIRD AMENDED AND RESTATED SYNDICATED FACILITY AGREEMENT, dated as of November 5, 2021 (this “Amendment”), is made by and among SEALED AIR CORPORATION, a Delaware corporation (for itself and in its capacity as the Borrower Representative for and on behalf of each Borrower under the Existing Facility Agreement (as defined below), the “Company”), and BANK OF AMERICA, N.A., as agent for and on behalf of the Lenders and other secured parties thereunder (in such capacity, the “Agent”). Terms used but not defined herein have the meaning assigned thereto in the Amended Facility Agreement (as defined below).
PRELIMINARY STATEMENTS
WHEREAS, reference is made to that certain Third Amended and Restated Syndicated Facility Agreement, dated as of July 12, 2018 (as amended by that certain Amendment No. 1 to Third Amended and Restated Syndicated Facility Agreement, dated as of July 12, 2018, as further amended by Amendment No. 2 to Third Amendment and Restated Syndicated Facility Agreement and Incremental Assumption Agreement, dated as of August 1, 2019, as supplemented by that certain Consent to Reorganization, dated as of November 25, 2020, as amended by that certain Amendment to Third Amended and Restated Syndicated Facility Agreement and Pledge and Security Agreement, dated as of September 9, 2021, and as otherwise amended, amended and restated, supplemented, refinanced, replaced or otherwise modified from time to time prior to the date hereof, the “Existing Facility Agreement”), made by and among the Company, the other Borrowers (as defined therein) party thereto, the lenders from time to time party thereto (the “Lenders”), the Agent, and the other parties referred to therein;
WHEREAS, Section 1.16 of the Existing Facility Agreement permits the Company and the Agent to amend the Existing Facility Agreement to replace LIBOR (or any other Eurocurrency Rate) with a Eurocurrency Successor Rate, and implement any Eurocurrency Successor Rate Conforming Changes, under such circumstances and on such terms as are set forth in Section 1.16 of the Existing Facility Agreement;
WHEREAS, the Agent has determined that the circumstances described in Sections 1.16(b) have occurred with respect to the Eurocurrency Rate applicable to Advances denominated in Sterling, Euro and JPY (the “Impacted Currencies” and, each, an “Impacted Currency”);
WHEREAS, the Borrower and the Agent have agreed to on the terms and conditions set forth herein to replace the Eurocurrency Rate applicable to Advances (i) denominated in Sterling with the Sterling Overnight Index Average Reference Rate, (ii) denominated in Euro with Euro Interbank Offered Rate, and (iii) denominated in JPY with the Tokyo Interbank Offer Rate, in each case as Eurocurrency Successor Rates, and implement certain Eurocurrency Successor Rate Conforming Changes;
WHEREAS, Section 1.16 of the Existing Facility Agreement provides that amendments implemented pursuant thereto shall become effective at 5.00 p.m. (New York time) on the fifth Business Day after the Agent shall have posted such proposed amendments to all Lenders and the Company unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Agent written notice that such Lenders do not accept such Amendment; and
WHEREAS, this Amendment was posted to the Lenders and the Company on October 29, 2021, and the Agent has not, since such date, received written notice from Lenders comprising the Required Lenders that such Lenders do not accept the amendments contemplated herein;
1
NOW THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby agree as follows:
SECTION 1. Amendments to Existing Facility Agreement.
(a)The Existing Facility Agreement is, effective as of the Amendment Implementation Date (as hereinafter defined) and subject to the satisfaction or waiver in writing of the conditions precedent set forth in Section 2, hereby amended (the Existing Facility Agreement, as so amended by this Amendment, the “Amended Facility Agreement”) to delete the struck text (indicated textually in the same manner as the following example: struck text), and to add the underlined text (indicated textually in the same manner as the following example: underlined text) as set forth in the pages of the Amended Facility Agreement attached as Annex I hereto.
(b)On and after the Amendment Implementation Date, the rights and obligations of the parties to the Existing Facility Agreement shall be governed by the Amended Facility Agreement.
SECTION 2. Conditions to Effectiveness. This Amendment, and the agreements made pursuant hereto, shall be in full force and effect as of the first date to occur when (a) the Agent shall have received counterparts to this Amendment, duly executed and delivered by the Company and the Agent and (b) the form of this Amendment shall have been posted to the Lenders for at least five Business Days and the Agent shall not have received objections or non-acceptances with respect to this Amendment from Lenders comprising at least the Required Lenders; provided, that the implementation of the amendments to the Existing Facility Agreement set forth in Section 1 hereof shall occur as of the first date (the “Amendment Implementation Date”) on which any Borrower shall request or select an Interest Period with respect to a Borrowing in any Impacted Currency, or any Interest Period with respect to any Impacted Currency would otherwise commence (automatically or otherwise), in each case, wherein such Interest Period will or would terminate on a date occurring on or after January 1, 2022 (and for the avoidance of doubt, (i) such effectiveness shall take retrospective effect solely to the extent necessary to take into account any relevant period for determining the applicable Eurocurrency Rate under the Amended Facility Agreement with respect to the Impacted Currency for such Interest Period, and (ii) such amendments shall have no effect on, and shall not modify, any then-outstanding Borrowings in any Impacted Currencies with respect to any applicable Interest Period ending on or prior to December 31, 2021).
SECTION 3. Reference to and Effect on the Loan Documents.
(a) On and after the Amendment Implementation Date, each reference in the Existing Facility Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Existing Facility Agreement, and each reference in the Notes and each of the other Loan Documents to “the Facility Agreement”, “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Facility Agreement, shall mean and be a reference to the Amended Facility Agreement (following its amendment and modification by this Amendment).
(b) The Existing Facility Agreement, as specifically amended and modified by this Amendment, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents to the extent
2
provided in the Collateral Documents.
(c) Save as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power, privilege or remedy of any Lender, any Issuing Bank, any Swing Line Lender or the Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
(d) The Agent agrees to promptly post this Amendment for the Lenders on the Platform.
SECTION 4. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier or other electronic means shall be effective as delivery of a manually executed counterpart of this Amendment. This Amendment and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Amendment (each a “Communication”), including Communications required to be in writing, may be in the form of an Electronic Record (as defined below) and may be executed using Electronic Signatures (as defined below). The Company agrees that any Electronic Signature on or associated with any Communication shall be valid and binding on the Company to the same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of the Company enforceable against such in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Agent of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. The Agent may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of the such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, the Agent is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by the Agent pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the Agent has agreed to accept such Electronic Signature, the Agent and each of the Lenders shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of the Company without further verification and (b) upon the request of the Agent or any Secured Party, any Electronic Signature shall be promptly followed by such manually executed counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
SECTION 5. Expenses. The Company agrees to reimburse the Agent for its reasonable and documented out-of-pocket costs and expenses incurred in connection with this Amendment, in accordance with the provisions of Section 9.04(a) of the Amended Facility Agreement (and without duplication of such provision or any provision of this Amendment).
SECTION 6. Miscellaneous. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. This Amendment shall be binding upon
3
and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 7. Loan Document. Each of the parties hereto hereby acknowledges and agrees that this Amendment shall be a Loan Document for all purposes of the Amended Facility Agreement and the other Loan Documents, and the definition of “Loan Documents” set forth in the Amended Facility Agreement shall be deemed to have been amended to include this Amendment therein.
SECTION 8. GOVERNING LAW; JURISDICTION; WAIVER OF VENUE; WAIVER OF JURY TRIAL.
(a) This Amendment and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Amendment and the transactions contemplated hereby shall be governed by, and construed in accordance with, the law of the State of New York.
(B) THE COMPANY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE AGENT, ANY LENDER, ANY ISSUING BANK, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AMENDMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AMENDMENT SHALL AFFECT ANY RIGHT THAT THE AGENT, ANY LENDER OR ANY ISSUING BANK MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AMENDMENT AGAINST THE COMPANY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) THE COMPANY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT IN ANY COURT REFERRED TO IN CLAUSE (B) OF THIS SECTION 8. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
4
IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT 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 PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 To Third Amended and Restated Syndicated Facility Agreement to be duly executed and delivered as of the day and year first above written.
SEALED AIR CORPORATION,
as the Company and as Borrower Representative
as the Company and as Borrower Representative
| By: | /s/ Alessandra Faccin Assis | ||||
| Name: | Alessandra Faccin Assis | ||||
| Title: | Vice President and Treasurer | ||||
[AMENDMENT NO. 4 TO THIRD AMENDED AND RESTATED SYNDICATED FACILITY AGREEMENT]
BANK OF AMERICA, N.A.,
as Agent
as Agent
| By: | /s/ Liliana Claar | ||||
| Name: | Liliana Claar | ||||
| Title: | Vice President | ||||
[AMENDMENT NO. 4 TO THIRD AMENDED AND RESTATED SYNDICATED FACILITY AGREEMENT]
Annex I
[Attached]
THIRD AMENDED AND RESTATED
SYNDICATED FACILITY AGREEMENT
Dated as of July 12, 2018 (as amended by that certain Amendment No. 1 to Third Amended and Restated Syndicated Facility Agreement, dated as of July 12, 2018, by that certain Amendment No. 2 to Third Amended and Restated Syndicated Facility Agreement and Incremental Assumption Agreement, dated as of August 1, 2019, and by that certain Amendment to Third Amended and Restated Syndicated Facility Agreement and Pledge and Security Agreement, dated as of September 9, 2021, and by that certain Amendment No. 4 to Third Amended and Restated Syndicated Facility Agreement, dated as of November 5, 2021),
among
SEALED AIR CORPORATION
and
THE OTHER BORROWERS NAMED HEREIN,
as Borrowers
THE OTHER BORROWERS NAMED HEREIN,
as Borrowers
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders
as Initial Lenders
THE INITIAL ISSUING BANKS NAMED HEREIN,
as Initial Issuing Banks
as Initial Issuing Banks
BANK OF AMERICA, N.A.,
as Agent
as Agent
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
BNP PARIBAS,
CITIBANK, N.A.,
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
GOLDMAN SACHS BANK USA,
JPMORGAN CHASE BANK, N.A.
and
MIZUHO BANK, LTD.
BNP PARIBAS,
CITIBANK, N.A.,
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
GOLDMAN SACHS BANK USA,
JPMORGAN CHASE BANK, N.A.
and
MIZUHO BANK, LTD.
as Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents
and
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH,
HSBC SECURITIES (USA) INC.,
MORGAN STANLEY SENIOR FUNDING, INC.,
MUFG BANK, LTD.,
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
SUMITOMO MITSUI BANKING CORPORATION,
SUNTRUST BANK
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
HSBC SECURITIES (USA) INC.,
MORGAN STANLEY SENIOR FUNDING, INC.,
MUFG BANK, LTD.,
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
SUMITOMO MITSUI BANKING CORPORATION,
SUNTRUST BANK
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
2
as Co-Documentation Agents
2
| Page | ||||||||||||||
| ARTICLE I | ||||||||||||||
| DEFINITIONS AND ACCOUNTING TERMS | ||||||||||||||
| SECTION 1.01 | Certain Defined Terms | 3 | ||||||||||||
| SECTION 1.02 | Computation of Time Periods | 55 | 57 | |||||||||||
| SECTION 1.03 | Accounting Terms | 55 | 57 | |||||||||||
| SECTION 1.04 | Exchange Rates; Currency Equivalents | 55 | 57 | |||||||||||
| SECTION 1.05 | Construction | 56 | 58 | |||||||||||
| SECTION 1.06 | Dutch Terms | 56 | 58 | |||||||||||
| SECTION 1.07 | Luxembourg Terms | 56 | 58 | |||||||||||
| SECTION 1.08 | Québec Matters | 57 | 59 | |||||||||||
| SECTION 1.09 | Code of Banking Practice | 58 | 60 | |||||||||||
| SECTION 1.10 | Terms Generally | 58 | 60 | |||||||||||
| SECTION 1.11 | Rounding | 59 | 60 | |||||||||||
| SECTION 1.12 | Change of Currency | 59 | 60 | |||||||||||
| SECTION 1.13 | Additional Foreign Currencies | 59 | 61 | |||||||||||
| SECTION 1.14 | Letter of Credit Amounts | 60 | 62 | |||||||||||
| SECTION 1.15 | Limited Condition Acquisitions | 60 | 62 | |||||||||||
| SECTION 1.16 | LIBOR Rate Discontinuation | 61 | 63 | |||||||||||
| SECTION 1.17 | Bank of America Merrill Lynch International Limited | 62 | 64 | |||||||||||
| ARTICLE II | ||||||||||||||
| AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT | ||||||||||||||
| SECTION 2.01 | The Advances and Letters of Credit | 63 | 65 | |||||||||||
| SECTION 2.02 | Borrowing Mechanics | 65 | 67 | |||||||||||
| SECTION 2.03 | Issuance of and Drawings and Reimbursement Under Letters of Credit | 68 | 70 | |||||||||||
| SECTION 2.04 | Incremental Commitments | 72 | 74 | |||||||||||
| SECTION 2.05 | Fees | 75 | 77 | |||||||||||
| SECTION 2.06 | Termination or Reduction of the Commitments | 76 | 78 | |||||||||||
| SECTION 2.07 | Repayment of Advances | 77 | 79 | |||||||||||
| SECTION 2.08 | Interest on Advances | 80 | 82 | |||||||||||
| SECTION 2.09 | Interest Rate Determination | 81 | 83 | |||||||||||
| SECTION 2.10 | Optional Conversion of Advances | 84 | 86 | |||||||||||
| SECTION 2.11 | Prepayments of Term Advances, Revolving Credit Advances and Swing Line Advances | 84 | 87 | |||||||||||
| SECTION 2.12 | Increased Costs | 87 | 89 | |||||||||||
| SECTION 2.13 | Illegality | 88 | 91 | |||||||||||
| SECTION 2.14 | Payments and Computations | 88 | 91 | |||||||||||
| SECTION 2.15 | Taxes | 90 | 92 | |||||||||||
| SECTION 2.16 | Sharing of Payments, Etc. | 93 | 96 | |||||||||||
| SECTION 2.17 | Evidence of Debt | 94 | 97 | |||||||||||
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| SECTION 2.18 | Use of Proceeds | 95 | 97 | |||||||||||
| SECTION 2.19 | Defaulting Lenders | 95 | 98 | |||||||||||
| SECTION 2.20 | Replacement of Lenders | 98 | 100 | |||||||||||
| SECTION 2.21 | Borrower Representative | 99 | 102 | |||||||||||
| SECTION 2.22 | Public Offer | 99 | 102 | |||||||||||
| ARTICLE III | ||||||||||||||
| CONDITIONS TO LENDING | ||||||||||||||
| SECTION 3.01 | Conditions Precedent to the Initial Advances | 100 | 103 | |||||||||||
| SECTION 3.02 | Conditions to all Advances | 105 | 108 | |||||||||||
| SECTION 3.03 | Determinations Under Section 3.01 | 106 | 108 | |||||||||||
| SECTION 3.04 | Post-Closing Conditions | 106 | 109 | |||||||||||
| ARTICLE IV | ||||||||||||||
| REPRESENTATIONS AND WARRANTIES | ||||||||||||||
| SECTION 4.01 | Representations and Warranties of the Borrowers | 106 | 109 | |||||||||||
| ARTICLE V | ||||||||||||||
| COVENANTS OF THE COMPANY | ||||||||||||||
| SECTION 5.01 | Affirmative Covenants | 115 | 117 | |||||||||||
| SECTION 5.02 | Negative Covenants | 125 | 128 | |||||||||||
| SECTION 5.03 | Company Net Total Leverage Ratio | 140 | 142 | |||||||||||
| ARTICLE VI | ||||||||||||||
| EVENTS OF DEFAULT | ||||||||||||||
| SECTION 6.01 | Events of Default | 140 | 143 | |||||||||||
| SECTION 6.02 | Actions in Respect of the Letters of Credit upon Default | 144 | 146 | |||||||||||
| ARTICLE VII | ||||||||||||||
| GUARANTY | ||||||||||||||
| SECTION 7.01 | Guaranty | 144 | 147 | |||||||||||
| SECTION 7.02 | Keepwell | 145 | 147 | |||||||||||
| SECTION 7.03 | Guaranty Absolute | 145 | 148 | |||||||||||
| SECTION 7.04 | Waivers and Acknowledgments | 146 | 149 | |||||||||||
| SECTION 7.05 | Subrogation | 147 | 150 | |||||||||||
| SECTION 7.06 | Subordination | 148 | 150 | |||||||||||
| SECTION 7.07 | Continuing Guaranty; Assignments | 149 | 151 | |||||||||||
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| ARTICLE VIII | ||||||||||||||
| THE AGENT | ||||||||||||||
| SECTION 8.01 | Authorization and Action | 149 | 152 | |||||||||||
| SECTION 8.02 | Agent’s Reliance, Etc. | 150 | 153 | |||||||||||
| SECTION 8.03 | Bank of America and Affiliates | 151 | 153 | |||||||||||
| SECTION 8.04 | Lender Credit Decision | 151 | 154 | |||||||||||
| SECTION 8.05 | Indemnification | 151 | 154 | |||||||||||
| SECTION 8.06 | Appointment as Agent and Administrator in Relation to German Collateral | 152 | 155 | |||||||||||
| SECTION 8.07 | Successor Agent | 154 | 156 | |||||||||||
| SECTION 8.08 | Other Agents | 154 | 157 | |||||||||||
| SECTION 8.09 | Delegation of Duties | 154 | 157 | |||||||||||
| SECTION 8.10 | Appointment for the Province of Québec | 155 | 157 | |||||||||||
| ARTICLE IX | ||||||||||||||
| MISCELLANEOUS | ||||||||||||||
| SECTION 9.01 | Amendments, Etc. | 155 | 158 | |||||||||||
| SECTION 9.02 | Notices; Effectiveness; Electronic Communication | 157 | 160 | |||||||||||
| SECTION 9.03 | No Waiver; Remedies | 160 | 163 | |||||||||||
| SECTION 9.04 | Costs and Expenses | 160 | 163 | |||||||||||
| SECTION 9.05 | Right of Set‑off | 162 | 165 | |||||||||||
| SECTION 9.06 | Binding Effect | 162 | 165 | |||||||||||
| SECTION 9.07 | Assignments and Participations | 162 | 165 | |||||||||||
| SECTION 9.08 | Confidentiality | 167 | 169 | |||||||||||
| SECTION 9.09 | Designated Borrower | 168 | 170 | |||||||||||
| SECTION 9.10 | Governing Law | 169 | 172 | |||||||||||
| SECTION 9.11 | Execution in Counterparts | 169 | 172 | |||||||||||
| SECTION 9.12 | Judgment | 169 | 172 | |||||||||||
| SECTION 9.13 | Jurisdiction, Etc. | 170 | 173 | |||||||||||
| SECTION 9.14 | Substitution of Currency | 171 | 173 | |||||||||||
| SECTION 9.15 | No Liability of the Issuing Banks | 171 | 174 | |||||||||||
| SECTION 9.16 | Patriot Act | 172 | 174 | |||||||||||
| SECTION 9.17 | Release of Collateral | 172 | 175 | |||||||||||
| SECTION 9.18 | Waiver of Jury Trial | 174 | 176 | |||||||||||
| SECTION 9.19 | Parallel Debt | 174 | 177 | |||||||||||
| SECTION 9.20 | Intercreditor Agreement | 175 | 178 | |||||||||||
| SECTION 9.21 | Exceptions to the Application of the Bank Transaction Agreement | 175 | 178 | |||||||||||
| SECTION 9.22 | Financial Assistance Australian Loan Party | 175 | 178 | |||||||||||
| SECTION 9.23 | Acknowledgment and Consent to Bail-In of EEA Financial Institutions | 176 | 178 | |||||||||||
| SECTION 9.24 | Fiduciary Duties | 176 | 179 | |||||||||||
| SECTION 9.25 | Process Agent | 177 | 179 | |||||||||||
| SECTION 9.26 | Designation of Different Applicable Lending Office | 177 | 180 | |||||||||||
iii
| SECTION 9.27 | Consent and Agent Direction; Specified Collateral Release | 177 | 180 | |||||||||||
| SECTION 9.28 | Electronic Execution | 178 | 180 | |||||||||||
| SECTION 9.29 | Lender Representations | 178 | 181 | |||||||||||
| SECTION 9.30 | Amendment and Restatement | 180 | 183 | |||||||||||
| SECTION 9.31 | Obligations Among Borrowers | 180 | 183 | |||||||||||
| SECTION 9.32 | Acknowledgement Regarding Any Supported QFCs Obligations Among Borrowers | 180 | 183 | |||||||||||
SCHEDULES
I Commitments and Applicable Lending Offices
II Designated Borrowers
1.01(i) Unrestricted Subsidiaries
1.01(ii) Subsidiary Guarantors
2.01(e) Existing Letters of Credit
3.04 Post-Closing Conditions
4.01(c)(i) Owned Real Property
4.01(c)(ii) Material Leased Real Property – Lessee
4.01(l) Subsidiaries
5.01(h) Collateral Jurisdictions and Excluded Collateral Jurisdictions
5.01(m) PostClosing Matters
5.02(a) Liens
5.02(b) Existing Indebtedness
5.02(d) Investments
5.02(e) Dispositions
5.02(j) Sales and Leasebacks
5.02(k) Negative Pledges
9.02 Notices
EXHIBITS
A-1 Form of Multicurrency Revolving Credit Note
A-2 Form of Transpacific Revolving Credit Note
B Form of Term Note
C-1 Form of Notice of Borrowing
C-2 Form of Notice of Swing Line Borrowing
D Form of Assignment and Acceptance
E1 Form of US Subsidiary Guaranty
E2 Form of Foreign Subsidiary Guaranty
E-3 Form of Reaffirmation Agreement
F Form of Loan Certificate
G Form of Solvency Certificate
H [Reserved]
I Form of Designated Borrower Request and Assumption Agreement
iv
J Form of Designated Borrower Notice
K [Reserved]
L-1 Form of U.S. Tax Compliance Certificate
L-2 Form of U.S. Tax Compliance Certificate
L-3 Form of U.S. Tax Compliance Certificate
L-4 Form of U.S. Tax Compliance Certificate
M Auction Procedures
v
THIRD AMENDED AND RESTATED
SYNDICATED FACILITY AGREEMENT
This THIRD AMENDED AND RESTATED SYNDICATED FACILITY AGREEMENT, dated as of July 12, 2018 (this “Agreement”), made by and among SEALED AIR CORPORATION, a Delaware corporation (the “Company”), CRYOVAC, INC., a Delaware corporation (“Cryovac”), SEALED AIR JAPAN G.K. a Japanese limited liability company (godo kaisha) (the “JPY Revolver Borrower”), SEALED AIR LIMITED, a private limited company incorporated in England and Wales with a registered company number 03443946 (DTTPS Number: 13/W/61173/DTTP Country of Residence: United States) (the “Sterling Borrower”), SEALED AIR B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) under Dutch law, having its statutory seat in Nijmegen, the Netherlands and registered with the Dutch Commercial Register (Handelsregister) under number 09114711 (the “Euro Revolver Borrower”), SEALED AIR CORPORATION (US), a Delaware corporation (“Sealed Air US”), SEALED AIR FINANCE LUXEMBOURG S.À. R.L., a société à responsabilité limitée incorporated and existing under the laws of Luxembourg, with registered office at 20, rue des Peupliers, L-2328 Luxembourg and registered with the Luxembourg Register of Commerce and Companies (the “RCS Luxembourg”) under the number B 89.671 (the “Lux Revolver Borrower”) SEALED AIR AUSTRALIA PTY LIMITED, ABN 65 004 207 532, a company incorporated under the laws of Australia and SEALED AIR AUSTRALIA (HOLDINGS) PTY. LIMITED, ABN 65 102 261 307, a company incorporated under the laws of Australia (together, the “Australian Revolver Borrowers”), SEALED AIR (CANADA) CO./CIE, a company incorporated under the laws of Nova Scotia (the “CDN Revolver Borrower”), SEALED AIR (NEW ZEALAND) (the “New Zealand Revolver Borrower”), SEALED AIR DE MÉXICO OPERATIONS, S. DE R.L. DE C.V., a sociedad de responsabilidad limitada de capital variable incorporated under the laws of Mexico (the “Mexican Revolver Borrower”) and certain Subsidiaries of the Company from time to time listed on Schedule II (each a “Designated Borrower” and, collectively with the Company, Cryovac, Sealed Air US, the CDN Revolver Borrower, the JPY Revolver Borrower, the Sterling Borrower, the Lux Revolver Borrower, the Euro Revolver Borrower, the Australian Revolver Borrowers, the New Zealand Revolver Borrower and the Mexican Revolver Borrower, the “Borrowers”), the banks, financial institutions and other investors listed on Schedule I hereto (the “Initial Lenders”) and each other Lender (as defined below) party hereto from time to time and the initial issuing banks (the “Initial Issuing Banks”) listed on Schedule I hereto and each other Issuing Bank (as defined below) party hereto from time to time, and BANK OF AMERICA, N.A., as Agent for the Lenders (as hereinafter defined) and the Issuing Banks (in such capacity, and as agent for the Secured Parties under the other Loan Documents, the “Agent”).
PRELIMINARY STATEMENTS:
WHEREAS, the Company, the other Borrowers, the Lenders and Issuing Banks party thereto and the Agent (each as defined in the Existing Credit Agreement) entered into that certain Second Amended and Restated Syndicated Facility Agreement, dated as of July 25, 2014 (as amended, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”), pursuant to which (a) the Term A Lenders (as defined therein) extended credit to the Company an aggregate principal amount of $710,000,000 of term
1
A Dollar loans under the Term A Facility (as defined therein), (b) the CDN Term A Lenders (as defined therein) extended credit to the CDN Revolver Borrower an aggregate principal amount of CDN $42,900,000.00 under the CDN Term A Facility (as defined therein), (c) the JPY Term A-1 Lenders (as defined therein) extended credit to the JPY Revolver Borrower an aggregate principal amount of ¥147,875,000, under the JPY Term A Facility (as defined therein), (d) the Euro Term A Lenders (as defined therein) extended credit to the Euro TLA Borrowers (as defined therein) an aggregate principal amount of €147,875,000, under the Euro Term A Facility (as defined therein), (e) the Sterling Term A Lenders (as defined therein) extended credit to the Sterling Borrower an aggregate principal amount of £35,150,000 of term A Sterling loans, under the Sterling Term A Facility (as defined therein), (f) the Brazilian Term A Lenders (as defined therein) extended credit to the Brazilian Term Borrower (as defined therein) an aggregate principal amount of the Equivalent (as hereinafter defined) of $100,000,000 under the Brazilian Term A Facility (as defined therein), (g) the Short Term A Lenders (as defined therein) extended credit to the Short Term A Borrower (as defined therein) an aggregate principal amount of $250,000,000, (h) the Multicurrency Revolving Lenders and Multicurrency Issuing Banks (each as defined therein) made available to the Multicurrency Borrowers (as defined therein) from time to time a Multicurrency Revolving Credit Facility (as defined therein) up to the Equivalent of $200,000,000 available in the Committed Currencies (as defined therein), for the purposes specified in the Existing Credit Agreement and (i) the US Revolving Lenders and US Issuing Banks (each as defined therein) made available to the US Revolver Borrowers (as defined therein) from time to time a US Revolving Credit Facility (as defined therein, and collectively with the Term A Facility, the CDN Term A Facility, the JPY Term A-1 Facility, the Euro Term A Facility, the Sterling Term A Facility, the Brazilian Term A Facility, the Short Term A Facility the Multicurrency Revolving Facility referenced in the foregoing clauses (a) – (h), the “Existing Facilities”) of $500,000,000, for the purposes specified in the Existing Credit Agreement;
WHEREAS, the Borrowers have requested that the Existing Credit Agreement be amended and restated to (a) refinance (the “Closing Date Refinancing”) all Advances and Commitments (each as defined in the Existing Credit Agreement) thereunder and pay all accrued interest (regardless of whether then due and payable), fees and other amounts, in each case outstanding under the Existing Credit Agreement with, and to collectively replace the Existing Facilities with, the new Term A Facility, Sterling Term A Facility, Multicurrency Revolving Credit Facility and Transpacific Revolving Credit Facility and (b) to amend certain other provisions of the Existing Credit Agreement as hereinafter set forth;
WHEREAS, in connection with the Transactions (as defined below) and upon or following the consummation of the Closing Date Refinancing, the parties hereto intend to release certain existing Liens (as defined below) on the Collateral (as defined in the Existing Credit Agreement) currently existing in favor of the Agent for the benefit of the Secured Parties (as defined in the Existing Credit Agreement) (such releases, collectively, the “Specified Collateral Release”);
WHEREAS, the parties hereto intend that the Obligations (as defined in the Existing Credit Agreement) (the “Existing Obligations”) which remain outstanding after giving effect to the Closing Date Refinancing shall continue to exist under this Agreement on the terms set forth herein and that this Agreement shall not constitute a novation or a termination of such
2
Obligations, and the Collateral (as defined in the Existing Credit Agreement) shall, to the extent not released pursuant to the Specified Collateral Release, continue to secure, support and otherwise benefit the Obligations of the Loan Parties under this Agreement and the other Loan Documents; and
WHEREAS, in consideration of the premises and the mutual covenants herein contained and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Credit Agreement is amended and restated in its entirety as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“2019 Incremental Term Advance” means an Advance made by any 2019 Incremental Term Lender under the 2019 Incremental Term Facility which shall, for the avoidance of doubt, be an Incremental Term Advance and an Other Term Advance.
“2019 Incremental Term Amendment Agreement” means that certain Amendment No. 2 to Third Amended and Restated Syndicated Facility Agreement and Incremental Assumption Agreement, dated as of August 1, 2019, made by and among the Company (for and on behalf of itself and, in its capacity as the Borrower Representative, for and on behalf of, each other Borrower), the 2019 Incremental Term Borrower, the Agent, the initial 2019 Incremental Term Lenders, and the other Lenders party thereto, which shall, for the avoidance of doubt, be an Incremental Assumption Agreement.
“2019 Incremental Term Borrower” means Sealed Air US.
“2019 Incremental Term Borrowing” means a borrowing consisting of simultaneous 2019 Incremental Term Advances of the same Type and, in the case of Eurocurrency Rate Advances, having the same Interest Period made by each of the 2019 Incremental Term Lenders pursuant to Section 2.01(f), which shall, for the avoidance of doubt, be an Incremental Term Borrowing.
“2019 Incremental Term Commitment” means, as to each 2019 Incremental Term Lender, its obligation to make 2019 Incremental Term Advances to the 2019 Incremental Term Borrower pursuant to Section 2.01(f) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such 2019 Incremental Term Lender’s name on Schedule I to the 2019 Incremental Term Amendment Agreement, which shall, for the avoidance of doubt, be an Incremental Term Commitment.
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“2019 Incremental Term Effective Date” means the first date on which all of the conditions specified in Section 5 of the 2019 Incremental Term Amendment Agreement have been satisfied (or waived) and the funding of the 2019 Incremental Term Advances occurs.
“2019 Incremental Term Facility” means the aggregate principal amount of the 2019 Incremental Term Advances extended by all 2019 Incremental Term Lenders pursuant to Section 2.01(f) outstanding at such time.
“2019 Incremental Term Lender” means any Lender that has a 2019 Incremental Term Commitment or that holds 2019 Incremental Term Advances, which Lender shall, for the avoidance of doubt, be a Term Lender and an Incremental Term Lender.
“2019 Incremental Term Note” means a promissory note made by the 2019 Incremental Term Borrower in favor of a 2019 Incremental Term Lender evidencing 2019 Incremental Term Advances made by such 2019 Incremental Term Lender, substantially in the form of Exhibit B.
“2019 Incremental Term Termination Date” has the meaning specified in the definition of “Termination Date”.
“Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Agent.
“Advance” or “Loan” means an extension of credit by a Lender to a Borrower under Article II in the form of a Term A Advance, a Sterling Term A Advance, a Transpacific Revolving Credit Advance, a Multicurrency Revolving Credit Advance, a Swing Line Advance, a 2019 Incremental Term Advance, an Incremental Term Advance, an Incremental Revolving Credit Advance, an Other Term Advance or an Other Revolving Credit Advance.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise. For the avoidance of doubt, in no event shall the Agent or any Lender be deemed to be an Affiliate of any of the Borrowers or any of such Borrower’s Subsidiaries.
“Agent” has the meaning given to such term in the preamble to this Agreement.
“Agent’s Account” means with respect to any currency, the Agent’s account with respect to such currency as the Agent may from time to time notify to the Company and the Lenders.
“Agent Parties” has the meaning specified in Section 9.02(c).
“Agreement” has the meaning specified in the preamble to this Agreement.
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“Agreement Currency” has the meaning specified in Section 9.12.
“Alternative Currency” means each of the following currencies: Sterling, Euro and JPY.
“Alternative Currency Daily Rate” means, for any day, with respect to any Advance denominated in Sterling, the rate per annum equal to SONIA determined pursuant to the definition thereof plus the SONIA Adjustment; provided, that, if the Alternative Currency Daily Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Any change in the Alternative Currency Daily Rate shall be effective from and including the date of such change without further notice.
“Alternative Currency Daily Rate Advance” means a Loan or an Advance that bears interest at a rate based on the definition of “Alternative Currency Daily Rate” in an amount not less than the Alternative Currency Daily Rate Borrowing Minimum or the Alternative Currency Daily Rate Borrowing Multiple in excess thereof. All Alternative Currency Daily Rate Loans must be denominated in Sterling.
“Alternative Currency Daily Rate Borrowing Minimum” means, in respect of Alternative Currency Daily Rate Advances denominated in Sterling, the Equivalent of $1,000,000 in Sterling.
“Alternative Currency Daily Rate Borrowing Multiple” means, in respect of Alternative Currency Daily Rate Advances denominated in Sterling, the Equivalent of $500,000, in Sterling.
“Amendment No. 4” means Amendment No. 4 to Third Amended and Restated Syndicated Facility Agreement, dated as of [_], 2021, made by and between the Company, (for itself and in its capacity as the Borrower Representative for and on behalf of each Borrower) and the Agent.
“Amendment No. 4 Implementation Date” means the “Amendment Implementation Date”, as defined in Amendment No. 4.
“Anti-Corruption Laws” has the meaning specified in Section 5.01(q)(ii).
“Anti-Money Laundering Laws” means any applicable anti-money laundering rules or regulation, including without limitation the PATRIOT Act, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), Parts II.1 and XIII.2 and s. 354 of the Criminal Code (Canada), and in each case, regulations and guidance thereunder.
“Anti-Social Conduct” means (a) a demand and conduct with force and arms, (b) an unreasonable demand and conduct having no legal cause (c) threatening or committing violent behaviour relating to its business transactions, (d) an action to defame the reputation or interfere with the business of the Agent, any Joint Lead Arranger, any Joint Bookrunner, any Issuing Bank, the Swing Line Bank, any Co-Syndication Agent, any Co-Documentation Agent and any Lender or any of their respective Affiliates and their officers, directors, employees,
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agents and advisors by spreading rumour, using fraudulent means or resorting to force, or (f) other actions similar or analogous to any of the foregoing in any jurisdiction.
“Anti-Social Group” means (a) an organized crime group (bouryokudan), (b) a member of an organised crime group (bouryokudan in), (c) a Person who used to be a member of an organised crime group but has only ceased to be a member of an organised crime group for a period of less than 5 years, (d) quasi-member of an organised crime group (bouryokudan junkoseiin), (e) a related or associated company of an organised crime group (boroykudan kanren gaisha), (f) a corporate racketeer (soukaiya) or blackmailer advocating social cause (shakai undou nado hyoubou goro) or a special intelligence organised crime group (tokushu chinou bouryoku syudan) or (g) a member of any other criminal force similar or analogous to any of the foregoing in any jurisdiction.
“Anti-Social Relationship” means, in relation to a Person, (a) an Anti-Social Group controls its management, (b) an Anti-Social Group is substantively involved in its management, (c) it utilizes improperly an Anti-Social Group for the purpose of, or which have the effect of, unfairly benefiting itself or a third party or prejudicing a third party, (d) it is involved in the provision of funds or other benefits to an Anti-Social Group or (e) any of its directors or any other person who is substantively involved in its management has a socially objectionable relationship with an Anti-Social Group.
“Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance or an Alternative Currency Daily Rate Advance. Unless the context otherwise requires, each reference to a Lender shall include its Applicable Lending Office.
“Applicable Margin” means (a) for 2019 Incremental Term Advances, 1.125% per annum for Eurocurrency Rate Advances and 0.125% per annum for Dollar-denominated Base Rate Advances; and (b) for Term A Advances, Sterling Term A Advances, Transpacific Revolving Credit Advances and Multicurrency Revolving Credit Advances, (i) initially, 1.50% per annum for Eurocurrency Rate Advances and Alternative Currency Daily Rate Advances, as applicable, and 0.50% per annum for Dollar-denominated Base Rate Advances, and (ii) from time to time after delivery of the financial statements for the fiscal quarter ending September 30, 2018 pursuant to Section 5.01(a)(ii), the Applicable Margin shall be a percentage determined by reference to the table below, based on the Net Total Leverage Ratio set forth in, and determined based on, the most recent financial statements and Compliance Certificate delivered to the Agent under Section 5.01(a)(i) or (ii), and Section 5.01(a)(iii) hereof:
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| Pricing Level | Net Total Leverage Ratio | Applicable Margin for Base Rate Term A Advances | Applicable Margin for Eurocurrency Rate or Alternative Currency Daily Rate (as applicable) Term A and Sterling Term A Advances | Applicable Margin for Base Rate Transpacific Revolving Credit Advances and Multicurrency Revolving Credit Advances (in Dollars) | Applicable Margin for Eurocurrency Rate Transpacific Revolving Credit Advances and Multicurrency Revolving Credit Advances | Commitment Fee | ||||||||||||||
| 1 | Less than or equal to 3.00:1.00 | 0.25% | 1.25% | 0.25% | 1.25% | 0.20% | ||||||||||||||
| 2 | Greater than 3.00:1.00 but less than or equal to 4.00:1.00 | 0.50% | 1.50% | 0.50% | 1.50% | 0.25% | ||||||||||||||
| 3 | Greater than 4.00:1.00 but less than or equal to 4.50:1.00 | 0.75% | 1.75% | 0.75% | 1.75% | 0.30% | ||||||||||||||
| 4 | Greater than 4.50:1.00 | 1.00% | 2.00% | 1.00% | 2.00% | 0.35% | ||||||||||||||
Notwithstanding the foregoing, if at any time the Company shall fail to deliver financial statements to the Agent in accordance with Section 5.01(a)(i) or 5.01(a)(ii), as applicable, then any Applicable Margin that is determined with respect to the table above shall thereafter be determined by reference to Pricing Level 4 in the table above until such time as the Company shall again be in compliance with Sections 5.01(a)(i) and 5.01(a)(ii).
“Applicable Time” means, with respect to any borrowings and payments in any Foreign Currency, the local time in the place of settlement for such Foreign Currency as may be determined by the Agent or the applicable Issuing Bank, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment; provided, that with respect to each Foreign Currency specified below the “Applicable Time” shall be the corresponding time specified below for such Foreign Currency:
(i) AU$: 12:00 P.M. (Sydney, Australia time);
(ii) CDN: 12:00 P.M. (Toronto, Canada time);
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(iii) Euros: 12:00 P.M. (London, England time);
(iv) JPY: 12:00 P.M. (Tokyo, Japan time); and
(v) Sterling: 12:00 P.M. (London, England time);
(vi) NZD: 12:00 P.M. (Wellington, New Zealand time); and
(vii) Pesos: 12:00 P.M. (Mexico City, Mexico time);
provided, further, that any such “Applicable Time” may be modified by the Agent on not less than five Business Days prior written notice to the Company and the Lenders if the Agent shall reasonably determine that such modification is reasonably necessary or advisable.
“Applicant Borrower” has the meaning specified in Section 9.09(a).
“Approved Fund” means any Person (other than a natural person) that is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities 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.
“Asset Disposition” means the disposition of any or all of the assets (including, without limitation, any Equity Interest owned thereby) of any Loan Party, in one transaction or a series of transactions, whether by sale, lease, transfer or otherwise; provided that “Asset Dispositions” shall not include any transaction (or series of related transactions), the Net Cash Proceeds of which do not exceed $25,000,000 in any Fiscal Year.
“Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of Exhibit D hereto.
“Associate” has the meaning given to it in Section 128F(9) of the Australian Tax Act.
“AU$” means lawful currency of Australia.
“Auction” has the meaning specified in Section 2.11(c).
“Auction Prepayment” has the meaning specified in Section 2.11(c).
“Auction Procedures” means the procedures set forth in Exhibit M.
“Australian Bill Rate” means, for any Interest Period, for any Multicurrency Revolving Credit Advance denominated in Australian dollars, the rate per annum equal to the Bank Bill Swap Reference Bid Rate or a comparable or successor rate, which rate is approved by the Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time)
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at or about 10:30 A.M. (Sydney, Australia time) on the Rate Determination Date with a term equivalent to such Interest Period.
“Australian Borrower” means any Borrower who is a resident of Australia for the purposes of the Australian Tax Act, or the Income Tax Assessment Act 1997 (Australia), as the context requires.
“Australian Loan Party” means an Australian Borrower, NZ Holdings, or any other Subsidiary Guarantor incorporated, organized or established under the laws of the Commonwealth of Australia.
“Australian Revolver Borrowers” has the meaning specified in the preamble to this Agreement.
“Australian PPSA” means the Personal Property Securities Act 2009 (Cwlth) Australia and any regulations in force at any time under the Australian PPSA, including the Personal Property Securities Regulations 2010 (Cth) (each as amended from time to time).
“Australian Tax Act” means the Income Tax Assessment Act 1936 (Cwlth).
“Available Amount” of any Letter of Credit means, at any time, the maximum amount available to be drawn under such Letter of Credit at such time (assuming compliance at such time with all conditions to drawing).
“Available Basket Amount” means, on any date of determination, an amount equal to (a) $200,000,000, plus (b) an amount equal to 50% of the Consolidated Net Income of the Company and its Subsidiaries for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Closing Date occurs to the end of the most recently ended fiscal quarter for which financial statements delivered under Section 5.01(a)(i) or 5.01(a)(ii) have been delivered to the Agent (or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit), plus (c) the aggregate amount of net cash proceeds of any issuance of Qualified Equity Interests of the Company received by the Company since the Closing Date, minus (d) the sum of (i) any amounts used to make investments and advances pursuant to Section 5.02(d)(xiii) after the Closing Date and on or prior to such date, (ii) any amounts used to make Restricted Payments pursuant to Section 5.02(c)(vi) after the Closing Date and on or prior to such date and (iii) any amounts used to make Restricted Junior Payments pursuant to Section 5.02(l)(ii) after the Closing Date and on or prior to such date.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
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“Bank of America” means Bank of America, N.A. and its successors.
“Bankruptcy Code” has the meaning specified in Section 6.01(e).
“Bankruptcy Law” means the Bankruptcy Code, or any similar foreign, federal or state law for the relief of debtors.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurocurrency Rate plus 1.00%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
“Base Rate Advance” means a Revolving Credit Advance, a Term A Advance, a Swing Line Advance, a 2019 Incremental Term Advance, an Incremental Revolving Credit Advance or an Incremental Term Advance, in each case denominated in Dollars, that bears interest as provided in Section 2.08(a)(i).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.
“BKBM” means the New Zealand bank bill benchmark rate, or a comparable successor rate that is approved by the Agent, administered by the New Zealand Financial Markets Association and displayed on the page BKBM of the Thomson Reuters screen (or such other commercially available source providing such quotations as may be designated by the Agent from time to time), at or about 10:20 a.m. (New Zealand time), on the Rate Determination Date with a term equivalent to the applicable Interest Period. In no event shall the BKBM be less than zero for purposes of this Agreement.
“Borrower Materials” has the meaning specified in Section 9.02(c).
“Borrower Representative” has the meaning specified in Section 2.21.
“Borrowers” has the meaning specified in the preamble to this Agreement.
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“Borrowing” means a Revolving Credit Borrowing, a Term A Borrowing, a Sterling Term A Borrowing, a Swing Line Borrowing or an Incremental Borrowing, as applicable.
“Business Day” means a day of the year on which banks are not required or authorized by law to close in New York City and, if the applicable Business Day relates to any Eurocurrency Rate Advances or Alternative Currency Daily Rate Advances, on which dealings are carried on in the London interbank market and banks are open for business in London and in the country of issue of the currency of such Eurocurrency Rate Advance (or, in the case of an Alternative Currency Daily Rate Advance; provided, that, (i) if such day relates to any interest rate settings as to a Eurocurrency Rate Advance denominated in Euro, on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open)any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Advance, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Advance, means a Business Day that is also a TARGET Day; (ii) if such day relates to any interest rate settings as to an Alternative Currency Daily Rate Advance denominated in Sterling, means a day other than a day banks are closed for general business in London because such day is a Saturday, Sunday or a legal holiday under the laws of the United Kingdom; and (iii) if such day relates to any interest rate settings as to a Eurocurrency Rate Advance denominated in JPY, means a day other than when banks are closed for general business in Japan; provided, further, that, with respect to any Advances or any other matters relating to Advances under any Foreign Currency, such day shall also be a day on which dealings and deposits in the relevant Foreign Currency are carried on in the Relevant Interbank Market.
“Canadian Pension Event” means (a) the termination in whole or in part of any Canadian Pension Plan that contains a defined benefit provision, (b) a material change in the funded status of a Canadian Pension Plan, (c) a material change in the contribution rates payable by the CDN Revolver Borrower to a Canadian Pension Plan, (d) the receipt by a Borrower of any notice concerning liability arising from the withdrawal or partial withdrawal of a Borrower or any other party from a Canadian Pension Plan, (e) the occurrence of an event under the Income Tax Act (Canada) that could reasonably be expected to affect the registered status of any Canadian Pension Plan, (f) the receipt by a Borrower of any order or notice of intention to issue an order from the applicable pension standards regulator or Canada Revenue Agency that could reasonably be expected to affect the registered status or cause the termination (in whole or in part) of any Canadian Pension Plan that contains a defined benefit provision, (g) the receipt of notice by the CDN Revolver Borrower from the administrator, the funding agent or any other person of any failure to remit contributions to a Canadian Pension Plan by the CDN Revolver Borrower, (h) the adoption of any amendment to a Canadian Pension Plan that would require the provision of security pursuant to applicable law, (i) the issuance of either any order (including an order to remit delinquent contributions) or charges that could reasonably be expected to give rise to the imposition of any material fines or penalties in respect of any Canadian Pension Plan against a Borrower or (j) any other event or condition with respect to a Canadian Pension Plan that could reasonably be expected to result in (i) a lien, (ii) any acceleration of any statutory requirements to fund all or a substantial portion of the unfunded liabilities of such plan, or (iii) any liability of a Borrower or a Restricted Subsidiary in excess of $85,000,000.
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“Canadian Pension Plan” means any plan, program or arrangement that is a “registered pension plan” as defined in the Income Tax Act (Canada) or is subject to the funding requirements of applicable provincial or federal pension benefits standards legislation in any Canadian jurisdiction (but for greater certainty not including a registered retirement savings plan, supplemental employee retirement plan, retirement compensation arrangement, deferred profit sharing plan or similar plan or arrangement), which is sponsored, administered, maintained or contributed to by, or to which there is or may be an obligation to contribute by, any Borrower or Restricted Subsidiary in respect of any person’s employment in Canada with any Borrower or Restricted Subsidiary, other than government sponsored plans.
“Capital Lease” means any lease of property which, in accordance with GAAP, would be required to be capitalized on the balance sheet of the lessee.
“Capital Lease Obligations” means, as to any Person, the obligations of such Person to pay rent or other amounts under a Lease of (or other agreement conveying the right to use) real and/or personal property, which obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP; provided that obligations that are re-characterized as Capital Lease Obligations due to a change in GAAP after the Closing Date shall not be treated as Capital Lease Obligations for any purpose under this Agreement regardless of the time at which such obligation is incurred; provided further that obligations that are Capital Lease Obligations as of the Closing Date and are re-characterized as not constituting Capital Lease Obligations due to a change in GAAP after the Closing Date shall be treated as Capital Lease Obligations under this Agreement.
“Cash Collateralize” means, in respect of an obligation, provide and pledge (subject to a first priority perfected security interest) cash collateral in Dollars (or any other currency reasonably satisfactory to the Agent), at a location and pursuant to documentation in form and substance reasonably satisfactory to the Agent and the relevant Issuing Bank or Swing Line Bank, as the case may be (and “Cash Collateralization” shall have a meaning correlative to the foregoing).
“Cash Equivalents” means Investments in (a) direct obligations of, or obligations unconditionally guaranteed by, the United States of America, Canada, the Federal Government of Germany, the State of Japan, the United Kingdom, the Commonwealth of Australia or any agency or instrumentality thereof (provided that the full faith and credit of the applicable national Governmental Authority of such nation is pledged in support thereof), having maturities of less than one year; (b) time deposits, certificates of deposit and banker’s acceptances of any commercial bank having combined capital and surplus of not less than $500,000,000, whose short-term commercial paper rating from S&P is at least A-2 or from Moody’s is at least P-2 (each an “Approved Bank”) with maturities of not more than one year from the date of investment; (c) commercial paper issued by, or guaranteed by, an Approved Bank or by the parent company of an Approved Bank, or issued by, or guaranteed by, any company with a short-term debt rating of at least A-2 by S&P and P-2 by Moody’s, in each case maturing within one year from the date of investment; (d) repurchase agreements with a term of less than one year for underlying securities of the types described in clauses (b) and (c) entered into with an
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Approved Bank; (e) any money market fund that meets the requirements of Rule 2a-7(c)(2), (3) and (4) promulgated under the Investment Company Act of 1940, as amended; and (f) any other fund or funds making substantially all of their Investments in Investments of the kinds described in clauses (a) through (d) above.
“Cash Management Obligations” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person in respect of cash management services (including treasury, depository, overdraft (daylight and temporary), local currency revolving credit and working capital facilities, local currency letter of credit facilities, credit or debit card, electronic funds transfer and other cash management arrangements) provided by the Agent, any Lender or any Affiliate thereof at the time such Cash Management Obligations are entered into, including obligations for the payment of fees, interest, charges, expenses, attorneys’ fees and disbursements in connection therewith to the extent provided for in the documents evidencing such cash management services.
“Cash on Hand” means, on any day, the amount of cash and Cash Equivalents of the Company and its Restricted Subsidiaries as set forth on the balance sheet of the Company as of such day (it being understood that such amount shall exclude in any event any cash and Cash Equivalents identified on such balance sheet as “restricted” (other than cash or Cash Equivalents which are subject to a perfected security interest under the Collateral Documents) or otherwise subject to a security interest in favor of any other Person (other than (i) security interests under the Collateral Documents, (ii) customary liens imposed by the applicable deposit bank in the ordinary course of business and (iii) any non-consensual security interests permitted by the Loan Documents)).
“CDN” means the lawful currency of Canada.
“CDN Revolver Borrower” has the meaning specified in the preamble to this Agreement.
“CDOR” means the Canadian Dealer Offered Rate, or a comparable or successor rate which rate is approved by the Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time) at or about 10:00 A.M. (Toronto, Ontario time) on the Rate Determination Date with a term equivalent to such Interest Period.
“Change of Control” means the occurrence of either of the following: (i) any “Person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), excluding an employee benefit or stock ownership plan of the Company, is or shall become the “beneficial owner” (as defined in Rules 13(d)3 and 13(d)5 under the Exchange Act), directly or indirectly, of 40% or more on a fully diluted basis of the voting stock of the Company or shall have the right to elect a majority of the directors of the Company or (ii) during any six month period the board of directors of the Company shall cease to consist of a majority of Continuing Directors.
“Co-Documentation Agents” means Banco Bilbao Vizcaya Argentaria, S.A. New York Branch, HSBC Securities (USA) Inc., Morgan Stanley Senior Funding, Inc., MUFG Bank
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Ltd., Coöperatieve Rabobank U.A., New York Branch, Sumitomo Mitsui Banking Corporation, SunTrust Bank and Wells Fargo Bank, National Association.
“Co-Syndication Agents” means MLPFS, BNP Paribas, Citibank, N.A., Credit Agricole Corporate and Investment Bank, Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A. and Mizuho Bank, Ltd.
“Closing Date” means July 12, 2018.
“Closing Date Refinancing” has the meaning specified in the Preliminary Statements.
“Code of Banking Practice” means the Code of Banking Practice published by the Australian Bankers’ Association.
“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property that is under the terms of the Collateral Documents, subject to Liens in favor of the Agent for the benefit of the Secured Parties as security for the Secured Obligations.
“Collateral Documents” means, collectively, the Security Agreement, the Intellectual Property Security Agreements, each of the collateral assignments, security agreements, share pledge agreements or other similar agreements and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Agent for the benefit of the Secured Parties as security for the Secured Obligations, and each amendment, supplement, joinder or other modification to each of the aforementioned.
“Collateral Ratings Condition” means that, at the time of determination:
(a)the Company has received and maintains (i) a corporate credit rating of at least BBB- from S&P (with no negative outlook or negative watch); and (ii) either (A) a corporate family rating of at least Ba1 from Moody’s (with no negative outlook or negative watch), or (B) (x) a corporate credit rating of at least BB+ from Fitch (with no negative outlook or negative watch) and (y) any corporate family rating from Moody’s; or
(b)the Company has received and maintains (i) a corporate family rating of at least Baa3 from Moody’s (with no negative outlook or negative watch); and (ii) either (A) a corporate credit rating of at least BB+ from S&P (with no negative outlook or negative watch), or (B) (x) a corporate credit rating of at least BB+ from Fitch (with no negative outlook or negative watch) and (y) any corporate credit rating from S&P.
“Commitment” means a Revolving Credit Commitment, a Term Commitment, an Incremental Term Commitment, an Incremental Revolving Credit Commitment or a Letter of Credit Commitment, as applicable.
“Commitment Fee” has the meaning specified in Section 2.05(a).
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“Committed Currencies” means each Multicurrency Committed Currency and each Transpacific Committed Currency.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Company” has the meaning specified in the preamble to this Agreement.
“Compliance Certificate” has the meaning specified in Section 5.01(a)(iii).
“Consideration” means, in respect of any acquisition by a Loan Party of any Equity Interest in, or assets of, any Person, the sum of (without duplication): (a) the aggregate consideration payable by any or all Loan Parties in respect of such acquisition, including (without limitation) any consideration payable by any Loan Party in respect of such acquisition, any Indebtedness made available by any Loan Party to or incurred by any Loan Party for the account of such Person in connection with such acquisition, and any Indebtedness incurred or assumed by any Loan Party in connection with such acquisition; and (b) the aggregate amount of Indebtedness of such Person and/or its Subsidiaries that is outstanding (whether or not due and payable) as at the date of such acquisition or, if less, such portion thereof for which a Loan Party is directly responsible.
“Consolidated” refers to the consolidation of accounts in accordance with GAAP.
“Consolidated Assets” means, as of any date of determination, the total assets of the Company and its Restricted Subsidiaries as at such date determined on a Consolidated basis in accordance with GAAP.
“Consolidated Debt” means, as of any date of determination, all Indebtedness (other than Contingent Obligations) of the Company and its Restricted Subsidiaries determined on a Consolidated basis.
“Consolidated Interest Expense” means for any period, total interest expense (including amounts properly attributable to interest with respect to Capital Lease Obligations and amortization of debt discount and debt issuance costs) of the Company and its Restricted Subsidiaries on a Consolidated basis for such period.
“Consolidated Net Debt” means, as of any date of determination, Consolidated Debt less Cash on Hand.
“Consolidated Net Income” means, for any period, the net income (or loss) of the Company and its Restricted Subsidiaries for such period, determined on a Consolidated basis in accordance with GAAP; provided that Consolidated Net Income shall exclude (without duplication): (a) any gain or loss realized as a result of the cumulative effect of a change in accounting principles, (b) the net after-Tax effect of any gain or loss attributable to any foreign currency hedging arrangements (including, without limitation, with respect to cross-currency swaps) or currency fluctuations, (c) the net after-Tax effect of any gains and losses from the early extinguishment of Indebtedness and obligations under Swap Contracts and extinguishment charges relating to upfront fees and original issue discount on Indebtedness, in each case during
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such period, and (d) fees, expenses and non-recurring charges related to the negotiation, execution and delivery of the Loan Documents and the transactions contemplated thereby.
“Consolidated Net Tangible Assets” means, as of any date of determination, the total assets less the sum of goodwill and other intangible assets, in each case reflected on the Consolidated balance sheet of the Company and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter of such Person for which financial statements have been delivered to the Agent pursuant to clause (a)(i) or (a)(ii), as applicable, of Section 5.01, determined on a Consolidated basis.
“Consolidated Total Secured Indebtedness” means, as of any date of determination, the Consolidated Net Debt which is secured by any Lien on any property or assets of the Company or one or more of its Restricted Subsidiaries.
“Contingent Obligation” means, as to any Person, any obligation of such Person guaranteeing any Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the amount such Person guarantees but in any event not more than the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Continuing Directors” means, as of any date of determination, any member of the board of directors of the Company who (1) was a member of such board of directors on the first day of the applicable six consecutive month period referenced in clause (ii) of the definition of “Change of Control” or (2) was nominated for election or elected to such board of directors with the approval of the Continuing Directors who were members of such board of directors at the time of such nomination or election.
“Convert”, “Conversion” and “Converted” each refers to a conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.09 or 2.10.
“Covenant Ratings Condition” means that, at the time of determination, the Company has received and maintains corporate family/corporate credit ratings of at least BBB-
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and at least Baa3 from S&P and Moody’s, respectively (in each case, with no negative outlook or negative watch).
“Corporations Act” means the Corporations Act 2011 (Cwlth) Australia.
“Corresponding Debt” has the meaning specified in Section 9.19.
“Covenant Suspension Event” has the meaning specified in the last paragraph of Section 5.02.
“Cryovac” has the meaning specified in the preamble to this Agreement.
“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
“Defaulting Lender” means at any time, subject to Section 2.19(c), (i) any Lender that has failed for two or more Business Days to comply with its obligations under this Agreement to make an Advance (except if such failure is the result of a good faith dispute between such Lender and the Borrowers as to whether the Borrowers have failed to satisfy one or more conditions precedent to funding), make a payment to an Issuing Bank in respect of a Letter of Credit, make a payment to the Swing Line Bank in respect of a Swing Line Advance or make any other payment due hereunder (each, a “Funding Obligation”), (ii) any Lender that has notified the Agent, the Borrower, the Issuing Banks or the Swing Line Bank in writing, or has stated publicly, that it does not intend to comply with its funding obligations hereunder or under other agreements in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund an Advance hereunder or an advance or loan under such other agreement (as applicable) and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (iii) any Lender that has generally defaulted on its funding obligations under other loan agreements or credit agreements (except if such defaults are the result of good faith disputes between such Lender and the respective borrowers party thereto), (iv) any Lender that has, for three or more Business Days after written request of the Agent or the Company, failed to confirm in writing to the Agent and the Company that it will comply with its prospective funding obligations hereunder or under other agreements in which it commits to extend credit to any Borrower or any Affiliate of any Borrower (provided that such Lender will cease to be a Defaulting Lender pursuant to this clause (iv) upon the Agent’s and the Company’s receipt of such written confirmation), (v) any Lender that becomes the subject of a Bail-In Action (or any Lender, the Parent Company of which becomes the subject of a Bail-In Action), or (vi) any Lender with respect to which a Lender Insolvency Event has occurred and is continuing with respect to such Lender or its Parent Company (provided, in each case, that neither the
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reallocation of funding obligations provided for in Section 2.19(b) as a result of a Lender’s being a Defaulting Lender nor the performance by Non-Defaulting Lenders of such reallocated funding obligations will by themselves cause the relevant Defaulting Lender to become a Non-Defaulting Lender). Any determination by the Agent that a Lender is a Defaulting Lender under any of clauses (i) through (v) above will be conclusive and binding absent manifest error, and such Lender will be deemed to be a Defaulting Lender (subject to Section 2.19(c)) upon notification of such determination by the Agent to the Company, the Issuing Banks, the Swing Line Bank and the Lenders.
“Designated Borrower” means any direct or indirect Wholly-Owned Subsidiary of the Company designated for borrowing privileges under this Agreement pursuant to Section 9.09.
“Designated Jurisdiction” means any country, territory or region to the extent that such country or territory itself is the subject of any Sanction.
“Disposition” or “Dispose” means the sale, transfer, license, sublicense, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that the term “Disposition” specifically excludes (i) the sale, transfer, license, sublicense, lease or other disposition of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business, (ii) the sale, transfer, license, sublicense, lease or other disposition of receivables, inventory and other current assets in the ordinary course of business, and (iii) the sale, transfer, license, sublicense, lease or other disposition of property by any Restricted Subsidiary to the Company or to another Restricted Subsidiary; provided that if the transferor of such property is a Guarantor, the transferee thereof must either be the Company or a Guarantor.
“Disqualified Equity Interests” means Equity Interests of any Person that (a) by their terms or upon the occurrence of any event (other than as a result of a change of control, asset sale event or casualty or condemnation event so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale event or casualty or condemnation event shall be subject to the prior repayment in full of all Advances and all other Obligations (other than Swap Obligations, Cash Management Obligations or contingent indemnification obligations and other Contingent Obligations) (i) are required to be redeemed or are redeemable at the option of the holder on or prior to the day that is 91 days after the Latest Scheduled Termination Date (determined as of the date of issuance of such Equity Interests), for consideration other than Qualified Equity Interests of such Person or (ii) convertible at the option of the holder into Disqualified Equity Interests of such Person or exchangeable for Indebtedness or (b) require (or permit at the option of the holder) the payment of any dividend, interest, sinking fund or other similar payment (other than the accrual of such obligations) on or prior to the day that is 91 days after the Latest Scheduled Termination Date (determined as of the date of issuance of such Equity Interests) (other than payments made solely in Qualified Equity Interests of such Person).
“Dollars” and the “$” sign each means lawful currency of the United States of America.
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“Domestic Lending Office” means, with respect to any Lender, the office or offices of such Lender, any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate, specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or as specified in such Lender’s Administrative Questionnaire delivered in conjunction with the Assignment and Acceptance pursuant to which it became a Lender, or such other office or offices as such Lender may from time to time specify to the Company and the Agent, which office may include any Affiliate of such Lender or any domestic branch of such Lender or such Affiliate.
“Domestic Loan Party” means any Loan Party organized under the laws of the United States or any state thereof.
“Domestic Subsidiary” means any Subsidiary of the Company other than a Foreign Subsidiary.
“Dutch Civil Code” means the Dutch Civil Code (Burgerlijk Wetbock).
“Dutch Obligor” means a Loan Party incorporated in The Netherlands.
“EBITDA” for any period means the Consolidated Net Income (or loss) of the Company and its Restricted Subsidiaries for such period, adjusted by adding thereto (or subtracting in the case of a gain) the following amounts to the extent deducted or included, as applicable, and without duplication, when calculating Consolidated Net Income (a) Consolidated Interest Expense; (b) income taxes; (c) any extraordinary gains or losses, (d) gains or losses from sales of assets (other than from sales of inventory in the ordinary course of business), (e) all amortization of goodwill and other intangibles; (f) depreciation; (g) all non-cash contributions or accruals to or with respect to pension plans, deferred profit sharing or compensation plans; (h) any non-cash gains or losses resulting from the cumulative effect of changes in accounting principles; (i) restructuring charges that are not paid in cash; (j) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Company and the Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Existing Sealed Air Notes; (k) commissions, fees and expenses paid in cash in connection with the repayment of any Indebtedness, any Permitted Acquisition, any Disposition, any incurrence of Indebtedness or any equity issuance; (l) non-cash charges resulting from accounting adjustments to goodwill or impairment and intangible charges in connection therewith; (m) any income or loss accounted for by the equity method of accounting (except in the case of income to the extent of the amount of cash dividends or cash distributions paid to the Company or any of its Subsidiaries by the entity accounted for by the equity method of accounting); (n) any non-cash expenses and charges (excluding non-cash charges that are accrued or reserved for cash charges in a future period), including any non-cash charges in connection with the re-measurement of assets due to currency devaluations; (o) restructuring charges paid in cash in an amount not to exceed, together with any amounts added to EBITDA pursuant to clause (u) below, 15.0% of the amount of EBITDA for such period (without giving effect to any adjustments pursuant to this clause (o) and clause (u) below) with respect to any EBITDA calculations made for each period ending at the end of any fiscal quarter thereafter; (p) any costs, expenses or charges in connection with the EPC Transactions; (q) the amount of any non-cash foreign currency losses attributable to intercompany loans, accounts receivable and
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accounts payable; (r) all retention, completion or transaction bonuses paid to key employees incurred in connection with any acquisition or other investment, or disposition of assets, whether or not such transaction is ultimately consummated; (s) fees, costs and expenses in connection with strategic initiatives, transition costs and other business optimization and information systems related fees costs and expenses (including non-recurring employee bonuses in connection therewith and the separation and eventual disposal of businesses or lines of business); (t) fees, costs and expenses with respect to Permitted Receivables Financings; (u) the amount of “run-rate” cost savings, operating expense reductions and other operating improvements and synergies reasonably identifiable and factually supportable relating to, and projected by the Borrowers in good faith to result from, actions taken or with respect to which substantial steps have been taken by Borrowers or any of their subsidiaries within 18 months after any asset sale, investment, asset disposition, operating improvement, merger or other business combination, acquisition, divestiture, restructuring and cost savings initiatives if consummated, in an aggregate amount not to exceed, together with any amounts added to EBITDA pursuant to clause (o) above, 15.0% of the amount of EBITDA for such period (without giving effect to any adjustments pursuant to this clause (u) and clause (o) above); and (v) expenses reimbursed by third parties (including through insurance and indemnity payments); provided that there shall be included in such determination for such period all such amounts attributable to any entity acquired during such period pursuant to an acquisition to the extent not subsequently sold or otherwise disposed of during such period for the portion of such period prior to such acquisition; provided, further that any amounts added to Consolidated Net Income pursuant to clause (g) above for any period shall be deducted from Consolidated Net Income for the period, if ever, in which such amounts are paid in cash by the Company or any of its Restricted Subsidiaries.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender; and (iii) any other Person approved by the Agent, each Issuing Bank and, unless an Event of Default under clause (a) or (e) of Section 6.01 has occurred and is continuing at the time any assignment is effected in accordance with Section 9.07, the Company, such approvals not to be unreasonably withheld or delayed; provided, however, that neither the Company nor any Affiliate of the Company shall qualify as an Eligible Assignee, except with respect to purchases of Loans by the Company made in accordance with the terms of Section 2.11(c) of this Agreement.
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“EMU” means the Economic and Monetary Union as contemplated by the Treaty on European Union.
“Environmental Law” means any foreign, federal, state or local statute, law, rule, regulation, ordinance, code, policy or rule of common law now or hereafter in effect and in each case as amended, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to the environment or Hazardous Materials.
“EPC Transactions” means the transactions related to the reorganization of the Company’s European operations to function under a centralized management and value chain model.
“Equity Interests” means, with respect to any Person, any of the shares, the shares of capital stock or equity quotas of (or other ownership or profit interests in) such Person, any of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock or equity quotas of (or other ownership or profit interests in) such Person, any of the securities convertible into or exchangeable for shares of capital stock or equity quotas of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares or equity quotas (or such other interests), and any of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, equity quotas, warrants, options, rights or other interests are outstanding on any date of determination.
“Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Foreign Currency, the equivalent amount thereof in Dollars as determined by the Agent or the Issuing Bank, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Foreign Currency.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.
“ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Borrower, or under common control with any Borrower, within the meaning of Section 414 of the Internal Revenue Code.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“EURIBOR” means the rate per annum equal to the Euro Interbank Offered Rate, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time) on the day that
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is two TARGET Days preceding the first day of such Interest Period with a term equivalent to such Interest Period.
“Euro” means the lawful currency of the European Monetary Union as constituted by the Treaty of Rome which established the European Community, as such treaty may be amended from time to time and as referred to in the EMU legislation.
“Euro Revolver Borrower” has the meaning specified in the preamble to this Agreement.
“Eurocurrency Lending Office” means, with respect to any Lender, the office or offices of such Lender, any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate, specified as its “Eurocurrency Lending Office” opposite its name on Schedule I hereto or as specified in such Lender’s Administrative Questionnaire delivered in conjunction with the Assignment and Acceptance pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office or offices as such Lender may from time to time specify to the Company and the Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate.
“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Eurocurrency Rate” means, for any Interest Period, (I) for each Eurocurrency Rate Advance comprising part of the same Borrowing, an interest rate per annum equal to the rate per annum obtained by dividing (a)(i) in the case of any Advance denominated in a LIBOR Quoted Currency, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time) as the London Interbank Offered Rate, or a Eurocurrency Successor Rate, for deposits in JPY, Dollars, Sterling or another Committed Currency (other than Euro, Sterling or JPY), if applicable, at approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, (ii) in the case of any Advance denominated in AU$, the Australian Bill Rate, (iii) in the case of any Advance denominated in CDN, CDOR, (iv) in the case of an Advance denominated in Pesos, the TIIE Rate, or (v) in the case of any Advance denominated in NZD, the BKBM, (vi) in the case of any Advance denominated in JPY, TIBOR, and (vii) in the case of any Advance denominated in Euro, EURIBOR, by (b) a percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for such Interest Period; or (II) for any rate calculation with respect to a Base Rate Advance on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m. (London, England time), determined two Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day; provided, however, that if any applicable Eurocurrency Rate determined pursuant hereto shall be a rate that is less than 0.0%, then such Eurocurrency Rate shall be deemed to be 0.0% for all purposes under this Agreement.
“Eurocurrency Rate Advance” means an Advance denominated in Dollars, Euro, JPY, Sterling or another Committed Currency that bears interest as provided in
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Section 2.08(a)(ii) in an amount not less than the Eurocurrency Rate Borrowing Minimum or the Eurocurrency Rate Borrowing Multiple in excess thereof. For the avoidance of doubt, (a) unless specifically provided to the contrary, TIIE Rate Advances are Eurocurrency Rate Advances. and (b) Advances in currencies that are not, or are no longer, LIBOR Quoted Currencies are considered “Eurocurrency Rate Advances” for purposes of this Agreement, subject to the definition of “Eurocurrency Rate” and other applicable provisions.
“Eurocurrency Rate Borrowing Minimum” means, in respect of Eurocurrency Rate Advances denominated in Dollars, $1,000,000, and in respect of Eurocurrency Rate Advances denominated in any Foreign Currency, the Equivalent of $1,000,000 in such Foreign Currency.
“Eurocurrency Rate Borrowing Multiple” means, in respect of Eurocurrency Rate Advances denominated in Dollars, $500,000, and in respect of Eurocurrency Rate Advances denominated in any Foreign Currency, the Equivalent of $500,000 in such Foreign Currency.
“Eurocurrency Rate Reserve Percentage” for any Interest Period for all Eurocurrency Rate Advances comprising part of the same Borrowing means the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurocurrency Rate Advances) having a term equal to such Interest Period.
“Eurocurrency Successor Rate” has the meaning specified in Section 1.16.
“Eurocurrency Successor Rate Conforming Changes” means, with respect to any proposed Eurocurrency Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, the Australian Bill Rate, CDOR, the TIIE Rate, the BKBM, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Agent, to reflect the adoption of such Eurocurrency Successor Rate and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Eurocurrency Successor Rate exists, in such other manner of administration as the Agent determines in consultation with the Company).
“European Insolvency Regulation” means the Council Regulation (EC) 2015/848 of 20 May 2015 on insolvency proceedings, as amended.
“Events of Default” has the meaning specified in Section 6.01.
“Events of Loss” means, with respect to any property, any of the following: (a) any loss, destruction or damage of such property; (b) any pending institution of any proceedings for the condemnation or seizure of such property or for the exercise of any right of
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eminent domain; or (c) any actual condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such property, or confiscation of such property or the requisition of the use of such property.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Foreign Subsidiary” means (i) any Foreign Subsidiary and (ii) any Domestic Subsidiary that is directly or indirectly owned by one or more Foreign Subsidiaries.
“Excluded Swap Obligation” means, with respect to any Subsidiary Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act (a “Swap”) if, and to the extent that, all or a portion of the Guaranty of such Subsidiary Guarantor of, or the grant by such Subsidiary Guarantor of a security interest to secure, such Swap (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Subsidiary Guarantor’s failure for any reason not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guaranty of such Subsidiary Guarantor, or the grant of such security interest, becomes effective with respect to such related Swap.
“Excluded Taxes” has the meaning specified in Section 2.15(a).
“Existing Credit Agreement” has the meaning specified in the Preliminary Statements.
“Existing Facilities” has the meaning specified in the Preliminary Statements.
“Existing Letters of Credit” means each of the irrevocable, standby letters of credit listed on Schedule 2.01(e) hereof.
“Existing Obligations” has the meaning specified in the Preliminary Statements.
“Existing Sealed Air Notes” means, collectively, the 4.875% Senior Notes due December 2022, the 5.250% Senior Notes due April 2023, the 4.50% Senior Notes due September 2023, the 5.125% Senior Notes due December 2024, the 5.50% Senior Notes due September 2025, the 4.000% Senior Notes due December 2027, and the 6.875% Senior Notes due July 2033, in each case, issued by the Company.
“Facility” means the Term A Facility, the Sterling Term A Facility, the Transpacific Revolving Credit Facility, the Multicurrency Revolving Credit Facility, the Swing Line Facility, the 2019 Incremental Term Facility or an Incremental Facility, if any, as applicable.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations or administrative guidance thereof and any agreements entered into
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pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Internal Revenue Code.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Agent; provided, however, that if any applicable Federal Funds Rate determined pursuant hereto shall be a rate that is less than 0.0%, then such Federal Funds Rate shall be deemed to be 0.0% for all purposes under this Agreement.
“Fee Letters” means that certain Bank of America Fee Letter for Senior Secured Credit Facilities dated as of June 6, 2018, between MLPFS, Bank of America and the Company.
“Financial Officer” means the chief financial officer, the controller or the treasurer of the Company.
“Fiscal Year” means a fiscal year of the Company ending on December 31.
“Fitch” means Fitch IBCA, Duff & Phelps, a division of Fitch, Inc.
“Foreign Currency” means any Committed Currency, Sterling and any other lawful currency (in each case, other than Dollars) that is approved in accordance with Section 1.12.
“Foreign Subsidiary” means (i) each Subsidiary of the Company not incorporated under the laws of the United States, any State thereof or the District of Columbia, (ii) each Subsidiary of the Company substantially all of the operations of which remain outside the United States and (iii) each other Subsidiary of the Company that has no material assets other than capital stock of one or more Foreign Subsidiaries that are controlled foreign corporations within the meaning of Section 957 of the Internal Revenue Code and that are owned, directly or indirectly, wholly or in part, by the Company or a Domestic Subsidiary that is a “United States shareholder” with respect to such controlled foreign corporation within the meaning of Section 951(b) of the Internal Revenue Code.
“Foreign Subsidiary Guaranty” means that certain Foreign Subsidiary Guaranty, dated as of October 3, 2011, from the Foreign Subsidiaries from time to time party thereto as Guarantors in favor of the Applicable Secured Parties (as defined therein), as it may be amended, amended and restated, supplemented or otherwise modified from time to time.
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“GAAP” has the meaning specified in Section 1.03.
“German Collateral Document” means any Collateral Document governed by German law.
“German Collateral” means any Collateral governed by German law.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Group Members” means the Company and each of its direct and indirect Restricted Subsidiaries.
“Guaranteed Obligations” has the meaning specified in Section 7.01.
“Guarantors” means the Company and the Subsidiary Guarantors.
“Guaranty” means the guaranty contained in Article VII hereof, the Foreign Subsidiary Guaranty, the US Subsidiary Guaranty or any other guaranty agreement entered into by any Guarantor that is an entity organized outside of the United States of America pursuant to the terms of this Agreement.
“Hazardous Materials” means (a) any petrochemical or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; and (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “restricted hazardous materials,” “extremely hazardous wastes,” “restrictive hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants” or “pollutants,” or words of similar meaning and regulatory effect under any applicable Environmental Law.
“HMRC” has the meaning specified in Section 2.15(f).
“Immaterial Subsidiaries” means, all Subsidiaries identified by the Company as such, provided that (i) the aggregate value of assets of all such Subsidiaries does not exceed 15.0% of Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries as of the last day of the Fiscal Year of the Company most recently ended based on the consolidated balance sheet of the Company and its Restricted Subsidiaries, (ii) the aggregate EBITDA of all such Subsidiaries does not exceed 15.0% of consolidated EBITDA of the Company and its Restricted Subsidiaries for the Test Period ending on the last day of the Fiscal Year of the Company most recently ended, based on the consolidated financial statements of the Company and its Restricted Subsidiaries, (iii) the aggregate value of assets of any such Subsidiary does not exceed 5.0% of Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries as of the last day of the Fiscal Year of the Company most recently ended based on
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the consolidated balance sheet of the Company and its Restricted Subsidiaries and (iv) the EBITDA of any such Subsidiary does not exceed 5.0% of consolidated EBITDA of the Company and its Restricted Subsidiaries for the Test Period ending on the last day of the Fiscal Year of the Company most recently ended, based on the consolidated financial statements of the Company and its Restricted Subsidiaries.
“Increased Amount Date” has the meaning specified in Section 2.04(a).
“Incremental Amount” means, at any time, an amount equal to (a) the remaining Incremental Fixed Amount at such time, plus (b) an amount such that, at the time of the incurrence of the applicable Incremental Facility, (i) at all times prior to the Optional Release Date and the satisfaction of the Optional Release Conditions, the Net Total Secured Leverage Ratio determined for the Test Period most recently ended for which the financial statements and Compliance Certificate delivered to the Agent under Section 5.01(a)(i) or (ii), and Section 5.01(a)(iii) hereof, most immediately preceding the date of such increase, on a Pro Forma Basis, after giving effect to such Incremental Term Advances or Incremental Revolving Credit Commitments, and the application of the proceeds therefrom on such date (and assuming that the entire aggregate principal amount of all Incremental Revolving Credit Commitments (both previously obtained and then-requested) have been borrowed), shall not be greater than 2.50:1:00 and (ii) at all times after the Optional Release Date and the satisfaction of the Optional Release Conditions, the Net Total Leverage Ratio determined for the Test Period most recently ended for which the financial statements and Compliance Certificate delivered to the Agent under Section 5.01(a)(i) or (ii), and Section 5.01(a)(iii) hereof, most immediately preceding the date of such increase, on a Pro Forma Basis, after giving effect to such Incremental Term Advances or Incremental Revolving Credit Commitments, and the application of the proceeds therefrom on such date (and assuming that the entire aggregate principal amount of all Incremental Revolving Credit Commitments being provided at such time have been borrowed), shall not be greater than 3.00:1:00, plus (c) the aggregate amount of all (i) voluntary prepayments of any Term Borrowings under the Term A Facility, the Sterling Term A Facility, any Incremental Term Facility established as a “term A” facility or any Incremental Notes (with, in the case of any prepayments made below par, such amount deemed not to exceed the actual cash purchase price of the Indebtedness prepaid) and (ii) any voluntary permanent commitment reductions under any Revolving Credit Facility or Incremental Revolving Credit Facility, in each case other than from the proceeds of long-term Indebtedness. It is understood and agreed that, for purposes of calculating the available Incremental Amount, amounts borrowed pursuant to the Incremental Fixed Amount shall be disregarded when calculating the financial ratios in clause (b)(ii) of this definition in connection with any substantially concurrent incurrence in reliance on such ratios. Unless the applicable Borrower elects otherwise, each Incremental Facility shall be deemed incurred first under clause (b) above to the extent permitted, with the balance incurred under the Incremental Fixed Amount.
“Incremental Assumption Agreement” means an Incremental Assumption Agreement in form and substance reasonably satisfactory to the Agent, among the Borrower requesting such Incremental Term Commitments or Incremental Revolving Credit Commitments, as the case may be, the Agent and one or more Incremental Term Lenders and/or Incremental Revolving Lenders (including the 2019 Incremental Term Amendment Agreement).
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“Incremental Advance” means an Incremental Revolving Credit Advance or an Incremental Term Advance, as applicable.
“Incremental Borrowing” means a borrowing consisting of either simultaneous Incremental Term Advances or Incremental Revolving Credit Advances of the same Type and, in the case of Eurocurrency Rate Advances and TIIE Rate Advances, having the same Interest Period.
“Incremental Facility” means an Incremental Term Facility (including the 2019 Incremental Term Facility) or an Incremental Revolving Credit Facility, as applicable.
“Incremental Fixed Amount” means, at any time, the excess, if any, of (a) $1,000,000,000 (or the Equivalent thereof) minus (b) the aggregate principal amount of all Incremental Term Commitments, Incremental Revolving Credit Commitments and Incremental Notes issued or established prior to such time pursuant to Section 2.04 in reliance on such Incremental Fixed Amount.
“Incremental Lender” means an Incremental Term Lender (including a 2019 Incremental Term Lender) or an Incremental Revolving Lender, as applicable.
“Incremental Notes” has the meaning specified in Section 2.04(e)(i).
“Incremental Revolving Credit Advances” means Revolving Credit Advances made by one or more Incremental Revolving Lenders to the Borrowers pursuant to Section 2.01(f). Incremental Revolving Credit Advances may be made in the form of additional Revolving Credit Advances or, to the extent permitted by Section 2.04 and provided for in the relevant Incremental Assumption Agreement, as Other Revolving Credit Advances.
“Incremental Revolving Credit Commitment” means the commitment of any Incremental Revolving Lender, established pursuant to Section 2.04, to make Incremental Revolving Credit Advances to the Borrowers.
“Incremental Revolving Credit Facility” means, at any time, the aggregate principal amount of the Incremental Revolving Credit Advances of all Incremental Revolving Lenders outstanding at such time.
“Incremental Revolving Lender” means any bank, financial institution or other investor with an Incremental Revolving Credit Commitment or an outstanding Incremental Revolving Credit Advance.
“Incremental Term Advances” means Term Advances made by one or more Incremental Term Lenders to the Borrowers pursuant to Section 2.01(f) (including any 2019 Incremental Term Advance). Incremental Term Advances may be made in the form of, to the extent permitted by Section 2.04 and provided for in the relevant Incremental Assumption Agreement, Other Term Advances.
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“Incremental Term Borrowing” means a borrowing consisting of Incremental Term Advances of the same Type and, in the case of Eurocurrency Rate Advances, having the same Interest Period (including a 2019 Incremental Term Borrowing).
“Incremental Term Commitment” means the commitment of any Incremental Term Lender, established pursuant to Section 2.04, to make Incremental Term Advances to the Borrowers (including a 2019 Incremental Term Commitment).
“Incremental Term Facility” means, at any time, the aggregate principal amount of the Incremental Term Advances of all Incremental Term Lenders outstanding at such time (including the 2019 Incremental Term Facility).
“Incremental Term Lender” means any bank, financial institution or other investor with an Incremental Term Commitment or an outstanding Incremental Term Advance (including a 2019 Incremental Term Lender).
“Indebtedness” of any Person means, at any date, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person to pay the deferred purchase price of property or services (except (A) trade accounts payable and accrued expenses arising in the ordinary course of business, (B) any earn-out obligation until such obligation shall have become a liability on the balance sheet of such Person in accordance with GAAP, and (C) obligations of a 60 day or less duration, and which are not overdue, resulting from take-or-pay contracts entered into in the ordinary course of business) to the extent such amounts would in accordance with GAAP be recorded as debt on a balance sheet of such Person, (iv) all Capital Lease Obligations, (v) all non-contingent obligations of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit (other than letters of credit which secure obligations in respect of trade payables or other letters of credit not securing Indebtedness, unless such reimbursement obligation remains unsatisfied for more than 3 Business Days), (vi) all Indebtedness secured by a Lien on any asset of such Person, whether or not such Indebtedness is otherwise an obligation of such Person, and (vii) all Contingent Obligations of such Person in respect of Indebtedness of the types described in the preceding clauses (i) through (vi) minus the portion of such Contingent Obligation which is secured by a letter of credit naming such Person as beneficiary issued by a bank which, at the time of the issuance (or any renewal or extension) of such letter of credit has a long-term senior unsecured indebtedness rating of at least A by S&P or A2 by Moody’s.
“Indemnified Costs” has the meaning specified in Section 8.05(a).
“Indemnified Party” has the meaning specified in Section 9.04(b).
“Indemnified Taxes” has the meaning specified in Section 2.15(a).
“Information” has the meaning specified in Section 9.08.
“Initial Issuing Banks” has the meaning specified in the preamble to this Agreement.
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“Initial Lenders” has the meaning specified in the preamble to this Agreement.
“Insolvent” means, with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“Insufficiency” means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
“Insurance and Condemnation Event” means the receipt by the Company or any of its Restricted Subsidiaries of any cash proceeds payable by reason of condemnation, theft, loss, physical destruction or damage, taking or similar event (or series of related events) with respect to any of their respective property or assets.
“Intellectual Property Security Agreement” means the Trademark Security Agreements (as defined in the Security Agreement), the Copyright Security Agreements (as defined in the Security Agreement) and the Patent Security Agreements (as defined in the Security Agreement).
“Intercreditor Agreement” means the Intercreditor Agreement, dated as October 3, 2011, made by and among the Agent and the Lenders party thereto and deemed party thereto, as it may be amended, amended and restated, supplemented or otherwise modified from time to time.
“Interest Coverage Ratio” means, as of any date of determination, the ratio of EBITDA to Consolidated Interest Expense for the Test Period most recently ended for which the financial statements and Compliance Certificate delivered to the Agent under Section 5.01(a)(i) or (ii), and Section 5.01(a)(iii).
“Interest Period” means, for each Eurocurrency Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurocurrency Rate Advance or the date of the Conversion of any Base Rate Advance into such Eurocurrency Rate Advance and ending on the last day of the period selected by the applicable Borrower requesting such Borrowing pursuant to the provisions below and, thereafter, with respect to Eurocurrency Rate Advances, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by such Borrower pursuant to the provisions below. The duration of each such Interest Period shall (i) for a Eurocurrency Rate Advance that is not denominated in CDN or Pesos be one week (other than Eurocurrency Rate Advances in AU$), one, two, three or six months, and subject to clause (c) of this definition, twelve months and, (ii) for a Eurocurrency Rate Advance denominated in CDN be one or three months, and (iii) for a Eurocurrency Rate Advance denominated in Pesos be 28 or 91 days (or 182 days if consented by all Transpacific Revolving Lenders), in each case as the Borrower requesting the Borrowing may, upon notice to the Agent, which may be given by telephone or by Notice of Borrowing (provided, that any telephonic notice must be promptly confirmed by delivery to the Agent of a Notice of Borrowing) not later than 12:00 P.M12:00 P.M. (New York City time) on the fourth Business Day prior to the first day of such Interest Period, select; provided, however, that:
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(a) such Borrower may not select any Interest Period that ends after the date set forth in clause (a)(i), clause (b) or clause (c) of the definition of “Termination Date” that is applicable to any such Eurocurrency Rate Advance;
(b) Interest Periods commencing on the same date for Eurocurrency Rate Advances comprising part of the same Borrowing shall be of the same duration;
(c) in the case of any such Borrowing, such Borrower shall not be entitled to select an Interest Period having duration of twelve months (or 182 days in the case of a Eurocurrency Rate Advance denominated in Pesos) unless, by 2:00 P.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, each Lender under the applicable Facility notifies the Agent that such Lender will be providing funding for such Borrowing with such Interest Period (the failure of any Lender to so respond by such time being deemed for all purposes of this Agreement as an objection by such Lender to the requested duration of such Interest Period); provided that, if any or all of the Lenders under the applicable Facility object to the requested duration of such Interest Period, the duration of the Interest Period for such Borrowing shall be one, two, three or six months (or, in the case of a Eurocurrency Rate Advance denominated in Pesos, 28 days or 91 days), in each case as specified by such Borrower requesting such Borrowing in the applicable Notice of Borrowing as the desired alternative Interest Period;
(d) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, however, that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day; and
(e) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Except as otherwise specified, section references to the Internal Revenue Code are to the Internal Revenue Code as in effect at the date of this Agreement.
“Investment” means, as to any Person, any loan or advance to such Person, any purchase or other acquisition of any Equity Interest or Indebtedness or the assets comprising a division or business unit or a substantial part of all of the business of such Person, any capital contribution to such Person or any other direct or indirect investment in such Person, including, without limitation, any acquisition by way of a merger, amalgamation or consolidation (or similar transaction) and any arrangement pursuant to which the investor incurs Indebtedness of
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the types referred to in clause (vi) or (vii) of the definition of “Indebtedness” in respect of such Person.
“IP Rights” has the meaning specified in Section 4.01(s).
“Issuing Bank” means an Initial Issuing Bank or any Eligible Assignee that has Multicurrency Revolving Credit Commitments and to which a portion of the Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.07 so long as such Eligible Assignee expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as an Issuing Bank and notifies the Agent of its Applicable Lending Office (which information shall be recorded by the Agent in the Register), for so long as the Initial Issuing Bank or Eligible Assignee, as the case may be, shall have a Letter of Credit Commitment.
“Japanese Loan Parties” means each Loan Party incorporated in Japan.
“Joint Bookrunners” means MLPFS, BNP Paribas, Citibank, N.A., Credit Agricole Corporate and Investment Bank, Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A. and Mizuho Bank, Ltd.
“Joint Lead Arrangers” means MLPFS, BNP Paribas, Citibank, N.A., Credit Agricole Corporate and Investment Bank, Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A. and Mizuho Bank, Ltd.
“JPY” means the lawful currency of Japan.
“JPY Revolver Borrower” has the meaning specified in the preamble to this Agreement.
“Judgment Currency” has the meaning specified in Section 9.12.
“L/C Cash Deposit Account” means an interest bearing cash deposit account to be established and maintained by the Agent, over which the Agent shall have sole dominion and control, upon terms as may be reasonably satisfactory to the Agent.
“L/C Exposure” means, at any time, the sum of (a) the aggregate Available Amount of all outstanding Letters of Credit at such time (for the avoidance of doubt, less any Unpaid Drawings) plus (b) the aggregate amount of all disbursements under Letters of Credit that have not yet been reimbursed by or on behalf of the Borrowers at such time (collectively, the “Unpaid Drawings”). The L/C Exposure of any Multicurrency Revolving Lender at any time shall be its Ratable Share of the total L/C Exposure at such time, as may be adjusted in accordance with Section 2.19.
“L/C Related Documents” has the meaning specified in Section 2.07(f)(i).
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“Latest Scheduled Termination Date” means, as of any date of determination, the latest scheduled “Termination Date” that is applicable to any Facility under clauses (a)(i), (b), (c) and (d) of the definition of “Termination Date”.
“Latest Scheduled Term Loan Termination Date” means, as of any date of determination, the latest scheduled “Termination Date” that is applicable to any Term Facility under clauses (b), (c) and (d) of the definition of “Termination Date”.
“Law” means, as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or assets or to which such Person or any of its property or assets is subject.
“LCA Election” has the meaning specified in Section 1.14.
“LCA Test Date” has the meaning specified in Section 1.14.
“Leased Property” has the meaning specified in Section 4.01(c)(ii).
“Leases” means leases and subleases (excluding Capital Lease Obligations) and licenses to use property.
“Lenders” means the Initial Lenders, the Revolving Lenders, the Term Lenders, the Issuing Banks, the Swing Line Bank and each Person that shall become a party hereto pursuant to Section 2.04 or Section 9.07.
“Lender Insolvency Event” means that (i) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
“Letter of Credit” has the meaning specified in Section 2.01(e).
“Letter of Credit Agreement” has the meaning specified in Section 2.03(a).
“Letter of Credit Commitment” means, with respect to each Issuing Bank, the obligation of such Issuing Bank to issue Letters of Credit for the account of any Multicurrency Revolver Borrower in (a) the amount set forth opposite such Issuing Bank’s name on Schedule I
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hereto under the caption “Letter of Credit Commitment”, or (b) if such Issuing Bank has entered into one or more Assignment and Acceptances, the amount set forth for such Issuing Bank in the Register maintained by the Agent pursuant to Section 9.07(d) as such Issuing Bank’s “Letter of Credit Commitment”, in each case as such amount may be reduced prior to such time pursuant to Section 2.06.
“Letter of Credit Sublimit” means, at any time, an amount equal to $100,000,000, as such amount may be reduced at or prior to such time pursuant Section 2.06. The Letter of Credit Sublimit is part of, and not in addition to, the Multicurrency Revolving Credit Facility.
“LIBOR” has the meaning specified in the definition of “Eurocurrency Rate”.
“LIBOR Quoted Currency” means each of the following currencies: Dollars, Euro, Sterling and JPY; in each case as long as there is a published Eurocurrency Rate with respect thereto.
“LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Agent from time to time).
“Lien” means any mortgage, pledge, hypothecation, encumbrance, lien (statutory or other), hypothec or other security interest of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any Capital Lease); provided that in no event shall any operating lease be deemed to be a Lien.
“Limited Condition Acquisition” means any Permitted Acquisition or any similar Permitted Investment, in one transaction or a series of related transactions, in the Equity Interests in or assets of any Person, in each case whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Liquidity Structures” means the Company’s and its Subsidiaries’ current and future multi-currency notional pool, Euro cash pool and various cash concentration and netting arrangements used to provide working capital intercompany funding; provided that, the sum of (a) the aggregate outstanding amount of obligations to Domestic Loan Parties from Subsidiaries which are not Domestic Loan Parties under all Liquidity Structures (net of the aggregate outstanding obligations under all Liquidity Structures of Domestic Loan Parties to Subsidiaries which are not Domestic Loan Parties) and (b) the aggregate amount of other Investments by Domestic Loan Parties to Subsidiaries which are not Domestic Loan Parties (net of the aggregate other Investments to Domestic Loan Parties by Subsidiaries which are not Domestic Loan Parties), shall not exceed $75,000,000.
“Liquidity Test Amount” means, as of any date of determination, the sum of (i) the aggregate amount of the unrestricted, domestic cash on hand of the Company and the other domestic Loan Parties as of such date, (ii) the amount of commitments available to be drawn under the Transpacific Revolving Credit Facility and the Multicurrency Revolving Credit Facility as of such date, and (iii) the aggregate amount of commitments available to be drawn under each Permitted Receivables Financing.
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“Loan” has the meaning specified in the definition of “Advance”.
“Liquidity Test Compliant” means that, as of any date of determination, the Liquidity Test Amount equals or exceeds $250 million.
“Loan Documents” means this Agreement, the Notes, the Collateral Documents, each Reaffirmation Agreement, any Letter of Credit (except as to Section 9.01), the Fee Letter (except as to Section 9.01), the 2019 Incremental Term Amendment Agreement, any Incremental Assumption Agreement and the Subsidiary Guaranties.
“Loan Parties” means each Borrower and each Subsidiary Guarantor.
“Luxembourg” means the Grand Duchy of Luxembourg.
“Luxembourg Loan Parties” means (i) Sealed Air Luxembourg S.à. r.l., a société à responsabilité limitée incorporated and existing under the laws of Luxembourg, with registered office at 20, rue des Peupliers, L-2328 Luxembourg, Grand Duchy of Luxembourg and registered with the RCS Luxembourg under the number B 89341, (ii) Sealed Air Luxembourg (I) S.à. r.l., a société à responsabilité limitée incorporated and existing under the laws of Luxembourg, with registered office at 20, rue des Peupliers, L-2328 Luxembourg, Grand Duchy of Luxembourg and registered with the RCS Luxembourg under the number B 89318, (iii) Sealed Air Luxembourg (II) S.à. r.l., a société à responsabilité limitée incorporated and existing under the laws of Luxembourg, with registered office at 20, rue des Peupliers, L-2328 Luxembourg, Grand Duchy of Luxembourg and registered with the RCS Luxembourg under the number B 89319, and (iv) any other Subsidiary of the Company or the Lux Revolver Borrower that is incorporated or organized in Luxembourg.
“Lux Revolver Borrower” has the meaning specified in the preamble to this Agreement.
“Margin Stock” has the meaning provided in Regulation U of the Board of Governors of the Federal Reserve System.
“Material Acquisition” means any acquisition of property or series of related acquisitions of property that (a) constitutes (i) assets comprising all or substantially all or any significant portion of a business or operating unit of a business, division, product line or line of business, or (ii) all or substantially all of the common stock or other Equity Interests of a Person, and (b) involves the payment of consideration (including the aggregate principal amount of any Indebtedness that is assumed by the Company or any Subsidiary following such acquisition) by the Company and its Subsidiaries that, together with all consideration paid in connection with all other acquisitions of property in any 12-month period, exceeds $500,000,000 (including the value of any Equity Interests of the Company or any of its Subsidiaries used as consideration in any such transaction).
“Material Adverse Effect” means a material adverse effect on (a) the business, assets or financial condition or results of operations of the Company and its Restricted Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or any Lender under this Agreement or any other Loan Document or (c) the ability of any Borrower or the Loan Parties,
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taken as a whole, to perform their obligations under this Agreement or any other Loan Document.
“Material Subsidiary” means any Subsidiary that is not an Immaterial Subsidiary.
“Mexican Revolver Borrower” has the meaning specified in the preamble to this Agreement.
“Mexico” means the United Mexican States.
“MLPFS” means Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer Wholly-Owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement).
“Moody’s” means Moody’s Investors Service, Inc.
“Multicurrency Revolver Borrower” means any of the Multicurrency US Revolver Borrowers, the Sterling Borrower, the CDN Revolver Borrower, the Lux Revolver Borrower, the Euro Revolver Borrower, or the Australian Revolver Borrowers, as the context may require.
“Multicurrency Committed Currency” means (i) AU$ available to be drawn by the Australian Revolver Borrowers, (ii) Euros available to be drawn by the Lux Revolver Borrower and the Euro Revolver Borrower, (iii) CDN available to be drawn by the CDN Revolver Borrower and the Multicurrency US Revolver Borrowers, (iv) Dollars and Euros available to be drawn by the Multicurrency US Revolver Borrowers and (v) Sterling available to drawn by the Sterling Borrower.
“Multicurrency Revolving Credit Advance” means an Advance by a Multicurrency Revolving Lender to any Multicurrency Revolver Borrower as part of a Multicurrency Revolving Credit Borrowing and refers to a Base Rate Advance or, a Eurocurrency Rate Advance or an Alternative Currency Daily Rate Advance.
“Multicurrency Revolving Credit Borrowing” means a borrowing consisting of simultaneous Multicurrency Revolving Credit Advances of the same Type made by each of the Multicurrency Revolving Lenders pursuant to Section 2.01(c)(ii).
“Multicurrency Revolving Credit Commitment” means as to any Multicurrency Revolving Lender, the commitment of such Multicurrency Revolving Lender to make Multicurrency Revolving Credit Advances and/or to acquire participations in Letters of Credit and Swing Line Advances hereunder, denominated in a Multicurrency Committed Currency, as such commitment may be (a) reduced from time to time in accordance with the terms of this Agreement and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to any Assignment and Acceptance. The initial amount of the Multicurrency Revolving Credit Commitment of each Multicurrency Revolving Lender party hereto on the date of this Agreement is set forth on Schedule I, and the initial amount of the Multicurrency
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Revolving Credit Commitment of each Multicurrency Revolving Lender becoming party hereto after the date of this Agreement shall be as set forth in the Assignment and Acceptance pursuant to which such Lender becomes party hereto.
“Multicurrency Revolving Credit Facility” means, at any time, the aggregate amount of the Multicurrency Revolving Lenders’ Multicurrency Revolving Credit Commitments at such time.
“Multicurrency Revolving Exposure” means, with respect to any Multicurrency Revolving Lender at any time, the sum of the aggregate outstanding principal amount of such Multicurrency Revolving Lender’s Multicurrency Revolving Credit Advances and its L/C Exposure under the Multicurrency Revolving Credit Facility and Swing Line Exposure at such time; provided that for such purpose, the outstanding principal amount of any Multicurrency Revolving Credit Advance shall be deemed to be equal to the Equivalent in Dollars of such Multicurrency Revolving Credit Advance as at such time.
“Multicurrency Revolving Lender” means any Lender that has a Multicurrency Revolving Credit Commitment or a Multicurrency Revolving Exposure.
“Multicurrency US Revolver Borrowers” means the Company, Sealed Air US and Cryovac.
“Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.
“Multiple Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Borrower or any ERISA Affiliate and at least one Person other than the Borrowers and the ERISA Affiliates or (b) was so maintained and in respect of which any Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.
“Net Cash Proceeds” means, as applicable:
(a) with respect to any Asset Disposition, or any Insurance and Condemnation Event, the gross cash proceeds received by the Company or any of its Restricted Subsidiaries therefrom less the sum of the following, without duplication: (i) selling expenses incurred in connection with such Asset Disposition (including reasonable brokers’ fees and commissions, legal, accounting and other professional and transactional fees, transfer and similar taxes and the Company’s reasonable good faith estimate of income taxes paid or payable in connection with such sale), (ii) the principal amount, premium or penalty, if any, interest and other amounts on any debt secured by a Lien having priority to the Lien of the Agent on the assets (or a portion thereof) sold in such Asset Disposition, or subject to such Insurance and Condemnation Event, which debt is repaid with such proceeds, (iii) reasonable reserves with respect to post-closing adjustments, indemnities and other contingent liabilities established in connection with
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such Asset Disposition (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds), (iv) the Company’s reasonable good faith estimate of cash payments required to be made within 180 days of such Asset Disposition or Insurance and Condemnation Event, as applicable, with respect to retained liabilities directly related to the assets (or a portion thereof) sold or lost in such Asset Disposition or Insurance and Condemnation Event (provided that, to the extent that cash proceeds are not used to make payments in respect of such retained liabilities within 180 days of such Asset Disposition, such cash proceeds shall constitute Net Cash Proceeds), and (v) the pro rata portion of the gross proceeds attributable to minority interests and not available for distribution to or for the account of the Company or a Wholly-Owned Restricted Subsidiary as a result thereof; and
(b) with respect to any issuance of debt for borrowed money, the gross cash proceeds received by the Company or any of its Subsidiaries therefrom less all legal, underwriting, selling, issuance and other fees and expenses incurred in connection therewith.
“Net Total Leverage Ratio” means, as of any date of determination, the ratio of Consolidated Net Debt as of such date to Consolidated EBITDA for the Test Period most recently ended.
“Net Total Secured Leverage Ratio” means, as of any date of determination, the ratio of Consolidated Total Secured Indebtedness as of such date to Consolidated EBITDA for the Test Period most recently ended.
“New Zealand Revolver Borrower” has the meaning specified in the preamble to this Agreement.
“New Zealand PPSA” means the Personal Property Securities Act 1999 (New Zealand).
“Non-Consenting Lender” has the meaning specified in Section 2.20(c).
“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender.
“Non-U.S. Lender” has the meaning specified in Section 2.15(e)(i).
“Note” means a Term Note, a Revolving Credit Note or any promissory note made in favor of an Incremental Lender evidencing Incremental Term Advances or the aggregate indebtedness resulting from the Incremental Revolving Credit Advances made by such Incremental Lender, as applicable.
“Notice of Borrowing” means a notice of (a) a Term Borrowing or a Revolving Credit Borrowing, (b) a Conversion or (c) a continuation of Eurocurrency Rate Advances or TIIE Rate Advances, which shall be in substantially the form of Exhibit C-1 hereto or such other form as may be approved by the Agent (including any form on an electronic platform or
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electronic transmission system as shall be approved by the Agent), appropriately completed and signed by a Responsible Officer of the applicable Borrower.
“Notice of Issuance” has the meaning specified in Section 2.03(a).
“Notice of Swing Line Borrowing” means a notice of Swing Line Borrowing delivered pursuant to Section 2.02(b), which shall be substantially in the form of Exhibit C-2 hereto, or such other form as approved by the Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Agent), appropriately completed and signed by a Responsible Officer of the applicable Borrower.
“NZ Holdings” means Sealed Air Holdings (New Zealand) Pty Limited.
“NZD” means the lawful currency of New Zealand.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Advance or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that, as to any Subsidiary Guarantor, the “Obligations” thereof shall exclude any Excluded Swap Obligations.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Offshore Associate” means an Associate which (a) is a non-resident of Australia and does not become a Lender or receive a payment in carrying on a business in Australia at or through a permanent establishment of the Associate in Australia or (b) which is a resident of Australia and which becomes a Lender or receives a payment in carrying on a business in a country outside Australia at or through a permanent establishment of the Associate in that country, which in either case does not become a Lender and receive payment in the capacity of a clearing house, custodian, funds manager or responsible entity of a registered scheme.
“Optional Release Conditions” has the meaning specified in Section 9.17(a).
“Optional Release Date” has the meaning specified in Section 9.17(a).
“Other Revolving Credit Advances” has the meaning specified in Section 2.04(a).
“Other Taxes” has the meaning specified in Section 2.15(b).
“Other Tax Returns” has the meaning specified in Section 4.01(h)(i).
“Other Term Advances” has the meaning specified in Section 2.04(a).
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“Owned Property” has the meaning specified in Section 4.01(c)(i).
“Parallel Debt” has the meaning specified in Section 9.19.
“Parent Company” means, with respect to a Lender, (i) the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender or (ii) any other Person controlling such Lender.
“Participant” has the meaning specified in Section 9.07(j).
“Participant Register” has the meaning specified in Section 9.07(j)(vi).
“Patriot Act” means the USA Patriot Act (Title III of Pub.L. 10756 (signed into law October 26, 2001)).
“Payment Office” means, with respect to any currency, the Agent’s address or such other address or account with respect to such currency as the Agent may from time to time notify to the Company and the Lenders.
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA or any successor thereto.
“Permitted Acquisition” means any acquisition by the Company or any of its Restricted Subsidiaries, whether by purchase, merger, amalgamation or otherwise, of assets of, or the Equity Interests of, or a business line or unit or a division of, any Person; provided,
(i) subject to Section 1.14 with respect to any Limited Condition Acquisition, immediately prior to, and after giving effect thereto, no Event of Default shall have occurred and be continuing or would result therefrom;
(ii) subject to Section 1.14 with respect to any Limited Condition Acquisition, the Company shall be in compliance with the financial covenant set forth in Section 5.03 on a Pro Forma Basis after giving effect to such acquisition (such Pro Forma Basis to include, in the Company’s discretion, a reasonable estimate of savings resulting from any such acquisition (i) that have been realized, (ii) for which the steps necessary for realization have been taken; or (iii) for which the steps necessary for realization are reasonably expected to be taken with 12 months of the date of such acquisition, in each case, certified by the Company); and
(iii) the Company, the applicable Loan Parties and each newly-acquired Subsidiary (other than any newly-acquired Subsidiary designated as an Unrestricted Subsidiary) shall comply with the collateral and guaranty requirements of Section 5.01(h).
“Permitted Investments” means Investments permitted pursuant to Section 5.02(d).
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“Permitted Liens” means, with respect to any Person:
(a) (i) pledges or deposits by such Person under workers’ compensation laws, unemployment insurance laws or other social security legislation, and deposits securing liability to insurance carriers under related insurance or self-insurance arrangements, (ii) Liens incurred in the ordinary course of business securing insurance premiums or reimbursement obligations under insurance policies related to the items specified in the foregoing clause (i), or (iii) obligations in respect of letters of credit or bank guarantees that have been posted by such Person to support the payment of the items set forth in clauses (i) and (ii) of this clause (a);
(b) (i) deposits to secure the performance of bids, tenders, contracts (other than for borrowed money) or Leases to which such Person is a party, (ii) deposits to secure public or statutory obligations of such Person, surety and appeal bonds, performance bonds and other obligations of a like nature, (iii) deposits as security for contested taxes or import duties or for the payment of rent, and (iv) obligations in respect of letters of credit or bank guarantees that have been posted by such Person to support the payment of items set forth in clauses (i) and (ii) of this clause (b);
(c) Liens consisting of pledges or deposits of cash or securities made by such Person as a condition to obtaining or maintaining any licenses issued to it by, or to satisfy other similar requirements of, any applicable Governmental Authority, or to secure the performance of obligations of any Loan Party pursuant to the requirements of Environmental Laws to which any assets of such Loan Party are subject;
(d) Liens imposed by law, such as (i) carriers’, warehousemen’s and mechanics’ materialmen’s, landlords’, or repairmen’s Liens, or (ii) other like Liens arising in the ordinary course of business securing obligations which are not overdue by more than 60 days or which if more than 60 days overdue, the period of grace, if any, related thereto has not expired or which are being contested in good faith by appropriate proceedings; provided that a reserve or other appropriate provision shall have been made therefor as appropriate in accordance with GAAP.
(e) Liens arising out of judgments or awards not constituting an Event of Default;
(f) Liens for property taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings (and as to which all foreclosures and other enforcement proceedings shall have been fully bonded or otherwise effectively stayed);
(g) survey exceptions, encumbrances, easements or reservations of, or rights of others for rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or other restrictions or encumbrances as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with and do not secure Indebtedness and do not in the aggregate materially impair the use of such real property for the
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purpose for which it is held or materially interfere with the ordinary operation of the business of such Person;
(h) any zoning, building or similar laws, ordinances or rights reserved to or vested in any Governmental Authority, which are not violated in any material respect by existing improvements or the present use of real property;
(i) Liens granted by any Loan Party to a landlord to secure the payment of arrears of rent in respect of leased properties in the Province of Québec leased from such landlord, provided that such Lien is limited to the assets located at or about such leased properties;
(j) Liens for taxes, assessments, charges or other governmental levies not overdue by more than 60 days or which if more than 60 days overdue, the period of grace, if any, related thereto has not expired or which are being contested in good faith by appropriate proceedings; provided that a reserve or other appropriate provision shall have been made therefor as appropriate in accordance with GAAP;
(k) Liens arising in the ordinary course of business by virtue of any contractual, statutory or common law provision relating to banker’s Liens, rights of set off or similar rights and remedies covering deposit or securities accounts (such covered accounts to include, for the avoidance of doubt, Liquidity Structures, related zero balance accounts and other pooling and netting arrangements), the funds or other assets credited to such accounts or other funds maintained with a depository institution or securities intermediary;
(l) restrictions on transfers of securities imposed by applicable securities laws;
(m) (i) any interest or title of a lessor, licensor or sublessor under any Lease, license or sublease entered into by such Person in the ordinary course of its business and covering only the assets so leased, licensed or subleased that do not materially detract from the value of such assets or interfere with the ordinary conduct of the business conducted and proposed to be conducted regarding such asset and (ii) the rights reserved or vested in any other Person by the terms of any Lease, license, franchise, grant or permit held by such Person or by a statutory provision to terminate any such Lease, license, franchise, grant or permit or to require periodic payments as a condition to the continuance thereof;
(n) assignments of insurance or condemnation proceeds provided to landlords (or their mortgagees) pursuant to the terms of any Lease and Liens or rights reserved in any Lease for rent or for compliance with the terms of such Lease;
(o) Liens arising from precautionary UCC financing statement filings (or similar filings under applicable law) regarding Leases entered into by such Person in the ordinary course of business;
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(p) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by such Person in the ordinary course of business not prohibited by this Agreement;
(q) 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;
(r) ground leases or subleases, licenses or sublicenses in respect of real property on which facilities owned or leased by the Company or any of its Restricted Subsidiaries are located;
(s) any interest or title of a lessor, sublessor, licensor or sublicensor or secured by a lessor’s, sublessor’s, licensor’s or sublicensor’s interest under any lease, sublease, license or sublicense permitted by this Agreement;
(t) Liens on goods or inventory the purchase, shipment or storage price of which is financed by a documentary letter of credit or bankers’ acceptance issued or created for the account of the Company or any of its Restricted Subsidiaries;
(u) any Liens arising under article 24 and 25 of the general terms and conditions (algemene voorwaarden) of any member of the Dutch Bankers' association (Nederlandse Vereniging van Banken);
(v) any security that is created or provided by (i) a PPS lease (as defined in the Australian PPSA), or a lease for a term of more than one year (as defined in the New Zealand PPSA) in respect of which the relevant Group Member is the lessee or bailee; (ii) a commercial consignment (as defined in the Australian PPSA or the New Zealand PPSA) in respect of which the relevant Group Member is consignee or (iii) a transfer or purchase of an account or chattel paper (in each case as defined in the Australian PPSA) or account receivable or chattel paper (in each case as defined in the New Zealand PPSA) in respect of which the relevant Group Member is transferor or vendor, provided that, in each case, such security does not secure payment or performance of an obligation and such lease, commercial consignment, transfer or purchase is otherwise permitted under the terms of the Loan Documents;
(w) any Lien arising under the general terms and conditions of banks or Sparkassen (Allgemeine Geschäftsbedingungen der Banken oder Sparkassen) with whom any Group Member maintains a banking relationship in the ordinary course of business, and any Lien arising under customary extended retention of title arrangements (verlängerter Eigentumsvorbehalt) in the ordinary course of business and trading;
(x) any Lien given in order to comply with the requirements of Section 8a of the German Altersteilzeitgesetz (Act on Partial Retirement) and of Section 7e of the German Sozialgesetzbuch IV (Social Security Code);
(y) the rights reserved to or vested in Canadian Governmental Authorities by statutory provisions or by the terms of leases, licenses, franchises, grants or permits,
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which affect any land, to terminate the leases, licenses, franchises, grants or permits or to require annual or other periodic payments as a condition of the continuance thereof; and
(z) Liens or covenants restricting or prohibiting access to or from lands abutting on controlled access highways or covenants affecting the use to which lands may be put; provided that such Liens or covenants do not materially and adversely affect the use of the lands by any Loan Party.
“Permitted Receivables Financing” means any customary non-recourse accounts receivable financing facility (including customary back-to-back intercompany arrangements in respect thereof), to the extent that there is no recourse by any Person that is not a Loan Party to any Loan Party (except with respect to customary indemnification obligations, and customary recourse arising from breach of representations, under such financings).
“Permitted Refinancing Indebtedness” means any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided, that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus (i) unpaid accrued interest and premium thereon, (ii) underwriting discounts, fees, commissions and expenses and (iii) an amount equal to any existing unutilized commitments or undrawn letters of credit); (b) except with respect to Capital Lease Obligations, the weighted average life to maturity of such Permitted Refinancing Indebtedness is greater than or equal to the weighted average life to maturity of the Indebtedness being Refinanced; (c) the final maturity of such Permitted Refinancing Indebtedness shall be later than the final maturity of the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (d) if the Indebtedness being Refinanced is subordinated in right of payment to the Obligations under this Agreement, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to such Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced; (e) no Permitted Refinancing Indebtedness of the Indebtedness of a Foreign Subsidiary shall have any obligors who are Domestic Subsidiaries; and (f) if the Indebtedness being Refinanced is secured by any collateral (whether equally and ratably with, or junior to, the Secured Parties or otherwise), such Permitted Refinancing Indebtedness may be secured by such collateral on terms no less favorable to the Secured Parties than those contained in the documentation governing the Indebtedness being Refinanced.
“Person” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated organization, association, employee organization (as defined in Section 3(4) of ERISA), joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.
“Personal Property Security Act” or “PPSA” means the Personal Property Security Act (Ontario) and the regulations thereunder, as from time to time in effect, provided, however, if attachment, perfection or priority of Agent’s security interests in any Collateral are governed by the personal property security laws of any jurisdiction other than Ontario, PPSA
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shall mean those personal property security laws in such other jurisdiction for the purposes of the provisions hereof relating to such attachment, perfection or priority and for the definitions related to such provisions.
“Pesos” means the lawful currency of Mexico.
“Plan” means any Single Employer Plan or Multiple Employer Plan.
“Platform” has the meaning specified in Section 9.02(c).
“Pledged Debt” has the meaning given to such term in the Security Agreement.
“Process Agent” has the meaning specified in Section 9.25.
“Pro Forma Basis” means, with respect to compliance with any test or covenant hereunder, that all Specified Transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant.
“Pro Forma Compliance” means, at any date of determination, that the Company shall be in pro forma compliance with the covenant set forth in Section 5.03 as of the date of such determination (and giving pro forma effect to the event or events giving rise to such determination).
“Prohibition” has the meaning specified in Section 2.22.
“Projections” means the projections of the Company and its subsidiaries included in the Lender Presentation dated June 7, 2018, as modified or supplement prior to the Closing Date, and any other projections and any forward looking statements of such entities furnished to the Lenders or the Agent by or on behalf of the Company or any of the Subsidiaries prior to the Closing Date.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified in Section 9.02(c).
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guaranty or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualified Equity Interests” means all Equity Interests of a Person other than Disqualified Equity Interests.
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“Qualified Preferred Equity” means any preferred Equity Interest of the Company, so long as the terms of any such Equity Interest (a) do not contain any mandatory put, redemption, repayment, sinking fund or other similar provisions which may occur prior to the date occurring 91 days after the Latest Scheduled Termination Date (determined as of the date of issuance of such Equity Interests) (other than customary provisions in respect of change of control, requiring payment solely in the form of common equity or Qualified Preferred Equity and, with respect to Qualified Preferred Equity issued to employees, provisions requiring the repurchase thereof in order to satisfy applicable statutory or regulatory obligations), (b) do not require the cash payment of dividends or distributions prior to the date occurring 91 days after the Latest Scheduled Termination Date (determined as of the date of issuance of such Equity Interests), and (c) do not contain any financial performance covenants.
“Ratable Share” of any amount means, with respect to any Lender under a Facility at any time, the product of (a) a fraction, the numerator of which is the amount of such Lender’s Commitment and, if applicable and without duplication, such Lender’s Advances, in respect of the applicable Facility at such time, and the denominator of which is the aggregate Commitments of all the Lenders under such Facility at such time, and, if applicable and without duplication, Loans under the applicable Facility at such time, and (b) such aforementioned amount.
“Rate Determination Date” means two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Agent; provided that to the extent such market practice is not administratively feasible for the Agent, such other day as otherwise reasonably determined by the Agent).
“RCS Luxembourg” has the meaning specified in the preamble to this Agreement.
“Reaffirmation Agreement” has the meaning specified in Section 3.01(a)(iii).
“Refinance” has the meaning specified in the definition of “Permitted Refinancing Indebtedness”
“Register” has the meaning specified in Section 9.07(d).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Relevant Interbank Market” means, (a) in relation to Euros, Sterling or JPY, the London interbank market, and (b) in relation to any other Committed Currency, the applicable offshore interbank market.
“Replaced Term Loans” has the meaning specified in Section 9.01.
“Replacement Term Loans” has the meaning specified in Section 9.01.
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“Reportable Event” means (a)(i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC; or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days unless the 30day notice requirement with respect to such event has been waived by the PBGC; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan under Section 4041(c) of ERISA, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the substantial cessation of operations at a facility of any Borrower or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA in which the conditions of Section 4062(e)(3) or Section 4062(e)(4) of ERISA are not met; (e) the withdrawal by any Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan; (g) a determination that any Plan is in “at risk” status (within the meaning of Section 303 of ERISA); or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the appointment of a trustee to administer, such Plan.
“Required Lenders” means, at any time, (a) Lenders having at least a majority (based on the Equivalent in Dollars at such time) in interest of the sum of (i) the Revolving Credit Commitments at such date, (ii) the Term Commitments at such date and (iii) the outstanding principal amount of the Term Advances at such date or (b) if the Revolving Credit Commitment and the Term Commitment have been terminated or for the purposes of acceleration pursuant to Article VI, Lenders having or holding a majority of the outstanding principal amount of the Advances and L/C Exposure in the aggregate at such date; provided that the portion of any Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Responsible Officer” means the chief executive officer, president, chief financial officer, chief operating officer, executive vice president, controller, treasurer, assistant treasurer, manager, managing member, managing partner or general partner of a Loan Party and, solely for purposes of notices pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property), direct or indirect, with respect to any Equity Interests of the Company or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interest, or on account of
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any return of capital to the Company’s stockholders, partners or members (or the equivalent Person thereof), but not on account of Subordinated Indebtedness; provided that no such dividend or distribution shall be considered a Restricted Payment if such dividend or distribution is made to a Loan Party.
“Restricted Junior Payment” means any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of any Subordinated Indebtedness.
“Restricted Subsidiary” means a Subsidiary of the Company that is not an Unrestricted Subsidiary.
“Revaluation Date” means (a) with respect to any Advance, each of the following: (i) each date of a Borrowing of a Eurocurrency Rate Advance or an Alternative Currency Daily Rate Advance denominated in a Committed Currency or a TIIE Advance denominated in Pesos and (ii) each date of a continuation of a Eurocurrency Rate Advance or an Alternative Currency Daily Rate Advance denominated in a Committed Currency or a TIIE Rate Advance denominated in Pesos pursuant to Section 2.09 and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in a Committed Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the Issuing Bank under any Letter of Credit denominated in a Committed Currency, and (iv) such additional dates as the Agent shall determine or the applicable Issuing Bank shall require.
“Reversion Date” has the meaning specified in the last paragraph of Section 5.02.
“Revolving Credit Advance” means a Transpacific Revolving Credit Advance, a Multicurrency Revolving Credit Advance or an Other Revolving Credit Advance, as applicable.
“Revolving Credit Borrowing” means a Transpacific Revolving Credit Borrowing or a Multicurrency Revolving Credit Borrowing, as applicable.
“Revolving Credit Borrowing Minimum” means, in respect of Revolving Credit Advances denominated in Dollars, $5,000,000, and in respect of Revolving Credit Advances denominated in any Foreign Currency, the Equivalent of $5,000,000 in such Foreign Currency.
“Revolving Credit Borrowing Multiple” means, in respect of Revolving Credit Advances denominated in Dollars, $1,000,000, and in respect of Revolving Credit Advances denominated in any Foreign Currency, the Equivalent of $1,000,000 in such Foreign Currency.
“Revolving Credit Commitment” means, (a) with respect to each Transpacific Revolving Lender, the Transpacific Revolving Credit Commitment of such Lender, (b) with respect to each Multicurrency Revolving Lender, the Multicurrency Revolving Credit Commitment of such Lender and (c) with respect to each Incremental Revolving Lender, the Incremental Revolving Credit Commitment of such Lender.
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“Revolving Credit Facility” means the Transpacific Revolving Credit Facility or the Multicurrency Revolving Credit Facility, as applicable.
“Revolving Lender” means a Transpacific Revolving Lender or a Multicurrency Revolving Lender, as applicable.
“Revolving Credit Note” means a promissory note of any Borrower payable to the order of any Revolving Lender, delivered pursuant to a request made under Section 2.17, in substantially the form of Exhibit A-1 hereto (in the case of the Commitments and Advances under the Multicurrency Revolving Credit Facility) or Exhibit A-2 hereto (in the case of the Commitments and Advances under the Transpacific Revolving Credit Facility), evidencing the aggregate Indebtedness of the applicable Borrowers to such Revolving Lender resulting from the Revolving Credit Advances made by such Revolving Lender to such Borrower under the Multicurrency Revolving Credit Facility or the Transpacific Revolving Credit Facility, as applicable.
“Roll-Forward Amount” means, for any Fiscal Year, $125,000,000 less the aggregate Restricted Payments made during such Fiscal Year pursuant to Section 5.02(c)(vii) (without giving effect to Restricted Payments made thereunder using any Roll-Forward Amount from the Fiscal Year immediately preceding such Fiscal Year), provided that, in no event shall the Roll-Forward Amount ever exceed $125,000,000.
“S&P” means Standard & Poor’s Financial Services LLC, a Wholly-Owned Subsidiary of The McGraw-Hill Companies, Inc.
“Sanction(s)” means any economic or financial sanction or trade embargo administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union or any member state thereof, Her Majesty’s Treasury, the Canadian Government, the Australian Department of Foreign Affairs and Trade or other relevant sanctions authority.
“Scheduled Unavailability Date” has the meaning specified in Section 1.16(b).
“Sealed Air US” has the meaning specified in the preamble to this Agreement.
“Secured Obligations” means (a) in the case of any Borrower, the Obligations of such Borrower, (b) in the case of each other Loan Party, the Obligations of such Loan Party under each Guaranty and the other Loan Documents to which it is a party (excluding, as to such Loan Party, any Excluded Swap Obligations), (c) the obligations of the Company or of any Subsidiary thereof under any Swap Obligations, and (d) any Cash Management Obligations of the Company or any Subsidiary thereof.
“Secured Parties” means the Lenders, the Swing Line Bank, the Issuing Banks, the Agent and any other holder of any Secured Obligation, each of which are beneficiaries of and subject to the distribution of proceeds provisions provided in the Intercreditor Agreement.
“Security Agreement” means that certain Pledge and Security agreement, dated as of October 3, 2011, by and among the Agent and each of the Grantors (as defined therein) party
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thereto, together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 5.01(h), in each case as amended, restated, supplemented or otherwise modified from time to time.
“Senior Financial Officer” means any of the president, the chief executive officer, the chief operating officer, the chief financial officer or the treasurer of the Company.
“Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Borrower or any ERISA Affiliate and no Person other than the Borrowers and the ERISA Affiliates or (b) was so maintained and in respect of which any Borrower or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.
“Solvency Certificate” has the meaning given to such term in Section 3.01(d).
“Solvent” has the meaning given to such term in the Solvency Certificate.
“SONIA” means, with respect to any applicable determination date, the Sterling Overnight Index Average Reference Rate published on the fifth Business Day preceding such date on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time); provided however that if such determination date is not a Business Day, SONIA means such rate that applied on the first Business Day immediately prior thereto.
“SONIA Adjustment” means, with respect to SONIA, 0.032600% per annum.
“Specified Collateral Release” has the meaning specified in the Preliminary Statements.
“Specified Event of Default” means any Event of Default under Section 6.01(a) or 6.01(e).
“Specified Transaction” means, with respect to any period, any Investment, sale, transfer or other Disposition of assets or property, incurrence or repayment of Indebtedness, Restricted Payment, acquisition, Subsidiary designation, Incremental Borrowing or other event that by the terms of the Loan Documents requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a “Pro Forma Basis”.
“Spot Rate” for a currency means the rate determined by the Agent, or the applicable Issuing Bank of any Letters of Credit, as applicable, to be the rate quoted by the person acting in such capacity as the spot rate for the purchase by such person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 A.M. (New York City time) on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Agent or the Issuing Banks may obtain such spot rate from another financial institution designated by the Agent or the Issuing Banks if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided, further that the Issuing Banks may use such
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spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit determined in a Foreign Currency.
“Sterling” and “£” mean the lawful currency of the United Kingdom.
“Sterling Borrower” has the meaning specified in the preamble to this Agreement.
“Sterling Term A Advance” means an Advance made by any Sterling Term A Lender under the Sterling Term A Facility.
“Sterling Term A Borrowing” means a borrowing consisting of simultaneous Sterling Term A Advances of the same Type and, in the case of Eurocurrency Rate Advances, having the same Interest Period made by each of the Sterling Term A Lenders pursuant to Section 2.01(b).
“Sterling Term A Commitment” means, as to each Sterling Term A Lender, its obligation to make Sterling Term A Advances to the Sterling Borrower pursuant to Section 2.01(b) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Sterling Term A Lender’s name on Schedule I under the heading “Sterling Term A Commitment”.
“Sterling Term A Facility” means the aggregate principal amount of the Sterling Term A Advances extended by all Sterling Term A Lenders pursuant to Section 2.01(b) outstanding at such time.
“Sterling Term A Lender” means any Lender that has a Sterling Term A Commitment or that holds Sterling Term A Advances.
“Sterling Term A Note” means a promissory note made by the Sterling Borrower in favor of a Sterling Term A Lender evidencing Sterling Term A Advances made by such Sterling Term A Lender, substantially in the form of Exhibit B.
“Subordinated Indebtedness” means unsecured Indebtedness for borrowed money of the Company, which Indebtedness shall rank in payment and upon liquidation junior to the Obligations under the Loan Documents on terms reasonably satisfactory to the Agent.
“Subordinated Obligations” has the meaning specified in Section 7.06.
“Subsidiary” of any Person means any corporation, partnership, joint venture, limited liability company, joint stock company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power and/or the power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries,
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and in relation to any Person incorporated in The Netherlands a subsidiary (dochtermaatschappij) within the meaning of Section 24a of Book 2 of the Dutch Civil Code.
“Subsidiary Guaranties” means, collectively, the Foreign Subsidiary Guaranties and the US Subsidiary Guaranties.
“Subsidiary Guarantors” means, collectively, the Wholly-Owned Subsidiaries of the Company listed on Schedule 1.01(ii), each other Subsidiary Guarantor of the Company that guarantees Obligations pursuant to Section 5.01(h). In addition, the Company may cause any Restricted Subsidiary that is not a Guarantor to guarantee the Obligations by causing such Restricted Subsidiary to execute a joinder or supplement to the applicable Guaranty in form and substance reasonably satisfactory to the Agent, and any such Restricted Subsidiary shall be a Subsidiary Guarantor hereunder for all purposes.
“Successor Borrower” has the meaning specified in Section 5.02(f)(i).
“Suspension Covenants” has the meaning specified in the last paragraph of Section 5.02.
“Suspension Debt Covenants” has the meaning specified in the last paragraph of Section 5.02.
“Successor Rate” has the meaning specified in Section 1.16.
“Successor Rate Conforming Changes” means, with respect to any proposed Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, the Australian Bill Rate, CDOR, EURIBOR, the TIIE Rate, the BKBM, SONIA, TIBOR, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Agent, to reflect the adoption of such Successor Rate and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Successor Rate exists, in such other manner of administration as the Agent determines in consultation with the Company).
“Suspension Period” means the period of time between the date of a Covenant Suspension Event and the Reversion Date.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the
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terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligations” means, as applied to the Company or any Subsidiary thereof, any direct or indirect liability, contingent or otherwise, of such Person in respect of Swap Contracts provided by the Agent, any Lender or any Affiliate thereof at the time such Swap Obligations are entered into, including obligations for the payment of fees, interest, charges, expenses, attorneys’ fees and disbursements in connection therewith to the extent provided for in the documents evidencing such Swap Contract; provided that, as to any Subsidiary Guarantor, the Swap Obligations shall exclude any Excluded Swap Obligations.
“Swing Line Advance” means a revolving credit advance made by the Swing Line Bank pursuant to Section 2.01(d) or any other Lender by purchase from the Swing Line Bank pursuant to Section 2.02(b).
“Swing Line Advance Maturity Date” has the meaning specified in Section 2.02(b).
“Swing Line Bank” means Bank of America.
“Swing Line Borrowing” means a Borrowing consisting of a Swing Line Advance made by the Swing Line Bank.
“Swing Line Exposure” means, at any time, the aggregate outstanding principal amount of the Swing Line Advances at such time. The Swing Line Exposure of any Multicurrency Revolving Lender at any time will be its Ratable Share of the total Swing Line Exposure at such time, as may be adjusted in accordance with Section 2.19.
“Swing Line Sublimit” has the meaning specified in Section 2.01(d).
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
“TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Tax Affiliate” means, with respect to any Person, any Subsidiary or Affiliate of such Person with which such Person files consolidated, combined or unitary tax returns.
“Tax Returns” has the meaning specified in Section 4.01(h)(i).
“Taxes” has the meaning specified in Section 2.15(a).
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“Term A Advance” means an advance made by any Term A Lender under the Term A Facility.
“Term A Borrowing” means a borrowing consisting of simultaneous Term A Advances of the same Type and, in the case of Eurocurrency Rate Advances, having the same Interest Period made by each of the Term A Lenders pursuant to Section 2.01(a).
“Term A Commitment” means, as to each Term A Lender, its obligation to make Term A Advances to the Company pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term A Lender’s name on Schedule I under the heading “Term A Commitment”.
“Term A Facility” means the aggregate principal amount of the Term A Advances extended by all Term A Lenders pursuant to Section 2.01(a) outstanding at such time.
“Term A Lender” means any Lender that has a Term A Commitment or that holds Term A Advances.
“Term A Note” means a promissory note made by the Company in favor of a Term A Lender evidencing Term A Advances made by such Term A Lender, substantially in the form of Exhibit B.
“Term Advance” means a Term A Advance, a Sterling Term A Advance, a 2019 Incremental Term Advance, an Incremental Term Advance or an Other Term Advance, as applicable.
“Term Borrowing” means a Term A Borrowing, a Sterling Term A Borrowing, a 2019 Incremental Term Borrowing or an Incremental Term Borrowing, as applicable.
“Term Commitment” means a Term A Commitment, a Sterling Term A Commitment, a 2019 Incremental Term Commitment or an Incremental Term Commitment, as applicable.
“Term Facility” means the Term A Facility, the Sterling Term A Facility, the 2019 Incremental Term Facility or an Incremental Term Facility, as applicable.
“Term Lender” means a Term A Lender, a Sterling Term A Lender, a 2019 Incremental Term Lender or an Incremental Term Lender, as applicable.
“Term Note” means a Term A Note, a Sterling Term A Note, a 2019 Incremental Term Note or any promissory note made in favor of an Incremental Lender evidencing Incremental Term Advances made by such Incremental Lender, as applicable.
“Termination Date” means (a) with respect to the Transpacific Revolving Credit Facility and the Multicurrency Revolving Credit Facility, the earlier of (i) July 11, 2023 and (ii) the date of termination in whole of the Commitments pursuant to Section 2.06 or 6.01, (b) with respect to the Term A Facility and the Sterling Term A Facility, July 11, 2023, (c) with respect to each other Incremental Facility, if any, the date specified as such in the applicable
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Incremental Assumption Agreement, and (d) with respect to the 2019 Incremental Term Facility, August 1, 2022 (the “2019 Incremental Term Termination Date”). However, if the Termination Date falls on a day which is not a Business Day, the Termination Date shall fall on the immediately preceding Business Day.
“Test Period” means the four consecutive fiscal quarters of the Company then last ended.
“TIBOR” means, the rate per annum equal to the Tokyo Interbank Offer Rate, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time) on the day that is two Business Days preceding the first day of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Agent; provided that, to the extent such market practice is not administratively feasible for the Agent, then such date shall be such other day as otherwise reasonably determined by the Agent) with a term equivalent to such Interest Period.
“TIIE” means the Interbank Equilibrium Interest Rate (tasa de interés interbancaria de equilibrio).
“TIIE Rate” means the rate per annum equal to TIIE, or a comparable successor rate that is approved by the Agent, as published by Banco de México in the Diario Oficial de la Federación (or such other commercially available source providing such quotations as may be designated by the Agent from time to time) at or about 2:00 p.m. (Mexico City Mexico time) on the Rate Determination Date with a term equivalent to the applicable Interest Period. In no event shall the TIIE Rate be less than zero for purposes of this Agreement.
“TIIE Rate Advance” means an Advance that bears interest at the TIIE Rate. All TIIE Rate Advances shall be denominated in Pesos.
“Transactions” means, collectively, (i) the Closing Date Refinancing, (ii) the execution of, and borrowing under, the Facilities on the Closing Date, (iii) all transactions in connection therewith and related thereto and (iv) the payment of all related fees, commissions and expenses incurred in connection with the foregoing.
“Transpacific Committed Currency” means (i) Dollars available to be drawn by the Company, (ii) NZD available to be drawn by the New Zealand Revolver Borrower, (iii) Pesos available to be drawn by the Mexican Revolver Borrower and (iv) JPY available to be drawn by the JPY Revolver Borrower.
“Transpacific Revolver Borrower” means any of the Company, the New Zealand Revolver Borrower, the Mexican Revolver Borrower and the JPY Revolver Borrower.
“Transpacific Revolving Credit Advance” means an Advance by a Transpacific Revolving Lender to any Transpacific Revolver Borrower as part of a Transpacific Revolving Credit Borrowing and refers to a Base Rate Advance, a Eurocurrency Rate Advance or a TIIE Rate Advance.
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“Transpacific Revolving Credit Borrowing” means a borrowing consisting of simultaneous Transpacific Revolving Credit Advances of the same Type made by each of the Transpacific Revolving Lenders pursuant to Section 2.01(c)(i).
“Transpacific Revolving Credit Commitment” means, as to any Transpacific Revolving Lender, the commitment of such Transpacific Revolving Lender to make Transpacific Revolving Credit Advances hereunder, denominated in a Transpacific Committed Currency, as such commitment may be (a) reduced from time to time in accordance with the terms of this Agreement and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to any Assignment and Acceptance. The initial amount of the Transpacific Revolving Credit Commitment of each Transpacific Revolving Lender party hereto on the date of this Agreement is set forth on Schedule I hereto, and the initial amount of the Transpacific Revolving Credit Commitment of each Transpacific Revolving Lender becoming party hereto after the date of this Agreement shall be as set forth in the Assignment and Acceptance pursuant to which such Lender becomes party hereto.
“Transpacific Revolving Credit Facility” means, at any time, the aggregate amount of the Transpacific Revolving Lenders’ Transpacific Revolving Credit Commitments at such time.
“Transpacific Revolving Exposure” means, with respect to any Transpacific Revolving Lender at any time, the sum of the aggregate outstanding principal amount of such Lender’s Transpacific Revolving Credit Advances at such time; provided that for such purpose, the outstanding principal amount of any Transpacific Revolving Credit Advance shall be deemed to be equal to the Equivalent in Dollars of such Transpacific Revolving Credit Advance as at such time.
“Transpacific Revolving Lender” means any Lender that has a Transpacific Revolving Credit Commitment or a Transpacific Revolving Exposure.
“Type” means, with respect to an Advance, its character as a Base Rate Advance or, a Eurocurrency Rate Advance or an Alternative Currency Daily Rate Advance.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.
“Unpaid Drawings” has the meaning specified in the definition of “L/C Exposure”.
“Unrestricted Subsidiary” means any Subsidiary of the Company (other than any Borrower or any Guarantor (or any Person required to become a Guarantor pursuant to Section 5.01(h))) listed on Schedule 1.01(i) or designated by the Company as an Unrestricted Subsidiary pursuant to Section 5.01(l) subsequent to the date hereof.
“Unused Multicurrency Revolving Credit Commitment” means, with respect to any Multicurrency Revolving Lender, the amount of such Multicurrency Revolving Lender’s
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Multicurrency Revolving Credit Commitment at such time minus the sum of the aggregate principal amount of all Multicurrency Revolving Credit Advances (based, in respect of any Multicurrency Revolving Credit Advances denominated in a Committed Currency other than Dollars, on the Equivalent in Dollars at such time) made by such Multicurrency Revolving Lender plus such Multicurrency Revolving Lender’s L/C Exposure.
“Unused Revolving Credit Commitments” means, collectively, the Unused Multicurrency Revolving Credit Commitments and the Unused Transpacific Revolving Credit Commitments.
“Unused Transpacific Revolving Credit Commitment” means, with respect to any Transpacific Revolving Lender, the amount of such Transpacific Revolving Lender’s Transpacific Revolving Credit Commitment at such time minus the aggregate principal amount of all Transpacific Revolving Credit Advances (based, in respect of any Transpacific Revolving Credit Advances denominated in a Committed Currency other than Dollars, on the Equivalent in Dollars at such time) made by such Multicurrency Revolving Lender.
“US Subsidiary Guaranty” means that certain US Subsidiary Guaranty, dated as of October 3, 2011, from the Subsidiary Guarantors from time to time party thereto as Guarantors in favor of the Applicable Secured Parties (as defined therein), as it may be amended, amended and restated, supplemented or otherwise modified from time to time.
“US Tax Returns” has the meaning specified in Section 4.01(h)(i).
“Voting Stock” means capital stock or share capital, as applicable, issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
“Wholly-Owned” means, as to any Person, (i) any corporation 100% of whose capital stock (other than director’s qualifying shares and, in the case of a Foreign Subsidiary, other than up to 2.0% of the capital stock of such Foreign Subsidiary, to the extent that it is required to be held by a third party pursuant to a requirement of law) is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any partnership, association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% Equity Interest at such time.
“Withdrawal Liability” has the meaning specified in Part I of Subtitle E of Title IV of ERISA.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
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SECTION 1.02Computation of Time Periods. In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.
SECTION 1.03Accounting Terms. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with generally accepted accounting principles as in effect from time to time in the United States, applied on a basis consistent (except for changes concurred with by the Borrower’s independent registered public accountants) with the most recent audited Consolidated financial statements of the Company delivered to the Agent (“GAAP”); provided that, if the Company notifies the Agent that the Company wishes to amend any covenant in Article V to eliminate the effect of any change in GAAP on the operation of such covenant (or if the Agent notifies the Company that the Required Lenders wish to amend Article V for such purpose), then the Borrower’s compliance with such covenant shall be applied on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Company and the Required Lenders.
SECTION 1.04Exchange Rates; Currency Equivalents.
(a)The Agent shall determine the Spot Rates as of each Revaluation Date to be used for calculating Equivalent amounts of Advances and Available Amounts denominated in JPY, Sterling, Euro and other Committed Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Equivalent amount as so determined by the Agent.
(b)Wherever in this Agreement in connection with an Advance, conversion, continuation or prepayment of a Eurocurrency Rate Advance or an Alternative Currency Daily Rate Advance or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Advance, Eurocurrency Rate Advance, Alternative Currency Daily Rate Advance or Letter of Credit is denominated in a Committed Currency, such amount shall be the relevant Equivalent of such Dollar amount (rounded to the nearest unit of Committed Currency, with 0.5 of a unit being rounded upward), as determined by the Agent.
SECTION 1.05Construction. English language words used in this Agreement to describe Japanese Law, Dutch law or Luxembourg law concepts intend to describe such concepts only and the consequences of the use of those words in New York law or any other foreign law are to be disregarded.
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SECTION 1.06Dutch Terms. In this Agreement, where it relates to a Dutch entity, a reference to:
(a)an administration or dissolution includes a Dutch entity being:
(i)declared bankrupt (failliet verklaard)
(ii)dissolved (ontbonden)
(b)a moratorium includes surséance van betaling and granted a moratorium includes surséance verleend;
(i)a trustee in bankruptcy includes a curator;
(ii)an administrator includes a bewindvoerder; and
(iii)an attachment includes a beslag.
SECTION 1.07Luxembourg Terms. In this Agreement, unless a contrary intention appears, a reference to:
(a)a “liquidator”, “trustee in bankruptcy”, “judicial custodian”, “compulsory manager”, “receiver”, “administrator receiver”, “administrator” or similar officer includes any:
(i)juge-commissaire or insolvency receiver (curateur) appointed under the Luxembourg Commercial Code;
(ii)liquidateur appointed under Articles 1100-1 to 1100-15 (inclusive) of the Luxembourg act dated 10 August 1915 on commercial companies, as amended;
(iii)juge-commissaire or liquidateur appointed under Article 1200-1 of the Luxembourg act dated 10 August 1915 on commercial companies, as amended;
(iv)commissaire appointed under the Grand-Ducal decree of 24 May 1935 on the controlled management regime or under Articles 593 to 614 (inclusive) of the Luxembourg Commercial Code; and
(v)juge délégué appointed under the Luxembourg act of 14 April 1886 on the composition to avoid bankruptcy, as amended;
(b)a “winding-up”, “administration” or “dissolution” includes, without limitation, bankruptcy (faillite), insolvency, voluntary or judicial liquidation, (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), moratorium or reprieve from payment (sursis de paiement), controlled management
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(gestion contrôlée), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally;
(c)a “security interest” or a “lien” includes any hypothèque, nantissement, gage, privilège, sûreté réelle, droit de rétention and any type of real security or agreement or arrangement having a similar effect;
(d)a person being “unable to pay its debts” includes that person being in a state of cessation of payments (cessation de paiements);
(e)a “matured obligation” includes, without limitation, any obligation exigible, certaine and liquide;
(f)by-laws or constitutional documents includes its up-to-date (restated) articles of association (statuts coordonnés); and
(g)a “director”, “manager” or “officer” includes its gérants and an administrateur.
SECTION 1.08Québec Matters. For purposes of any assets, liabilities or entities located in the Province of Québec and for all other purposes pursuant to which the interpretation or construction of this Agreement may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (a) “personal property” shall include “movable property”, (b) “real property” or “real estate” shall include “immovable property”, (c) “tangible property” shall include “corporeal property”, (d) “intangible property” shall include “incorporeal property”, (e) “security interest”, “mortgage” and “lien” shall include a “hypothec”, “right of retention”, “prior claim” and a resolutory clause, (f) all references to filing, perfection, priority, remedies, registering or recording under the Uniform Commercial Code or a Personal Property Security Act shall include publication under the Civil Code of Québec, (g) all references to “perfection” of or “perfected” liens or security interest shall include a reference to an “opposable” or “set up” lien or security interest as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall include a “right of compensation”, (i) “goods” shall include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall include a “mandatary”, (k) “construction liens” shall include “legal hypothecs”; (l) “joint and several” shall include “solidary”; (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”; (n) “beneficial ownership” shall include “ownership on behalf of another as mandatary”; (o) “easement” shall include “servitude”; (p) “priority” shall include “prior claim”; (q) “survey” shall include “certificate of location and plan”; (r) “state” shall include “province”; (s) “fee simple title” shall include “absolute ownership”; (t) “accounts” shall include “claims”. The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the Transactions be drawn up in the English language only and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment que c’est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise
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seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en langue anglaise seulement.
SECTION 1.09Code of Banking Practice. The parties hereto agree that the Code of Banking Practice does not apply to the Loan Documents.
SECTION 1.10Terms 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, (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time and (f) any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
SECTION 1.11Rounding. Any financial ratios required to be maintained by the Company pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
SECTION 1.12Change of Currency.
(a)Each obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption. If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the
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date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.
(b)Each provision of this Agreement shall be subject to such reasonable changes of construction as the Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.
(c)Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.
SECTION 1.13Additional Foreign Currencies.
(a)The Company may from time to time request that Eurocurrency Rate Advances be made and/or Letters of Credit be issued under the Multicurrency Revolving Credit Facility or a new Incremental Term Facility in a currency other than those specifically listed in the definition of “Foreign Currency”; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request with respect to the making of Eurocurrency Rate Advances, such request shall be subject to the approval of the Agent and all Lenders under the applicable Facility; and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Agent and each applicable Issuing Bank.
(b)Any such request shall be made to the Agent not later than 11:00 a.m. (New York City time), 10 Business Days prior to the date of the desired Borrowing (or such other time or date as may be agreed by the Agent and, in the case of any such request pertaining to Letters of Credit, each applicable Issuing Bank, in its or their sole discretion). In the case of any such request pertaining to Eurocurrency Rate Advances, the Agent shall promptly notify each Lender under the applicable Facility thereof; and in the case of any such request pertaining to Letters of Credit, the Agent shall promptly notify each applicable Issuing Bank thereof. Each Lender under the applicable Facility (in the case of any such request pertaining to Eurocurrency Rate Advances) or each applicable Issuing Bank (in the case of a request pertaining to Letters of Credit) shall notify the Agent, not later than 11:00 a.m., five Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Eurocurrency Rate Advances or the issuance of Letters of Credit, as the case may be, in such requested currency.
(c)Any failure by a Lender under the applicable Facility or the applicable Issuing Bank, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Lender or Issuing Bank, as the case may be, to permit Eurocurrency Rate Advances to be made or Letters of Credit to be issued in such requested currency. If the Agent and all the Lenders under the applicable Facility consent to making Eurocurrency Rate Advances in such requested currency, the Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be a
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Foreign Currency hereunder for purposes of any Borrowings of Eurocurrency Rate Advances; and if the Agent and each applicable Issuing Bank consent to the issuance of Letters of Credit in such requested currency, the Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be a Foreign Currency hereunder for purposes of any Letter of Credit issuances. If the Agent shall fail to obtain consent to any request for an additional currency under this Section 1.06, the Agent shall promptly so notify the Company.
SECTION 1.14Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any issuer document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
SECTION 1.15Limited Condition Acquisitions. In connection with any action being taken solely in connection with a Limited Condition Acquisition, for purposes of: (i) determining compliance with any provision of the Loan Documents which requires the calculation of the Net Total Secured Leverage Ratio, Net Total Leverage Ratio or the Interest Coverage Ratio; (ii) determining (A) the accuracy of representations and warranties in Section 4.01 (other than customary “specified representations” and those representations of the seller or target company (as applicable) included in the acquisition agreement for the relevant Limited Condition Acquisition that are material to the interest of the Lenders and only to the extent that the relevant acquirer has the right to terminate its obligations under such acquisition agreement as a result of such representations (which representations, for the avoidance of doubt, shall be required to be accurate as of the date of the consummation of any Limited Condition Acquisition)), and/or (B) whether a Default or Event of Default (other than a Specified Event of Default (the absence of which, for the avoidance of doubt, shall be required on the date of the consummation of any Limited Condition Acquisition)) has occurred and is continuing or would result therefrom; or (iii) testing availability under each “basket”, ratio calculation or similar provision set forth in the Loan Documents (including without limitation baskets measured as a percentage of consolidated EBITDA or Consolidated Net Tangible Assets); in each case, at the option of the Company (the Company’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted under the Loan Documents, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, on a Pro Forma Basis after giving effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith as if they had occurred at the beginning of the most recent Test Period ending prior to the LCA Test Date, the Borrower could have taken such action on the relevant LCA Test Date in compliance with such “baskets”, ratio calculations or similar provisions, such “baskets”, ratio calculations or similar provisions shall be deemed to have been complied with. For the avoidance of doubt, if any Borrower has made an LCA Election for any Limited Condition Acquisition and any of the “baskets”, ratio calculations or similar provisions for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Assets of the Borrower or the Person subject to such
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Limited Condition Acquisition or any applicable currency exchange rate, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, metrics or thresholds will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining compliance of the relevant transaction or action with such provisions, baskets or thresholds. If any Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCA Test Date and prior to the earlier of (i) the date on which such Limited Condition Acquisition is consummated or (ii) the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated until such time as the Limited Condition Acquisition has been consummated or the definitive agreement with respect thereto has been terminated or expires.
SECTION 1.16LIBOR Rate Discontinuation. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Agent determines (which determination shall be conclusive absent manifest error), or the Company or Required Lenders notify the Agent (with, in the case of the Required Lenders, a copy to the Company) that the Company or Required Lenders (as applicable) have determined, that:
(a)adequate and reasonable means do not exist for ascertaining the applicable Eurocurrency Rate for any requested Interest Period or, with respect to Alternative Currency Daily Rate Advances, for ascertaining the applicable Alternative Currency Daily Rate, including, without limitation, because the LIBOR Screen Rate (or other applicable screen rate) is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(b)the administrator of the LIBOR Screen Rate (or other applicable screen rate) or a Governmental Authority having jurisdiction over the Agent has made a public statement identifying a specific date after which LIBOR (or other Eurocurrency Rate or an Alternative Currency Daily Rate, as applicable) or the LIBOR Screen Rate (or other applicable screen rate) shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”), or
(c)syndicated loans currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR (or such other Eurocurrency Rate or Alternative Currency Daily Rate, as applicable),
then, reasonably promptly after such determination by the Agent or receipt by the Agent of such notice, as applicable, the Agent and the Company may amend this Agreement to replace LIBOR (or such other Eurocurrency Rate or Alternative Currency Daily Rate) with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) (any such proposed rate, a “Eurocurrency Successor Rate”), together with any proposed Eurocurrency Successor Rate Conforming Changes and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Agent shall
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have posted such proposed amendment to all Lenders and the Company unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Agent written notice that such Required Lenders do not accept such amendment.
If no Eurocurrency Successor Rate has been determined and the circumstances under clause (a) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Agent will promptly so notify the Company and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurocurrency Rate Advances using such Eurocurrency Rate or Alternative Currency Daily Rate, as applicable, shall be suspended (to the extent of the affected Eurocurrency Rates, Alternative Currency Daily Rates, Eurocurrency Rate Advances, Alternative Currency Daily Rate Advances or Interest Periods), and (y) with respect to a discontinuation of LIBOR, the Eurocurrency Rate component shall no longer be utilized in determining the Base Rate. Upon receipt of such notice, the Company or any other Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Advances or Alternative Currency Daily Rate Advances (to the extent of the affected Eurocurrency Rates, Alternative Currency Daily Rates, Eurocurrency Rate Advances Alternative Currency Daily Rate Advances or Interest Periods) or, failing that, in the case of (I) any request denominated in Dollars will be deemed to have converted such request into a request for a committed Borrowing of Base Rate Advance (subject to the foregoing clause (y)) in the amount specified therein and in the case of a request denominated in any other LIBOR Quoted Currency or (II) any request denominated in any Committed Currency other than Dollars will be deemed to have been converted to a request for a committed Borrowing of Base Rate Advance in an Equivalent amount of Dollars.
Notwithstanding anything else herein, any definition of Eurocurrency Successor Rate shall provide that in no event shall such Eurocurrency Successor Rate be less than zero for purposes of this Agreement.
SECTION 1.17Bank of America Merrill Lynch International Limited. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document, any reference to “Bank of America Merrill Lynch International Limited” is a reference to its successor in title Bank of America Merrill Lynch International Designated Activity Company (including, without limitation, its branches) pursuant to and with effect from the merger between Bank of America Merrill Lynch International Limited and Bank of America Merrill Lynch International Designated Activity Company that takes effect in accordance with Chapter II, Title II of Directive (EU) 2017/1132 (which repeals and codifies the Cross-Border Mergers Directive (2005/56/EC)), as implemented in the United Kingdom and Ireland. Notwithstanding anything to the contrary in any Loan Document, a transfer of rights and obligations from Bank of America Merrill Lynch International Limited to Bank of America Merrill Lynch International Designated Activity Company pursuant to such merger shall be permitted.
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01The Advances and Letters of Credit.
(a)The Term A Advance. Subject to the terms and conditions set forth herein, each Term A Lender severally agrees to make a single Advance to Cryovac on the Closing Date, denominated in Dollars, in an amount not to exceed such Term A Lender’s respective Term A Commitment, as set forth on Schedule I. The Term A Borrowing shall consist of Term A Advances made simultaneously by the Term A Lenders in accordance with their respective Ratable Share of the Term A Facility. Any Term A Lender that is also a “Term A Lender” under the Existing Credit Agreement may make, in whole or in part, its respective Term A Advance, by means of a dollar-for-dollar, cashless exchange of all or a portion of the “Term A Advances” (as defined in the Existing Credit Agreement) it holds under the Existing Credit Agreement into Term A Advances pursuant to cashless settlement mechanisms reasonably approved by the Company, the Agent and such Term A Lender. Term A Advances may be Base Rate Advances or Eurocurrency Rate Advances, as further provided herein. Term A Advances which are repaid or prepaid may not be reborrowed.
(b)The Sterling Term A Advance. Subject to the terms and conditions set forth herein, each Sterling Term A Lender severally agrees to make a single Eurocurrency Rate Advance to the Sterling Borrower on the Closing Date (provided, that from and after the Amendment No. 4 Implementation Date, such Eurocurrency Rate Advance shall instead become an Alternative Currency Daily Rate Advance), denominated in Sterling, in an amount not to exceed such Sterling Term A Lender’s respective Sterling Term A Commitment, as set forth on Schedule I. The Sterling Term A Borrowing shall consist of Sterling Term A Advances made simultaneously by the Sterling Term A Lenders in accordance with their respective Ratable Share of the Sterling Term A Facility. Any Sterling Term A Lender that is also a “Sterling Term A Lender” under the Existing Credit Agreement may make, in whole or in part, its respective Sterling Term A Advance to the Sterling Borrower on the Closing Date, by means of a pound-for-pound, cashless exchange of all or a portion of the “Sterling Term A Advances” (as defined in the Existing Credit Agreement) it holds under the Existing Credit Agreement into Sterling Term A Advances pursuant to cashless settlement mechanisms reasonably approved by the Company, the Agent and such Sterling Term A Lender. Sterling Term A Advances which are repaid or prepaid may not be reborrowed.
(c)Revolving Credit Advances.
(i)Transpacific. Each Transpacific Revolving Lender severally agrees, on the terms and conditions hereinafter set forth, to make Transpacific Revolving Credit Advances to any Transpacific Revolver Borrower, in each case denominated in a Transpacific Committed Currency in which such Transpacific Revolver Borrower is permitted to borrow under the Transpacific Revolving Credit Facility as set forth in the definition of “Transpacific Committed Currencies” (and as may be otherwise agreed in accordance with Section 9.09 of this Agreement) from time to time on any Business Day during the period from
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the Closing Date until the Termination Date applicable to the Transpacific Revolving Credit Facility under clause (a) of the definition of “Termination Date”, in an aggregate amount not to exceed such Transpacific Revolving Lender’s Unused Transpacific Revolving Credit Commitment.
(ii)Multicurrency. Each Multicurrency Revolving Lender severally agrees, on the terms and conditions hereinafter set forth, to make Multicurrency Revolving Credit Advances to any Multicurrency Revolver Borrower, in each case denominated in a Multicurrency Committed Currency in which such Multicurrency Revolver Borrower is permitted to borrow under the Multicurrency Revolving Credit Facility as set forth in the definition of “Multicurrency Committed Currencies” (and as may be otherwise agreed in accordance with Section 9.09 of this Agreement) from time to time on any Business Day during the period from the Closing Date until the Termination Date applicable to the Multicurrency Revolving Credit Facility under clause (a) of the definition of “Termination Date”, in an aggregate amount not to exceed such Multicurrency Revolving Lender’s Unused Multicurrency Revolving Credit Commitment.
Each Revolving Credit Borrowing shall be in an amount not less than the Revolving Credit Borrowing Minimum or the Revolving Credit Borrowing Multiple in excess thereof and shall consist of Revolving Credit Advances of the same Type and in the same currency made on the same day by the Lenders ratably according to their respective Revolving Credit Commitments. Within the limits of each Lender’s Revolving Credit Commitment, the Borrowers may borrow under this Section 2.01(c), prepay pursuant to Section 2.11 and reborrow under this Section 2.01(c).
(d)The Swing Line Advances. The Swing Line Bank agrees, on the terms and conditions hereinafter set forth, to make Swing Line Advances, denominated in Dollars, to the Company from time to time on any Business Day during the period from the Closing Date until the Termination Date applicable to the Multicurrency Revolving Credit Facility under clause (a) of the definition of “Termination Date” (i) in an aggregate amount not to exceed at any time outstanding $50,000,000 (the “Swing Line Sublimit”) and (ii) in an amount for each such Swing Line Advance not to exceed the Unused Multicurrency Revolving Credit Commitments of the Multicurrency Revolving Lenders immediately prior to the making of such Swing Line Advance. The Swing Line Bank agrees to make one or more Swing Line Advances on any Business Day. No Swing Line Advance shall be used for the purpose of funding the payment of principal of any other Swing Line Advance. Each Swing Line Borrowing shall be in an amount of $1,000,000 or an integral multiple of $500,000 in excess thereof and, notwithstanding Section 2.10, shall consist of a Base Rate Advance made by the Swing Line Bank. Within the limits of the Swing Line Sublimit and within the limits referred to in clause (ii) above, the Company may borrow under this 2.01(d), prepay pursuant to Section 2.11 and reborrow under this Section 2.01(d).
(e)Letters of Credit. Each Issuing Bank agrees, on the terms and conditions hereinafter set forth, to issue multicurrency letters of credit (each, a “Letter of Credit”) for the account of any Multicurrency Revolver Borrower under the Multicurrency Revolving Credit Facility from time to time on any Business Day during the period from the Closing Date until
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30 days before the Termination Date applicable to the Multicurrency Revolving Credit Facility under clause (a)(i) of the definition of “Termination Date” (i) in an aggregate Available Amount (by reference to the Equivalent thereof in Dollars determined on the date of delivery of the applicable Notice of Issuance) for all Letters of Credit not to exceed at any time the Letter of Credit Sublimit, (ii) in an amount (by reference to the Equivalent thereof in Dollars determined on the date of delivery of the applicable Notice of Issuance) for each Issuing Bank not to exceed the amount of such Issuing Bank’s Letter of Credit Commitment at such time, (iii) in an amount (by reference to the Equivalent thereof in Dollars determined on the date of delivery of the applicable Notice of Issuance) for each such Letter of Credit not to exceed an amount equal to the aggregate Unused Multicurrency Revolving Credit Commitments of the Multicurrency Revolving Lenders at such time and (iv) issued to provide support with respect to the undertakings of the Company and/or any Subsidiaries. Each Letter of Credit shall be in an amount equal to the Equivalent of $500,000 or more and may be denominated in any Multicurrency Committed Currency. No Letter of Credit shall have an expiration date (including all rights of such Borrower or the beneficiary to require renewal) of greater than one year or later than the Termination Date applicable to the Multicurrency Revolving Credit Facility under clause (a)(i) of the definition of “Termination Date”; provided that any Letter of Credit which provides for automatic one-year extension(s) of such expiration date shall be deemed to comply with the foregoing requirement if the Issuing Bank has the unconditional right to prevent any such automatic extension from taking place. Within the limits referred to above, any Multicurrency Revolver Borrower under the Multicurrency Revolving Credit Facility may request the issuance of Letters of Credit under this Section 2.01(e), repay any Advances resulting from drawings thereunder pursuant to Section 2.03(c) and request the issuance of additional Letters of Credit under this Section 2.01(e). If a Letter of Credit shall be requested on behalf of a Subsidiary that is not a Multicurrency Revolver Borrower hereunder, the Company shall have furnished to the Issuing Bank, in form and substance reasonably satisfactory to the Issuing Bank, customary “know your customer” information regarding such Subsidiary at least three Business Days prior to the date of the requested issuance. Each “Existing Letter of Credit” listed on Schedule 2.01(e) shall be deemed to constitute a Letter of Credit issued hereunder, and each Lender that is an issuer of such a Letter of Credit shall, for purposes of Section 2.03, be deemed to be a Issuing Bank for each such letter of credit, provided that any renewal or replacement of any such letter of credit shall be issued by a Issuing Bank pursuant to the terms of this Agreement. The terms “issue”, “issued”, “issuance” and all similar terms, when applied to a Letter of Credit, shall include any renewal, extension or amendment thereof.
(f)Incremental Advances. Each Lender having an Incremental Term Commitment or an Incremental Revolving Credit Commitment agrees, on the terms and conditions set forth in the applicable Incremental Assumption Agreement, to make Incremental Term Advances to the applicable Borrower or Borrowers and/or Incremental Revolving Credit Advances to the applicable Borrower or Borrowers, in an aggregate principal amount not to exceed its Incremental Term Commitment or Incremental Revolving Credit Commitment, as the case may be.
SECTION 2.02Borrowing Mechanics.
(a)Each Term Borrowing and each Revolving Credit Borrowing shall be made upon the applicable Borrower’s irrevocable notice to the Agent. Each such notice must be
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received by the Agent not later than (I) 12:00 P.M. (New York City time) on the third Business Day prior to the date of any proposed Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars, (II) 12:00 P.M. (New York City time) on the fourth Business Day prior to the date of any proposed Borrowing consisting of (A) Eurocurrency Rate Advances denominated in any Foreign Currency or (B) Alternative Currency Daily Rate Advances denominated in Sterling, and (III) 11:00 A.M. (New York City time) on the date of the proposed Borrowing consisting of Base Rate Advances, and the Agent shall then give to each Lender prompt notice thereof by telecopier. Each such notice shall be given by telephone or by Notice of Borrowing; provided that any telephonic notice must be confirmed promptly by delivery to the Agent of a Notice of Borrowing. Each such notice (whether written or telephonic) shall specify the (i) applicable Borrower, (ii) applicable Facility, (iii) date of such Borrowing, (iv) Type of Advances comprising such Borrowing, (v) aggregate amount of such Borrowing, (vi) in the case of a Borrowing consisting of Eurocurrency Rate Advances, the initial Interest Period for such Advance, and (vii) currency for each such Advance; provided, that the applicable Borrower shall not be entitled to request any Borrowing that, if made, would result in more than fifteen different Interest Periods being in effect hereunder at any one time. Each Lender shall before 2:00 P.M. (New York City time) on the date of such Borrowing, in the case of a Borrowing consisting of Advances denominated in Dollars and, not later than the Applicable Time specified by the Agent in the case of any Borrowing in any Foreign Currency, make available for the account of its Applicable Lending Office to the Agent at the applicable Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing. After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the applicable Borrowing at the address and in the account of such Borrower specified in the applicable Notice of Borrowing.
(b)Each Swing Line Borrowing shall be made on notice, given not later than 1:00 P.M. (New York City time) on the date of the proposed Swing Line Borrowing by the applicable Borrower to the Swing Line Bank and the Agent, of which the Agent shall give prompt notice to the Lenders. Each such notice of a Swing Line Borrowing shall be given by telephone or by Notice of Swing Line Borrowing; provided that any telephonic notice must be, confirmed promptly by delivery to the Agent of a Notice of Swing Line Borrowing. Each such notice (whether written or telephonic) shall specify the requested (i) date of such Borrowing, (ii) amount of such Borrowing and (iii) maturity of such Borrowing (which maturity shall be no later than the earlier of (A) the tenth Business Day after the requested date of such Borrowing and (B) the Termination Date applicable to the Multicurrency Revolving Credit Facility under clause (a) of the definition of “Termination Date” (the “Swing Line Advance Maturity Date”)). The Swing Line Bank shall, before 3:00 P.M. (New York City time) on the date of such Swing Line Borrowing, make such Swing Line Borrowing available to the Agent at the Agent’s Account, in same day funds. After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the applicable Borrower at the address and in the account of such Borrower specified in the applicable Notice of Swing Line Borrowing. Upon written demand by the Swing Line Bank, with a copy of such demand to the Agent, each other Multicurrency Revolving Lender will purchase from the Swing Line Bank, and the Swing Line Bank shall sell and assign to each such other Multicurrency Revolving Lender, such other Multicurrency Revolving Lender’s Ratable Share of such outstanding Swing Line Advance, by making available for the account of its Applicable Lending Office to the Agent for the account of the Swing Line Bank, by deposit to
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the Agent’s Account, in same day funds, an amount equal to its Ratable Share of such Swing Line Advance. Each Borrower hereby agrees to each such sale and assignment. Each Multicurrency Revolving Lender agrees to purchase its Ratable Share of an outstanding Swing Line Advance on (i) the Business Day on which demand therefor is made by the Swing Line Bank, provided that notice of such demand is given not later than 12:00 P.M. (New York City time) on such Business Day or (ii) the first Business Day next succeeding such demand if notice of such demand is given after such time. Upon any such assignment by the Swing Line Bank to any other Multicurrency Revolving Lender of a portion of a Swing Line Advance, the Swing Line Bank represents and warrants to such other Multicurrency Revolving Lender that the Swing Line Bank is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance, this Agreement, the Notes or the Borrowers. If and to the extent that any Multicurrency Revolving Lender shall not have so made its Ratable Share of such Swing Line Advance available to the Agent, such Multicurrency Revolving Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date such Multicurrency Revolving Lender is required to have made such amount available to the Agent until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Multicurrency Revolving Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Swing Line Advance made by such Multicurrency Revolving Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day.
(c)Anything in subsection (a) above to the contrary notwithstanding, (i) after giving effect to all Term A Borrowings and Sterling Term A Borrowings, there shall not be more than five Interest Periods in effect in respect of either the Term A Facility or Sterling Term A Facility and (ii) after giving effect to all Revolving Credit Borrowings, there shall not be more than (A) five Interest Periods in effect in respect of the Transpacific Revolving Credit Facility and (B) ten Interest Periods in effect in respect of the Multicurrency Revolving Credit Facility.
(d)Each Notice of Borrowing and Notice of Swing Line Borrowing of any Borrower shall be irrevocable and binding on such Borrower. In the case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurocurrency Rate Advances or Alternative Currency Daily Rate Advances, the Borrower requesting such Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made on such date.
(e)Unless the Agent shall have received notice from a Lender prior to the time of any Borrowing under the applicable Revolving Credit Facility that such Lender will not make available to the Agent such Lender’s ratable portion of such Borrowing under the applicable Revolving Credit Facility, the Agent may assume that such Lender has made such
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portion available to the Agent on the date of such Borrowing under the applicable Revolving Credit Facility in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting such Borrowing under the applicable Revolving Credit Facility on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender agrees to repay to the Agent forthwith on demand such corresponding amount. If such Lender does not pay such corresponding amount forthwith upon the Agent’s demand therefor, the Agent shall promptly notify the applicable Borrower and such Borrower shall immediately pay such corresponding amount to the Agent. The Agent shall also be entitled to receive from such Lender or such Borrower, as the case may be, interest on such corresponding amount, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing under the applicable Revolving Credit Facility and (ii) in the case of such Lender, (A) the Federal Funds Rate in the case of Advances denominated in Dollars or (B) the cost of funds incurred by the Agent in respect of such amount in the case of Advances denominated in Committed Currencies or other Foreign Currencies. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Advance as part of such Borrowing for purposes of this Agreement.
(f)The failure of any Lender to make the Advance to be made by it as part of any Borrowing or to make the Swing Line Advance to be made by it as part of any Swing Line Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing or to prejudice any rights which any Borrower may have against any Lenders as a result of any default by such Lender hereunder. No Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
(g)Notwithstanding anything herein to the contrary, each Lender at its option may make any Advances by causing any domestic or foreign branch or Affiliate of such Lender to make such Advances through any Applicable Lending Office; provided that any exercise of such option shall not affect the obligation of the applicable Borrower to repay such Advances in accordance with the terms of this Agreement. Unless the context otherwise requires, each reference to a Lender shall include its Applicable Lending Office.
SECTION 2.03Issuance of and Drawings and Reimbursement Under Letters of Credit.
(a)Request for Issuance. Each Letter of Credit issued under the Multicurrency Revolving Credit Facility shall be issued upon notice (a “Notice of Issuance”), given not later than 12:00 P.M. (New York City time) on the third Business Day prior to the date of the proposed issuance of such Letter of Credit (or on such shorter notice as the applicable Issuing Bank may agree) or 12:00 P.M. (Sydney, Australia time) on the fourth Business Day prior to the date of the proposed issuance of such Letter of Credit if denominated in AU$, by any Multicurrency Revolver Borrower under the Multicurrency Revolving Credit Facility to any Issuing Bank, and such Issuing Bank shall give the Agent prompt notice thereof by facsimile, following its receipt of a Notice of Issuance from the applicable Borrower; provided that any
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Letter of Credit requested pursuant to this Agreement may state or indicate that the Company or any of its Restricted Subsidiaries is the “Account Party”, “Applicant”, “applicant”, “Requesting Party” or any similar designation. Each such Notice of Issuance of a Letter of Credit shall be initially made by telephone, confirmed promptly thereafter in writing or by facsimile, and shall specify therein the requested (A) date of such issuance (which shall be a Business Day), (B) Available Amount of such Letter of Credit, (C) [reserved], (D) the Committed Currency in which such Letter of Credit is to be denominated, (E) expiration date of such Letter of Credit (which shall not be later than the earlier of five Business Days prior to the scheduled Termination Date of the Multicurrency Revolving Credit Facility (under clause (a)(i) of the definition of “Termination Date”) or one year after the date of issuance thereof; provided that any Letter of Credit which provides for automatic one-year extension(s) of such expiration date shall be deemed to comply with the foregoing requirement if the Issuing Bank has the unconditional right to prevent any such automatic extension from taking place after such scheduled Termination Date), (F) name and address of the beneficiary of such Letter of Credit, and (G) form of such Letter of Credit, and shall be accompanied by such customary application and agreement for issuance of letters of credit as such Issuing Bank may specify to the Borrower requesting such issuance for use in connection with such requested Letter of Credit (a “Letter of Credit Agreement”). If the requested form of such Letter of Credit is acceptable to such Issuing Bank in its sole discretion (and, for the avoidance of doubt, no Issuing Bank shall be required to issue any Letter of Credit other than a standby letter of credit unless such Issuing Bank agrees in its sole discretion), such Issuing Bank will, upon fulfillment of the applicable conditions set forth in Section 3.02, make such Letter of Credit available to the Borrower requesting such issuance at its office referred to in Section 9.02 or as otherwise agreed with such Borrower in connection with such issuance. In the event and to the extent that the provisions of any Letter of Credit Agreement shall conflict with this Agreement, the provisions of this Agreement shall govern. Each Borrower hereby acknowledges and agrees that, notwithstanding anything to the contrary in any Letter of Credit requested pursuant to or issued under this Agreement which may state or indicate that the “Account Party”, “Applicant”, “applicant”, “Requesting Party” or any similar designation with respect to such requested Letter of Credit is a Person other than the applicable requesting Borrower, (i) such Borrower is, and shall at all times remain, the “Applicant” (as defined in Section 5-102(a) of the Uniform Commercial Code, as in effect in the State of New York) with respect to each Letter of Credit issued by the Issuing Bank pursuant to a Notice of Issuance, and (ii) all such Letters of Credit shall constitute “Letters of Credit” under, and as defined in, this Agreement. No Issuing Bank shall be under any obligation to issue any Letter of Credit if (1) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any Law applicable to such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense that was not applicable on the Closing Date and that such Issuing Bank in good faith deems material to it or (2) the form, substance or proposed beneficiary of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally.
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(b)Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Multicurrency Revolving Lenders, such Issuing Bank hereby grants to each such applicable Multicurrency Revolving Lender, and each such Multicurrency Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Multicurrency Revolving Lender’s Ratable Share of the Available Amount of such Letter of Credit. Each Borrower hereby agrees to each such participation. In consideration and in furtherance of the foregoing, each of the Multicurrency Revolving Lenders hereby absolutely and unconditionally agree to pay to the Agent, for the account of such Issuing Bank, such Multicurrency Revolving Lender’s Ratable Share of each drawing made under a Letter of Credit funded by such Issuing Bank, and not reimbursed by the applicable Borrower by payment in full to the Agent not later than 3:00 p.m. (New York City time) on the Business Day following the date of such payment, in accordance with the terms of this Agreement, or of any reimbursement payment required to be refunded to any Borrower for any reason. Each Multicurrency Revolving Lender hereby acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of any Multicurrency Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Multicurrency Revolving Lender further acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s Ratable Share of the Available Amount of such Letter of Credit under the Multicurrency Revolving Credit Facility at each time such Lender’s Multicurrency Revolving Credit Commitment is amended pursuant to an assignment in accordance with Section 9.07 or otherwise pursuant to this Agreement.
(c)Drawing and Reimbursement. Not later than 3:00 p.m. (New York City time) on the Business Day following the date of any payment by the applicable Issuing Bank under a Letter of Credit or 3:00 P.M. (Sydney, Australia time) on the Business Day following the date of any payment by the applicable Issuing Bank under a Letter of Credit denominated in AU$, the Company shall pay (or shall cause the applicable Borrower to pay) to the Agent, an amount equal to the full amount of such drawing plus all accrued and unpaid interest thereon from the date of such drawing through and including the date of such payment (which shall accrue at the Base Rate), which amount shall be payable in the Committed Currency in which such Letter of Credit was issued, and the Agent shall promptly apply such amount to either (x) reimburse the applicable Issuing Bank for the full amount of such drawing plus all accrued and unpaid interest thereon, or (y) to the extent that the Multicurrency Revolving Lenders shall have already funded participations or Revolving Credit Advances with respect to the payment under such Letter of Credit, pursuant to Section 2.03(b) above or this Section 2.03(c), to pay to each such Multicurrency Revolving Lender an amount equal to such Multicurrency Revolving Lender’s Ratable Share of such drawing plus all accrued and unpaid interest thereon (which shall accrue at the Base Rate). If the Company does not comply with the provisions of the preceding sentence, then the payment by an Issuing Bank of a draft drawn under any Letter of Credit shall constitute for all purposes of this Agreement the making by such Issuing Bank of a Revolving Credit Advance under the Multicurrency Revolving Credit Facility, which shall be a Base Rate Advance, in the amount of such draft (and if such Letter of Credit was originally denominated in
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a Committed Currency other than Dollars, such deemed Advance shall also automatically be exchanged for an Equivalent amount of Dollars at the then applicable Spot Rate). The applicable Issuing Bank shall give prompt notice (and such Issuing Bank will use its commercially reasonable efforts to deliver such notice within one Business Day) of each drawing under any Letter of Credit issued by it to the Company, the applicable Borrower (if not the Company) and the Agent. Upon written demand by such Issuing Bank, with a copy of such demand to the Agent and the Company, each Multicurrency Revolving Lender shall pay to the Agent such Multicurrency Revolving Lender’s Ratable Share of such outstanding Multicurrency Revolving Credit Advance under the Multicurrency Revolving Credit Facility, by making available for the account of its Applicable Lending Office to the Agent for the account of such Issuing Bank, by deposit to the Agent’s Account, in same day funds, an amount equal to the portion of the outstanding principal amount of such Advance to be funded by such Lender. Each Multicurrency Revolving Lender acknowledges and agrees that its obligation to make Multicurrency Revolving Credit Advances pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Multicurrency Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Promptly after receipt thereof, the Agent shall transfer such funds to such Issuing Bank. Each Multicurrency Revolving Lender agrees to fund its Ratable Share of an outstanding Advance on (i) the Business Day on which demand therefor is made by such Issuing Bank; provided that notice of such demand is given not later than 12:00 P.M. (New York City time) on such Business Day or 11:00 A.M. (Sydney, Australia time) on such Business Day in the case of Advances denominated in AU$, or (ii) the first Business Day next succeeding such demand if notice of such demand is given after such time. If and to the extent that any Revolving Lender shall not have so made the amount of such Multicurrency Revolving Credit Advance available to the Agent, such Multicurrency Revolving Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of demand by any such Issuing Bank until the date such amount is paid to the Agent, at the Federal Funds Rate for its account or the account of such Issuing Bank, as applicable.
(d)Letter of Credit Reports. The applicable Issuing Bank shall furnish (A) to the Agent (with a copy to the Company) on the last Business Day of each fiscal quarter a written report summarizing issuance and expiration dates of Letters of Credit under the Multicurrency Revolving Credit Facility during the preceding month and drawings during such month under all Letters of Credit and (B) to the Agent (with a copy to the Company) on the first Business Day of each calendar quarter a written report setting forth the actual daily aggregate Available Amount during the preceding calendar quarter of all Letters of Credit.
(e)Replacement of an Issuing Bank. Any Issuing Bank may be replaced at any time by written agreement between the Borrower, the Agent, the replaced Issuing Bank and the successor Issuing Bank. The Agent shall notify the Lenders of any such replacement of an Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.05(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to
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Letters of Credit to be issued by it thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to include such successor or any previous Issuing Bank, or such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
SECTION 2.04Incremental Commitments.
(a)The Company (for and on behalf of itself, or in its capacity as Borrower Representative on behalf of any other Borrower, as applicable) may, by written notice to the Agent from time to time, request Incremental Term Commitments and/or Incremental Revolving Credit Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Term Advances and/or Incremental Revolving Credit Advances, as the case may be, in their sole discretion; provided, that each Incremental Term Lender and/or Incremental Revolving Lender (which is not an existing Lender) shall be subject to the approval requirements of Section 9.07. Such notice shall set forth (A) the amount of the Incremental Term Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (B) the date on which such Incremental Term Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (the “Increased Amount Date”) and (C) (i) whether such Incremental Term Commitments are to be commitments to make term advances with pricing and/or amortization terms different from the then-outstanding Term Advances (“Other Term Advances”) and/or (ii) whether such Incremental Revolving Credit Commitments are to be Revolving Credit Commitments or commitments to make revolving advances with pricing and/or amortization terms different from the then-outstanding Revolving Credit Advances (“Other Revolving Credit Advances”).
(b)The applicable Borrower and such other Loan Parties as may be required with respect to such Incremental Term Commitment or Incremental Revolving Credit Commitment and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Agent an Incremental Assumption Agreement, guarantor acknowledgments and consents, Notes (if requested in advance by the applicable Lenders) and such other closing or corporate documentation as the Agent (acting at the direction of the applicable Incremental Lenders) shall reasonably request. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Advances and/or Incremental Revolving Credit Advances to be made thereunder, and shall be made (x) on terms and conditions agreed to by the applicable Borrower and the applicable Incremental Lenders, and in a form that is reasonably acceptable to the Agent; provided, that (i) the Other Term Advances and Other Revolving Facility Advances shall rank pari passu in right of payment and of security with the Term Advances and Revolving Credit Advances, as applicable, (ii) the final maturity date of (A) any Other Term Advances (other than the 2019 Incremental Term Advances’ final maturity date, which may be earlier) shall be no earlier than the Latest Scheduled Term Loan Termination Date and (B) any Other Revolving Facility Advances shall be no earlier than the
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scheduled Termination Date applicable to the Revolving Credit Facilities (under clause (a)(i) of the definition of “Termination Date”), (iii) the weighted average life to maturity of any Other Term Advances (other than the 2019 Incremental Term Advances’ weighted average life to maturity, which may be shorter) shall be no shorter than the longest remaining weighted average life to maturity of any Term Facility outstanding immediately prior to the execution and delivery of such Incremental Assumption Agreement, (iv) the Other Revolving Facility Advances shall require no scheduled amortization or mandatory commitment reductions prior to the scheduled Termination Date applicable to the Revolving Credit Facilities (under clause (a)(i) of the definition of “Termination Date”) and (v) no Default (except in the connection with a Limited Condition Acquisition, in which case this requirement shall be that no Specified Event of Default shall have occurred and be continuing or would result from such Incremental Term Advance and/or Incremental Revolving Credit Advance) shall have occurred and be continuing or would result from such Incremental Term Advances and/or Incremental Revolving Credit Advances.
(c)Notwithstanding the foregoing, no Incremental Term Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.04 unless (i) on the date of such effectiveness, the representations and warranties set forth in Section 4.01 shall be true and correct (in the case of a Limited Condition Acquisition, to the extent required under Section 1.14) and the Agent (acting at the direction of the applicable Incremental Lenders) shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the applicable Borrower, (ii) the Agent shall have received (or waived, in accordance with the terms of the relevant Incremental Assumption Agreement) legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 3.01 and such additional documents and filings (including amendments to the Collateral Documents) as the Agent may reasonably require to assure that the Incremental Term Advances and/or Incremental Revolving Credit Facility Advances are secured by the Collateral ratably with the existing Term Advances and Revolving Credit Advances, and (iii) subject to Section 1.14, the Borrowers would be in Pro Forma Compliance, calculated as of the last day of the most recently ended fiscal quarter for which financial statements delivered under Section 5.01(a)(i) are available, determined on a Pro Forma Basis giving effect to such Incremental Term Commitment and/or Incremental Revolving Credit Commitments (assuming for such purpose that any such Incremental Revolving Credit Commitments are fully drawn) and the Advances to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d)Each of the parties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Advances and/or Incremental Revolving Credit Facility Advances (other than Other Term Advances or Other Revolving Credit Advances), when originally made, are included in each Borrowing of outstanding Term Advances or Revolving Facility Advances on a pro rata basis.
(e)Incremental Notes.
(i)Any Borrower may from time to time, upon notice to the Agent, specifying in reasonable detail the proposed terms thereof, issue one or more series of secured notes ranking pari passu in right of payment and security with
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the Facilities (such notes, collectively, “Incremental Notes”) in an aggregate amount not to exceed the Incremental Amount (which shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount).
(ii)Each issuance of Incremental Notes shall be on the terms set forth in this clause (ii), and as a condition precedent to the effectiveness of such issuance the Company shall have delivered to the Agent a certificate dated as of the date of issuance of the Incremental Notes signed by a Responsible Officer of the Company attaching the resolutions adopted by the Company approving or consenting to the effectiveness of such Incremental Notes and certifying as to the Company’s compliance the following clauses (A) through (H) in respect of such issuance of Incremental Notes: (A) such Incremental Notes shall not be guaranteed by any person that is not a Guarantor, (B) such Incremental Notes will be secured only by the Collateral and shall be subject to an intercreditor agreement on customary intercreditor terms to be reasonably acceptable to the Agent and the Company, (C) the final maturity date of such Incremental Notes shall be no earlier than 91 days after the Latest Scheduled Termination Date, (D) the weighted average life to maturity of such Incremental Notes shall be no shorter than the longest remaining weighted average life to maturity of any Term Facility outstanding at the time of the issuance of the Incremental Notes, (E) such Incremental Notes shall not be subject to any mandatory redemption or prepayment provisions or rights (except (1) customary change of control provisions and (2) other mandatory redemption or prepayment provisions to the extent any such mandatory redemption or prepayment is required to be applied pro rata (or less than pro rata) basis to the Term Advances and other Indebtedness that is secured on a pari passu basis with the Obligations), (F) the terms and conditions of such Incremental Notes (other than interest rates (including through fixed interest rates), interest margins, rate floors, fees, funding discounts, original issue discounts and prepayment or reception premiums and terms) shall be on market terms for comparable senior secured notes (as determined by the Company in good faith and as reasonably agreed by the Agent) and, if not consistent with the terms and conditions of the Facilities, shall not be materially more restrictive or burdensome to the Loan Parties when taken as a whole than the terms and conditions of the Facilities, taken as a whole, (G) such Incremental Notes shall not have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 5.03 unless the Lenders shall also have the benefit of such financial maintenance covenant on the same terms or such financial maintenance covenant applies only after the latest Termination Date then applicable to any Facility and (H) no Event of Default (except in the connection with a Limited Condition Acquisition, in which case such requirement shall be no Specified Event of Default) shall have occurred and be continuing or would result from such the issuance of such Incremental Notes.
(f)Amendments. The Lenders hereby authorize the Agent to enter into amendments to this Agreement and the other Loan Documents with the Company or any Restricted Subsidiary as may be necessary in order to (i) secure any Incremental Notes with the
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Collateral and/or (ii) to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Agent and the Company in connection with the incurrence of any Incremental Facility or the issuance of any Incremental Notes, in each case on terms consistent with the relevant provisions of this Section 2.04.
SECTION 2.05Fees. (a) Commitment Fee. The Company will pay, or will cause another Borrower to pay (with regard to the JPY Revolver Borrower, to the extent permitted by Japanese Law, if applicable), to the Agent for the account of each Revolving Lender under the applicable Revolving Credit Facility (other than any Defaulting Lender), payable in arrears on the last Business Day of March, June, September and December in each year, and on the Termination Date of such Revolving Credit Facility (pursuant to clause (a) of the definition of “Termination Date”), a commitment fee (the “Commitment Fee”) on the daily amount of the Unused Revolving Credit Commitments of such Revolving Credit Facility Lender during the preceding quarter (or shorter period commencing with the Closing Date or ending with such Termination Date), which shall accrue at 0.25% per annum initially and, after delivery of the financial statements for the fiscal quarter ending September 30, 2018, pursuant to Section 5.01(a)(ii), at the applicable percentage per annum indicated in the pricing grid described in the definition of “Applicable Margin”. All Commitment Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days. For the purpose of calculating any Multicurrency Revolving Lender’s Commitment Fee, the outstanding Swing Line Advances during the period for which such Multicurrency Revolving Lender’s Commitment Fee is calculated shall be deemed to be zero. The Commitment Fee due to each Revolving Lender shall commence to accrue on the Closing Date and shall cease to accrue on the Termination Date applicable to such Revolving Credit Facility.
(a) Letter of Credit Fees.
(i)The Company will pay, or will cause another Borrower to pay, to the Agent for the account of each Multicurrency Revolving Lender a commission on such Multicurrency Revolving Lender’s Ratable Share of the actual daily aggregate Available Amount of all Letters of Credit under the Multicurrency Revolving Credit Facility issued and outstanding from time to time at a rate per annum equal to the Applicable Margin for Eurocurrency Rate Advances for Multicurrency Revolving Credit Advances in effect from time to time during each calendar quarter, payable in arrears quarterly on the last Business Day of each March, June, September and December, commencing with the quarter ended September 30, 2018, and on the Termination Date (pursuant to clause (a) of the definition of “Termination Date”) and thereafter payable upon demand.
(ii)The Company will pay, or will cause another Borrower to pay, to the respective Issuing Bank, for its own account, (x) a fronting fee equal to 0.125% per annum on the aggregate face amount of each Letter of Credit issued by such Issuing Bank under the Multicurrency Revolving Credit Facility and (y) other customary administrative, issuance, amendment and other charges.
(c)Agent’s Fees. The Company will pay (with regard to the JPY Revolver Borrower, to the extent permitted by Japanese Law, if applicable), or will cause another
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Borrower to pay, to the Agent for its own account such fees as may from time to time be agreed between the Company and the Agent.
(d)Defaulting Lender. Anything herein to the contrary notwithstanding, during such period as a Lender is a Defaulting Lender, such Defaulting Lender shall not be entitled to any fees accruing during such period pursuant to Section 2.19(b)(iii) and this Section 2.05 (without prejudice to the rights of the Non-Defaulting Lenders in respect of such fees), provided that (a) to the extent that a portion of the L/C Exposure or Swing Line Exposure of such Defaulting Lender is reallocated to the Non-Defaulting Lenders pursuant to Section 2.19(a), such fees that would have accrued for the benefit of such Defaulting Lender shall instead accrue for the benefit of and be payable to such Non-Defaulting Lenders, pro rata in accordance with their respective Commitments, and (b) to the extent of any portion of such L/C Exposure or Swing Line Exposure that cannot be so reallocated such fees shall instead accrue for the benefit of and be payable to the Issuing Banks and the Swing Line Bank as their interests appear (and the pro rata payment provisions of Section 2.19(b) shall automatically be deemed adjusted to reflect the provisions of this Section).
SECTION 2.06Termination or Reduction of the Commitments.
(a)Optional. The Company shall have the right, upon at least three Business Days’ notice to the Agent, to terminate in whole or permanently reduce, ratably among the Revolving Lenders under the applicable Revolving Credit Facility (except as otherwise permitted by Section 2.19), the respective Unused Revolving Credit Commitments of such Lenders, provided that each partial reduction shall be in the aggregate amount of $10,000,000 (or in the total amount of Unused Revolving Credit Commitments then outstanding, if less) or an integral multiple of $1,000,000 in excess thereof.
(b)Mandatory.
(i)The aggregate Term Commitments under each Term Facility shall be automatically and permanently reduced to zero on the date of the Borrowings in respect of such Facility.
(ii)If, after giving effect to any reduction or termination of Multicurrency Revolving Credit Commitments under this Section 2.06, the aggregate amount of the Letter of Credit Sublimit plus the Swing Line Sublimit exceeds the total amount of the Multicurrency Revolving Credit Facility at such time, then the Letter of Credit Sublimit and/or the Swing Line Sublimit shall be automatically reduced by the amount of such excess (provided, that the Company may determine the allocation of reductions between the Letter of Credit Sublimit and/or the Swing Line Sublimit, except to the extent that its ability to reduce the Letter of Credit Sublimit is limited by outstanding Letters of Credit and/or Unpaid Drawings).
(c)Termination of Defaulting Lender. The Company may terminate the unused amount of the Commitment of any Lender that is a Defaulting Lender upon not less than three Business Days’ prior notice to the Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 2.19(b) will apply to all amounts thereafter paid by
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the Company for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that (i) no Event of Default shall have occurred and be continuing and (ii) such termination shall not be deemed to be a waiver or release of any claim the Borrower, the Agent, the Issuing Banks, the Swing Line Bank or any Lender may have against such Defaulting Lender.
SECTION 2.07Repayment of Advances. (a)(i) Term A Advances. The Company shall repay to the Term A Lenders, in Dollars, the aggregate principal amount of all Term A Advances outstanding on the following dates (or, if such day is not a Business Day, the next preceding Business Day) in the respective amounts set forth opposite such dates (which amounts shall be reduced as a result of the application of prepayments in accordance with the order or priority set forth in Section 2.11):
| Date | Principal Amortization Payment (shown as a % of Original Principal Amount) | ||||
| September 30, 2018 | 0.00% | ||||
| December 31, 2018 | 0.00% | ||||
| March 31, 2019 | 0.00% | ||||
| June 30, 2019 | 0.00% | ||||
| September 30, 2019 | 0.00% | ||||
| December 31, 2019 | 0.00% | ||||
| March 31, 2020 | 0.00% | ||||
| June 30, 2020 | 0.00% | ||||
| September 30, 2020 | 1.25% | ||||
| December 31, 2020 | 1.25% | ||||
| March 31, 2021 | 1.25% | ||||
| June 30, 2021 | 1.25% | ||||
| September 30, 2021 | 1.25% | ||||
| December 31, 2021 | 1.25% | ||||
| March 31, 2022 | 1.25% | ||||
| June 30, 2022 | 1.25% | ||||
| September 30, 2022 | 1.25% | ||||
| December 31, 2022 | 1.25% | ||||
| March 31, 2023 | 1.25% | ||||
| June 30, 2023 | 1.25% | ||||
| July 11, 2023 | Outstanding Principal Amount | ||||
| Total: | 100.00% | ||||
provided, however, that the final principal repayment installment of the Term A Advances shall be repaid on the Termination Date applicable to the Term A Facility (under clause (b) of the definition of “Termination Date”) and in any event shall be in an amount equal to the aggregate principal amount of all Term A Advances outstanding on such date.
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(ii) Sterling Term A Advances. The Sterling Borrower shall repay, or cause to be repaid, to the Sterling Term A Lenders, in Sterling, the aggregate principal amount of all Sterling Term A Advances outstanding on the following dates (or, if such day is not a Business Day, the next preceding Business Day) in the respective amounts set forth opposite such dates (which amounts shall be reduced as a result of the application of prepayments in accordance with the order or priority set forth in Section 2.11):
| Date | Principal Amortization Payment (shown as a % of Original Principal Amount) | ||||
| September 30, 2018 | 0.00% | ||||
| December 31, 2018 | 0.00% | ||||
| March 31, 2019 | 0.00% | ||||
| June 30, 2019 | 0.00% | ||||
| September 30, 2019 | 0.00% | ||||
| December 31, 2019 | 0.00% | ||||
| March 31, 2020 | 0.00% | ||||
| June 30, 2020 | 0.00% | ||||
| September 30, 2020 | 1.25% | ||||
| December 31, 2020 | 1.25% | ||||
| March 31, 2021 | 1.25% | ||||
| June 30, 2021 | 1.25% | ||||
| September 30, 2021 | 1.25% | ||||
| December 31, 2021 | 1.25% | ||||
| March 31, 2022 | 1.25% | ||||
| June 30, 2022 | 1.25% | ||||
| September 30, 2022 | 1.25% | ||||
| December 31, 2022 | 1.25% | ||||
| March 31, 2023 | 1.25% | ||||
| June 30, 2023 | 1.25% | ||||
| July 11, 2023 | Outstanding Principal Amount | ||||
| Total: | 100.00% | ||||
provided, however, that the final principal repayment installment of the Sterling Term A Advances shall be repaid on the Termination Date applicable to the Sterling Term A Facility (under clause (b) of the definition of “Termination Date”) and in any event shall be in an amount equal to the aggregate principal amount of all Sterling Term A Advances outstanding on such date.
(b)Transpacific Revolving Credit Advances. Each Transpacific Revolver Borrower shall repay to the Agent for the ratable account of the Transpacific Revolving Lenders on the Termination Date applicable to the Transpacific Revolving Credit Facility (under clause (a) of the definition of “Termination Date”), the aggregate principal amount of the Transpacific Revolving Credit Advances made to it and then outstanding; provided, that each
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Transpacific Revolving Credit Advance shall be repaid in the Committed Currency in which such Transpacific Revolving Credit Advance was borrowed.
(b)Multicurrency Revolving Credit Advances. Each Multicurrency Revolver Borrower shall repay to the Agent for the ratable account of the Multicurrency Revolving Lenders on the Termination Date applicable to the Multicurrency Revolving Credit Facility (under clause (a) of the definition of “Termination Date”) the aggregate principal amount of the Multicurrency Revolving Credit Advances made to it and then outstanding; provided, that each Multicurrency Revolving Credit Advance shall be repaid in the Committed Currency in which such Multicurrency Revolving Credit Advance was borrowed.
(c)Swing Line Advances. Each Borrower of a Swing Line Borrowing shall repay to the Agent for the account of (i) the Swing Line Bank and (ii) each other Multicurrency Revolving Lender which has made a Swing Line Advance by purchase from the Swing Line Bank pursuant to Section 2.02(b), in Dollars, the outstanding principal amount of each Swing Line Advance made to such Borrower on the Swing Line Advance Maturity Date specified in the applicable Notice of Swing Line Borrowing.
(d)Incremental Advances.
(i)2019 Incremental Term Advances. The aggregate principal amount of all 2019 Incremental Term Advances outstanding on the 2019 Incremental Term Termination Date shall be repaid by the Company on the 2019 Incremental Term Termination Date (or, if such day is not a Business Day, on the next preceding Business Day).
(ii)Incremental Advances Generally. In the event that any other Incremental Advances are made on an Increased Amount Date, the applicable Borrower shall repay such Incremental Advances on the dates and in the amounts set forth in the Incremental Assumption Agreement.
(f)Letter of Credit Reimbursements. The obligation of any Borrower under this Agreement, any Letter of Credit Agreement and any other agreement or instrument, in each case, to reimburse a drawing under a Letter of Credit, or to repay any Revolving Credit Advance that results from payment of a drawing under a Letter of Credit, shall in any event be unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement, such Letter of Credit Agreement and such other agreement or instrument under all circumstances, including, without limitation, the following circumstances (it being understood that any such payment by such Borrower is without prejudice to, and does not constitute a waiver of, any rights such Borrower might have or might acquire as a result of the payment by any Issuing Bank of any draft or the reimbursement by such Borrower thereof):
(i)any lack of validity or enforceability of this Agreement, any Note, any Letter of Credit Agreement, any Letter of Credit or any other agreement or instrument relating thereto (all of the foregoing being, collectively, the “L/C Related Documents”);
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(ii)any change in the time, manner or place of payment of any Letter of Credit;
(iii)the existence of any claim, setoff, defense or other right that any Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for which any such beneficiary or any such transferee may be acting), any Issuing Bank, the Agent, any Lender or any other Person, whether in connection with the transactions contemplated by the L/C Related Documents or any unrelated transaction;
(iv)any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect;
(v)payment by any Issuing Bank under a Letter of Credit against presentation of a draft or certificate that does not comply with the terms of such Letter of Credit;
(vi)any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any guarantee, for all or any of the obligations of any Borrower in respect of the L/C Related Documents; or
(vii)any other circumstance or happening whatsoever, whether or not similar to any of the foregoing that might, but for the provisions of this Section, constitute a legal or equitable discharge of a Borrower’s obligations hereunder.
(g)Application of Payments. Subject to Section 2.19, prepayments from:
(i)Except as otherwise provided in Section 2.11(c), all Net Cash Proceeds pursuant to Section 2.11(b)(ii) to be applied to prepay Term Advances shall be applied to reduce the remaining scheduled amortization payments (in any order of maturity; and if no amortization payment remains, to reduce the final principal repayment amount) of the Term A Advances, Sterling Term A Advances or 2019 Incremental Term Advances, as directed by the Company in its sole discretion; provided that such optional prepayments will be applied on a pro rata basis within each of the Term Facilities selected by the Borrower in its sole discretion as provided for above; and
(ii)any optional prepayments of the Term Advances pursuant to Section 2.11(a) shall be applied to reduce the remaining scheduled amortization payments (and if no amortization payment remains, to reduce the final principal repayment amount) of the Term A Advances, Sterling Term A Advances or 2019 Incremental Term Advances, as directed by the Company in its sole discretion, provided that such optional prepayments will be applied on a pro rata basis within each of the selected Term Facilities.
(h)Notwithstanding anything to the contrary in this Agreement, no Excluded Foreign Subsidiary shall be obligated to repay any Advance or loan made to the Company or any
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of its Domestic Subsidiaries or any other obligation of the Company or any of its Domestic Subsidiaries.
SECTION 2.08Interest on Advances.
(a)Scheduled Interest. Each Borrower shall pay interest (computed in accordance with Section 2.14) on the unpaid principal amount of each Advance owing by it to each Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:
(i)Base Rate Advances. During such periods as such Advance is a Base Rate Advance and for each Swing Line Advance, a rate per annum equal at all times to the sum of (x) the Base Rate in effect from time to time plus (y) the Applicable Margin in effect from time to time, payable in arrears (A) in the case of a Base Rate Advance that is not a Swing Line Advance, quarterly on the last Business Day of each March, June, September and December or (B) in the case of a Base Rate Advance that is a Swing Line Advance, on the date such Swing Line Advance shall be paid in full, in each case payable in Dollars.
(ii)Eurocurrency Rate Advances. During such periods as such Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times during each Interest Period for such Advance to the sum of (x) the Eurocurrency Rate for such Interest Period for such Advance plus (y) the Applicable Margin in effect from time to time, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurocurrency Rate Advance shall be Converted or paid in full, in each case payable in the Committed Currency (or other Foreign Currency, as applicable) in which the applicable Advance was borrowed.
(iii)Alternative Currency Daily Rate Advances. During such periods as such Advance is an Alternative Currency Daily Rate Advance, a rate per annum equal to all times to the sum of (x) Alternative Currency Daily Rate applicable to such Advances, as in effect from time to time (it being understood that SONIA shall be determined on a daily basis) plus (y) the Applicable Margin in effect from time to time, payable in arrears on the last Business Day of each calendar month and the Maturity Date, in each case payable in the applicable Alternative Currency.
(b)Default Interest. If all or a portion of (i) the principal amount of any Advance or (ii) any interest payable thereon shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum which is the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section 2.08 plus 2.00% per annum from the date of such non-payment until such amount is paid in full. If all or a portion of any fee or other amount payable under this Agreement that is not specified in clause (i) or (ii) above shall not be paid when due, then such amount shall bear interest at a rate per annum equal to the rate per annum then required to be paid on Base Rate Advances plus 2.00% from the date of such non-payment until such amount is
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paid in full. For purposes of this Agreement, principal shall be “overdue” only if not paid in accordance with the provisions of Section 2.07.
SECTION 2.09Interest Rate Determination.
(a) The Agent shall give prompt notice to the Company and the Lenders of the applicable interest rate determined by the Agent for purposes of Section 2.08(a)(i) or (ii).
(b)If, with respect to any Eurocurrency Rate Advances or Alternative Currency Daily Rate Advances, the Required Lenders notify the Agent that (i) they are unable to obtain matching deposits in the applicable currency in the Relevant Interbank Market at or about 11:00 A.M. (London, England time) on the second Business Day before the making of a Borrowing in sufficient amounts to fund their respective Advances as a part of such Borrowing during its Interest Period (or, with respect to Alternative Currency Daily Rate Advances, on the relevant date of determination) or (ii) the Eurocurrency Rate for any Interest Period (or, with respect to Alternative Currency Daily Rate Advances, for any relevant date of determination) for such Advances will not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Eurocurrency Rate Advances in the applicable currency for such Interest Period (or, with respect to Alternative Currency Daily Rate Advances, for such date of determination), the Agent shall forthwith so notify each Borrower and the Lenders, whereupon (A) the Borrower of such Eurocurrency Rate Advances in such currency will, on the last day of the then existing Interest Period therefor (or, with respect to Alternative Currency Daily Rate Advances, immediately), (1) if such Eurocurrency Rate Advances are denominated in Dollars, either (x) prepay such Advances or (y) Convert such Advances into Base Rate Advances and (2) if such Eurocurrency Rate Advances or Alternative Currency Daily Rate Advances, as applicable, are denominated in a Committed Currency or other Foreign Currency (other than Dollars) prepay such Advances in the Committed Currency or other Foreign Currency in which they were made, and (B) the obligation of the Lenders to make, or to Convert or continue Revolving Credit Advances into, Eurocurrency Rate Advances or Alternative Currency Daily Rate Advances, as applicable, in such currency shall be suspended until the Agent shall notify each Borrower and the Lenders that the circumstances causing such suspension no longer exist; provided that, if the circumstances set forth in clause (ii) above are applicable with respect to Eurocurrency Rate Advances, the applicable Borrower may elect, by notice to the Agent and the Lenders, to continue such Eurocurrency Rate Advances in such Committed Currency (for the avoidance of doubt, other than Sterling) or other Foreign Currency for Interest Periods of not longer than one month, which Advances shall thereafter bear interest at a rate per annum equal to the Applicable Margin plus, for each Lender, the cost to such Lender (expressed as a rate per annum) of funding its Eurocurrency Rate Advances by whatever means it reasonably determines to be appropriate. Each Lender shall certify its cost of funds for each Interest Period to the Agent and the Company as soon as practicable (but in any event not later than ten Business Days after the first day of such Interest Period).
(c)If any Borrower shall fail to select the duration of any Interest Period for any Eurocurrency Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01, the Agent will forthwith so notify such Borrower and the Lenders who have extended such Eurocurrency Rate and such Advances will automatically, on the last day of the then existing Interest Period for such Advances, (i) in the case of
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Eurocurrency Rate Advances denominated in Dollars, Convert such Eurocurrency Rate Advances into Base Rate Advances, (ii) in the case of Eurocurrency Rate Advances denominated in a Committed Currency or other Foreign Currency (other than Dollars or Pesos), continue such Eurocurrency Rate Advances as Eurocurrency Rate Advances with a one-month Interest Period, and (iii) in the case of TIIE Rate Advances, continue such TIIE Rate Advance as a TIIE Rate Advance with a 28-day Interest Period.
(d)On the date on which the aggregate unpaid principal amount of Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $5,000,000, such Advances shall automatically (i) in the case of Eurocurrency Rate Advances denominated in Dollars, Convert such Eurocurrency Rate Advances into Base Rate Advances, and (ii) in the case of Eurocurrency Rate Advances denominated in a Committed Currency or other Foreign Currency (other than Dollars), on the last day of the applicable Interest Period for such Eurocurrency Rate Advances, and the last day of each subsequent Interest Period for so long as the total of such Advances are less than the Equivalent of $5,000,000, (A) in the case of a Committed Currency or other Foreign Currency (other than Dollars or Pesos), continue such Eurocurrency Rate Advances as Eurocurrency Rate Advances with a one-month Interest Period and (B) in the case of Eurocurrency Rate Advances in Pesos, continue such Eurocurrency Rate Advances as TIIE Rate Advances with a 28-day Interest period.
(e)Upon the occurrence and during the continuance of any Event of Default, upon the request of the Required Lenders, (i) each Eurocurrency Rate Advance and each Alternative Currency Daily Rate Advance will automatically, (A) with respect to Alternative Currency Daily Rate Advances denominated in Sterling, with immediate effect, and (B) with respect to Eurocurrency Rate Advances, on the last day of the then existing Interest Period therefor, (A) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted into a Base Rate Advance and (B) if such Eurocurrency Rate Advance is denominated in a Committed Currency or other Foreign Currency (other than Dollars), be exchanged for an Equivalent amount of Dollars and be Converted into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances and Alternative Currency Daily Rate Advances shall be automatically suspended.
(f)For the purposes of the Interest Act (Canada) and disclosure thereunder, whenever any interest or any fee to be paid hereunder or in connection herewith is to be calculated on the basis of a 365-day year or 366-day year, as applicable, the yearly rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 365 or 366, as applicable. The rates of interest under this Agreement are nominal rates, and not effective rates or yields. The principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement. Each of the Loan Parties confirms that it fully understands and is able to calculate the rate of interest applicable to the credit facility under this Agreement based on the methodology for calculating per annum rates provided for in this Agreement. The Agent agrees that if requested in writing by the Borrowers it will calculate the nominal and effective per annum rate of interest on the Facility outstanding at the time of such request and provide such information to the Borrowers promptly following such request; provided that any error in any such calculation, or any failure to provide such information on
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request, shall not relieve the Borrowers or any other Loan Party of any of its obligations under this Agreement or any other Loan Document, nor result in any liability to the Agent or any Lender. Each Loan Party hereby irrevocably agrees not to plead or assert, whether by way of defence or otherwise, in any proceeding relating to the Loan Documents, that the interest payable under the Loan Documents and the calculation thereof has not been adequately disclosed to the Loan Parties, whether pursuant to section 4 of the Interest Act (Canada) or any other applicable law or legal principle.
(g)If any provision of this Agreement would oblige the CDN Revolver Borrower to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate which would be prohibited by applicable Law or would result in a receipt by that Lender of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by Law or so result in a receipt by that Lender of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows (i) first, by reducing the amount or rate of interest required to be paid to the affected Lender under Section 2.08 and (ii) thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Lender which would constitute interest for purposes of section 347 of the Criminal Code (Canada).
(h)(i) If the Banco de México fails to publish the TIIE for the applicable Interest Period on the first Business Day of such Interest Period, either temporarily or on a definitive basis, the TIIE Rate shall be calculated applying any rate published by the Banco de México in substitution of the applicable TIIE Rate, and (ii) if clause (i) above is not available, the TIIE Rate shall be calculated based on the annual yield for the TIIE for a period closest to the duration of the applicable Interest Period, either compounded or calculated based on a 28, 91 or 182 day, as applicable, equivalent basis in substitution of the TIIE Rate.
SECTION 2.10Optional Conversion of Advances. Each Borrower may on any Business Day, upon notice given to the Agent (x) not later than 12:00 P.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion in the case of conversion of Base Rate Advances to Eurocurrency Rate Advances denominated in Dollars, and (y) not later than 12:00 P.M. (New York City time) on the date of the proposed conversion in the case of conversion of Eurocurrency Rate Advances to Base Rate Advances, Convert all Advances denominated in Dollars of one Type comprising the same Borrowing into Advances denominated in Dollars of the other Type (provided, however, that the Conversion of Eurocurrency Rate Advances into Base Rate Advances made on any date other than the last day of an Interest Period for such Eurocurrency Rate Advances shall be subject to the payment by the Borrowers of breakage and other costs pursuant to Section 9.04(c)), any Conversion of Base Rate Advances into Eurocurrency Rate Advances shall be in an amount not less than the Eurocurrency Rate Borrowing Minimum or the Eurocurrency Rate Borrowing Multiple in excess thereof and no Conversion of any Advances shall result in more separate Borrowings than permitted under Section 2.02(a). Each notice of Conversion shall be given by telephone or by Notice of Borrowing; provided that any telephonic notice must be confirmed promptly by delivery to the Agent of a Notice of Borrowing. Each such notice of a Conversion (whether
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written or telephonic) shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Dollar denominated Advances to be Converted, and (iii) if such Conversion is into Eurocurrency Rate Advances, the duration of the initial Interest Period for each such Advance. Each notice of Conversion shall be irrevocable and binding on the Borrower requesting such Conversion.
SECTION 2.11Prepayments of Term Advances, Revolving Credit Advances and Swing Line Advances.
(a)Optional. Each Borrower may, upon notice no later than (I) 12:00 P.M. (New York City time) on the third Business Day prior to the date of such prepayment consisting of Eurocurrency Rate Advances denominated in Dollars, (II) 12:00 P.M. (New York City time) on the fourth Business Day prior to the date of such prepayment consisting of Eurocurrency Rate Advances denominated in any Foreign Currency or Alternative Currency Daily Rate Advances, and (III) 12:00 P.M. (New York City time) on the date of such prepayment consisting of Base Rate Advances (which notice shall, in each case, be revocable by the applicable Borrower only to the extent that such prepayment notice stated that such prepayment was conditioned upon the effectiveness of other credit facilities or issuances of securities, in which case such notice may be revoked by the applicable Borrower (by written notice from the Company to the Agent on or prior to the specified effective date) if such condition to prepayment is or will not be satisfied) to the Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given such Borrower shall, prepay the outstanding principal amount of the Term Advances comprising part of the same Term Borrowing, Revolving Credit Advances comprising part of the same Revolving Credit Borrowing or Swing Line Advances comprising part of the same Swing Line Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (x) each partial prepayment shall be in an aggregate principal amount of (A) not less than $1,000,000 or a whole multiple of $100,000 in excess thereof in the case of a Term Advance, (B) not less than the Revolving Credit Borrowing Minimum or a Revolving Credit Borrowing Multiple in excess thereof in the case of Revolving Credit Advances or (IV) not less than $500,000 or an integral multiple thereof in the case of Swing Line Advances and (y) in the event of any such prepayment of a Eurocurrency Rate Advance, other than on the last day of an Interest Period thereunder, the Borrower making such prepayment shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 9.04(c).
(b)Mandatory.
(i)If, on any date, the Agent notifies the Company that, on any interest payment date, the sum of (A) the sum of aggregate principal amount of all Advances denominated in Dollars plus the aggregate Available Amount of all Letters of Credit denominated in Dollars then outstanding plus (B) the Equivalent in Dollars (determined on the second Business Day prior to such interest payment date) of the sum of the aggregate principal amount of all Advances denominated in Foreign Currencies plus the aggregate Available Amount of all Letters of Credit denominated in Foreign Currencies then outstanding, exceeds 105% of the aggregate Revolving Credit Commitments of the Lenders on such date, the Company and each other Borrower shall, as soon as practicable and in any event within three Business Days after receipt of such
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notice, prepay or cause to be prepaid the outstanding principal amount of any Advances owing by the Borrowers in an aggregate amount (or deposit an amount in the L/C Cash Deposit Account) sufficient to reduce such sum (calculated on the basis of the Available Amount of Letters of Credit being reduced by the amount in the L/C Cash Deposit Account) to an amount not to exceed 100% of the aggregate Revolving Credit Commitments of the Lenders on such date together with any interest accrued to the date of such prepayment on the aggregate principal amount of Advances prepaid. The Agent shall give prompt notice of any prepayment required under this Section 2.11(b) to the Company and the Lenders, and shall provide prompt notice to the Company of any such notice of required prepayment received by it from any Lender.
(ii)The Company shall, within five Business Days (or in the case of any Indebtedness incurred pursuant to Section 5.02(b)(xiv), ten Business Days) of receipt by the Company or any Restricted Subsidiary of Net Cash Proceeds arising from (A) any Asset Disposition in respect of a sale or other disposition of any property or assets of the Company or any such Restricted Subsidiary but excluding any Asset Disposition permitted by Sections 5.02(e)(ii), (iv) through (vii), (ix), (xi), (xv) and (xvi) (B) any Insurance and Condemnation Event with respect to any property of the Company or any Restricted Subsidiary in excess of $25,000,000 or (C) the issuance or incurrence of Indebtedness by the Company or any Restricted Subsidiary (other than Indebtedness permitted by Section 5.02(b), except as provided in subsection (b)(xi) or (b)(xiv) thereof), immediately pay or cause to be paid to the Agent for the account of the Lenders an amount equal to 100% of such Net Cash Proceeds; provided, however, that, so long as no Event of Default shall have occurred and be continuing the Company may, upon any such receipt of proceeds referred to in clause (A) or (B), reinvest such Net Cash Proceeds in the business of the Company or any Subsidiary, within the earlier of (I) the last Termination Date scheduled to occur under the definition thereof and (II) the later of (A) 12 months following the date of receipt of such Net Cash Proceeds and (B) 18 months following the date of receipt of such Net Cash Proceeds if the Company or such Restricted Subsidiary has committed to reinvest such proceeds within such 12 month period referred to in clause (A).
(iii)Each prepayment made pursuant to this Section 2.11(b) shall be made together with any interest accrued to the date of such prepayment on the principal amounts prepaid and, in the case of any prepayment of a Eurocurrency Rate Advance on a date other than the last day of an Interest Period or at its maturity, any additional amounts which the applicable Borrower shall be obligated to reimburse to the Lenders in respect thereof pursuant to Section 9.04(c). The Agent shall give prompt notice of any prepayment required under this Section 2.11(b) to the Company and the Lenders.
(c)Notwithstanding anything to the contrary contained in this Section 2.11 or any other provision of this Agreement, the Company may prepay any outstanding Term Advances at a discount to par pursuant to one or more auctions (each, an “Auction”) on the following basis (any such prepayment, an “Auction Prepayment”):
(i)All Term Lenders (other than Defaulting Lenders) with respect to the applicable Term Facility shall be permitted (but not required) to participate in each
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Auction. Any such Lender who elects to participate in an Auction may choose to offer all or part of such Lender’s Term Advance of the applicable Term Facility for prepayment.
(ii)Each Auction Prepayment shall be subject to the conditions that (A) the Agent shall have received a certificate to the effect that (I) immediately prior to and after giving effect to the Auction Prepayment, no Default shall have occurred and be continuing, (II) as of the date of the Auction Notice (as defined in Exhibit M), the Company is not in possession of any material non-public information with respect to the Company or any of its Subsidiaries that either (x) has not been disclosed to the Lenders (other than Lenders that do not wish to receive material non-public information with respect to the applicable Borrower or any of its Restricted Subsidiaries) prior to such date or (y) if not disclosed to the Lenders, could reasonably be expected to have a Material Adverse Effect upon, or otherwise be material to, (1) a Lender’s decision to participate in any Auction or (2) the market price of the Term Advances subject to such Auction, and (III) each of the conditions to such Auction Prepayment has been satisfied, (B) each offer of prepayment made pursuant to this Section 2.11(c) must be in an amount not less than $1,000,000, (C) no Auction Prepayment shall be made from the proceeds of any Revolving Credit Advance or Swing Line Advance, and (D) any Auction Prepayment shall be offered to all Lenders with Term Advances on a pro rata basis.
(iii)All Term Advances prepaid by the Company pursuant to this Section 2.11(c) shall be accompanied by all accrued interest on the par principal amount so prepaid to, but not including, the date of the Auction Prepayment. Auction Prepayments shall not be subject to Section 9.04(c). The par principal amount of Term Advances prepaid pursuant to this Section 2.11(c) shall be applied pro rata to reduce the remaining scheduled installments of principal thereof pursuant to Section 2.07(a).
(iv)The aggregate principal amount (calculated on the face amount thereof) of all Term Advances so purchased by the Company shall automatically be cancelled and retired by the Company on the settlement date of the relevant purchase (and may not be resold).
(v)Each Auction shall comply with the Auction Procedures and any such other procedures established by the Agent in its reasonable discretion and agreed to by the Borrowers.
(vi)This Section 2.11(c) shall neither (A) require the Company to undertake any Auction nor (B) limit or restrict the Company from making voluntary prepayments of Term Advances in accordance with Section 2.11(a).
SECTION 2.12Increased Costs.
(a)If, after the date hereof, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority including, without limitation,
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any agency of the European Union or similar monetary or multinational authority (whether or not having the force of law, and for the avoidance of doubt, including any changes resulting from (A) requests, rules, guidelines or directives issued in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act and (B) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, and in each case for both clauses (A) and (B), regardless of the date enacted, adopted or issued), there shall be any increase in the cost to any Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or Alternative Currency Daily Rate Advances or agreeing to issue or of issuing or maintaining or participating in Letters of Credit (excluding for purposes of this Section 2.12 any such increased costs resulting from (x) taxes other than taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto and (y) Excluded Taxes), then the Company shall pay to the Agent for the account of such Lender (in accordance with Section 2.12(c)) additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to the Company and the Agent by such Lender, showing calculations in reasonable detail, shall be conclusive and binding for all purposes, absent manifest error.
(b)If any Lender determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority in each case made subsequent to the date hereof (whether or not having the force of law, and for the avoidance of doubt, including any changes resulting from (i) requests, rules, guidelines or directives concerning capital adequacy or liquidity issued in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, and in each case for both clauses (i) and (ii), regardless of the date enacted, adopted or issued) affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender and that the amount of such capital is increased by or based upon the existence of such Lender’s commitment to lend or issue or participate in letters of credit hereunder and other commitments of this type, then, the Company shall pay to the Agent for the account of such Lender, (in accordance with Section 2.12(c)) additional amounts sufficient to compensate such Lender or such corporation in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender’s commitment to lend hereunder. A certificate as to such amounts submitted to the Company and the Agent by such Lender (which certificate shall, if the Company so requests, include reasonably detailed calculations) shall be conclusive and binding for all purposes, absent manifest error.
(c)The Company shall pay to the Agent for the account of the applicable Lender the amounts shown on any written notice delivered in accordance with the final sentence of Section 2.12(a) and Section 2.12(b) within 30 days after receipt thereof; provided, that the Company shall not be required to compensate a Lender pursuant to this Section 2.12 for any such increased costs or adjustments in capital adequacy or liquidity requirements incurred or suffered more than nine months prior to the date that such Lender notifies the Company and the
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Agent of the circumstances giving rise to such increased costs or adjustments in capital adequacy requirements and of such Lender’s intention to claim compensation therefor; provided further that if the cause of such claim is retroactive in nature, then such nine month period shall be extended to include such period of retroactivity.
SECTION 2.13Illegality. Notwithstanding any other provision of this Agreement, if any Lender shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other Governmental Authority asserts that it is unlawful, for any Lender or its Eurocurrency Lending Office to perform its obligations hereunder to make Eurocurrency Rate Advances in Dollars or another Committed Currency or Alternative Currency Daily Rate Advances denominated in any Alternative Currency, to fund or maintain Eurocurrency Rate Advances in Dollars or another Committed Currency in Dollars or any Foreign Currency, or Alternative Currency Daily Rate Advances denominated in any Alternative Currency, hereunder, on, in the case of Eurocurrency Rate Advances, the last day of the applicable Interest Period (or earlier if required by law, regulation or other Governmental Authority) and, in the case of Alternative Currency Daily Rate Advances, immediately, (i) each Eurocurrency Rate Advance in the applicable currency will automatically, upon such demand, Convert into a Base Rate Advance, (A) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted into a Base Rate Advance, and (B) if such Eurocurrency Rate Advance or Alternative Currency Daily Rate Advance is denominated in any Foreign Currency, be exchanged into an Equivalent amount of Dollars and be Converted into a Base Rate Advance, and (ii) the obligation of the Lenders to make Eurocurrency Rate Advances or Alternative Currency Daily Rate Advances, as applicable, in such currency or to Convert Revolving Credit Advances into Eurocurrency Rate Advances in such currency shall be suspended until the Agent shall notify the Company and the Lenders that the circumstances causing such suspension no longer exist, and (iii) the applicable Borrower shall, upon demand from such Lender (with a copy to the Agent), prepay all such Alternative Currency Daily Rate Advances, in Sterling.
SECTION 2.14Payments and Computations.
(a)Each Borrower shall make each payment hereunder (except with respect to principal of, interest on, and other amounts relating to, Advances denominated in a Foreign Currency), irrespective of any right of counterclaim or set-off, not later than 12:00 P.M. (New York City time) on the day when due in Dollars to the Agent at the applicable Agent’s Account in same day funds. Each Borrower shall make each payment hereunder with respect to principal of, interest on, and other amounts relating to, Advances denominated in a Foreign Currency, irrespective of any right of counterclaim or set-off, not later than the Applicable Time (at the Payment Office for such Foreign Currency) on the day when due in such Foreign Currency to the Agent, by deposit of such funds to the applicable Agent’s Account in same day funds. The Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest, fees or commissions ratably (other than amounts payable pursuant to Section 2.12, 2.15 or 9.04(c)) to the Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to
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Section 9.07(d), from and after the effective date specified in such Assignment and Acceptance, the Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.
(b)All computations of interest based on the Base Rate, or the Australian Bill Rate or the Eurocurrency Rate for deposits in Sterling shall be made by the Agent on the basis of a year of 365 or 366 days, as the case may be, all computations of interest based on the Alternative Currency Daily Rate shall be made by the Agent on the basis of a year of 365 days, and all computations of interest based on any Eurocurrency Rate (other than the Australian Bill Rate and the Eurocurrency Rate for deposits in Sterling) or the Federal Funds Rate and of fees and Letter of Credit commissions shall be made by the Agent on the basis of a year of 360 days, in each case, for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest, fees or commissions are payable. Each determination by the Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.
(c)Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest, fee or commission, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.
(d)Unless the Agent shall have received notice from any Borrower prior to the date on which any payment is due to the Lenders hereunder that such Borrower will not make such payment in full, the Agent may assume that such Borrower has made such payment in full to the Agent on such date and the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent such Borrower shall not have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Agent, at (i) the Federal Funds Rate in the case of Advances denominated in Dollars or (ii) the cost of funds incurred by the Agent in respect of such amount in the case of Advances denominated in Foreign Currencies.
SECTION 2.15Taxes.
(a)Any and all payments by any Loan Party to or for the account of any Lender or the Agent hereunder or under any Loan Document shall be made, in accordance with Section 2.14 or the applicable provisions of such other documents, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto (“Taxes”), excluding, (i) in the case of each Lender and the Agent, taxes imposed on net income (however denominated), franchise taxes or branch profit taxes imposed, in each case as a result of a present or former connection between such Lender and the jurisdiction of the Governmental Authority imposing such tax or any
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political subdivision or taxing authority thereof or therein (other than any such connection arising from such Lender or Agent having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Loan Document), (ii) any withholding or similar tax imposed on a Lender pursuant to FATCA, (iii) withholding taxes resulting from any requirement of law in effect on the date such Lender acquires an interest, other than pursuant to an assignment requested by the Borrower under Section 2.20, in an Advance or Commitment (or designates a new lending office or exercises its option pursuant to Section 2.02(g)), except to the extent that such Lender (or such Lenders’ assignor, or the entity exercising such option) was entitled, at the time of designation of a new lending office (or assignment or exercise of such option), to receive additional amounts from the applicable Loan Party with respect to such withholding taxes pursuant to this Section 2.15, (iv) any Tax imposed on a Lender pursuant to section 49 para 1 no 5 lit c) aa) German Income Tax Act (Einkommensteuergesetz), (v) Taxes attributable to a Lender’s failure to comply with subsections (e) or (f), (vi) any Taxes imposed under the laws of the Netherlands to the extent such Tax becomes payable as a result of a Lender or the Agent having a substantial interest (aanmerkelijk belang) in the Loan Party as laid down in the Dutch Income Tax Act 2001 (Wet inkomstenbelasting 2001), (vii) [reserved], (viii) any Tax compensated under subsection (b) below or that would have been compensated under subsection (b) below but was not so compensated solely because one of the exclusion therein applied and (ix) in the case of Mexico, any withholding Taxes above the withholding rate that would apply to a foreign bank which is (or its main office is, if lending through a branch or agency) in compliance with the requirements established in article 166, paragraph I, subparagraph a), section 2. of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or any successor provisions thereof), a resident for tax purposes in a jurisdiction that has concluded a treaty for the avoidance of double taxation which is in effect, in compliance with the requirements for the application of the benefits of such treaty, including being the beneficial owner of any payments made under this Agreement and complies with the delivery of documentation established in rules 3.18.19. or 3.18.20. of the Tax Miscellaneous Resolution for 2018 (Resolución Miscelánea Fiscal para 2018) (or any successor provision) (all such non-excluded Taxes in respect of payments hereunder or any Loan Document hereinafter referred to as “Indemnified Taxes”, and any Taxes excluded under clauses (i) through (ix) above being hereinafter referred to as the “Excluded Taxes”). If any Loan Party shall be required by law to deduct any Indemnified Taxes from or in respect of any sum payable hereunder or under any Loan Document, (A) the sum payable shall be increased as may be necessary so that after making all required deductions of Indemnified Taxes (including deductions of Indemnified Taxes applicable to additional sums payable under this Section 2.15) such Lender or the Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (B) such Loan Party shall make such deductions and (C) such Loan Party shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law. For purposes of determining withholding Taxes imposed under FATCA, from and after the Closing Date, the Borrowers and the Agent shall treat (and the Lenders hereby authorize the Agent to treat) the Credit Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
(b)In addition, each Loan Party shall pay any present or future stamp or documentary taxes or any other excise, property, intangible, mortgage recording, or similar taxes, charges or levies that arise from any payment made hereunder or under any Loan
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Documents or from the execution, delivery or registration of, performing under, or otherwise with respect to, this Agreement or any other Loan Document (hereinafter referred to as “Other Taxes”), except for any Luxembourg tax payable due to a registration of Notes (or any other documents to be delivered hereunder or from the execution, delivery or registration of, performing under, or otherwise with respect to, this Agreement or the Notes) when such registration (i) is not required to maintain, preserve, establish or enforce the rights of the Lenders or the Agent, or (ii) is in connection with transfers, assignments or changes in lending offices not required by the Loan Documents.
(c)Each Loan Party shall indemnify each Lender and the Agent for and hold it harmless against the full amount of Indemnified Taxes or Other Taxes (including Indemnified Taxes imposed on amounts payable under this Section 2.15) imposed on or paid by such Lender or the Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, excluding for the avoidance of doubt, any Excluded Taxes. This indemnification shall be made within 30 days from the date such Lender or the Agent (as the case may be) makes written demand therefor, stating the amounts of Indemnified Taxes or Other Taxes paid or payable and describing the basis for the indemnification claim.
(d)Within 30 days after the date of any payment of Indemnified Taxes paid by a Loan Party pursuant to Section 2.15(a), each Loan Party shall furnish to the Agent, at its address referred to in Section 9.02, the original or a certified copy of a receipt evidencing such payment to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Agent.
(e)
(i)Each Lender that is a United States person shall deliver to the Company and the Agent on or before the date on which it becomes a party to this Agreement two properly completed and duly signed copies of U.S. Internal Revenue Service Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal withholding tax. Each Lender that is not a United States person (a “Non-U.S. Lender”), on or prior to the date on which it becomes party to this Agreement, and from time to time thereafter as reasonably requested in writing by any Borrower (but only so long as such Lender remains lawfully able to do so), shall provide each of the Agent and such Borrower with (i) two original Internal Revenue Service Forms W8BEN, W-BEN-E, W8ECI or W-8IMY (together with any applicable underlying IRS forms), as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement or the Notes, (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Internal Revenue Code with respect to payments of “portfolio interest”, a statement substantially in the form of Exhibit L and the applicable IRS Form W-8, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on payments under this Agreement and the other Loan Documents, or (iii) any other form prescribed by applicable requirements of U.S. federal income tax law, or reasonably
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requested by a Borrower or the Agent, as will permit payments under any Loan Document to be made without or at a reduced rate of U.S. federal withholding tax, duly completed together with such supplementary documentation as may be prescribed by applicable requirements of law to permit the Company and the Agent to determine the withholding or deduction required to be made (provided, in the case of clause (iii), that doing so does not subject such Lender to any material unreimbursed costs). Notwithstanding any other provision of this Section, a Non-U.S. Lender shall not be required to deliver any form pursuant to this Section that such Non-U.S. Lender is not legally able to deliver. For purposes of this subsection (e), the term “United States person” shall have the meaning specified in Section 7701(a)(30) of the Internal Revenue Code.
(ii)If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding or Canadian tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Company and the Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Company or the Agent as may be necessary for the Company or the Agent to comply with their obligations under FATCA, to determine that such Lender has or has not complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.
(f)A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which a Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to such Borrower (with a copy to the Agent), at the time or times prescribed by applicable law or reasonably requested by such Borrower, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without or at a reduced rate of withholding; provided that such Lender is legally entitled to complete, execute and deliver such documentation and that doing so does not subject such Lender to any material unreimbursed costs. In the case of Mexico, such documentation shall include, as applicable, the documentation established in rules 3.18.19. or 3.18.20. of the Tax Miscellaneous Resolution for 2018 (Resolución Miscelánea Fiscal para 2018) or any successor provision. In the case of the United Kingdom, a Lender may provide its Her Majesty's Revenue & Customs (“HMRC”) DT Treaty Passport scheme reference number (if applicable) and jurisdiction of tax residence to the Sterling Borrower. If a Lender provides its HMRC DT Treaty Passport scheme reference number and confirmation of its jurisdiction of tax residence, the Sterling Borrower shall submit a duly completed HMRC Form DTTP2 to HMRC within 15 Business Days of the date on which that Sterling Borrower receives such information.
(g)If the Agent or any Lender determines, in their sole discretion, that it has received a refund (or a credit in lieu of a refund) of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Borrower or with respect to which a Borrower has paid additional amounts pursuant to this Section 2.15, it shall pay over such refund (or credit) to such
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Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section 2.15 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund) (or credit)), net of all out-of-pocket expenses of the Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund (or credit)). A Borrower, upon the request of such Agent or Lender, shall repay to such Agent or Lender the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Agent or Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the Agent or any Lender be required to pay any amount to a Borrower pursuant to this paragraph (g) the payment of which would place Agent or any Lender in a less favorable net after-Tax position than the Agent or any Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. Nothing in this paragraph shall be construed to require the Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Borrower or any other Person.
(h)To the extent there is an Advance by a Transpacific Revolving Lender to a New Zealand Revolver Borrower that may be eligible for approved issuer levy (as the approved issuer levy rules are set out in New Zealand's Stamp and Cheque Duties Act 1971, Tax Administration Act 1994 and Income Tax Act 2007), the New Zealand Revolver Borrower may:
(i)register the Advance with Inland Revenue as a registered security;
(ii)zero-rate any non-resident withholding taxes payable on any registered Advances; and
(iii)pay approved issuer levy to Inland Revenue at a rate of 2% (or the prevailing rate of approved issuer levy from time to time under Part 6B of the Stamp and Cheque Duties Act 1971) of the interest paid under the Advance.
SECTION 2.16Sharing of Payments, Etc. Subject to Section 2.19 in the case of a Defaulting Lender, if any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of any Advances owing to it (other than pursuant to Section 2.11(c), 2.12, 2.15 or 9.04(c)) in excess of its Ratable Share of payments on account of such Advances obtained by the applicable Lenders, such Lender shall forthwith purchase from the other applicable Lenders such participations in the relevant Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. Each Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this
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Section 2.16 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of such Borrower in the amount of such participation.
SECTION 2.17Evidence of Debt.
(a)Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Term Advance, Revolving Credit Advance and each Swing Line Advance owing to such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder in respect of Term Advances, Revolving Credit Advances and Swing Line Advances. Each Borrower agrees that upon notice by any Lender to such Borrower (with a copy of such notice to the Agent) to the effect that a Term Note or Revolving Credit Note is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Term Advances, Revolving Credit Advances and Swing Line Advances owing to, or to be made by, such Lender, such Borrower shall promptly execute and deliver to such Lender a Term Note or Revolving Credit Note, as the case may be, payable to the order of such Lender in a principal amount up to the Advances, Term Commitment or Revolving Credit Commitment, as applicable, of such Lender.
(b)The Register maintained by the Agent pursuant to Section 9.07(d) shall include a control account, and a subsidiary account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iv) the amount of any sum received by the Agent from such Borrower hereunder and each Lender’s share thereof.
(c)Entries made in good faith by the Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from each Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided, however, that the failure of the Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of any Borrower under this Agreement.
SECTION 2.18Use of Proceeds. The proceeds of (a) the Term A Advances and Sterling Term A Advances shall be available (and each Loan Party agrees that it shall use such proceeds) in connection with the Closing Date Refinancing of the remaining “Term Advances” (as defined in the Existing Credit Agreement) outstanding immediately prior to the Closing Date; (b) on the Closing Date, then-outstanding Revolving Credit Advances shall be made available (and each Loan Party agrees that it shall use such proceeds) in connection with the Closing Date Refinancing of certain “Revolving Credit Advances” (as defined in the Existing Credit Agreement); (c) on and following the Closing Date, the Revolving Credit Advances and Incremental Advances shall be available (and each Loan Party agrees that it shall
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use such proceeds) solely for the working capital and general corporate purposes of the Company and its Subsidiaries (including, without limitation, any acquisition permitted hereunder); and (d) the 2019 Incremental Term Advances shall be available (and each Loan Party agrees that it shall use such proceeds) to pay consideration for, and costs and expenses incurred in connection with, the acquisition of Automated Packaging Systems, LLC by the Company and/or its Subsidiaries, and for the working capital and general corporate purposes of the 2019 Incremental Term Borrower, the Company and their respective Subsidiaries.
SECTION 2.19Defaulting Lenders.
(a)In addition to the other conditions precedent herein set forth, if any Lender becomes, and during the period it remains, a Defaulting Lender, the Issuing Banks will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swing Line Bank will not be required to make any Swing Line Advance, unless any of clauses (i), (ii) or (iii) below is satisfied:
(i)in the case of a Defaulting Lender, so long as no Default has occurred and is continuing, the L/C Exposure and Swing Line Exposure of such Defaulting Lender is reallocated to the Non-Defaulting Lenders as provided in clause (i) of Section 2.19(b);
(ii)to the extent full reallocation does not occur as provided in clause (i) above, the Company Cash Collateralizes the obligations of the Borrowers in respect of such Letter of Credit or Swing Line Advance in an amount at least equal to the aggregate amount of the unallocated obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letter of Credit or Swing Line Advance, or makes other arrangements satisfactory to the Agent, the Issuing Bank and the Swing Line Bank in their reasonable discretion to protect them against the risk of non-payment by such Defaulting Lender; and
(iii)to the extent that neither full reallocation nor full Cash Collateralization occurs pursuant to clauses (i) and/or (ii), then in the case of a proposed issuance of a Letter of Credit or making of a Swing Line Advance, by an instrument or instruments in form and substance reasonably satisfactory to the Agent, and to the Issuing Banks and the Swing Line Bank, as the case may be, (A) the Company agrees that the face amount of such requested Letter of Credit or the principal amount of such requested Swing Line Advance will be reduced by an amount equal to the unallocated, non Cash-Collateralized portion thereof as to which such Defaulting Lender would otherwise be liable, and (B) the Non-Defaulting Lenders confirm, in their discretion, that their obligations in respect of such Letter of Credit or Swing Line Advance shall be on a pro rata basis in accordance with the Commitments of the Non-Defaulting Lenders, and that the pro rata payment provisions of Section 2.16 will be deemed adjusted to reflect this provision.
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(b)If a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply with respect to any L/C Exposure or Swing Line Exposure of such Defaulting Lender:
(i)so long as no Default has occurred and is continuing, the LC Exposure and the Swing Line Exposure of such Defaulting Lender will, upon notice by the Agent, and subject in any event to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Commitments; provided that (a) the sum of the total outstanding Revolving Credit Advances and Swing Line Advances owed to each Non-Defaulting Lender and its L/C Exposure may not in any event exceed the Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation, (b) subject to Section 9.23, such reallocation will not constitute a waiver or release of any claim the Borrowers, the Agent, the Issuing Banks, the Swing Line Bank or any other Lender may have against such Defaulting Lender, and (c) neither such reallocation nor any payment by a Non-Defaulting Lender as a result thereof will cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii)to the extent that any portion (the “unreallocated portion”) of the Defaulting Lender’s L/C Exposure and/or Swing Line Exposure cannot be so reallocated, whether by reason of the first proviso in clause (i) above or otherwise, the Company shall, not later than three Business Days after demand by the Agent, (a) Cash Collateralize the obligations of the Borrowers to the Issuing Banks and the Swing Line Bank in respect of such L/C Exposure or Swing Line Exposure, as the case may be, in an amount at least equal to the aggregate amount of the unreallocated portion of such L/C Exposure or Swing Line Exposure, (b) in the case of such Swing Line Exposure, prepay in full the unreallocated portion thereof, or (c) make other arrangements reasonably satisfactory to the Agent, and to the Issuing Banks and the Swing Line Bank, as the case may be, in their reasonable discretion to protect them against the risk of non-payment by such Defaulting Lender; and
(iii)any amount paid by the Company for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but shall instead be retained by the Agent in a segregated escrow account until (subject to Section 2.19(c)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority:
first to the payment of any amounts owing by such Defaulting Lender to the Agent under this Agreement,
second to the payment of any amounts owing by such Defaulting Lender to the Issuing Banks or the Swing Line Bank (pro rata as to the respective amounts owing to each of them) under this Agreement,
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third to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such interest then due and payable to them,
fourth to the payment of fees then due and payable to the Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them,
fifth to pay principal and unreimbursed Letters of Credit then due and payable to the Non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them,
sixth to the ratable payment of other amounts then due and payable to the Non-Defaulting Lenders,
seventh as the Company may direct to the funding of any Loan in respect of which a Defaulting Lender has failed to fund its portion,
eighth to any amounts owing by the Defaulting Lender to the Company or any of its Subsidiaries, and
ninth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct.
(c)If the Company, the Agent, the Issuing Banks and the Swing Line Bank agree in writing that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated escrow account referred to in Section 2.19(b)), such Lender shall purchase at par such portions of the outstanding Advances of the other Lenders, and/or make such other adjustments, as the Agent may determine to be necessary to cause the Lenders to hold Loans on a pro rata basis in accordance with their respective Commitments, whereupon such Lender shall cease to be a Defaulting Lender and will be a Non-Defaulting Lender (and the L/C Exposure and Swing Line Exposure of each Lender shall automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments shall be made retroactively with respect to fees accrued or payments made by or on behalf of the Company and applied as set forth in Section 2.19(b)(iii) while such Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender shall constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
SECTION 2.20Replacement of Lenders.
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(a)If any Lender requests compensation under Section 2.12, or if the Company is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.12 or 2.15, as applicable, in the future and (ii) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any material respect. The Company hereby agrees to pay all reasonable and documented costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)If any Lender requests compensation under Section 2.12, or if the Company is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, or if any Lender is a Defaulting Lender, or if any Lender is subject to the provisions of Section 2.13, then the Company may, at its sole expense and effort, upon notice to such Lender and the Agent, require any such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.07), 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) to the extent that such prospective assignee is not an existing Lender, an Approved Fund or an Affiliate of an existing Lender, the Company shall have received the prior written consent of the Agent (and, if in respect of any Revolving Credit Commitment or Revolving Credit Advance, the Swing Line Bank and the Issuing Banks), which consent shall not unreasonably be withheld or delayed, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Advance and participations in Letters of Credits and Swing Line Advances, 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 Company (in the case of all other amounts) (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.12 or payments required to be made pursuant to Section 2.15, such assignment will result in a reduction in such compensation or payments, (iv) the Company shall have paid to the Agent the assignment fee specified in Section 9.07, and (v) such assignment does not conflict with any applicable Laws. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment cease to apply. Nothing in this Section 2.20 shall be deemed to prejudice any rights that the Company or any of its Subsidiaries may otherwise have against any Lender that is a Defaulting Lender.
(c)If any Lender has failed to consent to a proposed amendment, waiver, discharge or termination that pursuant to the terms of Section 9.01 requires the consent of all the Lenders affected and with respect to which the Required Lenders shall have granted their consent (any such Lender referred to above, a “Non-Consenting Lender”) then the Company shall have the right (unless such Non-Consenting Lender grants such consent) to replace any such Non-Consenting Lender by requiring such Non-Consenting Lender to assign all of its Advances and Commitments hereunder to one or more assignees selected by the Company and that are reasonably acceptable to the Agent (and, if in respect of any Revolving Credit
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Commitment or Revolving Credit Advance, the Swing Line Bank and the Issuing Banks); provided, that the replacement Lender shall pay in full to such Non-Consenting Lender, concurrently with such assignment, a price equal to the principal amount thereof plus accrued and unpaid interest thereon and fees in connection therewith. In connection with any such assignment the Company, the Agent, such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 9.07.
SECTION 2.21Borrower Representative. Each Borrower hereby designates and appoints the Company as its representative and agent on its behalf (the “Borrower Representative”) for the purposes of issuing Notices of Borrowings, Notices of Conversion/continuation, Notices of Issuance, Notices of Swing Line Borrowing and delivering certificates including Compliance Certificates, giving instructions with respect to the disbursement of the proceeds of the Advances, selecting interest rate options, giving and receiving all other notices and consents hereunder or under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants) on behalf of any Borrower or Borrowers under the Loan Documents. The Borrower Representative hereby accepts such appointment. The Agent and each Lender may regard any notice or other communication pursuant to any Loan Document from the Borrower Representative as a notice or communication from all Borrowers. Each warranty, covenant, agreement and undertaking made on behalf of a Borrower by the Borrower Representative shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.
SECTION 2.22Public Offer.
(a)MLPFS, in its capacity as the “lead left” Joint Lead Arranger of the Facilities, represents and warrants that: (x) it has made or will make on or before the date of the first Advance, jointly with each other Joint Lead Arranger, invitations to become a “Lender” under this Agreement in one of the ways contemplated in section 128F(3A)(a) or (b) of the Income Tax Assessment Act 1936 (Cth): or (y) as dealer, manager, or underwriter, in relation to the placement of debt interests issued under this Agreement, will jointly with each other Joint Lead Arranger, make invitations to become a “Lender” under this Agreement within 30 days after the date of this Agreement in a way consistent with Section 2.22(a)(x).
(b)Each Australian Borrower represents and warrants that it does not know, or have reasonable grounds to suspect, that an Offshore Associate of any Australian Borrower will become a “Lender” under this Agreement and agrees to notify the Joint Lead Arrangers immediately if any proposed substitute Lender disclosed to it is known or suspected by it to be an Offshore Associate of the Australian Borrower.
(c)Each Lender that becomes a Lender as a result of an invitation under Section 2.22(a) represents and warrants that except as disclosed to the Australian Borrower and the Joint Lead Arrangers, it is not, so far as its relevant officers involved in the transaction on a day to day basis are actually aware, an Offshore Associate of the Australian Borrower.
(d)If, for any reason, the requirements of 128F of the Australian Tax Act have not been satisfied in relation to interest payable hereunder (except to an Offshore Associate
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of an Australian Borrower), then on request by a Joint Lead Arranger or an Australian Borrower, each party hereto shall co-operate and take steps reasonably requested with a view to satisfying those requirements:
(i)where a Joint Lead Arranger breached Section 2.22(a) or a Lender has breached Section 2.22(c) at the cost of that Joint Lead Arranger or Lender (as the case may be); or
(ii)in all other cases, at the cost of the Australian Borrower.
(e)Each Joint Lead Arranger and each Lender undertakes that it will not directly or indirectly offer or sell any debt interest or distribute or circulate any offer document or other material in connection with this Agreement or any debt interest hereunder in any jurisdiction except under circumstances which would result in compliance with the laws and regulations of that jurisdiction.
Notwithstanding any other provision of this Section 2.22, the guarantee, indemnity and other obligations of any Dutch Obligor expressed to be assumed in this Section 2.22 shall be deemed not to be assumed by such Dutch Obligor to the extent that the same would constitute unlawful financial assistance within the meaning of Article 2:98c Dutch Civil Code or any other applicable financial assistance rules under any relevant jurisdiction (the “Prohibition”) and the provisions of this Agreement and the other Loan Documents shall be construed accordingly. For the avoidance of doubt, it is expressly acknowledged that the relevant Dutch Obligors will continue to guarantee all such obligations which, if included, do not constitute a violation of the Prohibition.
ARTICLE III
CONDITIONS TO LENDING
CONDITIONS TO LENDING
SECTION 3.01Conditions Precedent to the Initial Advances. On the Closing Date:
(a)Execution of Loan Documents and Notes. The Agent shall have received the following, each of which shall be originals or facsimiles, or pdf scans of originals (followed promptly by originals) unless otherwise specified, each duly executed by an authorized signatory of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Agent and each of the Lenders (provided, that each Lender that delivers its executed counterpart to the Existing Credit Agreement to the Agent shall be deemed to be satisfied with the form and substance of each of the following):
(i)this Agreement, executed and delivered by each of the Borrowers, the Lenders named on the signature pages hereof, the Swing Line Bank, the Issuing Banks and the Agent;
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(ii)a Note executed by the applicable Borrower in favor of each Lender requesting a Note;
(iii)A Reaffirmation Agreement in substantially the form of Exhibit E-3 hereto (the “Reaffirmation Agreement”), or in such other form as may be required under laws applicable to any Foreign Subsidiary that is a Loan Party, in the aggregate duly executed by each Person that is a Loan Party as of the Closing Date;
(iv)A Luxembourg share pledge agreement over the shares of each of (i) Sealed Air Luxembourg S.à r.l., (ii) Sealed Air Luxembourg (I) S.à. r.l., (iii) Sealed Air Luxembourg (II) S.à. r.l., and (iv) Sealed Air Finance Luxembourg S.à r.l.;
(v)With respect to the Mexican Revolver Borrower:
(A)true and correct copy of the notarial instruments containing the appointment and powers of attorney granted in favor of the Process Agent.
(B)Amendment agreement to the Partnership Interest Pledge Agreement (Contrato de Prenda sobre Partes Sociales) in respect of the partnership interests (partes sociales) representing the capital stock of Sealed Air Americas Manufacturing, S. de R.L. de C.V.;
(C)Amendment agreement to the Partnership Interest Pledge Agreement (Contrato de Prenda sobre Partes Sociales) in respect of the partnership interests (partes sociales) representing the capital stock of Sealed Air de México Operations, S. de R.L. de C.V.;
(vi)An Australian featherweight security interest from each Australian Loan Party and an Australian specific security deed – shares from each Australian Loan Party and each entity that owns shares issued by an Australian Loan Party; and
(vii)a supplement to the Foreign Subsidiary Guaranty pursuant to which NZ Holdings shall become an “Additional Guarantor”, a “Guarantor”, a “Subsidiary Guarantor” and a “Loan Party” thereunder and under each other applicable Loan Document;
(viii)(A) a supplement to the US Subsidiary Guaranty pursuant to which Beacon Holdings, LLC shall become an “Additional Guarantor”, a “Guarantor”, a “Subsidiary Guarantor” and a “Loan Party” thereunder and under each other applicable Loan Document and (B) a supplement to the Pledge and Security Agreement pursuant to which Beacon Holdings, LLC agrees to be bound as a “Grantor” and an “Additional Grantor” thereunder and to grant a security interest to the Agent in the Collateral as set forth therein;
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(ix)a specific security deed granted by NZ Holdings over its shares in the New Zealand Revolver Borrower, accompanied by (A) a share transfer form signed by Sealed Air Holdings (New Zealand) Pty Ltd in respect of its shares in the New Zealand Revolver Borrower; and (B) a certified copy of the New Zealand Revolver Borrower’s share register with a notation identifying the Agent’s security interest; and
(x)a confirmation agreement relating to the Sealed Air (Japan) GK Unit Pledge Agreement by Sealed Air Netherlands Holdings V B.V. with respect to its pledge of units in the JPY Revolver Borrower.
(b)Incumbency. Each Loan Party shall have certified to the Agent the name and signature of each of the authorized signatories authorized (i) to sign on its respective behalf this Agreement and each of the other Loan Documents to which it is a party and (ii) in the case of the Company and the Designated Borrowers, to borrow under this Agreement. The Lenders may conclusively rely on such certifications until they receive notice in writing from the respective Loan Party to the contrary.
(c)Loan Certificates. The Agent shall have received:
(i)a loan certificate from a Responsible Officer of each Loan Party, in substantially the form of Exhibit F attached hereto, together with appropriate attachments which shall include the following items: (A) a true, complete and correct copy of the articles of incorporation, certificate of limited partnership, certificate of formation or organization or other constitutive document of such Loan Party, to the extent applicable certified by an appropriate Governmental Authority, (B) a true, complete and correct copy of (1) the by-laws, articles of association, partnership agreement or limited liability company or operating agreement (or other applicable organizational document) of such Loan Party, and (2) with respect to the Mexican Revolving Borrower, public deeds containing the powers of attorney granted the Mexican Revolving Borrower to the individuals executing this Agreement and the other Loan Documents to which it is a party (C) a copy of the resolutions of the board of managers/directors or other appropriate entity of such Loan Party authorizing the execution, delivery and performance by such Loan Party of this Agreement and the other Loan Documents to which it is a party and, with respect to the Borrower, authorizing the borrowings hereunder, (D) certificates of existence, to the extent available, of such Loan Party issued by an appropriate Governmental Authority, (E) in respect of each Australian Loan Party, confirmation that there will be no contravention of Section 260A of the Corporations Act as a consequence of the execution, delivery or performance of the Loan Documents or the drawing and application of funds thereunder and (F) in relation to any Luxembourg Loan Party (i) a true, complete and up-to-date copy of an excerpt (extrait) issued by the Luxembourg Register of Commerce and Companies (Registre du Commerce et des Sociétés Luxembourg) dated no earlier than the date of this Agreement, (ii) a true, complete and up-to-date copy of a non-registration certificate (certificat de non-inscription d'une décision judiciaire) issued by the RCS dated no earlier than the date of this
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Agreement and (iii) a certificate confirming that it is not subject to bankruptcy (faillite), composition with creditors (concordat préventif de la faillite), suspension of payments (sursis de paiement), controlled management (gestion contrôlée), and no petition for the opening of such proceedings has been presented; and
(ii)a certificate from a Responsible Officer of the Company, in form and substance reasonably satisfactory to the Agent and dated as of the Closing Date, certifying that (x) no Default or Event of Default has occurred and is continuing or would result from the consummation of the Transactions, (y) the representations and warranties set forth in this Agreement are true and correct in all material respects as of the date of such certificate, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and except to the extent that such representations and warranties are already qualified as to materiality, in which case such qualified representations and warranties shall be true and correct and (z) since December 31, 2017, there shall not have occurred any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect.
(d)Solvency. The Agent shall have received a solvency certificate from a Senior Financial Officer of the Company in the form of Exhibit G (the “Solvency Certificate”).
(e)Opinions of Counsel to the Loan Parties. The Lenders shall have received favorable opinions of:
(i)Clifford Chance US LLP, counsel to the Loan Parties;
(ii)opinions of special counsel for the Agent, dated the Closing Date and covering such additional matters relating to the Transactions as the Agent may reasonably request; and
(iii)opinions of special counsel for certain Restricted Subsidiaries of the Company in each of the jurisdictions in which the Agent may reasonably request.
(f)Insurance. The Agent shall have received satisfactory evidence of customary insurance required to be maintained by the Loan Parties, together with customary certificates of insurance and endorsement naming the Agent, on behalf of the Lenders, as an additional insured or Lenders’ loss payee, as the case may be, under all casualty insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral.
(g)Patriot Act.
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(i)The Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Agent in writing at least 5 days prior to the Closing Date, and
(ii)each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower (A) to the Agent at least five Business Days prior to the Closing Date, and (B) to each Lender that so requests such Beneficial Ownership Certification at least five Business Days prior to the Closing Date, promptly following such request and in any event within three Business Days of such request (provided, that after its receipt of such a Beneficial Ownership Certification, a Lender may request additional or corrective information if such Lender is not reasonably satisfied with such Beneficial Ownership Certification).
(h)Fees. Payment of all fees required to be paid on the Closing Date, including pursuant to the Fee Letters and reasonable out-of-pocket expenses payable pursuant to Section 9.04(a) to the extent invoiced at least two Business Days prior to the Closing Date, shall have been paid (which amounts may be offset against the proceeds of the Facilities).
(i)Financial Information. The Agent shall have received copies of satisfactory (A) Consolidated balance sheets of the Company and its Restricted Subsidiaries as at the end of the three most recent Fiscal Years ended at least 120 days prior to the Closing Date and the related Consolidated statements of income and retained earnings and cash flows for each such Fiscal Year, in each case reported on by independent certified public accountants of recognized national standing and (B) consolidated balance sheets of the Company and its Restricted Subsidiaries as at the end of each quarterly accounting period since the most recent financial statements delivered pursuant to the foregoing clause (A) and ended at least 60 days prior to the Closing Date, and the related consolidated statements of income for such quarterly accounting period and for the elapsed portion of the Fiscal Year ended with the last day of such quarterly accounting period and the related Consolidated statement of cash flows for the elapsed portion of the Fiscal Year ended with the last day of such quarterly accounting period.
(j)No Material Adverse Effect. Since December 31, 2017, there shall not have occurred any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect.
(k)Lien Searches. The Agent shall have received the results of recent customary UCC lien searches (or the equivalent thereof with respect to any jurisdiction outside of the United States) with respect to each Loan Party in their applicable jurisdictions of organization, and such search shall reveal no Liens on any of the assets of
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the Loan Parties except for Liens permitted under Section 5.02(a) or discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Agent.
(l)Security Interest. Subject to Sections 3.04 and 5.01(h), each document required by the Collateral Documents or reasonably requested by the Agent (subject to the terms of the applicable Collateral Documents) to be delivered, filed, registered or recorded in order to create, preserve or continue, in favor of the Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Permitted Liens), shall have been delivered, filed, registered or recorded or shall have been delivered to the Agent in proper form for filing, registration or recordation.
(m)Closing Date Refinancing. The Closing Date Refinancing shall have been consummated prior to, or shall be consummated substantially concurrently with, the occurrence of the Closing Date.
SECTION 3.02Conditions to all Advances. The obligation of each Lender to make an Advance, and the obligation of each Issuing Bank to issue a Letter of Credit shall be subject to the following conditions precedent (provided, that clause (a) shall not apply to Advances made on the Closing Date):
(a)the following statements shall be true (and each of the giving of the applicable Notice of Borrowing, Notice of Swing Line Borrowing, Notice of Issuance and the acceptance by the Borrower requesting such Borrowing of the proceeds of such Borrowing or such Letter of Credit shall constitute a representation and warranty by such Borrower that on the date of such Borrowing or issuance such statements are true):
(i)all representations and warranties made by any Loan Party in this Agreement and in each other Loan Document shall be true and correct in all material respects, with the same effect as though such representations and warranties were made on and as of the date of such Borrowing or issuance (except that (x) where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and (y) where such representations and warranties are already qualified as to materiality or Material Adverse Effect, such qualified representations and warranties shall be true and correct); and
(ii)no event has occurred and is continuing, or would result from such Borrowing or issuance or from the application of the proceeds therefrom, that constitutes a Default; and
(b)the Agent shall have received a Notice of Borrowing, Notice of Swing Line Borrowing or Notice of Issuance, as applicable, in accordance with the requirements hereof.
SECTION 3.03Determinations Under Section 3.01. For purposes of determining compliance with the conditions specified in Sections 3.01, each Lender shall be
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deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Agent responsible for the Transactions shall have received notice from such Lender prior to the date that the Company, by notice to the Lenders, designates as the proposed Closing Date, specifying its objection thereto. The Agent shall promptly notify the Lenders of the occurrence of the Closing Date.
SECTION 3.04Post-Closing Conditions. The Agent shall have received each of the documents, agreements, certificates and/or other deliverables set forth in Schedule 3.04 hereto at the times specified therein (as such times may be extended by the Agent in its sole discretion), in each case in form and substance reasonably satisfactory to the Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
SECTION 4.01Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a)Organization, Existence and Good Standing. Each of the Company and its Restricted Subsidiaries (i) is duly organized or incorporated, validly existing or incorporated and registered (as applicable) and, if applicable, in good standing, under the laws of the jurisdiction of its incorporation or organization, (ii) has the corporate or comparable power and authority to own its property and assets and to transact the business in which it is engaged and presently proposes to engage and (iii) if applicable, is duly qualified as a foreign corporation and, if applicable, in good standing in each jurisdiction where the ownership, leasing or operation of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect.
(b)Power and Authority. Each Borrower and each Subsidiary Guarantor has the corporate or comparable power and authority to execute, deliver and perform the terms and provisions of each of the Loan Documents to which it is a party and has taken all necessary corporate or comparable action to authorize the execution, delivery and performance by it of each of such Loan Documents. Each Borrower and each Subsidiary Guarantor has duly executed and delivered each of the Loan Documents to which it is a party, and each of such Loan Documents constitutes its legal, valid and binding obligation enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and to equitable principles (regardless of whether enforcement is sought in equity or at law).
(c)Real Property.
(i)Schedule 4.01(c)(i) sets forth a complete list of all real property owned by each of the Loan Parties and their Subsidiaries as of the Closing Date (each, an “Owned Property”), showing, as of the Closing Date, the street address,
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county or other relevant jurisdiction, state or province, record owner and book value thereof. Except as otherwise disclosed on Schedule 4.01(c)(i), the Loan Parties, or their Subsidiaries (as applicable), have good and marketable fee simple title to all Owned Property located within the United States and a substantially equivalent ownership interest in the Owned Property located in each other jurisdiction and all buildings, structures and other improvements located thereon, free and clear of all Liens, other than Permitted Liens.
(ii)Schedule 4.01(c)(ii) sets forth a complete list of all material Leases under which any of the Loan Parties or their Subsidiaries are the lessee as of the Closing Date (each a “Leased Property”), showing the street address, county or other relevant jurisdiction, state or province and lessee. Each of the Leases with respect to the Leased Property is in full force and effect. Except as disclosed in Schedule 4.01(c)(ii), each of the Loan Parties or their Subsidiaries (as applicable) has a valid, binding and enforceable leasehold interest and actual possession in and to the properties and all buildings, structures or other improvements located on the Leased Property in each case free and clear of all Liens, except Permitted Liens.
(iii)All of the buildings, fixtures and improvements included on or in the Owned Property or the Leased Property are in satisfactory condition and repair for the continued use of the Owned Property or the Leased Property in the ordinary course of business consistent with past practices.
(d)No Conflict. Neither the execution, delivery or performance by any Borrower or any Subsidiary Guarantor of the Loan Documents to which it is a party, nor compliance by it with the terms and provisions thereof, (i) contravenes any provision of any law, statute, rule or regulation or any material order, writ, injunction or decree of any court or governmental instrumentality, (ii) conflicts or is inconsistent with or results in any breach of any of the terms, covenants, conditions or provisions of, or constitutes a default under, any material indenture, mortgage, deed of trust, credit agreement, loan agreement or any other material agreement, contract or instrument to which the Company or any of its Restricted Subsidiaries is a party or by which it or any of its property or assets are bound or to which it may be subject (except for documentation with respect to Liquidity Structures to which the Agent, any Co-Documentation Agent, any Co-Syndication Agent or any Affiliate of any of the aforementioned is a party), (iii) results in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of the Company or any of its Restricted Subsidiaries pursuant to the terms of any material indenture, mortgage, deed of trust, credit agreement, loan agreement or any other material agreement, contract or instrument to which the Company or any of its Restricted Subsidiaries is a party or by which it or any of its property or assets are bound or to which it may be subject, or (iv) violates any provision of the certificate of incorporation or by-laws (or the equivalent documents) of the Company or any of its Restricted Subsidiaries, except in each case where such contravention or breach would not reasonably be expected to have a Material Adverse Effect.
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(e)Governmental Consents. No order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except as have been obtained or made and which remain in full force and effect), or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to be obtained by the Company, any Borrower or any Subsidiary Guarantor to authorize, or is required for, (i) the execution, delivery and performance of any Loan Document (ii) the perfection of the Liens created under the Collateral Documents or (iii) the legality, validity, binding effect or enforceability of any Loan Document, except, in each case, where such failure to obtain authorization would not reasonably be expected to have a Material Adverse Effect.
(f)Financial Statements; Financial Condition. The audited Consolidated balance sheet of the Company and its Restricted Subsidiaries for the Fiscal Year ended December 31, 2017 and the related Consolidated statements of income or operations, shareholders’ equity and cash flows for such Fiscal Year of the Company and its Restricted Subsidiaries (i) were prepared in accordance with generally accepted accounting principles consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (ii) fairly present in all material respects the financial condition of the Company and its Restricted Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with generally accepted accounting principles consistently applied throughout the period covered thereby, except as otherwise expressly noted therein. The unaudited Consolidated financial statements of the Company and its Subsidiaries dated March 31, 2018, and the related Consolidated statements of income or operations, and cash flows for the three months ended on March 31, 2018 (i) were prepared in accordance with generally accepted accounting principles consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and subject to normal year-end audit adjustments and to the fact that such financial statements may be abbreviated and may omit footnotes or contain incomplete footnotes; and (ii) fairly present in all material respects the financial condition of the Company and its Restricted Subsidiaries as of the date thereof and their results of operations for the period covered thereby. Since December 31, 2017 there has been no change in the business, results of operations or financial condition of the Company and its Restricted Subsidiaries, taken as a whole, that would reasonably be expected to have a Material Adverse Effect.
(g)Adverse Proceedings. Except as disclosed in the Company’s filings with the Securities and Exchange Commission prior to the date hereof, there are no actions, suits or proceedings pending or, to the knowledge of any Borrower, threatened against the Company or any Restricted Subsidiary in which there is a reasonable possibility of an adverse decision (i) which in any manner draws into question the validity or enforceability of any Loan Document or (ii) that would reasonably be expected to have a Material Adverse Effect.
(h)Taxes. Except to the extent the following would not, in the aggregate, reasonably be expected to have a Material Adverse Effect:
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(i)All U.S. federal and state tax returns, reports and statements (excluding information returns) (the “US Tax Returns”) and all local U.S. tax returns and all U.S. information returns, foreign tax returns, reports and statements (collectively, the “Other Tax Returns” and, together with the US Tax Returns, the “Tax Returns”) required to be filed by each Loan Party or any of its Tax Affiliates have been filed with the appropriate Governmental Authority, all such Tax Returns are true and correct, and all taxes, charges and other impositions reflected therein have been paid prior to the date when due except where contested in good faith and by appropriate proceedings if adequate reserves have been established on the books of such Loan Party or such Tax Affiliate in conformity with GAAP;
(ii)Proper amounts have been withheld by each Loan Party from its employees for all periods in full compliance with the tax, social security and unemployment withholding provisions of applicable requirements of law and such withholdings have been timely paid to the respective Governmental Authority; and
(iii)Each of the Foreign Subsidiaries has paid or made adequate provision for the payment of all Taxes levied on it or on its property or income that are due and payable, including interest and penalties, or has accrued such amounts in its financial statements for the payment of such Taxes except Taxes that are not material in amount, that are not delinquent or if delinquent are being contested, and in respect of which non-payment would not individually or in the aggregate constitute, or be reasonably likely to cause, a Material Adverse Effect.
(i)True and Complete Disclosure.
(i)All written information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of the Company or any of its Restricted Subsidiaries in writing to any Lender (including, without limitation, all information relating to the Company and its Restricted Subsidiaries contained in the Loan Documents but excluding the items expressly contemplated in the immediately following clause (ii)) for purposes of or in connection with this Agreement, the Transactions, or any other transaction contemplated herein, is to the knowledge of the Company true and accurate in all material respects on the date as of which such information is dated or certified and not incomplete by omitting to state any fact necessary to make such information (taken as a whole) not materially misleading at such time in light of the circumstances under which such information was provided.
(ii)The Projections and estimates and information of a general economic nature prepared by or on behalf of the Company or any of its representatives and that have been made available to any Lenders or the Agent in connection with the Transactions, or any other transaction contemplated herein, have been prepared in good faith based upon assumptions believed by the Company to be reasonable as of the date thereof (it being understood that such
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Projections are as to future events and are not to be viewed as facts, such Projections are subject to significant uncertainties and contingencies and the actual results during the period or periods covered by any such information may differ significantly from the projected results, and that no assurance can be given that the projected results will be realized), as of the date such Projections and estimates were furnished to the Lenders.
(j)Margin Regulations.
(i)No part of the proceeds of any Advance will be used by any Borrower or any Restricted Subsidiary thereof to purchase or carry any Margin Stock (other than repurchases by the Company of its own stock) or to extend credit to others for the purpose of purchasing or carrying any Margin Stock.
(ii)Neither the making of any Advance or Letter of Credit nor the use of the proceeds thereof will violate or be inconsistent with the provisions of Regulations T, U or X of the Board of Governors of the Federal Reserve System.
(k)Compliance with ERISA/Pension Laws.
(i)No Reportable Event has occurred or is reasonably expected to occur with respect to a Plan, except for any such event which would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(ii)Schedule SB (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the United States Department of Labor and furnished to the Lenders, is complete and accurate and fairly presents the funding status of each such Plan as of the end of the most recent Plan year for which such report was so filed, and since the date of such Schedule SB through the date of this Agreement there has been no material adverse change in such funding status.
(iii)Neither any Borrower nor any ERISA Affiliate has incurred or, to their knowledge, is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan, except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(iv)Neither any Borrower nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is Insolvent or has been determined to be in “endangered or “critical” status within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA, and no such Multiemployer Plan is reasonably expected to be Insolvent or in “endangered” or “critical” status, except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(v)(a) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (i) each Canadian
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Pension Plan is duly registered, to the extent such registration is required, under all applicable federal, provincial and territorial pension benefits legislation and the Income Tax Act (Canada), (ii) there are no outstanding disputes concerning the assets held pursuant to any funding agreement held in relation to a Canadian Pension Plan, except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, (iii) all contributions or premiums required to be made by any Borrower or Restricted Subsidiary under each Canadian Pension Plan have been made in a timely fashion in accordance with applicable legislation, (iv) all employee contributions to each Canadian Pension Plan made by the employees of any Borrower or Restricted Subsidiary by way of authorized payroll deduction have been fully paid into the applicable Canadian Pension Plan in a timely fashion in accordance with applicable legislation, (v) all reports and disclosures relating to each Canadian Pension Plan required by applicable legislation have been filed or distributed in a timely fashion, (vi) to the best of their knowledge, there have been no improper withdrawals, or applications of, the assets of any Canadian Pension Plan, excluding withdrawals or applications approved by the applicable pension regulator, (vii) no amount is owing by any Canadian Pension Plans under the Income Tax Act (Canada) or any provincial or territorial taxation statute, except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, (viii) to the best of the CDN Revolver Borrower's knowledge, none of the Canadian Pension Plans is the subject of an investigation, proceeding, action or claim and (ix) each Canadian Pension Plan is in material compliance with the applicable terms thereof, any funding requirements and all applicable law, except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect and (b) no material changes have occurred to any Canadian Pension Plan since the last filed actuarial valuation in respect of such plan or the financial statements of a Borrower or Restricted Subsidiary, other than amendments filed with the applicable pension regulations, housekeeping changes and changes to comply with applicable legislation.
(l)Subsidiaries; Equity Interests; Loan Parties. As of the Closing Date, the Company has no Subsidiaries, other than (i) certain Subsidiaries of the Company which, as of the Closing Date, have assets of less than $1,000 each and are either dormant or intended to be liquidated or terminated by the Company, and (ii) those Subsidiaries specifically disclosed in Schedule 4.01(l), and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by each Loan Party in the percentages specified on Schedule 4.01(l) free and clear of all Liens except those created under the Collateral Documents or permitted by this Agreement and the other Loan Documents. Schedule 4.01(l) indicates which Subsidiaries are Loan Parties as of the Closing Date showing (as to each Loan Party) the jurisdiction of its incorporation, the address of its principal place of business and its U.S. taxpayer identification number or, in the case of any non-U.S. Loan Party that does not have a U.S. taxpayer identification number, its unique identification number issued to it by the jurisdiction of its incorporation, if any.
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(m)Environmental Matters.
(i)Each of the Company and its Restricted Subsidiaries is, to the knowledge of the Senior Financial Officers, in compliance with all applicable Environmental Laws and the requirements of any permits issued under such Environmental Laws, except for any such noncompliance or failures which would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(ii)Neither the Company nor any Restricted Subsidiary has received notice to the effect that its operations are not in compliance with any of the requirements of any Environmental Law or are the subject of any governmental investigation evaluating whether any remedial action is needed to respond to release of any toxic or hazardous waste or substance into the environment, except for notices that relate to noncompliance or remedial action which would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(n)No Default. No Default has occurred and is continuing, or would result from the consummation of the Transactions.
(o)Investment Company Act. Neither the Company nor any other Loan Party is required to be registered as an “investment company” or is a company “controlled” by a company required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(p)Employee and ERISA Matters.
(i)Neither the Company nor any of its Restricted Subsidiaries is engaged in any unfair labor practice that would reasonably be expected to have a Material Adverse Effect.
(ii)No Borrower is or will be using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments.
(q)Solvency. The Company and its Subsidiaries, taken as a whole, are Solvent. No Subsidiary having its center of main interests in Germany is unable to pay its debts when they fall due (zahlungsunfähig) or over-indebted (überschuldet) within the meaning sect. 17 or 19 of the German Insolvency Code or has filed for the opening of insolvency proceedings; no third party has filed for the opening of insolvency proceedings with respect to such subsidiary.
(r)Compliance with Laws. The Company and each Restricted Subsidiary thereof is in compliance with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (i) such requirement of Law or order, writ, injunction or decree is being contested
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in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP or (ii) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(s)Intellectual Property; Licenses, Etc. The Company and each of its Restricted Subsidiaries own, or have the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, licenses and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses, except where the failure to own or have the right to use such IP Rights could not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company, the use of such IP Rights by the Company or any Restricted Subsidiary does not infringe upon any intellectual property rights held by any other Person, except for any infringement that could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the knowledge of the Company, threatened, which, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(t)Senior Debt. The Obligations constitute “Senior Debt” (or the equivalent term) as such term is defined in each subordinated debt document to which the Company or any of its Restricted Subsidiaries is a party and that contains such a definition or any similar definition.
(u)Foreign Assets Control Regulations; Patriot Act. No Loan Party (i) is or will become a Person or entity described by section 1 of Executive Order 13224 of September 24, 2001 Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism (12 C.F.R. 595), and no Loan Party engages in dealings or transactions with any such Persons or entities; or (ii) is in violation of the Patriot Act or any foreign Law to similar effect with respect to materiality.
(v)Collateral Documents. As and when executed and delivered, the provisions of the Collateral Documents are or will be effective to create in favor of the Agent for the benefit of the Secured Parties legal, valid and enforceable Liens on all right, title and interest of the Collateral owned by the Loan Parties and described therein, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law) and by a covenant of good faith and fair dealing. When filings or recordations are made or other actions taken to reflect the liens and security interests in the Collateral as required pursuant to the terms of this Agreement and the Collateral Documents, the Liens in the Collateral described herein and therein will be perfected and prior to all other Liens, except any Liens permitted to be prior to the Liens of the Secured Parties under the terms of the Loan Documents.
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(w)No Financial Assistance. The proceeds of any Advances have not been and will not be used to finance or refinance the acquisition of or subscription for shares in any Loan Party incorporated under the laws of the Netherlands.
(x)No Listed Securities. None of the Borrowers and Guarantors incorporated in Belgium has issued listed securities, or is a Subsidiary of a Belgian company that has issued listed securities.
(y)Trustee. None of the Borrowers or Guarantors organized under the laws of Australia have entered into any Loan Document, or hold any property, as a trustee.
(z)Sanctions, Anti-Money Laundering and Anti-Corruption Laws.
(i)Neither the Borrowers nor any of their respective Subsidiaries, nor any of their respective directors or officers, nor, to the knowledge of any responsible Officer of the Company, any employee, agent, Affiliate or representative of any Borrower or any of their respective Subsidiaries, is an individual or entity that is currently the subject of any Sanctions, nor is any Borrower or any of their respective Subsidiaries located, organized or resident in a Designated Jurisdiction; provided, however, that none of the representations set forth in this Section 4.01(z)(i) shall be made by or with respect to any Guarantor that is organized in the Federal Republic of Germany, to the extent that the making of such representations would result in any violation of, conflict with or liability under, Council Regulation (EC) 2271/96 or section 7 foreign trade rules (AWV) (Aussenwirtschaftsverordnung) or a similar anti-boycott statute.
(ii)To the knowledge of the Company, the Borrowers and their respective Subsidiaries, officers, employees, directors, agents and Affiliates, are in compliance with applicable Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws, and the Borrowers have instituted and maintained reasonable policies and procedures designed to promote and achieve compliance therewith; provided, however, that none of the representations set forth in this Section 4.01(z)(ii) shall be made by or with respect to any Guarantor that is organized in the Federal Republic of Germany, to the extent that the making of such representations would result in any violation of, conflict with or liability under, Council Regulation (EC) 2271/96 or section 7 foreign trade rules (AWV) (Aussenwirtschaftsverordnung) or a similar anti-boycott statute.
(aa)Beneficial Ownership. As of the Closing Date, the information included in each Beneficial Ownership Certification is true and correct in all respects.
(bb) Anti-Social Forces. Neither the Borrowers nor any of their respective Subsidiaries (i) are or have been classified as an Anti-Social Group (ii) have, or has had, any Anti-Social Relationship and (iii) engages, or has engaged, in Anti-Social Conduct, whether directly or indirectly through a third party.
(cc) Centre of Main Interest. For the purposes of the European Insolvency Regulation, each Luxembourg Loan Party has its centre of main interests (as that term is
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used in Article 3(1) of the European Insolvency Regulation) situated in Luxembourg and it has no “establishment” (as that term is used in Article 2(10) of the European Insolvency Regulation) in any other jurisdiction.
ARTICLE V
COVENANTS OF THE COMPANY
COVENANTS OF THE COMPANY
SECTION 5.01Affirmative Covenants. So long as any Advance or Letter of Credit shall remain outstanding or any Lender shall have any Commitment hereunder:
(a)Information Covenants. The Company will furnish to the Agent (in sufficient quantity for each Lender):
(i)Quarterly Financial Statements. Within 60 days after the close of each of the first three quarterly accounting periods in each Fiscal Year of the Company, the Consolidated balance sheet of the Company and its Restricted Subsidiaries as at the end of such quarterly accounting period and the related Consolidated statements of income for such quarterly accounting period and for the elapsed portion of the Fiscal Year ended with the last day of such quarterly accounting period and the related Consolidated statement of cash flows for the elapsed portion of the Fiscal Year ended with the last day of such quarterly accounting period, accompanied by a copy of the certification by the chief executive officer or the chief financial officer of the Company delivered to the Securities and Exchange Commission in connection with any report filed by the Company on a Form 10-Q (or any successor form), subject to normal year-end audit adjustments and to the fact that such financial statements may be abbreviated and may omit footnotes or contain incomplete footnotes.
(ii)Annual Financial Statements. Within 120 days after the close of each Fiscal Year of the Company, the Consolidated balance sheet of the Company and its Restricted Subsidiaries as at the end of such Fiscal Year and the related Consolidated statements of income and retained earnings and cash flows for such Fiscal Year, in each case reported on by independent certified public accountants of recognized national standing.
(iii)Compliance Certificate. At the time of the delivery of the financial statements provided for in Sections 5.01(a)(i) and (ii), a certificate of a Financial Officer of the Company certifying that to the best of such officer’s knowledge, no Default has occurred and is continuing (a “Compliance Certificate”), or if the Financial Officer is unable to make such certification, such officer shall supply a statement setting forth the reasons for such inability, specifying the nature and extent of such reasons. Such Compliance Certificate shall also set forth (a) the calculations required to establish whether the Company was in compliance with Section 5.03, at the end of such fiscal quarter or year, as the case may be, (b) a list of names of all Material Subsidiaries for the following fiscal quarter, certifying that the Subsidiaries set forth on such list constitute all of the Material
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Subsidiaries of the Company, and that all Subsidiaries not named on such list qualify as Immaterial Subsidiaries, and that all such Subsidiaries not listed, in the aggregate, do not exceed the limitations set forth in clauses (i) and (ii) of the definition of the term “Immaterial Subsidiary”, and (c) a list of names of all Unrestricted Subsidiaries, certifying that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary.
(iv)Notice of Default or Litigation. Promptly, and in any event within five Business Days after a Senior Financial Officer obtains actual knowledge thereof, notice of (A) the occurrence of any Default or Event of Default or (B) a development or event which would reasonably be expected to have a Material Adverse Effect.
(v)Other Information. From time to time, such other information or documents (financial or otherwise) as any Lender may reasonably request.
Notwithstanding the foregoing, the obligations in clauses (i) and (ii) of this Section 5.01(a) shall be satisfied with respect to financial information of the Company and its Restricted Subsidiaries if and when the Company furnishes a Form 10-K or 10-Q, as applicable, filed with the Securities and Exchange Commission.
(b)Books, Records and Inspections. The Company will, and will cause each of its Restricted Subsidiaries to, permit officers and designated representatives of the Agent or the Lenders, at their own expense, upon five Business Days’ notice, to visit and inspect (subject to reasonable safety and confidentiality requirements) any of the properties of the Company or such Restricted Subsidiary, and to examine the books of account of the Company or such Restricted Subsidiary and discuss the affairs, finances and accounts of the Company or such Restricted Subsidiary with, and be advised as to the same by, its and their officers and independent accountants, all at such reasonable times during normal business hours and intervals and to such reasonable extent as the Agent or the Lenders may request; provided that such Lender shall have given the Company’s chief financial officer, treasurer and other appropriate personnel a reasonable opportunity to participate therein in person or through a designated representative; provided, further that, excluding any such visits and inspections during the continuation of an Event of Default, only the Agent on behalf of the Lenders may exercise rights of the Agent and the Lenders under this Section 5.01(b) and the Agent shall not exercise such rights more often than once during any calendar year absent the existence of an Event of Default at the Borrower’s expense; and provided, further, that when an Event of Default has occurred and is continuing, the Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Company at any time during normal business hours and upon reasonable advance notice. The Agent and the Lenders shall give the Company reasonable prior notice and the opportunity to participate in any discussions with the Company’s independent public accountants.
(c)Maintenance of Insurance. Each of the Company and the Restricted Subsidiaries will maintain insurance issued by financially sound and reputable insurance
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companies with respect to its properties and business in such amounts and against such risks as is usually carried by owners of similar businesses and properties in the same general areas in which the Company or such Restricted Subsidiary operates. The Company will furnish to the Agent, upon a reasonable request of the Agent (which may be at the direction, and for the benefit, of a Lender) from time to time, a customary insurance broker’s certificate as to the insurance maintained in accordance with this Section 5.01.
(d)Maintenance of Existence. The Company and each of its Restricted Subsidiaries will (i) preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Sections 5.02(d) or 5.02(e); (ii) take all reasonable action to maintain in rights, privileges, permits, licenses and franchises necessary for the normal conduct of its business, the non-maintenance of which could reasonably be expected to have a Material Adverse Effect; and (iii) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
(e)Maintenance of Properties. The Company and each of its Restricted Subsidiaries shall, and shall cause each of their respective Restricted Subsidiaries to, maintain and preserve (i) in good working order and condition (subject to ordinary wear and tear) all of its properties necessary in the conduct of its business, (ii) all rights, permits, licenses, approvals and privileges necessary in the conduct of its business and (iii) all registered patents, trademarks, trade names, copyrights and service marks with respect to its business, except where failure to so maintain and preserve the items set forth in clauses (i), (ii) and (iii) above could not, in the aggregate of all such failures, reasonably be expected to have a Material Adverse Effect.
(f)Compliance with Laws, etc. The Company will, and will cause each of its Restricted Subsidiaries to, comply in all material respects with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including, without limitation, all Environmental Laws applicable to the ownership or use of real property now or hereafter owned or operated by the Company or any of its Restricted Subsidiaries), except where the necessity of compliance therewith is being contested in good faith or where failure to so comply could not reasonably be expected to have a Material Adverse Effect.
(g)ERISA.
(i)Reportable Events and ERISA Reports. (A) Promptly and in any event within 10 days after any Borrower or any ERISA Affiliate knows or has reason to know that any Reportable Event that would reasonably be expected to have a Material Adverse Effect has occurred, a statement of the Company describing such Reportable Event and the action, if any, that such Borrower or such ERISA Affiliate has taken and proposes to take with respect thereto and (B) on the date any records, documents or other information must be furnished to
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the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information.
(ii)Plan Terminations. Promptly and in any event within two Business Days after receipt thereof by any Borrower or any ERISA Affiliate, copies of each notice from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan.
(iii)Plan Annual Reports. Promptly upon the written request of the Agent, copies of each Schedule SB (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan.
(iv)Multiemployer Plan Notices. Promptly and in any event within five Business Days after receipt thereof by any Borrower or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice concerning (A) the imposition of Withdrawal Liability by any such Multiemployer Plan, or (B) such Multiemployer Plan is Insolvent or a determination has been made that the Multiemployer Plan is in “endangered” or “critical” status within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA and (C) the amount of liability incurred, or that may be incurred, by such Borrower or any ERISA Affiliate in connection with any event described in clause (A) or (B).
(v)Canadian Pension Plans. The CDN Revolver Borrower shall (a) cause each of the Canadian Pension Plans of which a Borrower or a Restricted Subsidiary, as applicable, is the administrator or plan sponsor, to be administered in accordance with the requirements of the applicable pension plan texts, funding agreements, the Income Tax Act (Canada) and applicable federal, provincial or territorial pension benefits legislation, except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; (b) other than in the normal course of business, not voluntarily terminate any Canadian Pension Plan of which a Borrower or a Restricted Subsidiary is the administrator or plan sponsor if such plan would have a solvency deficiency or wind-up deficiency on termination that could reasonably be expected to have, either individually or in the aggregate, including following a filing by such Borrower or Restricted Subsidiary for protection from its creditors pursuant to the Companies Creditors Arrangement Act (Canada), a Material Adverse Effect; (c) promptly provide the Agent with any filed documentation relating to the Canadian Pension Plans as the Agent may reasonably request, subject to applicable law; (d) notify the Agent within thirty (30) days of becoming aware of (i) a material increase in the liabilities of any Canadian Pension Plan, other than an increase resulting from the merger of any existing Canadian Pension Plans, (ii) the establishment of a new registered pension plan that is a defined benefit pension plan, other than one created through the merger of any existing Canadian Pension Plans, or (iii) the commencement of payments of contributions to any defined benefit Canadian Pension Plan to which any Borrower or Restricted Subsidiary had not previously been paying or contributing, other than one created through the merger of any existing Canadian Pension Plans, in each case as could
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reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; (e) promptly notify the Agent on becoming aware of any order or notice of intention to issue an order from the applicable pensions standards regulator that could reasonably be expected to cause the termination, in whole or in part, of any Canadian Pension Plan if such plan would have a solvency deficiency or wind-up deficiency on termination that could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, and (f) promptly notify the Agent on becoming aware of the occurrence of any event with respect to a Canadian Pension Plan that is reasonably likely to result in the occurrence by a Borrower or a Restricted Subsidiary, of any liability, fine or penalty that would reasonably be expected to have a Material Adverse Effect, and in the notice to the Agent thereof, provide copies of all documentation in the possession of any Borrower or Restricted Subsidiary (or documentation which such Borrower or Restricted Subsidiary may reasonably request) relating thereto.
(h)Covenant to Guarantee Obligations and Give Security.
(i)Upon (w) the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary by any Loan Party in a jurisdiction listed on Part I of Schedule 5.01(h) hereto or any other jurisdiction (other than any jurisdiction listed on Part II of Schedule 5.01(h) until such time as the Agent reasonably determines that the costs associated with the respective Subsidiaries entering into guaranties and granting Liens, and the perfection thereof, in such jurisdiction listed on Part II of Schedule 5.01(h) are materially less than in effect on the Closing Date) in which, as of the end of the fiscal quarter immediately preceding the date of determination, the aggregate “EBITDA” (as defined at the end of this subsection (h)) for the 12 month period ending in such quarter of the Subsidiaries of the Company operating primarily in such jurisdiction is greater than 3% of EBITDA of the Company and its Restricted Subsidiaries for such 12 month period and for which the Agent acting in consultation with the Company has reasonably determined that the value of the guarantees and Liens granted by such Subsidiaries outweighs the aggregate costs associated in connection therewith, (x) any Subsidiary ceasing to qualify as an Immaterial Subsidiary, (y) the Borrower’s designation of a Wholly-Owned Unrestricted Subsidiary as a Restricted Subsidiary pursuant to Section 5.01(l) (unless such Subsidiary is an Immaterial Subsidiary) or (z) the acquisition of any property by any Loan Party (subject to the applicable limitations set forth in the Security Agreement) that is not already subject to a perfected first priority security interest (subject to Permitted Liens) in favor of the Agent for the benefit of the Secured Parties, the Company shall, in each case at the Company’s expense:
(A)in the case of any Domestic Subsidiary, within 90 days after such formation, acquisition, designation or failure to qualify as an Immaterial Subsidiary, except to the extent prohibited or restricted by applicable law or by contract existing on the Closing Date or, in the case of any Domestic Subsidiary acquired after the Closing Date, existing on
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the date of acquisition of such Domestic Subsidiary and not entered into in contemplation thereof, cause such Domestic Subsidiary to duly execute and deliver to the Agent a counterpart of the US Subsidiary Guaranty guaranteeing the other Loan Parties’ obligations under the Loan Documents; provided the foregoing requirement shall not apply to (i) Domestic Subsidiaries which are owned directly or indirectly, by one or more Foreign Subsidiaries, (ii) any Wholly-Owned domestic Restricted Subsidiary substantially all of the assets of which constitute the equity of controlled foreign corporations, (iii) Subsidiaries which are designated as, and which qualify as, Unrestricted Subsidiaries, (iv) captive insurance company subsidiaries, (v) not-for-profit subsidiaries, (vi) special purpose entities and (vii) Immaterial Subsidiaries.
(B)in the case of any Foreign Subsidiary, within 90 days after such formation, acquisition, designation or failure to qualify as an Immaterial Subsidiary, except to the extent prohibited or restricted by applicable law or by contract existing on the Closing Date or, in the case of any Foreign Subsidiary acquired after the Closing Date, existing on the date of acquisition of such Foreign Subsidiary and not entered into in contemplation thereof, cause such Foreign Subsidiary to duly execute and deliver to the Agent a counterpart of the Foreign Subsidiary Guaranty guaranteeing the other Foreign Subsidiaries’ obligations under the Loan Documents; provided that (x) the foregoing requirement shall not apply to (i) Unrestricted Subsidiaries, (ii) captive insurance companies, (iii) not-for-profit subsidiaries, (iv) special purpose entities and (v) Immaterial Subsidiaries and (y) if a Foreign Subsidiary incorporated in Australia is restricted from becoming a Guarantor by reason of section 260A of the Australian Corporations Act it shall conduct a financial assistance ‘whitewash’ pursuant to section 260B of the Australian Corporations Act to overcome that restriction within 90 days of its formation, acquisition, designation or failure to qualify as an Immaterial Subsidiary, as applicable.
(C)within 90 days after such formation, acquisition, designation or failure to qualify as an Immaterial Subsidiary, furnish to the Agent (I) in the case of a Domestic Subsidiary, a description of the personal properties of such Subsidiary in detail reasonably satisfactory to the Agent and (II) in the case of a Foreign Subsidiary, a description of all Wholly-Owned Subsidiaries of that Foreign Subsidiary;
(D)within 90 days after such formation, acquisition, designation or failure to qualify as an Immaterial Subsidiary, take, and cause such Subsidiary to take, (I) whatever action (including, without limitation, supplements to the Security Agreement, supplements to the Intellectual Property Security Agreements (if any are then in effect, or executing and delivering applicable Intellectual Property Security Agreements if none are then in effect if required by the Agent) and other
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security and pledge agreements, in all such cases, as then specified by and in form and substance reasonably satisfactory to the Agent (including delivery of all Pledged Debt of such Subsidiary, and other instruments representing such Pledged Debt indorsed in blank to the extent required by the applicable Collateral Document)) as may be necessary or advisable to provide a first-priority perfected Lien over all or substantially all of the assets of such Subsidiary (subject to exceptions as set forth in the Loan Documents (including, without limitation, those set forth at the end of this section)) and (II) whatever action (including, without limitation, supplements to any relevant Collateral Document and other security and pledge agreements, in all such cases, as specified by and in form and substance reasonably satisfactory to the Agent) as may be necessary or advisable to provide a first-priority perfected Lien over the capital stock of such Foreign Subsidiary and any Wholly-Owned Subsidiary of such Foreign Subsidiary (other than any Subsidiary organized in any jurisdiction listed on Part II of Schedule 5.01(h)), in all such cases to the same extent that such documents and instruments would have been required to have been delivered by Persons that were Guarantor Subsidiaries on the Closing Date, securing payment of all the Obligations of such Subsidiary under the Loan Documents; provided that in no event shall Excluded Foreign Subsidiaries be required to grant Liens on their properties to secure the Obligations of the Company or any Domestic Subsidiary of the Company;
(E)contemporaneously with the delivery of such Collateral Documents required to be delivered to the Agent, upon the request of the Agent in its reasonable discretion, a signed copy of an opinion, addressed to the Agent and the other Secured Parties, of counsel for the Loan Parties or counsel for the Agent (as the case may be) reasonably acceptable to the Agent, as to the validity and enforceability of the agreements entered into pursuant to this Section 5.01(h) and as to such other related matters as the Agent may reasonably request, within 90 days after such formation or acquisition; and
(F)at any time and from time to time, promptly execute and deliver any and all further instruments and documents and take all such other action as the Agent may reasonably deem necessary or desirable in perfecting and preserving the Liens of the Secured Parties under the pledges, assignments, security agreement supplements, Intellectual Property Security Agreement supplements (if any) and security agreements required under the terms of the Loan Documents.
(ii)The time periods set forth in this Section 5.01(h) may be extended in the reasonable discretion of the Agent, upon the request of the Company, if the Company and the Loan Parties are actively pursuing same. Any documentation delivered pursuant to this Section 5.01(h) shall constitute a Loan Document hereunder and any such document creating or purporting to create a Lien in favor
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of the Agent for the benefit of the Secured Parties shall constitute a Collateral Document hereunder.
The foregoing requirements of this Section 5.01(h) (a) shall not apply to (i) pledges and security interests prohibited or restricted by applicable law (including any requirement to obtain the consent of any Governmental Authority or third party); provided that, if a Foreign Subsidiary incorporated in Australia is restricted from becoming a Guarantor by reason of section 260A of the Australian Corporations Act it shall conduct a financial assistance ‘whitewash’ pursuant to section 260B of the Australian Corporations Act to overcome that restriction within 90 days of its formation, acquisition, designation or failure to qualify as an Immaterial Subsidiary, as applicable, (ii) pledges and security interests in agreements, licenses and leases that are prohibited or restricted by such agreements, licenses and leases (including any requirement to obtain the consent of any Governmental Authority or third party), to the extent prohibited or restricted thereby, and except to the extent such prohibition or restriction is ineffective under the Uniform Commercial Code or other applicable law, other than proceeds thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition, (iii) any assets or guaranty to the extent a security interest in such assets or the making of such guaranty would result in material adverse tax consequences as reasonably determined by the Company and the Agent, (iv) any real property, (v) any leasehold interest with respect to real property, (vi) letter of credit rights and commercial tort claims valued at less than $10,000,000, (vii) any governmental licenses or state or local franchises, charters and authorizations, to the extent a security interest in any such license, franchise, charter or authorization is prohibited or restricted thereby, (viii) Margin Stock and to the extent prohibited by the terms of any applicable charter, joint venture agreement, shareholders agreement or similar agreement, equity interests in any Person other than material Wholly-Owned Restricted Subsidiaries, (ix) any lease, license or agreement or any property subject to a purchase money security interest or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money arrangement or create a right of termination in favor of any other party thereto after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable law notwithstanding such prohibition (x) any assets of any Foreign Subsidiary other than the Equity Interests of the Wholly-Owned Subsidiaries of such Foreign Subsidiary, (xi) any assets of any Loan Party located outside of the United States other than the Equity Interests of the Wholly-Owned Subsidiaries of such Loan Party and (xii) in the case of the capital stock of any Excluded Foreign Subsidiary to secure the Obligations of the Company or any Domestic Subsidiary of the Company, shall be limited to 65% of the stock of such foreign subsidiary or such U.S. entity, as the case may be, (b) shall require no actions to perfect a security interest in letter of credit rights, chattel paper, hedge agreements, tax refunds, motor vehicles and other assets subject to certificates of title or commercial tort claims other than the filing of a Uniform Commercial Code financing statement or analogous form, (c) shall require no control agreements with respect to any Collateral and (d) shall not require any perfection steps under the laws of any jurisdiction outside of the United States except to the extent
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required to perfect the pledge of the Equity Interests of any of the Wholly-Owned Subsidiaries of any Loan Party; provided that any Australian Loan Party shall grant a ‘featherweight’ security interest over substantially all of its assets in a form substantially consistent with the featherweight security granted by the Australian Loan Parties on the Closing Date.
For purposed of clause (i) above, “EBITDA” means the net income of the respective Subsidiary for the respective period adjusted by adding thereto (or subtracting in the case of a gain) the following amounts to the extent deducted or included, as applicable, and without duplication, when calculating net income (a) interest expense, (b) income taxes, (c) any extraordinary gains or losses, (d) gains or losses from sales of assets (other than from sales of inventory in the ordinary course of business), (e) all amortization of goodwill and other intangibles and (f) depreciation.
(i)Use of Proceeds. The Borrowers shall use the entire amount of the proceeds of the Advances as provided in Section 2.18.
(j)Payment of Taxes, Etc. The Company and each Subsidiary shall, pay and discharge before the same shall become delinquent, all lawful governmental claims, taxes, assessments, charges and levies (including but not limited to, taxes or levies imposed pursuant to ERISA), except where (a) contested in good faith, by proper proceedings and adequate reserves therefor have been established on the books of the Company, the appropriate Subsidiary in conformity with GAAP or (b) the failure to comply with the covenants in this Section 5.01 would not, in the aggregate over all such failures, have a Material Adverse Effect.
(k)Maintenance of Ratings. Use commercially reasonable efforts to maintain at all times (a) corporate family ratings from Moody’s and corporate credit ratings from S&P and (b) ratings for the Facilities from Moody’s and S&P.
(l)Designation of Subsidiaries. The Company may at any time designate any Subsidiary (other than the Company or any other Borrower) as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (a) immediately before and after such designation, no Default (including in respect of Section 5.02(d)) shall have occurred and be continuing and (b) immediately after giving effect to such designation, the Borrowers shall be in compliance, on a Pro Forma Basis, with the covenant set forth in Section 5.03. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an investment by the Borrowers therein (and must comply as such with the limitations investments under Section 5.02(d)) at the date of designation in an amount equal to the net book value of the Borrowers’ investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time. Any Subsidiary designated as an Unrestricted Subsidiary may subsequently be re-designated as a Restricted Subsidiary.
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(m)Post-Closing Matters. The Borrowers shall ensure that the matters specified in Schedule 5.01(m) shall be completed or otherwise satisfied as set forth and in the time periods (as extended by the Agent in its discretion) in such Schedule.
(n)KYC Requests. Promptly following any request therefor, provide information and documentation reasonably requested by the Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation.
(o)Accounting Changes. The Loan Parties and Restricted Subsidiaries shall provide written notice to the Agent at least thirty (30) days prior to any changes in (i) its accounting policies or reporting practices, except as permitted or required by GAAP or (ii) its Fiscal Year.
(p)Australian PPSA and New Zealand PPSA. If the Agent determines that a Loan Document (or a transaction in connection with it) is or contains a security interest for the purposes of the Australian PPSA and/or the New Zealand PPSA, each Borrower and each Guarantor agrees to do anything (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which the Agent asks and considers necessary for the purposes of:
(i)ensuring that the security interest is enforceable, perfected (including, where possible, by control in addition to registration) and otherwise effective; or
(ii)enabling the Agent to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required by the Agent; or
(iii)enabling the Agent to exercise rights in connection with the security interest.
For the purposes of the New Zealand PPSA, each Borrower and each Guarantor waives any right it may have to receive a copy of any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to a Loan Document (or a transaction in connection with it).
(q)Sanctions, Anti-Money Laundering and Anti-Corruption Laws. Each Borrower agrees that it shall not, and shall not permit any of its respective Subsidiaries to:
(i)use the proceeds of any Borrowing or any Letter of Credit directly or, to the knowledge of the Company, indirectly, to fund any activities of, or business with, any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation of any Sanctions; or
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(ii)use the proceeds of any Borrowing or any Letter of Credit directly, or, to the knowledge of any Responsible Officer of the Company, indirectly, for any purpose which would result in any material breach of the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, the Mexican Federal Law for the Prevention and Identification of Transactions performed with Illicit Resources (Ley Federal para la Prevención e Identificación de Operaciones con Recursos de Procedencia Ilícita), the Corruption of Foreign Public Officials Act (Canada) or other similar legislation relating to bribery or corruption in other jurisdictions applicable to the Borrowers or their respective Subsidiaries (collectively, “Anti-Corruption Laws”) or Anti-Money Laundering Laws;
provided, however, that the provisions of this Section 5.01(q) shall not apply to any Group Member organized in the Federal Republic of Germany to the extent that compliance with the above by such Group Member would result in (A) any violation of, conflict with or liability under Council Regulation (EC) 2271/96, or (B) a violation or conflict with section 7 foreign trade rules (AWV) (Aussenwirtschaftsverordnung) or a similar anti-boycott statute applicable to any Group Member.
(r)Anti-Social Forces. The Company will, and will cause each of its Restricted Subsidiaries to, (x) not become a member of an Anti-Social Group, (y) not have any Anti-Social Relationship or (z) not engage in any Anti-Social Conduct, whether directly or indirectly through a third party.
(s)Centre of main interest and central administration. No Luxembourg Loan Party will do anything to change the location of its centre of main interests, and each Luxembourg Loan Party will maintain its central administration in Luxembourg.
SECTION 5.02Negative Covenants. So long as any Advance or Letter of Credit shall remain outstanding or any Lender shall have any Commitment hereunder:
(a)Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
(i)Liens arising under the Collateral Documents or any incremental amendment agreement;
(ii)Liens on any asset securing Indebtedness permitted under Section 5.02(b)(viii);
(iii)Liens existing on the date hereof and listed on Schedule 5.02(a) hereto;
(iv)any Lien on any asset of any Person existing at the time such Person becomes a Subsidiary of the Company and not created in contemplation of such event;
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(v)any Lien on any asset of any Person existing at the time such Person is merged or consolidated with or into the Company or any of its Subsidiaries and not created in contemplation of such event;
(vi)any Lien on any asset existing prior to the acquisition thereof by the Company or any of its Subsidiaries and not created in contemplation of such acquisition;
(vii)any Lien arising out of the renewal, replacement or refunding of any Indebtedness secured by any Lien permitted by any of the foregoing clauses of this Section; provided that such Indebtedness is not increased other than by an amount equal to any reasonable financing fees and is not secured by any additional assets;
(viii)Liens securing Indebtedness incurred pursuant to, and permitted under, Section 2.04;
(ix)Permitted Liens;
(x)Liens not otherwise permitted by this Section 5.02(a) securing Indebtedness in an aggregate principal amount outstanding at any time not exceeding $300,000,000; and
(xi)Liens pursuant to a Permitted Receivables Financing that is permitted pursuant to Section 5.02(b)(xi).
provided, that to the extent any Liens are incurred in connection with a Limited Condition Acquisition, at the election of the Company, the incurrence of Liens pursuant to this Section 5.02(a) shall be in accordance with the provisions of Section 1.14.
(b)Indebtedness. None of the Loan Parties will, or will permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness, except:
(i)Indebtedness under the Loan Documents;
(ii)Indebtedness existing on the date hereof and listed on Schedule 5.02(b) hereto and any Permitted Refinancing Indebtedness in respect thereof;
(iii)Indebtedness in respect of the Existing Sealed Air Notes and any Permitted Refinancing Indebtedness in respect thereof;
(iv)Indebtedness of any Person existing at the time such Person becomes a Subsidiary of the Company or is merged or consolidated into the Company or any of its Subsidiaries and not created in contemplation of such event; provided that on a Pro Forma Basis (assuming that such event had been consummated on the first day of the most recently ended period of four fiscal
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quarters for which financial statements have been or are required to have been delivered pursuant to Section 5.01(a)), the Company would have been in compliance with Section 5.03 determined as of the last day of such period, and any renewal, replacement or refunding thereof so long as such renewal, replacement or refunding does not increase the amount of such Indebtedness;
(v)Indebtedness of (A) any Loan Party to any other Loan Party; (B) any Group Member which is not a Loan Party to any other Group Member which is also not a Loan Party; (C) any Loan Party to any Group Member which is not a Loan Party and (D) any Group Member which is not a Loan Party to any Loan Party to the extent permitted pursuant to Section 5.02(d)(x), and in each case as applicable including Indebtedness in connection with obligations under Liquidity Structures; provided that in each case of subclauses (A) through (D) of this clause (v), all such Indebtedness owing by or payable by a Loan Party, shall be subordinated to the Secured Obligations on terms reasonably satisfactory to the Agent;
(vi)Indebtedness in connection with issuance of one or more performance bonds securing obligations of the type set forth in clauses (a) and (b) of the definition of “Permitted Liens”;
(vii)Indebtedness in connection with Cash Management Obligations;
(viii)Capital Lease Obligations and purchase money obligations for fixed or capital assets in an aggregate amount not to exceed $100,000,000 outstanding at any time;
(ix)subject to the proviso at the end of this Section 5.02(b), other Indebtedness; provided that no Event of Default has occurred and is continuing at the time of incurrence thereof and on the date of incurrence thereof (or would result from such incurrence), either (a) the Company shall be in compliance with the financial covenant set forth in Section 5.03 (except that for purposes of determining compliance with this clause (ix), the applicable Net Total Leverage Ratio in Section 5.03 shall be reduced by 0.50:1.00) determined as of the end of the fiscal quarter immediately preceding such date on a Pro Forma Basis to include such Indebtedness and all other Indebtedness incurred since the end of such fiscal quarter or (b) the Company shall be in compliance with the financial covenant set forth in Section 5.03 determined as of the end of the fiscal quarter immediately preceding such date on a Pro Forma Basis to include such Indebtedness and all other Indebtedness incurred since the end of such fiscal quarter and the Interest Coverage Ratio is equal to or greater than 2.00:1.00, as determined on a Pro Forma Basis as of the end of the fiscal quarter immediately preceding such date;
(x)subject to the proviso at the end of this Section 5.02(b), other Indebtedness in an aggregate principal amount not to exceed the greater of (A) $750,000,000, and (B) an amount of Indebtedness such that, at the time of the
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incurrence of such Indebtedness, the Net Total Secured Leverage Ratio, determined as of the end of the fiscal quarter immediately preceding the date of such incurrence, on a Pro Forma Basis, shall not be greater than 3.50:1:00; provided, in each case, that no Event of Default has occurred and is continuing at the time of incurrence thereof and on the date of incurrence thereof (or would result from such incurrence);
(xi)Indebtedness in respect of Permitted Receivables Financings; provided that, in the event the aggregate size of Permitted Receivables Financings pursuant to this clause (xi) exceeds $400,000,000 (or the Equivalent thereof at the time of incurrence), then 100% of all additional Indebtedness in respect of Permitted Receivables Financings shall be applied to the mandatory repayment of indebtedness under this Agreement under the terms of Section 2.11(b)(ii)(C) hereof;
(xii)any liability arising under a declaration of joint and several liability (hoofdelijke aansprakelijkheid) as referred to in Section 2:403 of the Dutch Civil Code (and any residual liability arising pursuant to Section 2:402(2) of the Dutch Civil Code);
(xiii)any liability arising as a result of Group Members forming part of a fiscal unity (fiscale eenheid);
(xiv)unsecured Indebtedness of any Foreign Subsidiary in an aggregate amount not to exceed $500,000,000 outstanding at any time;
(xv)Indebtedness of the Company or any Restricted Subsidiary in connection with obligations under Liquidity Structures; and
(xvi)Indebtedness incurred pursuant to Section 2.04;
provided that notwithstanding anything to the contrary contained in clauses (ix) and (x) above, the total aggregate amount of Indebtedness incurred thereunder by all Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed an aggregate amount of $250,000,000 outstanding at any time and, provided, further, that to the extent the proceeds of any incurrence of Indebtedness are intended to be applied to finance a Limited Condition Acquisition, at the election of the Company, the incurrence of Indebtedness pursuant to this Section 5.02(b) shall be in accordance with the provisions of Section 1.14.
(c)Restricted Payments. Neither the Company nor any Restricted Subsidiary will, directly or indirectly, declare or make any Restricted Payment or incur any obligation (contingent or otherwise) to do so, except:
(i)the Company and its Restricted Subsidiaries may make dividends and other distributions payable solely in Equity Interests of such Person;
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(ii)(A) any Group Member may make distributions to the Company or to any Loan Party, and (B) any Group Member which is not a Loan Party may make distributions to any other Group Member which is also not a Loan Party; provided that in the case of Restricted Payments in the form of distributions from Subsidiaries of the Company that are not Wholly-Owned Subsidiaries of the Company (whether directly or indirectly held), such distributions are made on a ratable basis to all equity holders; provided further that in no event shall any Domestic Subsidiaries be permitted to make Restricted Payments to any Foreign Subsidiaries that are not Loan Parties under this provision (it being understood and agreed that (i) distributions may be made by Loan Parties to any Group Member that is not a Loan Party as part of a related series of transactions in which the money or property being distributed ultimately is received by a Loan Party and (ii) distributions may be made by Domestic Subsidiaries to Foreign Subsidiaries that are not Loan Parties as part of a related series of transactions in which the money or property being distributed ultimately is received by a Foreign Subsidiary that is a Loan Party; provided however, that to the extent any “related series of transactions”, as referred to in this Section 5.02(c)(ii), involves a transaction that is not a distribution, such transaction, as determined by the Agent, shall not adversely affect the interests of the Lenders);
(iii)repurchases of Equity Interests in a cashless transaction deemed to occur upon exercise or vesting of restricted stock, stock options or warrants;
(iv)to the extent constituting Restricted Payments, the Company and its Restricted Subsidiaries may enter into transactions permitted by Sections 5.02(e) and 5.02(f);
(v)the Company may make Restricted Payments in cash so long as (x) the Net Total Leverage Ratio as of the end of the fiscal quarter immediately preceding the date of such Restricted Payment, on a Pro Forma Basis, does not exceed 4.50:1.00 and (y) no Default or Event of Default has occurred and is continuing, or would result therefrom;
(vi)the Company may make Restricted Payments in cash in an aggregate amount not to exceed the Available Basket Amount on the date of such Restricted Payment;
(vii)the Company may make other Restricted Payments in cash in an aggregate amount not to exceed in any Fiscal Year (A) $125,000,000 plus (B) any Roll-Forward Amount from the immediately preceding Fiscal Year; and
(viii)Restricted Payments to pay for the settlement, repurchase, retirement or other acquisition or retirement for value, or satisfaction of any obligation, of Equity Interests of the Company or any direct or indirect parent company of the Company held by any future, present or former employee, director, manager or consultant of the Company, any of its Subsidiaries or any direct or indirect parent company of the Company pursuant to any management
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equity plan or stock option plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Company or any direct or indirect parent company of the Company in connection with such repurchase, retirement or other acquisition); provided that the aggregate Restricted Payments made under this clause (viii) do not exceed in any calendar year $10,000,000 (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $15,000,000 in any calendar year); provided further that such amount in any calendar year may be increased by an amount not to exceed: (A) the cash proceeds from the sale of Equity Interests of the Company and, to the extent contributed to the Company, the cash proceeds from the sale of Equity Interests of any direct or indirect parent company of the Company, in each case to any future, present or former employees, directors, managers or consultants of the Company, any of its Subsidiaries or any direct or indirect parent company of the Company that occurs after the Closing Date, plus (B) the cash proceeds of key man life insurance policies received by the Company and the Restricted Subsidiaries after the Closing Date, less (C) the amount of any Restricted Payments previously made pursuant to clauses (A) and (B) of this clause (viii); and provided further that cancellation of Indebtedness owing to the Company or any Restricted Subsidiary from any future, present or former employees, directors, managers or consultants of the Company, any direct or indirect parent company of the Company or any Restricted Subsidiary in connection with a repurchase of Equity Interests of the Company or any direct or indirect parent company of the Company will not be deemed to constitute a Restricted Payment for purposes of this Section 5.02(c) or any other provision of this Agreement.
(d)Investments. Neither the Company nor any Restricted Subsidiary will, directly or indirectly, make or hold any Investments, except:
(i)Investments held by the Company or any of its Restricted Subsidiaries in the form of Cash Equivalents;
(ii)Investments existing on the date hereof and listed on Schedule 5.02(d) (or with respect to Investments in Equity Interests, listed on Schedule 4.01(l)) hereto and extensions, renewals, modifications, restatements or replacements thereof; provided, that no such extension, renewal, modification or restatement shall increase the amount of the original loan, advance or investment, except by an amount equal to any premium or other reasonable amount paid in respect of the underlying obligations and fees and expenses incurred in connection with such replacement, renewal or extension;
(iii)advances to officers, directors and employees of the Company and its Restricted Subsidiaries in an aggregate amount not to exceed $15,000,000 at
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any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;
(iv)Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(v)Investments (including debt obligations and Equity Interests) received in satisfaction of judgments or in connection with the bankruptcy or reorganization of suppliers and customers of the Company and its Restricted Subsidiaries and in settlement of delinquent obligations of, and other disputes with, such customers and suppliers arising in the ordinary course of business;
(vi)Permitted Acquisitions;
(vii)Investments consisting of extensions of credit or endorsements for collection or deposit in the ordinary course of business;
(viii)promissory notes and other similar non-cash consideration received by the Company and its Restricted Subsidiaries in connection with dispositions not otherwise prohibited under this Agreement;
(ix)Investments in Swap Contracts entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;
(x)(A) Investments by the Company or its Restricted Subsidiaries in any Loan Party or entity that becomes a Loan Party as a result of such Investment, provided that, the amount of Investments by any Domestic Loan Party under this clause (x)(A) in any Loan Party that is not a Domestic Loan Party shall be subject to the applicable restriction in the definition of Liquidity Structures, (B) Investments by any Group Member which is not a Loan Party in any other Group Member which is also not a Loan Party and (C) Investments by any Loan Party in a Group Member which is not a Loan Party in an aggregate amount not to exceed $250,000,000 (exclusive of any amounts permitted pursuant to clause (A) above) at any time (net of any returns of capital);
(xi)Guarantees of Leases and of other obligations not constituting Indebtedness of the Company and its Restricted Subsidiaries entered into in the ordinary course of business;
(xii)Investments by the Company or any of its Restricted Subsidiaries so long as (x) the Net Total Leverage Ratio as of the end of the fiscal quarter immediately preceding the date of such Investment, on a Pro Forma Basis, is at least 0.25:1.00 less than the maximum Net Total Leverage Ratio otherwise then
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required pursuant to Section 5.03, and (y) no Default or Event of Default has occurred and is continuing or would result therefrom;
(xiii)Investments by the Company and its Restricted Subsidiaries in an aggregate amount not to exceed the Available Basket Amount on the date of such Investment;
(xiv)Investments by the Company and its Restricted Subsidiaries made in cash in an aggregate amount not to exceed $150,000,000 at any time outstanding; and
(xv)Investments constituting loans and advances among the Company and its Restricted Subsidiaries for working capital and other ordinary course purposes pursuant to, and in accordance with, the Liquidity Structures.
provided, further, that to the extent Investments are made in connection with a Limited Condition Acquisition, at the election of the Company, the making of such Investments pursuant to this Section 5.02(d) shall be in accordance with the provisions of Section 1.14.
(e)Dispositions. Neither the Company nor any Restricted Subsidiary will make any Disposition, except:
(i)Dispositions of obsolete, worn out, damaged, surplus or otherwise no longer used or useful machinery, parts, equipment or other assets no longer used or useful in the conduct of the business of the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(ii)Dispositions of Cash Equivalents and inventory in the ordinary course of business (including the sale, transfer or other disposition of overdue or disputed accounts receivable, in connection with the compromise or collection thereof) and the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(iii)Dispositions of property subject to Events of Loss;
(iv)the sale or issuance of any Subsidiary’s Equity Interests to the Company or any Restricted Subsidiary; provided that any Subsidiary Guarantor shall only issue or sell its Equity Interests to the Company or another Loan Party;
(v)Dispositions by the Company to any Subsidiary, or by any Subsidiary to the Company or to another Subsidiary of the Company; provided that if the transferor is a Restricted Subsidiary, the transferee thereof must either be the Company or a Restricted Subsidiary; provided, further that if the transferor is the Company or a Guarantor, the transferee must be either the Company or a Guarantor; provided, further that the immediately preceding proviso shall not be applicable if either (i) (w) the transferor is a Domestic Loan Party and the transferee is a Foreign Subsidiary that is not a Loan Party, (x) the assets being
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transferred are Equity Interests in a Foreign Subsidiary and are being transferred as part of a foreign subsidiary rationalization program effected in good faith by the Company and (y) the transfer is made for fair market value as determined by the Company in its reasonable discretion or (ii) (w) the transferor is a Foreign Subsidiary that is Loan Party and the transferee is a Foreign Subsidiary that is not a Loan Party, (x) the assets being transferred are Equity Interests, (y) the transfer is made for cash consideration payable in immediately available funds and (z) the transfer is made for fair market value as determined by the Company in its reasonable discretion (it being understood and agreed that Dispositions may be made between Loan Parties as part of a related series of transactions in which the money or property being transferred ultimately is received by a Loan Party; provided however, to the extent any “related series of transactions”, as referred to in this Section 5.02(e)(v), involves a transaction with a Person that is not a Loan Party, such transaction shall not adversely affect the interests of the Lenders as determined by the Agent);
(vi)Dispositions that are Investments not prohibited by Section 5.02(d);
(vii)Dispositions of property or assets (A) with a fair market value (as reasonably determined by the Company) of less than $5,000,000; and (B) with a fair market value (as reasonably determined by the Company) of $5,000,000 or more from a Loan Party to a Subsidiary that is not a Loan Party or to a joint venture of a Loan Party, provided, that as of the date of such Disposition the aggregate fair market value of all property and assets subject to such Dispositions (reasonably determined by the Company at the time of such Dispositions) pursuant to clause (B) of this clause (vii) since the Closing Date does not exceed $50,000,000;
(viii)Dispositions of Unrestricted Subsidiaries;
(ix)Leases, subleases, licenses or sublicenses of assets or properties in the ordinary course of business and which do not materially interfere with the business of the Company and its Restricted Subsidiaries;
(x)Dispositions of IP Rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Company and its Restricted Subsidiaries, the expiration and abandonment of IP Rights and other transfers of IP Rights and copyrighted material in the ordinary course of business or that are otherwise not material to the conduct of the business of the Company and its Restricted Subsidiaries;
(xi)Dispositions of assets or properties to the extent that such assets or properties are exchanged for credit against the purchase price of similar replacement assets or properties or the proceeds of such Disposition are
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reasonably promptly applied to the purchase price of such replacement assets or properties, in each case, in the ordinary course of business;
(xii)termination of Swap Contracts;
(xiii)other Dispositions by the Company and its Restricted Subsidiaries; provided that (A) at the time of such Disposition, no Event of Default has occurred and is continuing (or would result therefrom), (B) the aggregate book value of all property Disposed of in reliance on this clause (xiii) in any Fiscal Year shall not exceed 15% of the Company’s Consolidated Net Tangible Assets, as determined as of the last day of the preceding Fiscal Year, and (C) with respect to any Disposition or series of related Dispositions with an aggregate sale price in excess of $10,000,000, at least 75% of the consideration received for each such Disposition or series of related Dispositions shall be in the form of cash or Cash Equivalents;
(xiv)any other Disposition set forth on Schedule 5.02(e) hereto;
(xv)sales of any receivables in connection with Permitted Receivables Financings permitted pursuant to Section 5.02(b)(xi) with a total aggregate maximum facility size not to exceed $400,000,000 (or the Equivalent thereof at the time of incurrence); and
(xvi)sales of receivables (other than as part of a Permitted Receivables Financing) so long as (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) each such sale is for cash which is paid at the time of such sale, (C) each such receivable sold is not past due, and (D) following such sale, such receivable is no longer recourse to the Company or any of its Subsidiaries (except with respect to customary indemnification obligations and customary recourse arising from breach of representations).
(f)Fundamental Changes. The Company will not, and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of, all or substantially all its business units, assets or other properties, except that:
(i)so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any Subsidiary of the Company or any other Person may be merged, amalgamated or consolidated with or into the Company or any Borrower; provided that (A) the Company or such Borrower shall be the continuing or surviving entity or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not the Company or such Borrower (such other Person, the “Successor Borrower”), (1) the Successor Borrower shall, as the case may be, be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof or in the case of a Borrower that is a Foreign Subsidiary, under
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the law of the jurisdiction where the relevant Borrower that is a Foreign Subsidiary was organized, (2) the Successor Borrower shall expressly assume all the obligations of the Company or such Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Agent, (3) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to the Guaranty confirmed that its guaranty thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to any applicable Collateral Document, affirmed that all of its obligations thereunder shall still apply and (5) the Successor Borrower shall have delivered to the Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements preserve the enforceability of the Guaranty and the perfection and priority of the Liens under the applicable Collateral Documents (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Company or such Borrower, as applicable, under this Agreement);
(ii)so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any Subsidiary of the Company (other than any Subsidiary that is a Borrower) or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Company (other than any Subsidiary that is a Borrower), provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Company shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall, execute a supplement to the Guaranty and the relevant Collateral Documents in form and substance reasonably satisfactory to the Agent in order to become a Guarantor and pledgor, mortgagor and grantor, as applicable, thereunder for the benefit of the Secured Parties, (iii) no Default or Event of Default has occurred and is continuing or would result from the consummation of such merger, amalgamation or consolidation and (iv) the Company shall have delivered to the Agent an officers’ certificate stating that such merger, amalgamation or consolidation and any such supplements to any Collateral Document preserve the enforceability of the Guaranties and the perfection and priority of the Liens under the applicable Collateral Documents;
(iii)any Restricted Subsidiary that is not a Loan Party may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Company or any other Restricted Subsidiary;
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(iv)any Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any Loan Party, provided that the consideration for any such disposition by any Person other than a Guarantor shall not exceed the fair value of such assets;
(v)any Restricted Subsidiary may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(vi)to the extent that no Default or Event of Default would result from the consummation of such disposition or investment, the Company and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation, investment or disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 5.02(e) or an Investment permitted pursuant to Section 5.02(d);
(vii)the Company and the Restricted Subsidiaries may consummate a Disposition constituting the sale of manufacturing facilities and related assets, in connection with establishing outsourcing arrangements providing substantially similar functionality; and
(viii)any other transaction set forth on Schedule 5.02(e) may be consummated;
provided, however, except as permitted by Section 5.02(e)(v), Section 5.02(e)(xiv) or Section 5.02(f)(vii), neither the Company nor any Domestic Subsidiary will convey, sell, lease, assign, transfer or otherwise dispose of (collectively, a “transfer”) any of its property, business or assets (including, without limitation leasehold interests), whether now owned or hereafter acquired, to any Foreign Subsidiary, except to the extent that such transfer or series of related transfers (A) individually or in the aggregate, would not reasonably be expected to materially and adversely affect the business, results of operations or financial condition of the Company and its Subsidiaries taken as a whole, (B) are made for cash consideration payable in immediately available funds (provided that this clause (B) shall not apply to any transfer of Equity Interest for which reasonable equivalent non-cash value is given), and (C) are made for consideration equal to the value of the asset or assets that would be attributed to such asset or assets being transferred by an independent and unaffiliated third party purchasing such assets in an arms-length sale transaction as of such date, as determined in good faith by the Company.
(g)Change in Nature of Business. The Company will not, and will not permit any of its Restricted Subsidiaries to, engage in any business other than the businesses in which the Company and its Subsidiaries, taken as a whole, are engaged on the Closing Date, plus extensions and expansions thereof, and businesses and activities ancillary or complimentary thereto.
(h)Transactions with Affiliates. Neither any Loan Party nor any Restricted Subsidiary will effect any transaction with any Affiliate of the Company that is not a
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Restricted Subsidiary, having a value, or for consideration having a value, in excess of $50,000,000 unless the board of directors (or the person duly authorized to perform similar functions) of the Company or such Restricted Subsidiary shall make a good faith determination that the terms of such transaction are, taken as a whole, no less favorable to the Company or such Restricted Subsidiary, as the case may be, than would at the time be obtainable for a comparable transaction in arms-length dealing with an unrelated third party; provided, however, that this Section 5.02(h) shall not apply to (i) overhead and other ordinary course allocations of costs and services on a reasonable basis, (ii) allocations of tax liabilities and other tax-related items among the Company and its Affiliates based principally upon the financial income, taxable income, credits and other amounts directly related to the respective parties, to the extent that the share of such liabilities and other items allocable to the Company and its Restricted Subsidiaries shall not exceed the amount that such Persons would have been responsible for as a direct taxpayer and (iii) any Investment permitted by Section 5.02(d) or any Restricted Junior Payment permitted by Section 5.02(l), and (iv) the Liquidity Structure; provided, further, that this provision shall not permit Dispositions, sales, loans, leases, assignments, transfers or other dispositions to any Foreign Subsidiary which is otherwise restricted under any other provisions of this Section 5.02.
(i)Speculative Hedging Activities. Neither the Company nor any Restricted Subsidiary will enter into any Swap Contracts other than in the ordinary course of business for non-speculative purposes and consistent with sound business practice.
(j)Sales and Leasebacks. Except as set forth on Schedule 5.02(j), neither any Loan Party nor any Restricted Subsidiary will (i) become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property, whether now owned or hereafter acquired (A) which such Loan Party has sold or transferred or is to sell or transfer to any other Person (other than another Loan Party) or (B) which such Loan Party intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by a Loan Party to any Person (other than another Loan Party) in connection with such lease, or (ii) create, incur, assume or suffer to exist any obligations as lessee under operating leases or agreements to lease having an original term of one year or more that would cause the direct and contingent liabilities of the Company and its Subsidiaries, on a consolidated basis, in respect of all such obligations to exceed $50,000,000 payable in any period of 12 consecutive months; provided that nothing in this Section 5.02(j) shall be construed to prevent the obligations described herein from being incurred pursuant to Section 5.02(b)(x) (to the extent such obligations could otherwise be incurred pursuant to Section 5.02(b)(x)).
(k)Negative Pledge. Neither any Loan Party nor any Restricted Subsidiary will enter into or suffer to exist, or permit any of its Restricted Subsidiaries to enter into or suffer to exist, any agreement prohibiting, restricting or conditioning the creation, maintenance, reapplication or assumption of any Lien on the Collateral securing the Obligations pursuant to the Collateral Documents, except (i) agreements in favor of the Secured Parties, (ii) agreements governing Indebtedness or other arrangements secured by Liens permitted under Section 5.02(a)) so long as such restrictions extend only to (x) the property acquired with or subject to such Indebtedness or (y) the property subject
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to such other arrangements, as the case may be, (iii) agreements in existence on the Closing Date and set forth on Schedule 5.02(k) including any renewals, extensions or replacements of such agreements on terms not materially less favorable to the interests of the Lenders than those in effect on the date of this Agreement, (iv) purchase money obligations for property acquired in the ordinary course of business, (v) pursuant to any requirement of law or any applicable rule, regulation or order, (vi) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such transaction (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired or designated, (vii) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the capital stock or assets of such Subsidiary, (viii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business, (ix) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture, (x) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the ordinary course of business, (xi) restrictions created in connection with any Permitted Receivables Financing that, in the good faith determination of the Company, are necessary or advisable to effect such Permitted Receivables Financing, (xii) agreements relating to Liquidity Structures to which the Agent, any Co-Documentation Agent, any Co-Syndication Agent or any Affiliate of any of the aforementioned is a party and (xiii) so long as no Optional Release Date has occurred, and so long as the terms and scope of the restrictions or conditions therein with respect to the assumption of any Lien (x) are reasonably related to the purpose of such agreement and (y) would not restrict or condition the Liens of the Secured Parties on any material portion of the Collateral, any other agreements expressly permitted under the terms of the Loan Documents.
(l)Restricted Junior Payments. Neither any Loan Party nor any Restricted Subsidiary will, or will permit any of their Restricted Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, except:
(i)the Company may make Restricted Junior Payments so long as (A) the Net Total Leverage Ratio as of the end of the fiscal quarter immediately preceding the date of such Restricted Junior Payment, on a Pro Forma Basis, is less than the Net Total Leverage Ratio then required pursuant to Section 5.03, and (B) the Company is Liquidity Test Compliant both before and, on a Pro Forma Basis, after the consummation of any such Restricted Junior Payment;
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(ii)the Company may make Restricted Junior Payments in cash in an aggregate amount not to exceed the Available Basket Amount on the date of such Restricted Junior Payment;
(iii)the Company may make Restricted Junior Payments by the conversion of the applicable Indebtedness to common equity of the Company or Qualified Preferred Equity of the Company, applying the Net Cash Proceeds of the issuance of such common equity or such Qualified Preferred Equity to the payment of such Indebtedness or exchanging such Indebtedness solely for such common equity or such Qualified Preferred Equity or Subordinated Indebtedness of the Company; and
(iv)the Company may make other Restricted Junior Payments in cash in an aggregate amount not to exceed $125,000,000 since the Closing Date.
(m)Capital Increase. The Company and the Loan Parties shall procure that the stated share capital of (i) any Loan Party incorporated in Germany as a limited liability company (Gesellschaft mit beschränkter Haftung) or (ii) any general partner of a Loan Party which is established in Germany as a limited liability partnership or a partnership (GmbH & Co. KG / GmbH & Co. oHG) will not be increased without the prior written consent of the Agent.
Notwithstanding anything in this Agreement to the contrary, (i) during any period of time that (A) the Covenant Ratings Condition has been satisfied and, as of the applicable date of determination, has remained satisfied for an uninterrupted period of at least 30 consecutive days, and (B) no Event of Default has occurred and is continuing (the simultaneous occurrence of both of the events described in the foregoing clauses (A) and (B) being collectively referred to as a “Covenant Suspension Event”), the Company and the Restricted Subsidiaries will not be required to comply with the terms of Sections 5.02(c), 5.02(d), 5.02(e), 5.02(j) and 5.02(l) collectively, the “Suspension Covenants”), and (ii) during any period of time when a Covenant Suspension Event shall have occurred and be continuing and the Interest Coverage Ratio is greater than or equal to 2.00:1.00 (as determined on a Pro Forma Basis, giving effect to each anticipated indebtedness incurrence event, as of the end of the fiscal quarter immediately preceding such date), the Company and the Restricted Subsidiaries will not be required to comply with Section 5.02(b) other than the proviso at the end of Section 5.02(b) (the “Suspension Debt Covenant”). In the event that the Company and the Restricted Subsidiaries are not required to comply with the Suspension Covenants or the Suspension Debt Covenant for any period of time as a result of the foregoing, and on any subsequent date (the “Reversion Date”) the Covenant Ratings Condition is not satisfied (or in the case of the Suspension Debt Covenant, the Interest Coverage Ratio shall be less than 2.00:1.00 as of such date), then the Company and the Restricted Subsidiaries will thereafter again be required to comply with the Suspension Covenants, and the Suspension Debt Covenant with respect to any future events or transactions. Notwithstanding that the Suspension Covenants and the Suspension Debt Covenant may be reinstated, no Default, Event of Default or breach of any kind shall be deemed to exist under any Loan Document with respect to the Suspension Covenants or Suspension Debt Covenant, as the case may be, and none of the Company or any of its Subsidiaries shall bear any liability for any actions taken or events occurring during the Suspension Period, or any actions
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taken at any time pursuant to any contractual obligation arising prior to the Reversion Date, as a result of a failure to comply with the Suspension Covenants or the Suspension Debt Covenant during the Suspension Period (or upon termination of the Suspension Period or after that time based solely on events that occurred during the Suspension Period); provided, that all prepayment obligations contained herein that make reference to any Suspension Covenant shall survive regardless of the occurrence of a Covenant Suspension Event.
SECTION 5.03Company Net Total Leverage Ratio. So long as any Advance or Letter of Credit shall remain outstanding or any Lender shall have any Commitment hereunder, the Company will not permit the Net Total Leverage Ratio for any Test Period ending on the last day of any full fiscal quarter following the Closing Date to exceed: (a) 4.50:1.00; provided, that the maximum Net Total Leverage Ratio permitted for the purpose of determining compliance with this Section 5.03 shall be increased to 5.00:1.00 for the first four full fiscal quarters following the consummation of a Material Acquisition (for the avoidance of doubt, no such increase in the maximum permitted Net Total Leverage Ratio pursuant to this proviso shall be used in any calculation of the Net Total Leverage Ratio and/or determination of compliance with this Section 5.03 for purposes of any provision of Section 5.02); provided, further, notwithstanding the consummation of any subsequent Material Acquisition(s) in no event shall the foregoing increase in the maximum permitted Total Net Leverage Ratio apply for more than four consecutive fiscal quarters; or (b) at all times following satisfaction of the Collateral Ratings Condition and the release of the Collateral pursuant to Section 9.17(a) hereof, and notwithstanding anything to the contrary in this Section 5.03, 3.50:1.00.
ARTICLE VI
EVENTS OF DEFAULT
EVENTS OF DEFAULT
SECTION 6.01Events of Default. If any of the following events (“Events of Default”) shall occur and be continuing:
(a)Payments. Any Borrower shall (i) default in the payment when due of any payment of principal of its Advances or Notes or (ii) default, and such default shall continue unremedied for at least five Business Days, of any payment of interest on its Advances or Notes, of any fees or other amounts owing by it hereunder or thereunder; or
(b)Representations, etc. Any representation, warranty or statement made by any Borrower herein or in any other Loan Document or in any certificate delivered pursuant hereto or thereto shall prove to have been, when made, untrue in any material respect; or
(c)Covenants. Any Borrower shall (i) default in the due performance or observance by it of any term, covenant or agreement contained in Sections 5.01(a)(iv)(A), 5.01(d), 5.01(i), 5.02 (other than subsections (f) or (g) thereof) or 5.03, or (ii) default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in Sections 6.01(a) or (b) and clause (i) of this Section 6.01(c) and other than Section 5.03 but including Sections 5.02(f) and (g)) contained in this Agreement and such default described in this clause (ii) shall continue
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unremedied for a period of 30 days after written notice to the Company by the Agent or the Required Lenders; or
(d)Default Under Other Agreements. (i) The Company or any of its Subsidiaries shall (x) default in any payment of any Indebtedness (other than the Notes) beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created or (y) default in the observance or performance of any agreement or condition relating to any Indebtedness (other than the Notes) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (determined without regard to whether any notice is required), any such Indebtedness to become due prior to its stated maturity, or (ii) any Indebtedness of the Company or any of its Subsidiaries shall be declared to be due and payable, or required to be prepaid other than by a regularly scheduled or other mandatory required prepayment or by reason of optional prepayment or tender by the issuer at its discretion, prior to the stated maturity thereof; provided that it shall not constitute an Event of Default pursuant to this clause (d) unless the aggregate amount of all Indebtedness referred to in clauses (i) and (ii) above exceeds $85,000,000 at any one time; or
(e)Bankruptcy, etc. The Company or any of its Material Subsidiaries shall commence a voluntary case concerning itself under Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto (the “Bankruptcy Code”) or, in the case of a Foreign Subsidiary, any similar proceedings in the jurisdiction or state under the laws of which such Foreign Subsidiary is organized; or an involuntary case is commenced against the Company or any of its Material Subsidiaries, and the petition is not dismissed within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code) or similar officer is appointed for, or takes charge of, all or substantially all of the property of the Company or any of its Material Subsidiaries, or the Company or any of its Material Subsidiaries commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Company or any of its Material Subsidiaries, or there is commenced against the Company or any of its Material Subsidiaries any such proceeding which remains undismissed for a period of 60 days, or the Company or any of its Material Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or the Company or any of its Material Subsidiaries suffers any appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a period of 60 days; or the Company or any of its Material Subsidiaries makes a general assignment for the benefit of creditors; or any corporate action is taken by the Company or any of its Material Subsidiaries for the purpose of effecting any of the foregoing; or any Material Subsidiary having its center of main interests in Germany is unable to pay its debts when they fall due (zahlungsunfähig) or over-indebted (überschuldet) within the meaning of sect. 17 or 19 of the German Insolvency Code, or any third party has filed for the opening of insolvency proceedings with respect to such Material Subsidiary unless such filing is
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obviously frivolous (offensichtlich rechtsmissbräuchlich) and is dismissed by the relevant insolvency court within 14 days, or the managing directors of such Material Subsidiary have filed for the opening of insolvency proceedings; or any Material Subsidiary incorporated in Australia or New Zealand (i) is unable to pay all of its debts as and when they become due and payable or is otherwise presumed to be insolvent under the Corporations Act or similar law of any jurisdiction, (ii) is in liquidation, in provisional liquidation, under administration or wound up or has had a Controller (as defined in the Corporations Act) or an insolvency official under the laws of another jurisdiction appointed to its property or (iii) is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the Agent); or any step is taken to appoint, or with a view to appointing, a statutory manager (including the making of any recommendation in that regard by the Financial Markets Authority of New Zealand) under the Corporations (Investigation and Management) Act 1989 of New Zealand in respect of any Material Subsidiary, or any Material Subsidiary is declared at risk pursuant to the provisions of that Act; or
(f)ERISA.
(i)any Reportable Event shall have occurred with respect to a Plan and the sum (determined as of the date of occurrence of such Reportable Event) of the Insufficiency of such Plan and the Insufficiency of any and all other Plans with respect to which a Reportable Event shall have occurred and then exist (or the liability of the Borrowers and the ERISA Affiliates related to such Reportable Event) would reasonably be expected to have a Material Adverse Effect;
(ii)any Borrower or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an amount that, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Borrowers and the ERISA Affiliates as Withdrawal Liability (determined as of the date of such notification), would reasonably be expected to have a Material Adverse Effect;
(iii)any Borrower or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is Insolvent or has been determined to be in “endangered” or “critical” status within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA, and as a result of such insolvency or determination, the aggregate annual contributions of the Borrowers and the ERISA Affiliates to all Multiemployer Plans that are then Insolvent or in “endangered” or “critical” status have been or will be increased over the amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans immediately preceding the plan year in which such insolvency or determination occurs would reasonably be expected to have a Material Adverse Effect; and
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(iv)a Canadian Pension Event shall occur which would reasonably be expected to have a Material Adverse Effect.
(g)Judgments. One or more judgments or decrees shall be entered against the Company or any of its Subsidiaries involving in the aggregate for the Company and its Subsidiaries a liability (not paid or fully covered by insurance) of $85,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged or stayed or bonded pending appeal within 30 days from the entry thereof; or
(h)Guaranty. Article VII hereof, the Subsidiary Guaranties or any material provision thereof shall cease to be in full force or effect, or the Company or any Subsidiary Guarantor or any Person acting by or on behalf of the Company or any Subsidiary Guarantor shall deny or disaffirm such Subsidiary Guarantor’s obligations under Article VII hereof or the Subsidiary Guaranties, as the case may be; or
(i)Change of Control. A Change of Control shall occur; or
(j)any Lien purported to be created under any Collateral Document shall cease to be a valid and perfected Lien on Collateral with aggregate fair market value of at least $85,000,000 with the priority required by the applicable Collateral Document, or any Lien purported to be created under any Collateral Document shall be asserted by any Loan Party not to be a valid and perfected Lien on any Collateral with the priority required by the applicable Collateral Document, except (i) as a result of the release of a Loan Party or the sale or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents or (ii) as a result of the Agent’s failure to maintain possession of any stock certificates, promissory notes or other instruments delivered to it under the Collateral Agreement; or
(k)(A) the Obligations shall fail to constitute “Senior Debt” (or the equivalent thereof) and “Designated Senior Debt” (or the equivalent thereof) under the documentation governing any subordinated obligations of any Loan Party, or (B) the subordination provisions thereunder shall be invalidated or otherwise cease, or shall be asserted in writing by any Loan Party to be invalid or to cease, to be legal, valid and binding obligations of the parties thereto, enforceable in accordance with their terms;
then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrowers, declare the obligation of each Lender to make Advances (other than Advances to be made by a Lender pursuant to Section 2.02(b) or by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrowers, declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon such Advances, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrowers; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code, (A) the obligation of each Lender to make Advances (other than Advances to be made by a Lender pursuant to Section 2.02(b) or by an Issuing Bank
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or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue Letters of Credit shall automatically be terminated and (B) the Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrowers.
Solely for the purposes of determining whether an Event of Default has occurred under clause (d), (e) or (g) of Section 6.01, any reference in any such clause to any Subsidiary shall be deemed not to include any Immaterial Subsidiary affected by any event or circumstance referred to in any such clause.
SECTION 6.02Actions in Respect of the Letters of Credit upon Default. If any Event of Default shall have occurred and be continuing, the Agent may with the consent, or shall at the request, of the Required Lenders, irrespective of whether it is taking any of the actions described in Section 6.01 or otherwise, make demand upon the Company to, and forthwith upon such demand the Company will, (a) pay to the Agent on behalf of the Lenders in same day funds at the Agent’s office designated in such demand, for deposit in the L/C Cash Deposit Account, an amount equal to the aggregate Available Amount of all Letters of Credit then outstanding or (b) make such other reasonable arrangements in respect of the outstanding Letters of Credit as shall be acceptable to the Required Lenders; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code, (A) the obligation of the Borrowers to pay to the Agent on behalf of the Lenders in same day funds at the Agent’s office designated in such demand, for deposit in the L/C Cash Deposit Account, an amount equal to the aggregate Available Amount of all Letters of Credit then outstanding shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrowers. If at any time the Agent reasonably determines that any funds held in the L/C Cash Deposit Account are subject to any right or interest of any Person other than the Agent and the Lenders or that the total amount of such funds is less than the aggregate Available Amount of all Letters of Credit, the Borrowers will, forthwith upon demand by the Agent, pay to the Agent, as additional funds to be deposited and held in the L/C Cash Deposit Account, an amount equal to the excess of (a) such aggregate Available Amount over (b) the total amount of funds, if any, then held in the L/C Cash Deposit Account that are free and clear of any such right and interest. Upon the drawing of any Letter of Credit, to the extent funds are on deposit in the L/C Cash Deposit Account, such funds shall be applied to reimburse the Issuing Banks to the extent permitted by applicable law, and if so applied, then such reimbursement shall be deemed a repayment of the corresponding Advance in respect of such Letter of Credit. After all such Letters of Credit shall have expired or been fully drawn upon and all other obligations of the Borrowers hereunder and under the Notes shall have been paid in full, the balance, if any, in such L/C Cash Deposit Account shall be promptly returned to the Company.
ARTICLE VII
GUARANTY
GUARANTY
SECTION 7.01Guaranty. The Company hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all obligations of
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each other Borrower now or hereafter existing under or in respect of (i) this Agreement or any Notes (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise, (ii) Cash Management Obligations and (iii) Swap Obligations (all such obligations referred to clause (i), (ii) and (iii) being the “Guaranteed Obligations”), and agrees to pay all reasonable and documented out-of-pocket expenses (including, without limitation, fees and expenses of counsel) incurred by the Agent or any Lender in enforcing any rights under this Guaranty. Without limiting the generality of the foregoing, the Company’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Borrower to the Agent or any Lender under or in respect of this Agreement or any Notes but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Borrower.
SECTION 7.02Keepwell. Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under each applicable Guaranty in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 7.02 for the maximum amount of such liability that can be hereby or thereby incurred without rendering its obligations under this Section 7.02, or otherwise under such Guaranty, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until a discharge or release of the (i) Guaranteed Obligations, (ii) the “Guaranteed Obligations” (as defined in the Foreign Subsidiary Guaranty), (iii) the “Guaranteed Obligations” (as defined in the US Subsidiary Guaranty), and (iv) all guaranteed obligations under each other Guaranty. Each Qualified ECP Guarantor intends that this Section 7.02 constitutes, and this Section 7.02 shall be deemed to constitutes, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
SECTION 7.03Guaranty Absolute. The Company guarantees payment of the Guaranteed Obligations strictly in accordance with the terms of this Agreement and any Notes, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent or any Lender with respect thereto. The obligations of the Company under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other obligations of any other Borrower under or in respect of this Agreement and any Notes, and a separate action or actions may be brought and prosecuted against the Company to enforce this Guaranty, irrespective of whether any action is brought against any other Borrower or whether any other Borrower is joined in any such action or actions. The liability of the Company under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and the Company hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
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(a)any lack of validity or enforceability of this Agreement, the Notes or any agreement or instrument relating thereto;
(b)any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other obligations of any other Borrower under or in respect of this Agreement and any Notes, or any other amendment or waiver of or any consent to departure from this Agreement or any Note, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Borrower or any of its Subsidiaries or otherwise;
(c)any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;
(d)any manner of application of any collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any other collateral for all or any of the Guaranteed Obligations or any other obligations of any Borrower under this Agreement and any Notes or any other assets of any Borrower or any of its Subsidiaries;
(e)any change, restructuring or termination of the corporate structure or existence of any Borrower or any of its Subsidiaries;
(f)any failure of the Agent or any Lender to disclose to the Company any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Borrower now or hereafter known to the Agent or such Lender (the Company waiving any duty on the part of the Agent and the Lenders to disclose such information);
(g)the failure of any other Person to execute or deliver this any other guaranty or agreement or the release or reduction of liability of any other guarantor or surety with respect to the Guaranteed Obligations; or
(h)any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Agent or any Lender that might otherwise constitute a defense available to, or a discharge of, any Borrower or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the Agent or any Lender or any other Person upon the insolvency, bankruptcy or reorganization of any other Borrower or otherwise, all as though such payment had not been made.
SECTION 7.04Waivers and Acknowledgments. The Company hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Agent or any Lender protect, secure, perfect or insure any
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Lien or any property subject thereto or exhaust any right or take any action against any Borrower or any other Person or any collateral.
(a)The Company hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.
(b)The Company hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by the Agent or any Lender that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of the Company or other rights of the Company to proceed against any of the other Borrower, any other guarantor or any other Person or any collateral and (ii) any defense based on any right of setoff or counterclaim against or in respect of the obligations of the Company hereunder.
(c)The Company hereby unconditionally and irrevocably waives any duty on the part of the Agent or any Lender to disclose to the Company any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Borrower or any of its Subsidiaries now or hereafter known by the Agent or such Lender.
(d)The Company acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by this Agreement and any Notes and that the waivers set forth in Section 7.03 and this Section 7.04 are knowingly made in contemplation of such benefits.
SECTION 7.05Subrogation. The Company hereby unconditionally and irrevocably agrees until the later of the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and the last-occurring Termination Date not to exercise any rights that it may now have or hereafter acquire against any other Borrower or any other insider guarantor that arise from the existence, payment, performance or enforcement of the Company’s obligations under or in respect of this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Agent or any Lender against any Borrower or any other insider guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Borrower or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and the Commitments shall have expired or been terminated. If any amount shall be paid to the Company in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and (b) the last-occurring Termination Date, such amount shall be received and held in trust for the benefit of the Agent and the Lenders, shall be segregated from other property and funds of the Company and shall forthwith be paid or delivered to the Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations
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and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of this Agreement and any Notes, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) the Company shall make payment to the Agent or any Lender of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and (iii) the last-occurring Termination Date shall have occurred, the Agent and the Lenders will, at the Company’s request and expense, execute and deliver to the Company appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Company of an interest in the Guaranteed Obligations resulting from such payment made by the Company pursuant to this Guaranty.
SECTION 7.06Subordination. The Company hereby subordinates any and all debts, liabilities and other obligations owed to the Company by each other Borrower (the “Subordinated Obligations”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth in this Section 7.06:
(a)Prohibited Payments, Etc. Except during the continuance of a Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other Borrower), the Company may receive regularly scheduled payments from any other Borrower on account of the Subordinated Obligations. After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other Borrower), however, unless the Required Lenders otherwise agree, the Company shall not demand, accept or take any action to collect any payment on account of the Subordinated Obligations.
(b)Prior Payment of Guaranteed Obligations. In any proceeding under any Bankruptcy Law relating to any other Borrower, the Company agrees that the Agent and the Lenders shall be entitled to receive payment in full in cash of all Guaranteed Obligations (including all interest and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“Post Petition Interest”)) before the Company receives payment of any Subordinated Obligations.
(c)Turn-Over. After the occurrence and during the continuance of any Event of Default, the Company shall, if the Agent so requests, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Agent and the Lenders and deliver such payments to the Agent on account of the Guaranteed Obligations (including all Post Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of the Company under the other provisions of this Guaranty.
(d)Agent Authorization. After the occurrence and during the continuance of any Event of Default, the Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of the Company, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received
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thereon to the Guaranteed Obligations (including any and all Post Petition Interest), and (ii) to require the Company (A) to collect and enforce, and to submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on such obligations to the Agent for application to the Guaranteed Obligations (including any and all Post Petition Interest).
SECTION 7.07Continuing Guaranty; Assignments. This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the later of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty (other than the Cash Management Obligations and the Swap Obligations) and (ii) the last-occurring Termination Date, (b) be binding upon the Company, its successors and assigns and (c) inure to the benefit of and be enforceable by the Agent and the Lenders and their successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, the Agent or any Lender may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, the Advances owing to it and any Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to the Agent or such Lender herein or otherwise, in each case as and to the extent provided in Section 9.07. In the event that a transfer by the Agent or any Lender of its rights and/or obligations under this Agreement (and any relevant Loan Documents) occurred or was deemed to occur by way of novation, the Secured Parties explicitly agree that all securities and guarantees created under any Loan Documents shall be preserved for the benefit of the new Lender and the other Secured Parties in accordance with the provisions of article 1278 of the Luxembourg Civil Code. The Company shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Agent and the Lenders.
ARTICLE VIII
THE AGENT
THE AGENT
SECTION 8.01Authorization and Action.
(a)Each Lender (in its capacities as a Lender, Swing Line Bank and/or Issuing Bank, as applicable) hereby appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents, including as collateral agent for such Lender and the other Secured Parties under the Collateral Documents as are delegated to the Agent by the terms hereof and the other Loan Documents, together with such powers and discretion as are reasonably incidental thereto. For such purposes, each Lender (including in its capacities as a Lender, Swing Line Bank and/or Issuing Bank, as applicable) hereby appoints and authorizes the Agent as its agent (Comisionista) pursuant to the Articles 273 and 274 of the Mexican Commerce Code (Código de Comercio) to execute, deliver and perform its obligations under this Agreement and the other Loan Documents. As to any matters not expressly provided for by this Agreement (including, without limitation, enforcement or collection of the Notes), the Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and all holders of
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Notes; provided, however, that the Agent shall not be required to take any action that exposes the Agent to personal liability or that is contrary to this Agreement or applicable law. The Agent agrees to give to each Lender prompt notice of each notice given to it by the Borrowers pursuant to the terms of this Agreement.
(b)In furtherance of the foregoing, each Lender (in its capacities as a Lender, Swing Line Bank and Issuing Bank, as applicable) hereby appoints and authorizes the Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto (including, but not limited to, execution, amendment, transfer, termination and renewal of Collateral Documents, and application for registration of creation, transfer and release of Lien on any Collateral).
(c)Each Lender (in its capacities as a Lender, Swing Line Bank and Issuing Bank, as applicable) irrevocably authorizes each of the Agent, at its option and in its discretion, (i) to release any Lien on any property granted to or held by the Agent under any Loan Document (A) upon termination of the Commitments and payment in full of all Obligations (other than contingent indemnification obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (B) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (C) if approved, authorized or ratified in writing in accordance with Section 9.01 hereof, (ii) to release any Guarantor from its obligations under the Loan Documents if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder; and (iii) to subordinate any Lien on any property granted to or held by the Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 5.02(a)(ii). Upon request by the Agent at any time, the Required Lenders will confirm in writing the Agent’s authority to release its interest in particular types or items of property, or to release any Guarantor from its obligations under the Loan Documents.
SECTION 8.02Agent’s Reliance, Etc. Neither the Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Agent: (i) may treat the Lender that made any Advance as the holder of the Indebtedness resulting therefrom until the Agent receives and accepts an Assignment and Acceptance entered into by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may consult with legal counsel (including counsel for the Company), independent public accountants and other experts selected by it and shall not be liable for any action reasonably taken or omitted to be taken in good faith by it in accordance with the reasonable advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the part of any Borrower or the existence at any time of any Default or to inspect the property (including the books and records) of any Borrower; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the
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perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other instrument or document furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier or telegram) believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03Bank of America and Affiliates. With respect to its Commitments, the Advances made by it and the Note issued to it, Bank of America shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not the Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Bank of America in its individual capacity. Bank of America and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, the Company, any of its Subsidiaries and any Person who may do business with or own securities of the Company or any such Subsidiary, all as if Bank of America were not the Agent and without any duty to account therefor to the Lenders. The Agent shall have no duty to disclose any information obtained or received by it or any of its Affiliates relating to the Company or any of its Subsidiaries to the extent such information was obtained or received in any capacity other than as Agent.
SECTION 8.04Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon the Agent, any Joint Lead Arranger or any Lender and based on the financial statements referred to in Section 4.01 and such other 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 Agent, any Joint Lead Arranger, or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.
SECTION 8.05Indemnification.
(a)Each Lender severally agrees to indemnify the Agent (to the extent not reimbursed by a Borrower), from and against such Lender’s Ratable Share (determined at the time indemnification is sought hereunder) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Agent under this Agreement (collectively, the “Indemnified Costs”), provided that no Lender shall be liable for any portion of the Indemnified Costs resulting from the Agent’s gross negligence, bad faith or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand for its Ratable Share (determined at the time indemnification is sought hereunder) of any out-of-pocket expenses (including counsel fees) incurred by the Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Agent is not reimbursed for such expenses by a Borrower. In the case of any investigation, litigation or
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proceeding giving rise to any Indemnified Costs, this Section 8.05 applies whether any such investigation, litigation or proceeding is brought by the Agent, any Lender or a third party.
(b)Each Lender severally agrees to indemnify the Issuing Banks (to the extent not promptly reimbursed by the Company) from and against such Lender’s Ratable Share (determined at the time indemnification is sought hereunder) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against any such Issuing Bank in any way relating to or arising out of this Agreement or any action taken or omitted by such Issuing Bank hereunder or in connection herewith; provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Issuing Bank’s gross negligence, bad faith or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon demand for its Ratable Share (determined at the time indemnification is sought hereunder) of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Company under Section 9.04, to the extent that such Issuing Bank is not promptly reimbursed for such costs and expenses by the Company. In the case of any investigation, litigation or proceeding to which this Section 8.05(b) applies, such indemnity shall be effective whether any such investigation, litigation or proceeding is brought by an Issuing Bank, any Lender or a third party.
(c)The failure of any Lender to reimburse the Agent or any Issuing Bank promptly upon demand for its Ratable Share of any amount required to be paid by the Lenders to the Agent as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse the Agent or any Issuing Bank for its Ratable Share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse the Agent or any Issuing Bank for such other Lender’s Ratable Share of such amount. Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in this Section 8.05 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Notes. Each of the Agent and each Issuing Bank agrees to return to the Lenders their respective Ratable Shares of any amounts paid under this Section 8.05 that are subsequently reimbursed by the Company or any Borrower.
SECTION 8.06Appointment as Agent and Administrator in Relation to German Collateral.
(a)In relation to the German Collateral, the Agent shall:
(i)hold, administer and (subject to the same having become enforceable and to the terms of this Agreement) realise any such German Collateral which is Collateral transferred or assigned (Sicherungseigentum/Sicherungsabtretung) or otherwise granted under a non-accessory security right (nicht akzessorische Sicherheit) to it in its own name as trustee (treuhänderisch) for the benefit of the Secured Parties; and
(ii)administer and (subject to the same having become enforceable and to the terms of this Agreement) realise in the name of and on behalf of the Secured Parties any German Collateral which is pledged (Verpfändung) or otherwise transferred
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to any Secured Party under an accessory security right (akzessorische Sicherheit) in the name and on behalf of the Secured Parties.
(b)Each Secured Party (other than the Agent) hereby authorises the Agent to accept as its representative (Stellvertreter) any pledge or other creation of any accessory security right made to such Secured Party in relation to the Loan Documents and to act and execute on its behalf as its representative (Stellvertreter), subject to the terms of the Loan Documents, amendments or releases of, accessions and alterations to, and to carry out similar dealings with regard to any German Collateral Document which creates a pledge or any other accessory security right (akzessorische Sicherheit).
(c)Each Secured Party which becomes a party to any Loan Document ratifies and approves all acts and declarations previously done by the Agent on such Secured Party’s behalf (including for the avoidance of doubt the declarations made by the Agent as representative without power of attorney (Vertreter ohne Vertretungsmacht)) in relation to the creation of any pledge (Pfandrecht) on behalf and for the benefit of any Secured Party in respect of the German Collateral Documents.
(d)Each relevant Loan Party and the Company and each relevant Secured Party agrees that the German Collateral Documents shall be subject to the terms of this Agreement.
(e)The Agent shall and is hereby authorised by each of the Secured Parties (and to the extent it may have any interest therein, every other party hereto) to execute on behalf of itself and each other party hereto where relevant without the need for any further referral to, or authority from, any other Person all necessary releases or confirmations of any security created under the German Collateral Documents in relation to the disposal of any asset which is permitted under the German Collateral Documents or consented or agreed upon in accordance with the Loan Documents.
(f)Each Secured Party hereby irrevocably authorises the Agent to act on its behalf and if required under applicable law, or if otherwise appropriate, in its name and on its behalf in connection with the preparation, execution and delivery of the German Collateral Documents and the perfection and monitoring of the German Collateral, including but not limited to, any share pledge, mortgage, assignment or transfer of title for security purposes. The Agent is authorised to make all statements necessary or appropriate in connection with the foregoing sentence.
(g)Each of the Loan Parties and the Secured Parties hereby relieves the Agent, in each case to the extent legally possible, from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch BGB) or any comparable provision under any other jurisdiction restricting self-dealing and/or representing several parties at the same time in order to enable the Agent to perform its duties and obligations as Agent hereunder. A Loan Party which is barred by its constitutional documents or by-laws from granting such exemption shall notify the Agent accordingly.
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(h)It is hereby agreed that, in relation to any jurisdiction the courts of which would not recognise or give effect to the trust expressed to be created by this Section 8.06, the relationship of the Secured Parties to the Agent in relation to any German Collateral shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this by this Section 8.06 shall have full force and effect between the parties to this Agreement.
SECTION 8.07Successor Agent. The Agent may resign at any time by giving written notice thereof to the Lenders and the Company and such resignation shall be effective upon the earlier of (i) the appointment of a successor Agent pursuant to this Section 8.07 and (ii) the date that is 30 days after the Agent delivers such notice. Upon any such resignation or removal, the Required Lenders shall, with the Company’s consent (not to be unreasonably withheld, conditioned or delayed), have the right to appoint a successor Agent; provided that such successor shall, be (x) a U.S. Person, a branch of a non-U.S. bank treated as a U.S. Person in accordance with Treasury Regulation section 1.1441-1(b)(2)(iv) (or, in each case, an Affiliate thereof which is a U.S. Person) and (y) treated as a financial institution pursuant to Treasury Regulation section 1.1441-1(b)(2). If no successor Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of resignation or the Required Lenders’ removal of the retiring Agent (or if the Company shall not have consented to a successor Agent selected by the Required Lenders during such 30 day period), then the retiring Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Agent’s resignation or removal hereunder as Agent, the provisions of this Article VIII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.
Anything herein to the contrary notwithstanding, if at any time the Required Lenders determine that the Person serving as Agent is (without taking into account any provision in the definition of “Defaulting Lender” requiring notice from the Agent or any other party) a Defaulting Lender, the Required Lenders (determined after giving effect to Section 9.01) may by notice to the Company and such Person remove such Person as Agent and appoint a replacement Agent hereunder with the consent of the Company (such consent not to be unreasonably withheld), provided that (i) such removal shall, to the fullest extent permitted by applicable law, in any event become effective if no such replacement Agent is appointed hereunder within 30 days after the giving of such notice and (ii) no such consent of the Company shall be required if an Event of Default has occurred and is continuing at the time of such appointment.
SECTION 8.08Other Agents. Each Lender hereby acknowledges that none of the Co-Syndication Agents, the Co-Documentation Agents, the Joint Bookrunners, the Joint Lead Arrangers, or any other Lender designated as any “Agent” on the signature pages hereof has any liability hereunder other than in its capacity as a Lender.
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SECTION 8.09Delegation of Duties. The Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more co-agents or sub-agents appointed by the Agent. The Agent and any such co-agent or sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. Each such co-agent and sub-agent and the Related Parties of the Agent and each such co-agent and sub-agent shall be entitled to the benefits of all provisions of this Article VIII and Article IX (as though such co-agents and sub-agents were the “Agent” under the Loan Documents) as if set forth in full herein with respect thereto.
SECTION 8.10Appointment for the Province of Québec. (a) For greater certainty, and without limiting the powers of the Agent, each of the Secured Parties hereby irrevocably appoints Bank of America, N.A. as the hypothecary representative within the meaning of Article 2692 of the Civil Code of Québec in order to hold hypothecs and security granted by any Loan Party on property pursuant to the laws of the Province of Québec in order to secure the Obligations of any Loan Party, and hereby agrees that the Agent may act as the holder and mandatary (i.e. agent) with respect to any shares, capital stock or other securities that may be issued by any Loan Party and pledged in favour of the Agent, for the benefit of the Secured Parties. The execution by Bank of America, N.A., acting as hypothecary representative and mandatary, prior to the Credit Agreement of any deeds of hypothec or other security documents is hereby ratified and confirmed.
(b)The appointment of Bank of America, N.A. as hypothecary representative, and of the Agent as holder and mandatary with respect to any shares, capital stock or other securities that may be issued and pledged from time to time to the Agent for the benefit of the Secured Parties, shall be deemed to have been ratified and confirmed by each Person accepting an assignment of, a participation in or an arrangement in respect of, all or any portion of any Secured Parties’ rights and obligations under this Agreement by the execution of an assignment, including an Assignment and Assumption Agreement or a joinder agreement in the case of any Lender Affiliate that is a secured hedge counterparty, or other agreement pursuant to which it becomes such assignee or participant, and by each successor Agent by the execution of an Assignment and Assumption Agreement or other agreement, or by the compliance with other formalities, as the case may be, pursuant to which it becomes a successor Agent under this Agreement.
(c)Bank of America, N.A. acting as hypothecary representative shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favour of the Agent in this Agreement, which shall apply mutatis mutandis to Bank of America, N.A. acting as hypothecary representative.
ARTICLE IX
MISCELLANEOUS
MISCELLANEOUS
SECTION 9.01Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the
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Required Lenders and acknowledged by the Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by (or consented to by) each Lender affected thereby, do any of the following:
(a)waive any of the conditions specified in Section 3.01;
(b)increase or extend the Revolving Credit Commitments of such Lender;
(c)reduce the principal of, or rate of interest on, the Revolving Credit Advances, the Term Advances, the Letters of Credit, the Swing Line Advances or any fees or other amounts payable hereunder (excluding waivers of interest at the Default Rate);
(d)postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts payable hereunder (excluding any prepayments required under Section 2.11(b)(ii) or Section 2.11(b)(iii));
(e)change the percentage of the Commitments or of the aggregate unpaid principal amount of the Revolving Credit Advances, or the number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder;
(f)other than pursuant to the terms of the Subsidiary Guaranties, release the Subsidiary Guarantors (or otherwise limit such Subsidiary Guarantors’ liability with respect to the obligations owing to the Agent and the Lenders under the Subsidiary Guaranties) if such release or limitation is in respect of substantially all of the value of the Subsidiary Guaranties to the Agent and the Lenders;
(g)release all or substantially all of the Collateral in any transaction or series of related transactions;
(h)release the Company (or otherwise limit the Company’s liability with respect to the obligations of the Borrowers) from its guaranty set forth in Article VII hereof; or
(i)amend this Section 9.01 or the definition of “Required Lenders”;
and provided further that (w) no amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Agent under this Agreement or any Note, (x) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Bank in addition to the Lenders required above to take such action, adversely affect the rights or obligations of the Swing Line Bank in its capacities as such under this Agreement and (y) no amendment, waiver or consent shall, unless in writing and signed by the Issuing Banks in addition to the Lenders required above to take such action, adversely affect the rights or obligations of the Issuing Banks in their capacities as such under this Agreement and (z) the consent of Lenders having at least a majority (based on the Equivalent in Dollars at such time) in interest of a Facility shall be required with respect to any amendment or waiver that by its terms adversely affects the rights of Lenders
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under such Facility in respect of payments hereunder in a manner different than such amendment or waiver affects other Facilities. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
Notwithstanding the foregoing, in addition to any credit extensions and related incremental amendment agreements and amendments to the Loan Documents effectuated without the consent of Lenders in accordance with Section 2.04(b) or (e), this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Agent and the Company (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Advances hereunder and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and other definitions related to such new loans.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing, replacement or modification of all outstanding Term A Advances, all outstanding Sterling Term A Advances or all outstanding 2019 Incremental Term Advances (“Replaced Term Loans”) with a replacement term loan tranche hereunder (“Replacement Term Loans”), provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Replaced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Replaced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Replaced Term Loans at the time of such refinancing, and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or no less favorable to the Lenders providing such Replacement Term Loans taken as a whole than, those applicable to such Replaced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Advances as applicable in effect immediately prior to such refinancing.
Furthermore, and notwithstanding anything else to the contrary contained in this Section 9.01, (i) if the Agent and the Company shall have jointly identified an obvious error or any error or omission of a technical nature, in each case, in any provision of this Agreement or any other Loan Document, then the Agent and the Company shall be permitted to amend such provision and (ii) the Agent and the Company shall be permitted to amend any provision of any Collateral Document to better implement the intentions of this Agreement and the other Loan Documents, and in each case, such amendments shall become effective without any further
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action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof.
SECTION 9.02Notices; Effectiveness; Electronic Communication.
(a)Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)if to the Company or any other Loan Party, the Agent, an Initial Issuing Bank or the Swing Line Bank, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 9.02; and
(ii)if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Company).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
(b)Electronic Communications. Notices and other communications to the Lenders and Issuing Banks hereunder may be delivered or furnished by electronic communication (including e-mail, FpML messaging, and Internet or intranet websites) pursuant to procedures approved by the Agent, provided that the foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant to Article II if such Lender or the Issuing Bank, as applicable, has notified the Agent that it is incapable of receiving notices under such Article by electronic communication. The Agent, the Swing Line Bank, the Issuing Banks or the Company may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless the Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is
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available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c)The Platform. Each Borrower hereby acknowledges that (a) the Agent and/or the Joint Lead Arrangers may, but shall not be obligated to, make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Agent, the Arranger, the Issuing Bank and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.08); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any Lender, the Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Company’s, any Loan Party’s or the Agent’s transmission of Borrower Materials or notices through the platform, any other electronic platform or electronic messaging service, or through the Internet.
(d)Change of Address, Etc. Each of the Borrowers, the Agent, the L/C Issuer and the Swing Line Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Company, the Agent, the Issuing Banks and the Swing Line Bank. In
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addition, each Lender agrees to notify the Agent from time to time to ensure that the Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Company or its securities for purposes of United States Federal or state securities laws.
(e)Reliance by Agent, Issuing Banks and Lenders. The Agent, the Issuing Banks and the Lenders shall be entitled to rely and act upon any notices (including telephonic notices, Notices of Borrowing, Notices of Issuance and Notices of Swing Line Borrowing) purportedly given by or on behalf of any Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties shall indemnify the Agent, the Issuing Banks, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of any Borrower. All telephonic notices to and other telephonic communications with the Agent may be recorded by the Agent, and each of the parties hereto hereby consents to such recording.
SECTION 9.03No Waiver; Remedies. No failure on the part of any Lender or the Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04Costs and Expenses.
(a)The Company agrees to pay on demand all reasonable and documented out-of-pocket costs and expenses of the Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement and the other documents to be delivered hereunder, including, without limitation, (i) the syndication of the Facilities provided for herein, the preparation, negotiation, execution, delivery, interpretation and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) the creation, perfection or protection of the Liens under any Loan Document and (iii) the reasonable and documented legal fees, costs and expenses of one firm of counsel to the Agent and the Lenders and, if necessary, one local legal counsel in each relevant jurisdiction (and, to the extent required by the subject matter, one specialist counsel for each such specialized area of law in each appropriate jurisdiction). The Company further agrees to pay on demand all costs and expenses of the Agent and the Lenders, if any (including the reasonable and documented legal fees, costs and expenses of one firm of
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counsel to the Agent, the Issuing Banks and the Lenders and, if necessary, one local legal counsel in each relevant jurisdiction (and, to the extent required by the subject matter, one specialist counsel for each such specialized area of law in each appropriate jurisdiction), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other documents to be delivered hereunder, including, without limitation, reasonable fees and expenses of counsel for the Agent and each Lender in connection with the enforcement of rights under this Section 9.04(a).
(b)Each Borrower agrees to indemnify and hold harmless the Agent, each Joint Lead Arranger, each Joint Bookrunner, each Issuing Bank, the Swing Line Bank, each Co-Syndication Agent, each Co-Documentation Agent and each Lender and each of their respective Related Parties (each, an “Indemnified Party”) from and against any and all claims, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including the reasonable and documented legal fees, costs and expenses of one firm of counsel and one local legal counsel in each relevant jurisdiction and, to the extent required by the subject matter, one specialist counsel for each such specialized area of law in each appropriate jurisdiction and, upon notice from an Indemnified Party of a conflict of interest (as determined in the sole discretion of such Indemnified Party), one counsel for each such affected Indemnified Party) or disbursements incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances, (i) except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, bad faith or willful misconduct, (ii) which resulted from a material breach of any Loan Documents by such Indemnified Party as determined in a final, non-appealable judgment by a court of competent jurisdiction or (iii) any dispute solely among the indemnified persons and not arising out of any act or omission of the Company, or any of their Affiliates (except when one of the parties to such action was acting in its capacity as an agent, an arranger a bookrunner or another agency capacity); provided that the Company shall not be liable for any indirect, special, punitive or consequential damages (other than in respect of any such damages required to be indemnified pursuant to this Section 9.04 including, without limitation, as to any claims by Persons not party to the Loan Documents, or claims brought in violation of this paragraph. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 9.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by a Borrower, its directors, equity holders or creditors or an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. Each Borrower also agrees not to assert any claim for special, indirect, consequential or punitive damages against the Agent, any Joint Lead Arranger, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, arising out of or otherwise relating to this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances.
(c)If any payment of principal of, or Conversion of, any Eurocurrency Rate Advance is made by any Borrower to or for the account of a Lender (i) other than on the last day
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of the Interest Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.09, 2.10, 2.11 or 2.13, acceleration of the maturity of the Advances or Notes pursuant to Section 6.01 or for any other reason, or (ii) as a result of a payment or Conversion pursuant to Section 2.09, 2.10, 2.13 or 2.20 such Borrower shall, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance. If the amount of the Committed Currency purchased by any Lender in the case of a Conversion or exchange of Advances in the case of Section 2.09 or 2.13 exceeds the sum required to satisfy such Lender’s liability in respect of such Advances, such Lender agrees to remit to the Company such excess. A certificate as to such amounts submitted to the Company and the Agent by such Lender pursuant to this Section 9.04(c) (which certificate shall, if the Company so requests, include reasonably detailed calculations) shall be conclusive and binding for all purposes, absent manifest error.
(d)Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers contained in Sections 2.12, 2.14(e), 2.15, 9.12 and 9.14(b) and this Section 9.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05Right of Set-off. Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 6.01 to authorize the Agent to declare the Notes due and payable pursuant to the provisions of Section 6.01, 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 indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account of any Borrower against any and all of the obligations of such Borrower now or hereafter existing under this Agreement and the Note held by such Lender, whether or not such Lender shall have made any demand under this Agreement or such Note and although such obligations may be unmatured. Each Lender agrees promptly to notify the applicable Borrower after any such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender and its Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Lender and its Affiliates may have.
SECTION 9.06Binding Effect. This Agreement shall become effective (other than Sections 2.01 and 2.03, which shall only become effective upon satisfaction of the conditions precedent set forth in Section 3.01) when it shall have been executed by the Company and the Agent and when the Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and thereafter shall be binding upon and inure to the benefit of each Borrower, the Agent and each Lender and their respective successors and assigns, except that no Borrower shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders.
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SECTION 9.07Assignments and Participations. Any Lender may at any time 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 Commitments and the Advances at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(a)Minimum Amounts.
(i)in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitments and/or the Advances at the time owing to it under the Facility being assigned or in the case of an assignment to a Lender or an Affiliate of a Lender, no minimum amount need be assigned; and
(ii)in any case not described in paragraph (a)(i) of this Section, the aggregate amount of the Commitment (which for this purpose includes Advances outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Advances of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Agent or, if “Trade Date” is specified in the Assignment and Acceptance Agreement, as of the Trade Date) shall not be less than $5,000,000 in respect of the Revolving Credit Facilities or $2,000,000 in respect of the Term Facilities, unless each of the Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed).
(b)Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Advance or the Commitments assigned.
(c)Required Consents. No consent shall be required for any assignment except to the extent required by paragraph (a)(ii) of this Section and, in addition:
(i)the consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed) shall be required unless (x) an Event of Default under Section 6.01(a) or (e) has occurred and is continuing at the time of such assignment, or (y) such assignment is to a Lender, an Approved Fund, an Affiliate of a Lender or to any Federal Reserve Bank as collateral security pursuant to Regulation A of the F.R.S. Board and any Operating Circular issued by such Federal Reserve Bank; provided that, in the case of an assignment of any Term Advance, the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Agent within 5 Business Days after having received notice thereof and provided, further, that the Borrower’s consent shall not be required for assignments during the primary syndication of the Commitments and Loans that are originally to be made on the Closing Date pursuant to this Agreement, which assignments are made within 90 days of the Closing Date to financial institutions identified to the Company by the Agent on a list provided prior to the date hereof;
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(ii)the consent of the Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of the Commitments if such assignment is to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund, unless such assignment is to any Federal Reserve Bank as collateral security pursuant to Regulation A of the F.R.S. Board and any Operating Circular issued by such Federal Reserve Bank; and
(iii)the consent of each Issuing Bank and the Swing Line Bank (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of Multicurrency Revolving Credit Commitments unless such assignment is to any Federal Reserve Bank as collateral security pursuant to Regulation A of the F.R.S. Board and any Operating Circular issued by such Federal Reserve Bank.
(d)Register. The Agent, acting solely for this purpose as a non-fiduciary Agent of the Company shall maintain at its address referred to in Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it (and will record such information in the Register) and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount (and right to payments of interest) of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e)Assignment and Acceptance. The parties to each assignment shall execute and deliver to the Agent an Assignment and Acceptance, for its acceptance and recording in the Register, together with a processing and recordation fee of $3,500; provided that the Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment; provided, further, no processing and recordation fee shall be required upon any assignment to any Federal Reserve Bank as collateral security pursuant to Regulation A of the F.R.S. Board and any Operating Circular issued by such Federal Reserve Bank. The assignee, if it is not already a Lender, shall deliver to the Agent an Administrative Questionnaire.
(f)No Assignment to Certain Persons. (ii) No such assignment shall be made to (A) the Company or any of the Company’s Affiliates or Subsidiaries except as provided in Section 2.11(c), (B) to any Defaulting Lender or any of their respective Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (f) or (C) to any Offshore Associate of any Australian Borrower.
(ii)A transfer or assignment under this Section 9.07 may only be made to a Person who is a Non-Public Lender. For the purpose of this Section 9.07, a “Non-Public Lender” means: (A) an entity that provides repayable funds to a Borrower for a minimum amount of EUR 100,000 (or its equivalent), and to the
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extent the amount of EUR 100,000 (or its equivalent) does not result in such entity not qualifying as forming part of the “public” (as referred to in Article 4, subsection 1 under (1) of the Capital Requirements Regulation (EU/575/2013)), such other amount or such criterion as a result of which such entity shall qualify as not forming part of the “public”; and (B) following the publication of any interpretation of the “public” by any competent authority, such amount or such criterion as a result of which such entity shall qualify as not forming part of the “public”.
(g)No Assignment to Natural Persons. No such assignment shall be made to a natural Person.
(h)Certain Pledges. Notwithstanding anything to the contrary contained herein, 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 any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(i)Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Company and the Agent, the applicable Ratable Share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent, each Issuing Bank, the Swing Line Bank and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full Ratable Share of all Advances and participations in Letters of Credit and Swing Line Advances. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Agent pursuant to paragraph (c)(ii) of this Section, from and after the effective date specified in each Lender Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, 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 Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance 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 2.12, 2.15,
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2.16, 8.05, 9.04, 9.05 and 9.08 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph 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)(iii) of this Section.
(j)Any Lender may at any time, without the consent of, or notice to, the Company or the Agent, sell to one or more commercial banks or other financial institutions (each of such commercial banks and other financial institutions being herein called a “Participant”) participating interests in any of its Advances, its Commitment, or other interests of such Lender hereunder, including participations pursuant to the Intercreditor Agreement; provided that:
(i)no participation contemplated in this Section 9.07(j) shall relieve such Lender from its Commitment(s) or its other obligations hereunder;
(ii)such Lender shall remain solely responsible for the performance of its Commitment(s) and such other obligations;
(iii)the Company and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and each of the other Loan Documents;
(iv)no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any Participant that such Lender will not, without such Participant’s consent, take any actions of the type described in clause (a) or (c) of Section 9.01;
(v)no Borrower shall be required to pay any amount under Sections 2.12 and 2.15 that is greater than the amount which it would have been required to pay had no participating interest been sold and no Borrower shall be required to pay any amount under Section 2.15 unless such Participant has complied with Section 2.15(e) and (f) as if it were a Lender; and
(vi)each Lender that sells a participation under this Section 9.07(j) shall, acting solely for this purpose as a non-fiduciary agent of the Company, maintain a register on which it enters the name and address of each Participant and the principal amounts (and rights to payment of stated interest on) each of the Participant’s interest in the Lender’s Advances, Commitments or other interests hereunder (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such
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participation for all purposes hereunder. No Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person except to the extent that such disclosure is necessary to establish that such Advance, Commitment, or other interest is in registered form for United States federal tax purposes. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
The Company acknowledges and agrees that each Participant, for purposes of Sections 2.12 and 2.15 only, shall be considered a Lender.
(k)Each Loan Party incorporated under the laws of Luxembourg expressly accepts and confirms for the purposes of article 1281 and article 1278 of the Luxembourg civil code that, notwithstanding any assignment and/or transfer made pursuant to this Agreement, any guarantee given by it and any security interest created under the Loan Documents to which it is a party, shall be preserved for the benefit of any new Lender or Participant.
SECTION 9.08Confidentiality. Each of the Agent and the Lender Parties agree to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; (d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section, to any (i) assignee in, or prospective assignee in, any of its rights and obligations under this Agreement, (ii) Participant or prospective Participant or (iii) actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Company and its obligations, this Agreement or payments hereunder; (g) on a confidential basis to (i) any rating agency in connection with rating the Company or its Subsidiaries or the Advances or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Advances; (h) with the consent of the Company; (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section, or (y) becomes available to any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Company; (j) to any credit insurance provider relating to the Borrowers and their Obligations (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); or (k) to market data collectors and similar service providers to the lending industry (the Information that may be disclosed to be limited, for purposes of this clause (k), to the existence of this Agreement and information about this Agreement). For purposes of this Section, “Information” means all information received from the Company or any of its Subsidiaries relating to the Company or any of its Subsidiaries or any of their respective
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businesses, other than any such information that is available to any Lender on a nonconfidential basis prior to disclosure by the Company or any of its Subsidiaries; provided that, in the case of information received from the Company or any of its Subsidiaries after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
SECTION 9.09Designated Borrower.
(a)The Company may at any time, (i) in the case of any Domestic Subsidiary, upon at least ten Business Days’ prior notice from the Company to the Agent and (ii) in the case of any Foreign Subsidiary, at least 15 Business Days’ prior notice from the Company to the Agent (or such shorter period as may be agreed by the Agent in its sole discretion), designate any Wholly-Owned Subsidiary of the Company (an “Applicant Borrower”) as a Designated Borrower to receive Loans hereunder by delivering to the Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form of Exhibit I. The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming entitled to utilize the credit facilities provided for herein, the Agent and the Lenders under such credit facilities shall have received such supporting resolutions, incumbency certificates, opinions of counsel and other documents or information, including all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and, in the case of any Applicant Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Applicant Borrower to any Lender that so requests, in each case form, content and scope reasonably satisfactory to the Agent, as may be required by the Agent or such Lenders in their sole discretion, and Notes signed by such new Borrowers to the extent any of such Lenders so require. If the Agent and, with respect only to a putative Borrower (x) under a Facility under which Borrowings of any Foreign Currency may be made or (y) that is an entity organized or formed outside of the United States of America, each Lender under such Facility, approve (in each case its sole discretion) an Applicant Borrower and agree that an Applicant Borrower shall be entitled to receive Loans hereunder, then promptly following receipt of all such requested resolutions, incumbency certificates, opinions of counsel and other documents or information (provided, that if the Agent shall have already reasonably recently received any such required information or corporate formality with respect to an Applicant Borrower, then the Agent may, in its sole discretion, waive the delivery of such information or corporate formality which would otherwise be required pursuant hereto), the Agent shall send a notice in substantially the form of Exhibit J to the Company and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such Designated Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that no Notice of Borrowing or Notice of Application may be submitted by or on behalf of such Designated Borrower until the date five Business Days after such effective date. Upon the effectiveness of the designation of any Designated Borrower pursuant to this Section 9.09, such
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Designated Borrower shall be deemed to be a Transpacific Revolver Borrower, Multicurrency Revolver Borrower and/or Borrower for purposes of any other Facility, as specified by the Company and the Agent in the notices delivered pursuant to Exhibit I and Exhibit J and, in any event, subject to the consent of the applicable Lenders in accordance with the immediately preceding sentence. In addition, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect such designation, and any such deemed amendment may be memorialized in writing by the Agent and the Company and furnished to the other Persons then party to this Agreement.
(b)The Obligations of the Company and each Designated Borrower that is a Domestic Subsidiary shall be joint and several in nature. The Obligations of all Designated Borrowers that are Foreign Subsidiaries shall be several in nature.
(c)Each Subsidiary of the Company that is or becomes a “Designated Borrower” pursuant to this Section 9.09 hereby irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Loan Documents, including (i) the giving and receipt of notices, (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any Loans made by the Lenders to any such Designated Borrower hereunder. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given or taken only by the Company, whether or not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the Company in accordance with the terms of this Agreement shall be deemed to have been delivered to each Designated Borrower.
(d)The Company may from time to time, upon not less than 10 Business Days’ notice from the Company to the Agent (or such shorter period as may be agreed by the Agent in its sole discretion), terminate a Designated Borrower’s status as such, provided that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by such Designated Borrower on account of any Loans made to it, as of the effective date of such termination. The Agent will promptly notify the Lenders of any such termination of a Designated Borrower’s status.
SECTION 9.10Governing Law. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK’S GENERAL OBLIGATIONS LAW.
SECTION 9.11Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of an original executed counterpart of this Agreement.
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SECTION 9.12Judgment. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of each Borrower in respect of any such sum due from it to the Agent or any Lender hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Agent or such Lender, as the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Agent or any Lender from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Agent or such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Agent or any Lender in such currency, the Agent or such Lender, as the case may be, agrees to return the amount of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable law).
SECTION 9.13Jurisdiction, Etc. (a) Each Borrower and each other Loan Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Agent, any Lender or any Related Party of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than any New York State court 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, and each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court 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 the Notes, 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 any such New York State court or, to the extent permitted by law, in such federal court. Each Borrower hereby agrees that service of process in any such action or proceeding brought in the any such New York State court or in such federal court may be made upon the Company at its offices specified in Section 9.02(a) and each Borrower hereby irrevocably appoints the Company its authorized agent to accept such service of process, and agrees that the failure of the Company to give any notice of any such service shall not impair or affect the validity of such service or of any judgment rendered in any action or proceeding based thereon. Each Borrower hereby further irrevocably consents to the service of process in any action or proceeding in such courts by the mailing thereof by any parties hereto by registered or certified mail, postage prepaid, to such Borrower at its address specified pursuant to Section 9.02(a). 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. Other than with respect to actions
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brought by or against the Mexican Revolver Borrower or any other Loan Party organized in Mexico (whose submission to jurisdiction shall, for the avoidance of doubt, be exclusive to the parties involved), nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or the Notes in the courts of any jurisdiction. To the extent that any Borrower or Designated Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each Borrower and each Designated Borrower hereby irrevocably waives such immunity in respect of its obligations under this Agreement.
(b)Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any right to any other jurisdiction that it may have by reason of domicile or any other reason and objection that 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 or any other Loan Document in any New York State or federal court. 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.
SECTION 9.14Substitution of Currency. (a) If a change in any Foreign Currency occurs pursuant to any applicable law, rule or regulation of any governmental, monetary or multi-national authority, this Agreement (including, without limitation, the definitions of Eurocurrency Rate, Alternative Currency Daily Rate and TIIE Rate) will be amended to the extent determined by the Agent (acting reasonably and in consultation with the Company) to be necessary to reflect the change in currency and to put the Lenders and the Borrowers in the same position, so far as possible, that they would have been in if no change in such Foreign Currency had occurred;
(b) If a judgment or order made by any court for the payment of any amount in respect of any Obligations of a Loan Party under, or with respect to, this Agreement or the Advances is expressed in a currency other than the currency that such Advances were originally funded in, the Borrowers and the Domestic Loan Parties will indemnify the Lenders against any deficiency arising from any variation in rates of exchange between the date as of which the denomination currency is notionally converted into the judgment currency for the purposes of the judgment or order and the date of actual payment; provided that the Agent and the Lenders shall reimburse the relevant Loan Party if there is any excess amount arising from any variation in rates of exchange between the date as of which the denomination currency is notionally converted into the judgment currency for the purposes of the judgment or order and the date of actual payment.
SECTION 9.15No Liability of the Issuing Banks. None of the Agent, the Lenders nor any Issuing Bank, nor any of their Affiliates, or the respective directors, officers, employees, agents and advisors of such Person or such Affiliate, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder, or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the
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control of the applicable Issuing Bank; provided that the foregoing shall not be construed to excuse any Issuing Bank from liability to the applicable Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by such Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof or any failure to honor a Letter of Credit where such Issuing Bank is, under applicable law, required to honor it. The parties hereto expressly agree that, as long as the Issuing Bank has not acted with gross negligence or willful misconduct, such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
SECTION 9.16Patriot Act. Each Lender and the Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender or the Agent, as applicable, to identify such Loan Party in accordance with the Patriot Act. The Company and each other Borrower shall, and shall cause each of their Subsidiaries to, provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by the Agent or any Lender in order to assist the Agent and such Lender in maintaining compliance with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, the Patriot Act.
SECTION 9.17Release of Collateral. ii) Notwithstanding any other provision herein or in any other Loan Document, the Agent is hereby authorized and shall release the Collateral from the Liens granted under the Collateral Documents securing the obligations under this Agreement on a Business Day specified by the Company (the “Optional Release Date”), upon the satisfaction of the following conditions precedent (the “Optional Release Conditions”).
(i)the Company shall have given notice to the Agent at least 10 days prior to the Optional Release Date, specifying the proposed Optional Release Date;
(ii)the Collateral Ratings Condition has been satisfied, as of the date of such notice has remained satisfied for an uninterrupted period of at least 30 consecutive days, and shall remain satisfied as of the Optional Release Date;
(iii)no Default shall have occurred and be continuing as of the date of such notice or as of the Optional Release Date;
(iv)all Liens on the Collateral securing the Notes, any Incremental Notes and any other obligations pursuant to the Collateral Documents, have been released as of the Optional Release Date or are released simultaneously with the release
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of the Collateral from the Liens securing obligations under the Loan Documents pursuant to this Section; and
(v)on the Optional Release Date, the Agent shall have received (A) a certificate, dated the Optional Release Date and executed on behalf of the Company by a Senior Financial Officer thereof, confirming the satisfaction of the Optional Release Conditions set forth in clauses (ii), (iii) and (iv) above and (B) such other evidence and calculations as the Agent may reasonably require confirming the satisfaction of the Optional Release Conditions set forth above.
If the conditions set forth above are satisfied on the Optional Release Date, then (i) on and after the Optional Release Date, the Agent shall execute and deliver all such instruments, releases, financing statements or other agreements, and take all such further actions, at the request and expense of the Company, as shall be necessary to effectuate the release of the Liens granted under the Collateral Documents and (ii) as of the Optional Release Date all representations and warranties and covenants contained in this Agreement, the Security Agreement and any other Collateral Document related to the grant or perfection of Liens on the Collateral shall be deemed to be of no force or effect. Any such release shall be without recourse to, or representation or warranty by, the Agent and shall not require the consent of any Lender.
(a)Without limiting the provisions of Section 9.04, the Company shall reimburse the Agent for all costs and expenses, including attorneys’ fees and disbursements, incurred by it in connection with any action contemplated by this Section.
(b)The Lenders hereby irrevocably agree that the Liens granted to the Agent by the Loan Parties on any Collateral shall be automatically released (i) in full, upon the termination of this Agreement and the payment of all Obligations hereunder (except for contingent indemnification obligations in respect of which a claim has not yet been made and any obligations which are expressly stated to survive), (ii) upon the sale or other disposition of such Collateral (including as part of or in connection with any other sale or other disposition permitted hereunder) to any Person other than another Loan Party, to the extent such sale or other disposition is made in compliance with the terms of this Agreement (and the Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without further inquiry), (iii) to the extent such Collateral is comprised of property leased to a Loan Party, upon termination or expiration of such lease, (iv) if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be required in accordance with Section 9.01), (v) to the extent the property constituting such Collateral is owned by any Loan Party, upon the release of such Loan Party from its obligations under the applicable Guaranty (in accordance with the following sentence), (vi) with respect to any Obligations of the Company or its Domestic Subsidiaries, upon the sale or other disposition of such Collateral (including as part of or in connection with any other sale or other disposition permitted hereunder) to any Excluded Foreign Subsidiary, to the extent such sale or other disposition is made in compliance with the terms of this Agreement (and the Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without further inquiry), (vii) as required to effect any sale or other disposition of Collateral in connection with any exercise of remedies of the Agent pursuant to the Collateral Documents and (viii) upon any Principal
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Property (as defined in the Existing Sealed Air Notes) or capital stock constituting Collateral triggering the equal and ratable clauses under the Existing Sealed Air Notes, such Principal Property and capital stock constituting Collateral, while any Existing Sealed Air Notes remain outstanding. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those being released) upon (or obligations (other than those being released) of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral except to the extent otherwise released in accordance with the provisions of the Loan Documents. Additionally, the Lenders hereby irrevocably agree that any Restricted Subsidiary that is a Loan Party shall be released from the Guaranties upon consummation of any permitted transaction resulting in such Subsidiary ceasing to constitute a Restricted Subsidiary. The Lenders hereby authorize the Agent to, and the Agent shall upon request of any Loan Party, execute and deliver any instruments, documents, and agreements necessary or desirable to evidence and confirm (A) the release of any Loan Party or Collateral and/or (B) the exclusion from the definition of “Collateral”, and from the Liens of the Secured Parties on the Collateral, of personal property Leased by any Loan Party from a third party, in each case pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender.
SECTION 9.18Waiver of Jury Trial. EACH OF THE BORROWERS, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE NOTES OR THE ACTIONS OF THE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.19Parallel Debt. (a) Definitions. In this Section:
“Corresponding Debt” means the Obligations.
“Parallel Debt” means any amount which a Borrower owes to the Agent under this Clause.
(b)Each Loan Party irrevocably and unconditionally undertakes to pay to the Agent amounts equal to, and in the currency or currencies of, its Corresponding Debt.
(c)The Parallel Debt of each Loan Party:
(i)shall become due and payable at the same time as its Corresponding Debt; and
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(ii)is independent and separate from, and without prejudice to, its Corresponding Debt.
(d)For purposes of this Section, the Agent:
(i)is the independent and separate creditor of each Parallel Debt;
(ii)acts in its own name and not as agent, representative or trustee of the Lenders and its claims in respect of each Parallel Debt shall not be held on trust; and
(iii)shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency proceeding).
(e)The Parallel Debt of a Loan Party shall be (a) decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged, and (b) increased to the extent to that its Corresponding Debt has increased, and the Corresponding Debt of a Loan Party shall be (x) decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged, and (y) increased to the extent that its Parallel Debt has increased, in each case provided that the Parallel Debt of a Loan Party shall never exceed its Corresponding Debt.
(f)All amounts received or recovered by the Agent in connection with this Section, to the extent permitted by applicable law, shall be applied in accordance with Section 2.11(b)(ii)(C).
(g)This Section applies for the purpose of determining the secured obligations in any Collateral Document (other than Collateral Documents governed by Luxembourg law) and is (i) for the purpose of the Dutch law Collateral Documents governed by Dutch law and (ii) for the purpose of the Japanese law Collateral Documents governed by Japanese law.
SECTION 9.20Intercreditor Agreement. REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT. EACH LENDER HEREUNDER FROM TIME TO TIME IS DEEMED TO HAVE EXECUTED THE INTERCREDITOR AGREEMENT AND (A) AGREES THAT IT WILL BE BOUND BY AND COMPLY WITH THE PROVISIONS OF THE INTERCREDITOR AGREEMENT, (B) CONSENTS TO THE ALLOCATION OF PARTICIPATIONS PROVIDED FOR THEREIN, (C) MAKES ALL REPRESENTATIONS AND WARRANTIES SPECIFIED IN THE INTERCREDITOR AGREEMENT, (D) AGREES TO TAKE NO ACTION CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND (E) AUTHORIZES AND INSTRUCTS THE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS AGENT AND ON BEHALF OF SUCH LENDER.
SECTION 9.21Exceptions to the Application of the Bank Transaction Agreement. The Agreement on Bank Transactions (ginko torihiki yakujosho) and the Agreement on Financial Transactions (kinyu torihiki yakujosho) separately submitted by any Japanese Loan
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Parties to any of the Lenders or entered into between any Japanese Loan Parties and any of the Lenders, if any, shall not apply to this Agreement and the transactions contemplated in this Agreement.
SECTION 9.22Financial Assistance Australian Loan Party. Notwithstanding any other provision of this Agreement or any of the Loan Documents, the parties agree that in respect of each Australian Loan Party, the provisions of this Agreement and each other Loan Document and the obligations incurred under them in so far as such obligations may constitute financial assistance under Section 260A of the Corporations Act have no effect in respect of, and do not apply to, any Australian Loan Party until such time as the steps set out in Section 260B of the Corporations Act have been complied with and all statutory periods required under Section 260B of the Corporations Act have elapsed.
SECTION 9.23Acknowledgment and Consent to Bail-In of EEA Financial Institutions. Solely to the extent any Lender or Issuing Bank that is an EEA Financial Institution is a party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender or Issuing Bank that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender or Issuing Bank party hereto that is an EEA Financial Institution; and
(b)the effects of any Bail-In Action on any such liability, including, if applicable:
(i)a reduction in full or in part or cancellation of any such liability;
(ii)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
SECTION 9.24Fiduciary Duties. The Agent, each Lender and their Affiliates (collectively, for purposes of this paragraph only, the “Lenders”), may have economic interests that conflict with those of the Loan Parties, their stockholders and/or their Affiliates. Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Loan Party, its stockholders or its Affiliates, on the other.
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The Loan Parties acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its stockholders or its Affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of any Loan Party, its management, stockholders, creditors or any other Person. Each Loan Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Loan Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto.
SECTION 9.25Process Agent. Each Loan Party that is organized outside of the United States of America hereby irrevocably designates, appoints and empowers the Company (the “Process Agent”), in the case of any suit, action or proceeding brought in the United States of America as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and in respect of its property, service of any and all legal process, summons, notices and documents that may be served in any action or proceeding arising out of or in connection with this Agreement or any Loan Document. Such service may be made by mailing (by registered or certified mail, postage prepaid) or delivering a copy of such process to such Loan Party in care of the Process Agent at the Process Agent’s address specified in Section 9.02(a) hereof, and such Loan Party hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable law.
SECTION 9.26Designation of Different Applicable Lending Office. Each Lender may make any extensions of credit to the Borrower through any Applicable Lending Office, provided that the exercise of this option shall not affect the obligation of the Borrower to repay the extensions of credit in accordance with the terms of this Agreement.
SECTION 9.27Consent and Agent Direction; Specified Collateral Release. In connection with the Specified Collateral Release, each Lender hereby consents to the release of any Liens or Guarantees existing on the Closing Date that are not required to be provided or maintained pursuant to Section 5.01(h), and consents to any actions the Agent may take in connection with any such releases, including any amendments or modifications to the Collateral Documents as the Agent deems necessary, appropriate or advisable to effect the Specified Collateral Release. In furtherance of the foregoing, each Lender hereby (i) releases (and where applicable, consents to the release, subject to any rights (including indemnifications) expressly stated to survive termination), with effect on the Closing Date, (A) any security interest over any assets not required to comprise the Collateral and (B) any guarantee by any Person not required be a Guarantor, and (ii) directs the Agent to take all such actions, and to execute and/or deliver
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all such documents, releases, amendments, possessory collateral and agreements as it deems necessary, appropriate or desirable in order to effect the Specified Collateral Release (in each case, at the sole cost and expense of the Company).
SECTION 9.28Electronic Execution. The words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Acceptances, amendments or other modifications, Notices of Borrowing, Notices of Swing Line Borrowing, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Agent pursuant to procedures approved by it.
SECTION 9.29Lender Representations. Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent, and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Loan Party, that at least one of the following is and will be true:
(i)such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,
(ii)the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii)(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in,
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administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv)such other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender.
(b)In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that:
(i)none of the Agent or any Joint Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related to hereto or thereto),
(ii)the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),
(iii)the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),
(iv)the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Internal Revenue Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and
(v)no fee or other compensation is being paid directly to the Agent or any Joint Lead Arranger or any their respective Affiliates for investment advice (as
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opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement.
(c)The Agent and each Joint Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
SECTION 9.30Amendment and Restatement. To the extent the Existing Obligations remain outstanding after giving effect to the Closing Date Refinancing, such Existing Obligations shall comprise Obligations under this Agreement and the other Loan Documents, and neither this Agreement nor any other Loan Document entered into on the Closing Date or otherwise in connection with the Closing Date Refinancing shall constitute a novation or a termination of such Existing Obligations, and the Collateral (as defined in the Existing Credit Agreement) shall, except to the extent released pursuant to the Specified Collateral Release, comprise Collateral for purposes of this Agreement and the other Loan Documents and shall secure, support and otherwise benefit the Obligations of the Loan Parties under this Agreement and the other Loan Documents.
SECTION 9.31Obligations Among Borrowers. The Obligations of the Company and each Borrower that is a Domestic Subsidiary shall be joint and several in nature. Notwithstanding anything to the contrary herein, the Obligations of all Borrowers that are Foreign Subsidiaries shall be several in nature (and not joint). The failure of any Borrower to make any payment (including, without limitation, in respect of principal repayment, any prepayments, any interest payments and/or any fee payments) pursuant to the terms of this Agreement or any other Loan Document, in each case, on any date required hereunder or thereunder, as applicable, shall not relieve any other Borrower of its corresponding obligation to do so on such date, and no Foreign Borrower shall be responsible for the failure of any other Borrower to so make its payments hereunder or thereunder, as applicable.
SECTION 9.32Acknowledgement Regarding Any Supported QFCs Obligations Among Borrowers. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank
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Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 9.32, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
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Exhibit 21
SUBSIDIARIES OF THE COMPANY
| AFP Trading (China) Co. Ltd. | China | ||||
| AFPTOH, LTD | Texas | ||||
| Air Ride Pallets Hong Kong Limited | Hong Kong | ||||
| A.P.S. (Holdings) Limited | United Kingdom | ||||
| APS Verwaltungs-GmbH | Germany | ||||
| Austin Foam Plastics, Inc. (dba AFP, Inc.) | Texas | ||||
| Automated Packaging Systems Europe | Belgium | ||||
| APS Automated Packaging Systems GmbH & Co. KG | Germany | ||||
| Automated Packaging Systems Limited | United Kingdom | ||||
| Automated Packaging Systems, LLC | Ohio | ||||
| B+ Equipment SAS | France | ||||
| Beacon Holdings, LLC | Delaware | ||||
| Blue Dot Packaging Pty Ltd. | Australia | ||||
| Cactus (Shanghai) Trading Co., Ltd. | China | ||||
| Cryovac (Malaysia) SDN. BHD | Malaysia | ||||
| Cryovac Brasil Ltda. | Brazil | ||||
| Cryovac Holdings II, LLC | Delaware | ||||
| Cryovac International Holdings Inc. | Delaware | ||||
| Cryovac Londrina Ltda. | Brazil | ||||
| Cryovac, LLC* | Delaware | ||||
| Cryovac-Sealed Air de Costa Rica S.R.L. | Costa Rica | ||||
| Diversey J Trustee Limited | United Kingdom | ||||
| Diversey Trustee Limited | United Kingdom | ||||
| Entapack Pty. Ltd. | Australia | ||||
| Fagerdala (Chengdu) Packaging Co., Ltd | China | ||||
| Fagerdala (Shanghai) Foams Co. Ltd. | China | ||||
| Fagerdala (Shanghai) Polymer Co. Ltd. | China | ||||
| Fagerdala (Suzhou) Packaging Co. Ltd. | China | ||||
| Fagerdala (Thailand) Limited | Thailand | ||||
| Fagerdala (Xiamen) Packaging Co. Ltd. | China | ||||
| Fagerdala Leamchabung Limited | Thailand | ||||
| Fagerdala Malaysia Sdn Bhd | Malaysia | ||||
| Fagerdala Mexico S.A. De C.V. | Mexico | ||||
| Fagerdala Mexico Supply Chain S.A. De C.V. | Mexico | ||||
| Fagerdala Packaging Inc. (Indiana) | Indiana | ||||
| Fagerdala Singapore Pte Ltd | Singapore | ||||
| Foxpak Flexibles Ltd. | Ireland | ||||
| Getpacking.com, GmbH | Switzerland | ||||
| Invertol S. de R.L. de C.V. | Mexico | ||||
| JSC Sealed Air Kaustik | Russia | ||||
| Kevothermal Limited | United Kingdom | ||||
| Kevothermal LLC | Delaware | ||||
| KRIS Automated Packaging Systems Holding Company | Mauritius | ||||
| Pack-Tiger GmbH | Switzerland | ||||
| Polyrol Limited | United Kingdom | ||||
| Polyrol Packaging Systems, LLC | Ohio | ||||
| Producembal- Producao de Embalagens, LTDA | Portugal | ||||
| Saddle Brook Insurance Company | Vermont | ||||
| Sealed Air (Asia) Holdings BV | Netherlands | ||||
| Sealed Air (Barbados) S.R.L. | Barbados | ||||
| Sealed Air (Canada) Co./CIE | Canada | ||||
| Sealed Air (Canada) Holdings B.V. | Netherlands | ||||
| Sealed Air (China) Limited | Delaware | ||||
| Sealed Air (China) Co. Ltd. | China | ||||
| Sealed Air (Korea) Limited | Korea | ||||
| Sealed Air (Latin America) Holdings II, LLC | Delaware | ||||
| Sealed Air (Malaysia) SDN. BHD. | Malaysia | ||||
| Sealed Air (New Zealand) | New Zealand | ||||
| Sealed Air (Philippines) Inc. | Philippines | ||||
| Sealed Air (Singapore) Pte. Limited | Singapore | ||||
| Sealed Air (Ukraine) Limited | Ukraine | ||||
| Sealed Air Africa (Pty.) Limited | South Africa | ||||
| Sealed Air Americas Manufacturing S. de R.L. de C.V. | Mexico | ||||
| Sealed Air Argentina S.A. | Argentina | ||||
| Sealed Air Australia (Holdings) Pty. Limited | Australia | ||||
| Sealed Air Australia Pty. Limited | Australia | ||||
| Sealed Air Australia Real Estate Pty Ltd | Australia | ||||
| Sealed Air B.V. | Netherlands | ||||
| Sealed Air Belgium N.V. | Belgium | ||||
| Sealed Air Central America, S.A. | Guatemala | ||||
| Sealed Air Chile SpA | Chile | ||||
| Sealed Air Colombia Ltda. | Colombia | ||||
| Sealed Air Corporation (US) | Delaware | ||||
| Sealed Air Cyprus Ltd. | Cyprus | ||||
| Sealed Air de Mexico Operations, S. de RL. de C.V. | Mexico | ||||
| Sealed Air de Venezuela, S.A. | Venezuela | ||||
| Sealed Air Denmark A/S | Demnark | ||||
| Sealed Air Finance Luxembourg S.a.r.l. | Luxembourg | ||||
| Sealed Air Funding LLC | Delaware | ||||
| Sealed Air General Trading LLC | United Arab Emirates | ||||
| Sealed Air GmbH | Germany | ||||
| Sealed Air GmbH | Switzerland | ||||
| Sealed Air Hellas SA | Greece | ||||
| Sealed Air Holding France SAS | France | ||||
| Sealed Air Holdings (New Zealand) Pty. Ltd. | New Zealand | ||||
| Sealed Air Holdings South Africa Proprietary Limited | South Africa | ||||
| Sealed Air Holdings UK Limited | United Kingdom | ||||
| Sealed Air Holdings UK I Limited | United Kingdom | ||||
| Sealed Air Hong Kong Limited | Hong Kong | ||||
| Sealed Air Hungary Ltd. | Hungary | ||||
| Sealed Air Investment and Management (Shanghai) Co., Ltd. | China | ||||
| Sealed Air Japan G.K. | Japan | ||||
| Sealed Air Limited | Ireland | ||||
| Sealed Air Limited | United Kingdom | ||||
| Sealed Air LLC | Delaware | ||||
| Sealed Air Luxembourg S.a.r.l. | Luxembourg | ||||
| Sealed Air Management Holding Verwaltungs GmbH | Germany | ||||
| Sealed Air Multiflex GmbH | Germany | ||||
| Sealed Air Netherlands (Holdings) I B.V. | Netherlands | ||||
| Sealed Air Netherlands (Holdings) II B.V. | Germany | ||||
| Sealed Air Netherlands Holdings V B.V. | Netherlands | ||||
| Sealed Air Norge AS | Norway | ||||
| Sealed Air OY | Finland | ||||
| Sealed Air Packaging (Shanghai) Co., Limited | China | ||||
| Sealed Air Packaging (Thailand) Co., Ltd. | Thailand | ||||
| Sealed Air Packaging Materials (India) LLP | India | ||||
| Sealed Air Packaging S.L.U. | Spain | ||||
| Sealed Air Peru S.A.C. | Peru | ||||
| Sealed Air Polska Sp. Zoo | Poland | ||||
| Sealed Air S.r.l. | Italy | ||||
| Sealed Air s.r.o. | Czech Republic | ||||
| Sealed Air S.A S. | France | ||||
| Sealed Air South Africa (Pty.) Ltd. | South Africa | ||||
| Sealed Air Svenska AB | Sweden | ||||
| Sealed Air Taiwan Limited | Taiwan | ||||
| Sealed Air UK Limited Partnership | United Kingdom | ||||
| Sealed Air Uruguay S.A. | Uruguay | ||||
| Sealed Air US Holdings (Thailand), LLC | Delaware | ||||
| Sealed Air Verpackungen GmbH | Germany | ||||
| Sealed Air Vietnam Company Limited | Vietnam | ||||
| Shanklin Corporation | Delaware | ||||
| TXAFP Asia Pacific, Ltd. | Texas | ||||
| TXAFP GP LLC | Texas | ||||
* Cryovac, LLC does business in certain states under the name “Sealed Air Shrink Packaging Division.”
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statements on Form S‑8 (Nos. 333-258486, 333-252040, 333-226619, 333-223460, 333-196508, 333-176267, and 333-89090) of Sealed Air Corporation of our report dated February 22, 2022 relating to the financial statements and financial statement schedules and the effectiveness of internal control over financial reporting, which appears in this Form 10‑K.
| /s/ PricewaterhouseCoopers LLP | ||
| Charlotte, North Carolina | ||
| February 22, 2022 | ||
Exhibit 31.1
CERTIFICATIONS
I, Edward L. Doheny II, certify that:
1. I have reviewed this Annual Report on Form 10-K of Sealed Air Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| /S/ EDWARD L. DOHENY II | ||
| Edward L. Doheny II | ||
| President and Chief Executive Officer | ||
Date: February 22, 2022
Exhibit 31.2
CERTIFICATIONS
I, Christopher J. Stephens, Jr., certify that:
1. I have reviewed this Annual Report on Form 10-K of Sealed Air Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| /S/ CHRISTOPHER J. STEPHENS, JR. | ||
| Christopher J. Stephens, Jr. | ||
| Senior Vice President and Chief Financial Officer | ||
Date: February 22, 2022
Exhibit 32
Certification of CEO and CFO Pursuant to
18 U.S.C. Section 1350,
as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Annual Report on Form 10-K of Sealed Air Corporation (the “Company”) for the fiscal year ended December 31, 2021 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Edward L. Doheny II, as President and Chief Executive Officer of the Company, and Christopher J. Stephens, Jr., as Senior Vice President and Chief Financial Officer of the Company, each hereby certifies pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his/her knowledge:
| (1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and | ||||
| (2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. | ||||
| By: | /s/ EDWARD L. DOHENY II | ||||||||||
| Name: Edward L. Doheny II | |||||||||||
Title: President and Chief Executive Officer | |||||||||||
| Date: February 22, 2022 | |||||||||||
| By: | /s/ CHRISTOPHER J. STEPHENS, JR. | ||||||||||
| Name: Christopher J. Stephens, Jr. | |||||||||||
Title: Senior Vice President and Chief Financial Officer | |||||||||||
| Date: February 22, 2022 | |||||||||||