EXECUTION COUNTERPART
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
March 19, 2003
between
CONSTELLATION BRANDS, INC.,
The SUBSIDIARY GUARANTORS Party Hereto,
The LENDERS Party Hereto
JPMORGAN CHASE BANK,
as Administrative Agent
and
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED, as
London Agent
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Joint Bookrunners
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC. and
UBS WARBURG LLC,
as Joint Lead Arrangers
CITICORP NORTH AMERICA, INC.
as Syndication Agent
UBS WARBURG LLC
SUNTRUST BANK and
THE BANK OF NOVA SCOTIA
as Documentation Agents
U.S.$1,600,000,000
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms...............................................................................1
SECTION 1.02. Classification of Loans and Borrowings.....................................................35
SECTION 1.03. Terms Generally............................................................................36
SECTION 1.04. Accounting Terms; GAAP.....................................................................36
SECTION 1.05. Currency Equivalents.......................................................................36
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments............................................................................37
SECTION 2.02. Loans and Borrowings.......................................................................39
SECTION 2.03. Requests for Borrowings....................................................................40
SECTION 2.04. Swingline Loans............................................................................41
SECTION 2.05. Letters of Credit..........................................................................43
SECTION 2.06. Funding of Borrowings......................................................................50
SECTION 2.07. Interest Elections.........................................................................50
SECTION 2.08. Termination and Reduction of the Commitments...............................................52
SECTION 2.09. Repayment of Loans; Evidence of Debt.......................................................53
SECTION 2.10. Prepayment of Loans........................................................................56
SECTION 2.11. Fees.......................................................................................62
SECTION 2.12. Interest...................................................................................63
SECTION 2.13. Alternate Rate of Interest.................................................................64
SECTION 2.14. Increased Costs............................................................................65
SECTION 2.15. Break Funding Payments.....................................................................66
SECTION 2.16. Taxes......................................................................................67
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs......................................................................69
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.............................................71
ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee..............................................................................72
SECTION 3.02. Obligations Unconditional..................................................................72
SECTION 3.03. Reinstatement..............................................................................77
SECTION 3.04. Subrogation................................................................................77
SECTION 3.05. Remedies...................................................................................78
SECTION 3.06. Instrument for the Payment of Money........................................................78
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SECTION 3.07. Continuing Guarantee.......................................................................78
SECTION 3.08. Rights of Contribution.....................................................................78
SECTION 3.09. General Limitation on Guarantee Obligations................................................79
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Organization; Powers.......................................................................79
SECTION 4.02. Authorization; Enforceability..............................................................80
SECTION 4.03. Governmental Approvals; No Conflicts.......................................................80
SECTION 4.04. Financial Condition; No Material Adverse Change............................................80
SECTION 4.05. Properties.................................................................................81
SECTION 4.06. Litigation.................................................................................81
SECTION 4.07. Environmental Matters......................................................................82
SECTION 4.08. Compliance with Laws and Agreements........................................................84
SECTION 4.09. Investment and Holding Company Status......................................................84
SECTION 4.10. Taxes......................................................................................84
SECTION 4.11. ERISA......................................................................................84
SECTION 4.12. Disclosure.................................................................................84
SECTION 4.13. Use of Credit..............................................................................85
SECTION 4.14. Material Agreements and Liens..............................................................85
SECTION 4.15. Capitalization.............................................................................85
SECTION 4.16. Subsidiaries and Investments...............................................................86
SECTION 4.17. Solvency...................................................................................86
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date.............................................................................86
SECTION 5.02. Initial Borrowing of Loans.................................................................90
SECTION 5.03. Release of Funds from Loan Collateral Account..............................................92
SECTION 5.04. Each Credit Event..........................................................................95
ARTICLE VI
AFFIRMATIVE COVENANTS
SECTION 6.01. Financial Statements and Other Information.................................................96
SECTION 6.02. Notices of Material Events.................................................................98
SECTION 6.03. Existence; Conduct of Business.............................................................98
SECTION 6.04. Payment of Obligations.....................................................................98
SECTION 6.05. Maintenance of Properties; Insurance.......................................................99
SECTION 6.06. Books and Records; Inspection Rights.......................................................99
SECTION 6.07. Compliance with Laws.......................................................................99
SECTION 6.08. Use of Proceeds............................................................................99
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SECTION 6.09. Certain Obligations Respecting Subsidiaries...............................................100
SECTION 6.10. Pledge of Certain Collateral of the Borrower..............................................102
SECTION 6.11. Target Acquisition.........................................................................102
SECTION 6.12. Syndication Letter........................................................................104
ARTICLE VII
NEGATIVE COVENANTS
SECTION 7.01. Indebtedness..............................................................................104
SECTION 7.02. Liens.....................................................................................107
SECTION 7.03. Fundamental Changes.......................................................................108
SECTION 7.04. Disposition of Property...................................................................109
SECTION 7.05. Acquisition of Property...................................................................110
SECTION 7.06. Investments...............................................................................111
SECTION 7.07. Restricted Payments.......................................................................113
SECTION 7.08. Transactions with Affiliates..............................................................114
SECTION 7.09. Certain Restrictions......................................................................115
SECTION 7.10. Certain Financial Covenants...............................................................115
SECTION 7.11. Subordinated Indebtedness.................................................................117
SECTION 7.12. Senior Unsecured Indebtedness.............................................................118
SECTION 7.13. Modifications of Certificate of Incorporation.............................................119
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. Events of Default.........................................................................119
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.01. The Administrative Agent and the London Agent.............................................123
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices..................................................................................126
SECTION 10.02. Waivers; Amendments......................................................................127
SECTION 10.03. Expenses; Indemnity; Damage Waiver.......................................................129
SECTION 10.04. Successors and Assigns...................................................................130
SECTION 10.05. Survival.................................................................................133
SECTION 10.06. Counterparts; Integration; Effectiveness.................................................134
SECTION 10.07. Severability.............................................................................134
SECTION 10.08. Right of Setoff..........................................................................134
SECTION 10.09. Governing Law; Jurisdiction; Etc.........................................................135
SECTION 10.10. WAIVER OF JURY TRIAL.....................................................................135
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SECTION 10.11. Headings.................................................................................136
SECTION 10.12. Treatment of Certain Information; Disclosure.............................................136
SECTION 10.13. "Credit Agreement" under Indentures; Existing Credit Agreement...........................137
SECTION 10.14. Judgment Currency........................................................................137
SECTION 10.15. Cleanup Period...........................................................................138
SECTION 10.16. Delivery of Lender Addenda...............................................................138
SCHEDULE I - Material Agreements and Liens
SCHEDULE II - Disclosed Matters
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Stock Options and Stock Based Plans
SCHEDULE V - Certain Adjustment Amounts
SCHEDULE VI - Foreign Subsidiaries
SCHEDULE VII - Senior Unsecured Notes
SCHEDULE VIII - Relevant Assets
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B-1 - Form of U.S. Pledge Agreement
EXHIBIT B-2 - Form of U.K. Equity Pledge Agreement
EXHIBIT B-3 - Form of Australian Equity Pledge Agreement
EXHIBIT B-4 - Form of Luxembourg Equity Pledge Agreement
EXHIBIT C - Form of Guarantee Assumption Agreement
EXHIBIT D-1 - Form of Opinion of U.S. Counsel to the Obligors
EXHIBIT D-2 - Form of Opinion of U.K. Counsel to the Obligors
EXHIBIT D-3 - Form of Opinion of Luxembourg Counsel to the Obligors
EXHIBIT D-4 Form of Opinion of Australian Counsel to the Obligors (Effective Date)
EXHIBIT D-5 - Form of Opinion of Australian Counsel to the Obligors
(Implementation Date)
EXHIBIT E - Form of Opinion of Special New York Counsel to
JPMorgan Chase
EXHIBIT F - Form of Intercompany Note
EXHIBIT G - Form of Officer's Certificate
EXHIBIT H - Draft Implementation Deed
EXHIBIT I - Cash Collateral Pledge Agreement
EXHIBIT J - Legal and Compliance Report
EXHIBIT K - Form of Lender Addendum
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 19,
2003, between CONSTELLATION BRANDS, INC., the SUBSIDIARY GUARANTORS party
hereto, the LENDERS party hereto, JPMORGAN CHASE BANK, as Administrative Agent
and ▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED, as London Agent.
The Borrower (as hereinafter defined), certain Subsidiaries
(as hereinafter defined) of the Borrower, the Existing Lenders (as hereinafter
defined), certain other parties and JPMorgan Chase Bank, as administrative
agent, are party to a Credit Agreement dated as of January 16, 2003 (said Credit
Agreement, as in effect on the date hereof immediately before giving effect to
the amendment and restatement contemplated hereby, being herein called the
"Existing Credit Agreement"). Pursuant to the Existing Credit Agreement, the
Existing Lenders committed to make revolving credit and term loans to the
Borrower in an original aggregate principal or face amount not exceeding
$1,600,000,000 at any one time outstanding (subject to increase as therein
provided to $1,900,000,000), to provide working capital for the Borrower and its
Subsidiaries, to refinance certain existing indebtedness of the Borrower, to
finance the Target Acquisition (as hereinafter defined), to repay the Target
Credit Facilities (as hereinafter defined) and for other general corporate
purposes of the Borrower and its Subsidiaries.
The parties hereto wish to amend the Existing Credit Agreement
in certain respects to provide for, among other things, additional lenders to
become parties thereto and, as so amended, to restate the Existing Credit
Agreement in its entirety. Accordingly, the parties hereto hereby agree that the
Existing Credit Agreement shall, with effect as of the date hereof, but subject
to the execution and delivery of this Agreement by each of the intended parties
hereto and the execution and delivery of Lender Addenda (as hereinafter defined)
by each of such additional lenders, be amended and restated to read in its
entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acceleration Date" has the meaning assigned to such term in
the penultimate paragraph of Article VIII.
"Acquisition" means an acquisition by the Borrower or any of
its Subsidiaries of a business of any Person or a business line or division of
any Person (whether by way of purchase of assets or stock, including any tender
for outstanding shares of stock, by merger or
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consolidation, by acceptance of a contribution of capital from another Person,
or otherwise). For purposes hereof, the term "Acquisition" shall include the
Target Acquisition.
"Additional Security Agreement" means a security agreement,
pledge agreement, mortgage of shares or similar agreement in form and substance
reasonably satisfactory to the Administrative Agent, executed and delivered
pursuant to Section 6.10 by the Borrower or any Subsidiary Guarantor in favor of
the Administrative Agent creating in favor of the Administrative Agent, for the
benefit of the Lenders, a security interest in the Collateral required to be
pledged by the Borrower under said Section 6.10.
"Adjusted Cash Flow" means, for any period (the "calculation
period"), the sum, for the Borrower and its Consolidated Subsidiaries
(determined on a consolidated basis without duplication in accordance with
GAAP), of the following: (a) Operating Cash Flow for the calculation period
minus (b) Capital Expenditures made during the calculation period (excluding
Capital Expenditures made from the proceeds of Indebtedness other than
Indebtedness hereunder).
"Adjusted LIBO Rate" means, for the Interest Period for any
Eurocurrency Borrowing, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate for such Interest Period.
"Adjustment Amount" means, for any period, (i) the amount for
such period specified on Schedule V hereto and (ii) in connection with any
Acquisition or Disposition after the date hereof the sum of (x) all non-cash
non-recurring charges for such period (which charges are reasonably acceptable
to the Administrative Agent) and (y) all non-recurring cash charges associated
with cost savings acceptable under Regulation SX of the Securities Act of 1933,
as amended, in each case against net operating income of the Borrower, any
Subsidiary or the Person subject to an Acquisition.
"Administrative Agent" means JPMorgan Chase, in its capacity
as administrative agent for the Lenders hereunder, together with its successors
and assigns.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified
(provided that no Subsidiary will be deemed to be an Affiliate of the Borrower
or of any other Subsidiary).
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
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"Alternative Currency" means any currency (other than U.S.
Dollars) so long as at such time, (a) such currency is dealt with in the London
interbank deposit market, (b) such currency is freely transferable and
convertible into U.S. Dollars in the London foreign exchange market and (c) no
central bank or other governmental authorization in the country of issue of such
currency is required to permit use of such currency by any Issuing Lender for
issuance, renewal, extension or amendment of any Alternate Currency Letter of
Credit or funding or making drawings thereunder and/or to permit the Borrower to
pay the reimbursement obligation of any drawing thereunder and to pay the
interest thereon, unless such authorization has been obtained and is in full
force and effect.
"Alternative Currency Equivalent" shall mean, with respect to
any amount in U.S. Dollars, the amount of the relevant Alternative Currency that
could be purchased with such amount of U.S. Dollars using the foreign exchange
rate(s) specified in the definition of "U.S. Dollar Equivalent" below, as
determined by the relevant Issuing Lender.
"Alternate Currency LC Exposure" means, at any time, the sum
of (a) the U.S. Dollar Equivalent of the aggregate undrawn amount of all
outstanding Alternate Currency Letters of Credit at such time plus (b) the U.S.
Dollar Equivalent of the aggregate amount of all LC Disbursements under
Alternate Currency Letters of Credit that have not yet been reimbursed by or on
behalf of the Borrower at such time.
"Alternate Currency Letter of Credit" means a Letter of Credit
issued by an Issuing Lender in an Alternative Currency pursuant to Section
2.05(c).
"Alternative Currency Letter of Credit Report" has the meaning
assigned to such term in Section 2.05(c)(ii).
"Applicable Agent" mean (a) with respect to any Loan,
Borrowing or Letter of Credit denominated in U.S. Dollars, the Administrative
Agent and (b) with respect to any Loan, Borrowing or Letter of Credit
denominated in Australian Dollars or any Alternate Currency, the London Agent.
"Applicable Percentage" means (a) with respect to any U.S.
Dollar Revolving Lender for purposes of Sections 2.04 or 2.05 or Article VIII,
the percentage of the total U.S. Dollar Revolving Commitments represented by
such U.S. Dollar Revolving Lender's U.S. Dollar Revolving Commitment, (b) with
respect to any Australian Dollar Revolving Lender for purposes of Article VIII,
the percentage of the total Australian Dollar Revolving Commitments represented
by such Australian Dollar Revolving Lender's Australian Dollar Revolving
Commitment, (c) with respect to any U.S. Dollar Revolving Lender in respect of
any indemnity claim under Section 10.03(c) arising out of an action or omission
of the Administrative Agent, the Swingline Lender or any Issuing Lender under
this Agreement relating to Swingline Loans or Letters of Credit, the percentage
of the total U.S. Dollar Revolving Commitments represented by such U.S. Dollar
Revolving Lender's U.S. Dollar Revolving Commitment and (d) with respect to any
Lender in respect of any indemnity claim under Section 10.03(c) arising out of
an action or omission of the Administrative Agent under this Agreement (other
than one relating to Swingline Loans or Letters of Credit), the percentage of
the total Commitments or Loans of all Classes hereunder represented by the
aggregate amount of such Lender's Commitments or Loans of all
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Classes hereunder. If the Revolving Commitments of any Class have terminated or
expired, the Applicable Percentages for such Class of Revolving Commitments
shall be determined based upon the Revolving Commitments of such Class most
recently in effect (and giving effect to any assignments).
"Applicable Rate" means, for any day, with respect to any ABR
Borrowing (including any Swingline ABR Borrowing), Eurocurrency Borrowing or
Swingline FFBR Borrowing, or with respect to the commitment fees payable
hereunder, as the case may be, (x) 1.75% in the case of any Tranche B Term Loan
ABR Borrowing, and 2.75% per annum in the case of any Tranche B Term Loan
Eurocurrency Borrowing, in each case applicable when the Debt Ratio as of the
most recent determination date is greater than 3.50 to 1, (y) 1.50% in the case
of any Tranche B Term Loan ABR Borrowing, and 2.50% per annum in the case of any
Tranche B Term Loan Eurocurrency Borrowing, in each case applicable when the
Debt Ratio as of the most recent determination date is less than or equal to
3.50 to 1 and (z) for each other Borrowing, the rate per annum set forth in the
schedule below, as applicable, based upon the Debt Ratio as of the most recent
determination date:
----------------- -------------------- --------------------- --------------------- ---------------------- ----------------
U.S. Dollar
Revolving, U.S. Dollar
and Swingline Revolving and
Loan: ABR Rate Australian Dollar
and Swingline FFBR Revolving: Tranche A Tranche A Term Commitment
Debt Ratio: Rate Eurodollar Rate Term Loan: ABR Rate Loan: Eurodollar Rate Fee Rate
----------------- -------------------- --------------------- --------------------- ---------------------- ----------------
Category 1
= 4.50x 1.50 2.50 1.50 2.50 0.50
----------------- -------------------- --------------------- --------------------- ---------------------- ----------------
Category 2
< 4.50x 1.25 2.25 1.25 2.25 0.50
and
= 4.00x
----------------- -------------------- --------------------- --------------------- ---------------------- ----------------
Category 3
< 4.00x 1.00 2.00 1.00 2.00 0.50
and
= 3.50x
----------------- -------------------- --------------------- --------------------- ---------------------- ----------------
Category 4
< 3.50x 0.75 1.75 0.75 1.75 0.375
and
= 3.00x
----------------- -------------------- --------------------- --------------------- ---------------------- ----------------
Category 5
< 3.00x 0.50 1.50 0.50 1.50 0.375
----------------- -------------------- --------------------- --------------------- ---------------------- ----------------
For purposes of the foregoing, (i) the Debt Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 4.04(a)(i)(y) or Section 6.01(a) or (b) and (ii) subject to the
foregoing provisions of this definition, each change in the Applicable Rate
resulting from a change in the Debt Ratio shall be effective during the period
commencing on and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and ending on the
date immediately preceding the effective
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date of the next such change; provided that (A) subject to clauses (B) and (C)
below, if the Debt Ratio would be in Category 1 at any time prior to the second
delivery after the date hereof of financial statements pursuant to Section
6.01(a) or (b), the Debt Ratio shall be deemed to be in Category 2 during such
time, (B) the Debt Ratio shall be deemed to be in Category 1 at any time that an
Event of Default has occurred and is continuing and (C) the Debt Ratio shall be
deemed to be in Category 1 if the Borrower fails to deliver the consolidated
financial statements required to be delivered by it pursuant to Section 6.01(a)
or (b), during the period from the expiration of the time for delivery thereof
until such consolidated financial statements are delivered.
Notwithstanding the foregoing, the "Applicable Rate" for any
Incremental Term Loan of any Series shall be the respective rates specified in
the Incremental Term Loan Agreement for such Series; provided that, if the
interest rate for either Type of any Series of Incremental Term Loans shall be
greater than 0.25% above the interest rate for the corresponding Type of Tranche
B Term Loans (including any original issue discount ("OID") in respect of such
Incremental Term Loans in calculation of such interest, with such OID being
equated to such increased interest rate in a manner determined by the
Administrative Agent and consistent with GAAP based on an assumed four-year life
to maturity), the Applicable Rate for such Type of Tranche B Term Loans shall be
automatically adjusted upwards on the date upon which the Incremental Term Loan
Commitments of such Series are established pursuant to Section 2.01(f) so that
the interest rate for such Type of such Series of Incremental Term Loans is
0.25% above such interest rate for such Type of Tranche B Term Loans.
"Approval Date" means the day of the meeting of shareholders
of the Target in respect of the Target Acquisition.
"Approved Fund" means any Person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"ASX" means the Australian Stock Exchange Limited ACN 008 624
691.
"ASX Listing Rules" means the listing rules of the ASX in
force from time to time.
"Australia" means the Commonwealth of Australia.
"Australian ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇" ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Holdings Pty Limited ACN 103 359 299 an unlisted proprietary company
incorporated in the Australian Capital Territory and a Wholly-Owned Subsidiary
of the Borrower.
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"Australian Acquisition Company 2" means Constellation
Australia Pty Limited ACN 103 362 232, an unlisted proprietary company
incorporated in the Australian Capital Territory and a Wholly-Owned Subsidiary
of the Australian Acquisition Company 1.
"Australian Acquisition Entities" means each of Constellation
International Holdings, ▇▇▇▇▇, Australian Acquisition Company 1 and Australian
Acquisition Company 2.
"Australian Dollar Equivalent" shall mean, with respect to any
amount in U.S. Dollars, the amount of Australian Dollars that could be purchased
with such amount of U.S. Dollars using the foreign exchange rate(s) specified in
the definition of "U.S. Dollar Equivalent" below, as determined by the
Administrative Agent.
"Australian Dollar Revolving Availability Period" means the
period from and including the Effective Date to but excluding the earlier of the
Australian Dollar Revolving Commitment Termination Date and the date of
termination of the Australian Dollar Revolving Commitments.
"Australian Dollar Revolving Commitment" means, with respect
to each Australian Dollar Revolving Lender, the commitment, if any, of such
Australian Dollar Revolving Lender to make Australian Dollar Revolving Loans in
Australian Dollars, expressed as an amount in U.S. Dollars representing the
maximum aggregate amount of such Australian Dollar Revolving Lender's Australian
Dollar Revolving Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.08 or 2.10 and (b) reduced or increased from
time to time pursuant to assignments by or to such Australian Dollar Revolving
Lender pursuant to Section 10.04. The initial amount of each Australian Dollar
Revolving Lender's Australian Dollar Revolving Commitment is set forth opposite
the name of such Lender on its Lender Addendum under the caption "Australian
Dollar Revolving Commitment", or in the Assignment and Acceptance pursuant to
which such Australian Dollar Revolving Lender shall have assumed its Australian
Dollar Revolving Commitment, as applicable. The initial aggregate amount of the
Australian Dollar Revolving Lenders' Australian Dollar Revolving Commitments is
U.S.$10,000,000.
"Australian Dollar Revolving Commitment Termination Date"
means February 29, 2008 (provided that if such day is not a Business Day, the
Australian Dollar Revolving Commitment Termination Date shall be the immediately
preceding Business Day).
"Australian Dollar Revolving Exposure" means, with respect to
any Australian Dollar Revolving Lender at any time, the sum of the outstanding
principal amount of such Australian Dollar Revolving Lender's Australian Dollar
Revolving Loans at such time.
"Australian Dollar Revolving Lender" means (a) initially, a
Lender that has an "Australian Dollar Revolving Commitment" set forth opposite
the name of such Lender on its Lender Addendum and (b) thereafter, a Lender from
time to time holding an Australian Dollar Revolving Commitment or a Lender from
time to time with an Australian Dollar Revolving Exposure.
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"Australian Dollar Revolving Loan" means a Loan made pursuant
to Section 2.01(b) which is a Eurocurrency Loan.
"Australian Dollars" or "AUD$" means the lawful currency of
Australia.
"Australian Equity Pledge Agreement" means each Mortgage of
Shares, substantially in the form of Exhibit B-3, executed and delivered by (a)
Constellation International Holdings in favor of the Administrative Agent,
creating in favor of the Administrative Agent, for the benefit of the Lenders, a
security interest in the shares of Australian Acquisition Company 1, (b)
Australian Acquisition Company 1 in favor of the Administrative Agent, creating
in favor of the Administrative Agent, for the benefit of the Lenders, a security
interest in the shares of Australian Acquisition Company 2 and (c) Australian
Acquisition Company 2 in favor of the Administrative Agent, creating in favor of
the Administrative Agent, for the benefit of the Lenders, a security interest in
the shares of the Target (in the case of clauses (a), (b) and (c), up to but not
exceeding such portion thereof as does not represent more than 65% of the
aggregate outstanding voting stock issued by the relevant Australian Acquisition
Entity or the Target as the case may be).
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Constellation Brands, Inc., a Delaware
corporation.
"Borrower CDIs" means the securities of the Borrower in the
form of CHESS Depositary Interests to be listed on the Australian Stock
Exchange.
"Borrower Security Agreement" means a security agreement,
pledge agreement, mortgage of shares or similar agreement in form and substance
reasonably satisfactory to the Administrative Agent, executed and delivered
pursuant to Sections 6.09 and 6.10 by the Borrower in favor of the
Administrative Agent creating in favor of the Administrative Agent, for the
benefit of the Lenders, a security interest in the Collateral required to be
pledged by the Borrower under said Sections 6.09 and 6.10.
"Borrower Shares" means the Class A common stock in the
capital of the Borrower to be listed on the New York Stock Exchange.
"Borrowing" means (a) Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurocurrency Loans,
as to which a single Interest Period is in effect or (b) a Swingline Loan. For
all purposes of this Agreement, the date of a Borrowing initially shall be the
date on which the Borrowing is made and, in the case of a Eurocurrency
Borrowing, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
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"Bridge Credit Agreement" means the Credit Agreement dated as
of January 16, 2003 among the Borrower, the lenders party thereto and JPMorgan
Chase, as Administrative Agent, as amended.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that (i) if such day relates to a borrowing or
continuation of, a payment or prepayment of principal of or interest on, or the
Interest Period for, a Eurocurrency Borrowing denominated in U.S. Dollars or a
notice by the Borrower with respect to any such Borrowing, continuation,
payment, prepayment or Interest Period, that is also a day on which dealings in
deposits denominated in U.S. Dollars are carried out in the London interbank
market, (ii) if such day relates to a borrowing or continuation of, a payment or
prepayment of principal of or interest on, or the Interest Period for, a
Eurocurrency Borrowing denominated in Australian Dollars or a notice by the
Borrower with respect to any such Borrowing, continuation, payment, prepayment
or Interest Period, that is also a day on which dealings in the spot market for
the purchase of U.S. Dollars with Australian Dollars are carried out in the
London foreign exchange market and (iii) if such day relates to an Alternative
Currency Letter of Credit Report in respect to any Alternative Currency Letter
of Credit, such day shall also be a day on which dealings in the spot market for
the purchase of U.S. Dollars with the relevant Alternative Currency are carried
out in the London foreign exchange market.
"Canandaigua B.V." means Canandaigua B.V., a company organized
under the laws of The Netherlands and a Wholly-Owned Subsidiary of the Borrower.
"Canandaigua Limited" means Canandaigua Limited, a company
organized under the laws of England and Wales and a Wholly-Owned Subsidiary of
the Borrower.
"Capital Expenditures" means, for any period, expenditures
(including the aggregate amount of Capital Lease Obligations incurred during
such period) made by the Borrower or any of its Consolidated Subsidiaries to
acquire or construct fixed assets, plant and equipment (including renewals,
improvements and replacements, but excluding repairs) during such period
computed in accordance with GAAP. Notwithstanding the foregoing, no Acquisition
permitted pursuant to Section 7.05(b) or 7.05(c) shall be treated as a Capital
Expenditure.
"Capital Lease" of any Person means any lease of (or other
arrangement conveying the right to use) real or personal Property, or a
combination thereof, which obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such Person under GAAP.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any Capital Lease,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Collateral Pledge Agreement" means a Cash Collateral
Pledge Agreement substantially in the form of Exhibit I between the Borrower and
the Administrative Agent.
-9-
"Cash Consideration" has the meaning given to such term in the
Implementation Deed.
"Casualty Event" means, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"Change in Control" means (i) any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof (the "Exchange Act")), other than Permitted Holders,
is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that a Person shall be deemed to have beneficial
ownership of all shares that such Person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 25% of the voting power of the total outstanding Voting
Stock of the Borrower voting as one class (provided that the Permitted Holders
"beneficially own" (as so defined) a percentage of Voting Stock having a lesser
percentage of the voting power than such other Person and do not have the right
or ability by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of the Borrower), (ii) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Borrower (together with any new
directors whose election to such Board of Directors or whose nomination for
election by the shareholders of the Borrower was approved by a vote of 66 2/3%
of the directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of such Board of
Directors then in office, or (iii) any event that requires the Borrower,
pursuant to the provisions of any instrument evidencing or governing any Senior
Unsecured Indebtedness or any Subordinated Indebtedness, to redeem, or make an
offer to redeem or repurchase, all or any portion of such Senior Unsecured
Indebtedness or Subordinated Indebtedness, as the case may be, as a result of a
change of control (however defined).
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
any Issuing Lender (or, for purposes of Section 2.14(b), by any lending office
of such Lender or by such Lender's or such Issuing Lender's holding company, if
any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are U.S.
Dollar Revolving Loans, Australian Dollar Revolving Loans, Tranche A Term Loans,
Tranche B Term Loans, Incremental Term Loans or Swingline Loans and, when used
in reference to any Commitment, refers to whether such Commitment is a U.S.
Dollar Revolving Commitment, Australian Dollar Revolving Commitment, Tranche A
Term Loan Commitment, Tranche B Term Loan Commitment or Incremental Term Loan
Commitment.
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"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means, collectively, the "Collateral" specified
in the U.S. Pledge Agreement and all collateral pledged pursuant to the Foreign
Equity Pledge Agreements or a Borrower Security Agreement or an Additional
Security Agreement.
"Collateral Account" has the meaning assigned to such term in
Section 4.01 of the U.S. Pledge Agreement.
"Committed LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Committed Letters of Credit at such
time plus (b) the aggregate amount of all LC Disbursements under Committed
Letters of Credit that have not yet been reimbursed by or on behalf of the
Borrower at such time. The Committed LC Exposure of any U.S. Dollar Revolving
Lender at any time shall be its Applicable Percentage of the total Committed LC
Exposure in respect of all Committed Letters of Credit that constitute
utilizations of such U.S. Dollar Revolving Lender's U.S. Dollar Revolving
Commitments.
"Committed Letter of Credit" means a Letter of Credit issued
by an Issuing Lender in U.S. Dollars pursuant to Section 2.05(a).
"Commitment" means a U.S. Dollar Revolving Commitment,
Australian Dollar Revolving Commitment, Tranche A Term Loan Commitment, Tranche
B Term Loan Commitment or Incremental Term Loan Commitment, or any combination
thereof (as the context requires).
"Companies Act" means the Companies Act of 1985 of England and
Wales, as amended from time to time.
"Compushare" has the meaning assigned to such term in Section
5.03(b)(v).
"Consolidated Subsidiary" means, for any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which would be consolidated with the
financial statements of such Person in accordance with GAAP. For purposes
hereof, upon the Implementation Date, the Target and its Subsidiaries shall be
deemed to be "Consolidated Subsidiaries".
"Consolidated Tangible Assets" means, as at any date, the
total assets of the Borrower and its Consolidated Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP) that would be
shown as tangible assets on a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries after eliminating all amounts properly attributable to
minority interests, if any, in the stock and surplus of Subsidiaries. For
purposes hereof, "tangible assets" means all assets of the Borrower and its
Consolidated Subsidiaries other than assets that should be classified as
intangibles including goodwill, minority interests, research and development
costs, trademarks, trade names, copyrights, patents and franchises, unamortized
debt discount and expense, all reserves and any write-up in the book value of
assets.
-11-
"Constellation International Holdings" means Constellation
International Holdings Limited, a New York corporation (f/k/a Canandaigua Europe
Limited) and a Wholly-Owned Subsidiary of the Borrower.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Corporations Act" means the Corporations ▇▇▇ ▇▇▇▇
(Australia), as amended from time to time.
"Covered Taxes" means any and all present or future
withholding taxes, including levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.
"Debt Incurrence" means a Foreign Subsidiary Debt Incurrence,
a Senior Debt Incurrence or a Subordinated Debt Incurrence, as applicable.
"Debt Ratio" means, as at the last day of any fiscal quarter
of the Borrower (the "day of determination"), the ratio of (a) the average of
the aggregate amounts of Indebtedness of the Borrower and its Consolidated
Subsidiaries (determined on a consolidated basis, without duplication, in
accordance with GAAP) as at such day and as at the last days of each of the
three immediately preceding fiscal quarters to (b) Operating Cash Flow for the
period of four consecutive fiscal quarters ending on such day of determination
(provided that Indebtedness as at the last day of each fiscal quarter included
in the determination of average Indebtedness pursuant to clause (a) above shall
be determined under the assumption that any prepayment of Term Loans hereunder
or of any Indebtedness under the Bridge Credit Agreement from the proceeds of
any Equity Issuance at any time during any such fiscal quarter included in the
calculation thereof shall have been made in the first such fiscal quarter).
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Designated Revolving Borrowing" means a Borrowing of
Revolving Loans (a) for which the related Borrowing Request certifies that the
proceeds thereof will be applied to finance one or more Acquisitions in
compliance with Section 7.05 and (b) that is prepaid with the Net Available
Proceeds of a Senior Debt Incurrence or a Subordinated Debt Incurrence within
180 days of the making of such Borrowing.
"Disclosed Matters" means the actions, suits proceedings and
the environmental matters disclosed in Schedule II.
"Disposition" means any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any other Person including, without
limitation, any sale of Receivable Assets as part of a
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Permitted Receivable Financing but excluding (a) any sale, assignment, transfer
or other disposition of any Property sold or disposed of in the ordinary course
of business and on ordinary business terms and (b) any Sale and Leaseback
Transaction.
"Disqualified Stock" means any capital stock or other
ownership interest that, by its terms (or by the terms of any security into
which it is convertible, or for which it is exchangeable, in each case at the
option of the holder thereof), or upon the happening of any event, (a) matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole or in
part, at any time prior to the date six months after the final maturity of the
Loans hereunder, (b) is secured by any assets of the Borrower or any Subsidiary
or is Guaranteed by any Subsidiary or (c) is exchangeable or convertible at the
option of the holder into Indebtedness of the Borrower or any Subsidiary.
Notwithstanding the preceding sentence, any capital stock or
other ownership interest that would constitute Disqualified Stock solely because
the holders thereof have the right to require the respective issuer thereof to
repurchase such capital stock or other ownership interest upon the occurrence of
a change of control or an asset sale shall not constitute Disqualified Stock if
the terms of such capital stock or other ownership interest provide that such
issuer may not repurchase or redeem any such capital stock or other ownership
interest pursuant to such provisions unless such repurchase or redemption
complies with the provisions of Section 7.07.
"Effective Date" means the date on which the conditions
specified in Section 5.01 are satisfied (or waived in accordance with Section
10.02).
"Environmental Claim" means, with respect to any Person, (a)
any written notice, claim, demand or other written communication (collectively,
a "claim") by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law. The term "Environmental Claim"
shall include, without limitation, any written claim by any governmental
authority for enforcement, cleanup, removal, response, remedial or other actions
or damages pursuant to any applicable Environmental Law, and any claim by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from the presence of Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of
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the Borrower or any Subsidiary directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Issuance" means (a) any issuance or sale by the
Borrower or any of its Subsidiaries after the Effective Date of (i) any of its
capital stock, (ii) any warrants or options exercisable in respect of its
capital stock or (iii) any other security or instrument representing an equity
interest (or the right to obtain any equity interest) in the Borrower or any of
its Subsidiaries (excluding any such security or instrument the issuance of
which constitutes a Debt Incurrence) or (b) the receipt by the Borrower or any
of its Subsidiaries after the Effective Date of any capital contribution
(whether or not evidenced by any equity security issued by the recipient of such
contribution); provided that Equity Issuance shall not include (w) any such
issuance or sale by any Subsidiary of the Borrower to the Borrower, any
Wholly-Owned Subsidiary thereof or any Joint Venture Entity, (x) any capital
contribution by any Person other than the Borrower or any Subsidiary thereof to
any Joint Venture Entity, (y) any capital contribution by the Borrower, any
Wholly-Owned Subsidiary thereof or any Joint Venture Entity to any Subsidiary of
the Borrower or any Joint Venture Entity or (z) any issuance of capital stock of
the Borrower as "Scrip Consideration" under (and as defined in) the Target
Acquisition Documents.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any shareholders' or voting trust agreements) to which
such Person is a party for the issuance, sale, registration or voting of, or
securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any
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Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans constituting such
Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VIII.
"Excess Cash Flow" means, for any fiscal year, the sum of (a)
Adjusted Cash Flow for such fiscal year (determined without regard to the
Adjustment Amount) minus (b) Fixed Charges for such fiscal year minus (c)
increases in working capital of the Borrower and its Consolidated Subsidiaries
(determined on a consolidated basis without duplication in accordance with GAAP)
for such fiscal year plus (d) decreases in working capital of the Borrower and
its Consolidated Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) for such fiscal year.
"Exchange Rate" means, on any day, with respect to any
Alternative Currency, the rate at which such Alternative Currency may be
exchanged into U.S. Dollars based upon the spot selling rate at which the London
Agent offers to sell such Alternative Currency in the London foreign exchange
market at approximately 11:00 a.m. (London time) for delivery two Business Days
later.
"Excluded Entities" means, collectively, Inactive
Subsidiaries, Joint Venture Entities and Foreign Subsidiaries and, for so long
as it shall conduct no business other than holding Indebtedness of Canandaigua
Limited and having Indebtedness outstanding to Constellation International
Holdings, Canandaigua B.V.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, any Issuing Lender or any other recipient of any payment to
be made by or on account of any obligation of the Borrower hereunder, (a) income
or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such recipient
is organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.18(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement or is attributable to such Foreign Lender's failure or
inability to comply with Section 2.16(e), except to the extent that such Foreign
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.16(a).
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"Existing Credit Agreement" has the meaning assigned to such
term in the recitals hereof.
"Existing Lenders" means Lenders that are parties to the
Existing Credit Agreement on the date hereof immediately before giving effect to
the amendment and restatement of the Existing Credit Agreement contemplated by
this Agreement.
"FFBR", when used in reference to any Swingline Loan, refers
to whether such Loan bears interest at a rate determined by reference to the
Federal Funds Base Rate.
"Federal Funds Base Rate" means, for any Interest Period for
any Swingline Loan, the rate per annum (rounded upwards, if necessary to the
nearest 1/100 of 1%) determined by the Swingline Lender to be equal to the rate
charged to the Swingline Lender on Federal funds transactions for such Interest
Period with members of the Federal Reserve System arranged by Federal funds
brokers on such day.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on such day for
the immediately preceding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for such preceding Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer, assistant treasurer or controller of
the Borrower.
"▇▇▇▇▇" means CB International Finance S.a.r.l., a company
organized under the laws of Luxembourg and a Wholly-Owned Subsidiary of the
Borrower.
"Fixed Charges" means, for any period, the sum, for the
Borrower and its Consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) all payments
of principal of Indebtedness scheduled to be made during such period plus (b)
all Interest Expense for such period plus (c) the aggregate amount of federal,
state and foreign taxes paid during such period to the extent that net operating
income for such period pursuant to clause (a) of the definition of "Operating
Cash Flow" in this Section has been calculated before giving effect to such
taxes plus (d) the aggregate amount of cash dividends made by the Borrower
pursuant to Section 7.07 during such period.
"Fixed Charges Ratio" means, as at any date, the ratio of (a)
Adjusted Cash Flow for the period of four consecutive fiscal quarters ending on
or most recently ended prior to such date to (b) Fixed Charges for such period
(it being understood that, as specified in the definitions of "Interest Expense"
and "Operating Cash Flow", neither Adjusted Cash Flow nor Fixed Charges will be
adjusted on a pro forma basis with respect to any Acquisition or Disposition).
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"Foreign Equity Pledge Agreement" means (i) with respect to
the capital stock of Canandaigua Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇, a U.K. Equity Pledge
Agreement in substantially the form of Exhibit B-2, (ii) with respect to the
capital stock of Australian Acquisition Company 1, Australian Acquisition
Company 2 and the Target, an Australian Equity Pledge Agreement in substantially
the form of Exhibit B-3, (iii) with respect to the capital stock of ▇▇▇▇▇, a
Luxembourg Equity Pledge Agreement in substantially the form of Exhibit B-4 and
(iv) with respect to the capital stock of any other applicable Subsidiary of the
Borrower organized under the laws of any country other than the United States of
America or a State thereof, a pledge agreement, mortgage of shares or similar
agreement in form and substance reasonably satisfactory to the Administrative
Agent, executed and delivered by the Borrower or any other Subsidiary (to the
extent required under Section 6.09) in favor of the Administrative Agent
creating in favor of the Administrative Agent, for the benefit of the Lenders, a
security interest in the shares of stock of other equity interests of such first
Subsidiary.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiaries" means any Subsidiary organized under
the laws of any country other than the United States of America, or a State
thereof, which (if such Subsidiary were to become a Subsidiary Guarantor
hereunder) the Borrower and the Administrative Agent have determined would
either result in adverse tax consequences under Section 956 of the Code or would
contravene any applicable law, rule or regulation. For purposes hereof, it is
agreed that as of the date hereof each of the Subsidiaries specified on Schedule
VI hereto is a "Foreign Subsidiary".
"Foreign Subsidiary Debt Incurrence" means the incurrence by
any Subsidiary after the Effective Date of any Foreign Subsidiary Indebtedness.
"Foreign Subsidiary Indebtedness" means Indebtedness incurred
in compliance with Section 7.01(g).
"Funding Percentage" means, as of the Acceleration Date, (a)
in the case of the U.S. Dollar Revolving Lenders, a percentage derived by
dividing (i) the total U.S. Dollar Revolving Exposures as of such Acceleration
Date by (ii) the total U.S. Dollar Revolving Commitments in effect immediately
prior to such Acceleration Date and (b) in the case of the Australian Dollar
Revolving Lenders, a percentage derived by dividing (i) the total Australian
Dollar Revolving Exposures as of such Acceleration Date by (ii) the total
Australian Dollar Revolving Commitments in effect immediately prior to such
Acceleration Date.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising
-17-
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease Property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Assumption Agreement" means a Guarantee Assumption
Agreement substantially in the form of Exhibit C by an entity that, pursuant to
Section 6.09(b) is required to become a "Subsidiary Guarantor" hereunder in
favor of the Administrative Agent.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement (and, for avoidance of doubt, excluding any type of hedging
arrangement other than in respect of interest rate protection, foreign currency
exchange or commodity price protection).
"Holding Lock" has the meaning given in the SCH Business
Rules.
"Implementation Deed" means the Implementation Deed dated
January 16, 2003 between the Target and the Borrower.
"Implementation Date" has the meaning given to such term in
the Implementation Deed.
"Inactive Subsidiary" means, as at any date, any Subsidiary of
the Borrower that as at the end of and for the fiscal quarter ending on or most
recently ended prior to such date, shall have assets with a fair market value of
less than U.S.$1,000,000 and gross revenues of less than U.S.$100,000, as so
certified in the certificate of a Financial Officer of the Borrower delivered
with respect to such fiscal quarter pursuant to Section 6.01(c). For purposes
hereof, the
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fair market value of any trade name, trademark, service ▇▇▇▇, logo, trade dress,
trademark or service ▇▇▇▇ registration, or application for trademark or service
▇▇▇▇ registration (including any rights relating thereto) held by any Subsidiary
shall be determined without giving effect to any licenses or user agreements
granted by such Subsidiary to any other Person. The only Inactive Subsidiaries
on the date hereof which are organized under the laws of the United States of
America are the entities identified as such on Schedule III.
"Incremental Principal Payment Dates" means, for any Series of
Incremental Term Loans, the dates specified in the Incremental Term Loan
Agreement for such Series as the dates upon which payments of principal in
respect of the Incremental Term Loans of such Series are to be made.
"Incremental Term Loan" means a "Incremental Term Loan"
provided for by Section 2.01(f), which may be an ABR Loan and/or a Eurocurrency
Loan and is denominated in U.S. Dollars.
"Incremental Term Loan Agreement" means, with respect to any
Series of Incremental Term Loans, an agreement between the Borrower and one or
more Lenders pursuant to which each such Lenders agrees to become obligated in
respect of a Incremental Term Loan Commitment of such Series hereunder.
"Incremental Term Loan Availability Date" means, the day one
year prior to the Tranche B Term Loan Maturity Date or, if such day is not a
Business Day, the next preceding Business Day.
"Incremental Term Loan Availability Period" means the period
from and including the Effective Date to and including the Incremental Term Loan
Availability Date.
"Incremental Term Loan Commitment" of any Series means, with
respect to each Lender, the commitment, if any, of such Lender to make one or
more Incremental Term Loans of such Series, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 or 2.10 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04. The initial amount of each Lender's Incremental Term
Loan Commitment of any Series will be specified in the Incremental Term Loan
Agreement for such Series, or will be set forth in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Incremental Term Loan
Commitment of such Series, as applicable.
"Incremental Term Loan Lender" means, in respect of any Series
of Incremental Term Loans, a Lender with a Incremental Term Loan Commitment of
such Series or, if the Incremental Term Loan Commitments of such Series have
terminated or expired, a Lender with outstanding Incremental Term Loans of such
Series.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other
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title retention agreements relating to Property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of Property
or services (excluding current accounts payable incurred in the ordinary course
of business), (f) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on Property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person, (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty, (j) all
obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances and (k) the Maximum Receivable Exposure under all Permitted
Receivable Financings entered into by such Person. For purposes of this
Agreement, the Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Covered Taxes other than Excluded
Taxes.
"Initial Funding Date" means a Business Day on or after the
Business Day next succeeding the Second Court Date and on or prior to the
Implementation Date.
"Intercompany Note" means a promissory note of a Foreign
Subsidiary in substantially the form of Exhibit F.
"Interest Coverage Ratio" means, as at any date of
determination thereof, the ratio of (a) Operating Cash Flow for the period of
four fiscal quarters ending on or most recently ended prior to such date to (b)
Interest Expense for such period.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.07.
"Interest Expense" means, for any period, the sum, for the
Borrower and its Consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) all interest
in respect of Indebtedness (including the interest component of any payments in
respect of Capital Lease Obligations) accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amounts
payable (or minus the net amounts receivable) under Interest Rate Protection
Agreements accrued during such period (whether or not actually paid or received
during such period) minus (c) all interest income during such period.
Notwithstanding the foregoing, if during any period for which
Interest Expense is being determined the Borrower shall have consummated any
Acquisition or Disposition for aggregate consideration of U.S.$10,000,000 or
more then, for all purposes of this Agreement (other than for purposes of the
definition of Fixed Charges), Interest Expense shall be determined on a pro
forma basis as if such Acquisition or Disposition (and any Indebtedness incurred
by the Borrower or any of its Subsidiaries in connection with such Acquisition
or repaid as a result of such Disposition) had been made or consummated (and
such Indebtedness incurred or repaid) on
-20-
the first day of such period (and interest on any such Indebtedness shall be
deemed to be calculated for such period at a rate per annum equal to the actual
rate of interest in effect in respect of Indebtedness under this Agreement
outstanding during such period).
"Interest Payment Date" means (a) with respect to any ABR
Borrowing, each Quarterly Date, (b) with respect to any Eurocurrency Borrowing,
the last day of the Interest Period applicable to such Borrowing and, in the
case of a Eurocurrency Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period and (c) with respect to any Swingline Loan, the day that such
Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three, six
or (with the consent of each Lender directly affected thereby) nine months
thereafter, as the Borrower may elect and (b) with respect to any Swingline FFBR
Borrowing, the period commencing on the date of such Borrowing and ending on the
date that is two weeks after such Swingline Loan is made, as the Borrower may
elect; provided, that
(i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurocurrency
Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day; and
(ii) any Interest Period pertaining to a Eurocurrency
Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar
month of such Interest Period.
"Interest Rate Protection Agreement" means any Hedging
Agreement that consists of an interest rate protection agreement or other
interest rate hedging arrangement providing for the transfer or mitigation of
interest risks either generally or under specific contingencies.
"Investment" means, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including any "short sale" or any sale of any securities at a time
when such securities are not owned by the Person entering into such sale); (b)
the making of any deposit with, or advance, loan or other extension of credit
to, any other Person (including the purchase of Property from another Person
subject to an understanding or agreement, contingent or otherwise, to resell
such Property to such Person), but excluding any such advance, loan or extension
of credit having a term not exceeding 120 days arising in connection with the
sale of inventory or supplies by such Person in the ordinary course of business;
(c) the entering into of any Guarantee of, or other contingent obligation with
respect to, Indebtedness or other liability of
-21-
any other Person and (without duplication) any amount committed to be advanced,
lent or extended to such Person; or (d) the entering into of any Hedging
Agreement.
"Issuing Lender" means each of (i) JPMorgan Chase and (ii)
each other Lender added hereto as an "Issuing Lender" as contemplated by Section
2.05(k).
"Joint Venture Entity" means any corporation, limited
liability company, partnership, association or other entity less than 100% of
the ownership interests of which are owned by the Borrower or any Wholly-Owned
Subsidiary thereof.
"JPMorgan Chase" means JPMorgan Chase Bank.
"LC Disbursement" means a payment made by an Issuing Lender
pursuant to a Letter of Credit.
"LC Exposure" means, with respect to any U.S. Dollar Revolving
Lender, the Committed LC Exposure and the Alternative Currency LC Exposure of
such U.S. Dollar Revolving Lender.
"Legal and Compliance Report" has the meaning given in the
Implementation Deed.
"Lender Addendum" means, with respect to any Lender party
hereto on the Effective Date, a Lender Addendum, substantially in the form of
Exhibit K, to be executed and delivered by such Lender on or before the
Effective Date as provided in Section 10.16.
"Lenders" means each Lender that has executed a Lender
Addendum, and any other Person that shall have become a party hereto pursuant to
an Assignment and Acceptance, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Acceptance. Unless the context
otherwise requires, the term "Lenders" includes the Swingline Lender.
"Letter of Credit" means any Committed Letter of Credit or
Alternate Currency Letter of Credit.
"Letter of Credit Documents" means, with respect to any Letter
of Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations.
"LIBO Rate" means, for the Interest Period for any
Eurocurrency Borrowing in any Loan Currency, the applicable rate appearing on
the Screen at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, as the rate for the offering of
deposits in such Loan Currency with a maturity comparable to such Interest
Period
-22-
In the event that such rate is not available at such time for
any reason, then the LIBO Rate with respect to such Eurocurrency Borrowing for
such Interest Period shall be the rate (rounded upwards, if necessary, to the
next 1/16 of 1%) at which deposits in such Loan Currency in the amount of
U.S.$5,000,000 (or the Australian Dollar Equivalent as applicable) and for a
maturity comparable to such Interest Period are offered by the principal London
office of the Applicable Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, Capital Lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Collateral Account" has the meaning given to such term
in the Cash Collateral Pledge Agreement.
"Loan Currency" means U.S. Dollars or Australian Dollars.
"Loan Documents" means, collectively, this Agreement, the
Letter of Credit Documents, the Security Documents, the Syndication Letter and
the fee letters referred to therein and the Incremental Term Loan Agreement.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"London Agent" means ▇.▇. ▇▇▇▇▇▇ Europe Limited, together with
its successors and assigns.
"Luxembourg Equity Pledge Agreement" means a Pledge Agreement,
substantially in the form of Exhibit B-4, executed and delivered by the Borrower
in favor of the Administrative Agent, creating in favor of the Administrative
Agent, for the benefit of the Lenders, a security interest in the shares of
▇▇▇▇▇ up to but not exceeding such portion thereof as does not represent more
than 65% of the aggregate outstanding voting stock issued by ▇▇▇▇▇.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations or condition, financial or otherwise, of
the Borrower and its Subsidiaries taken as a whole, (b) the legal ability of any
Obligor, or the financial capacity of all of the Obligors collectively, to
perform any of its or their obligations under this Agreement or any of the other
applicable Loan Documents or (c) the rights of or benefits available to the
Lenders under this Agreement or any of the other Loan Documents.
-23-
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and its Subsidiaries in an
aggregate principal amount exceeding $20,000,000 (or any lower principal amount
that would, were the Borrower or such Subsidiary to default in the payment of
such Indebtedness or in the observance of any covenant in respect thereof, cause
an "event of default" (as so defined) under the Bridge Credit Agreement, the
1999 Indenture or either Senior Subordinated Notes Indenture (whether or not any
such "event of default" is cured or waived thereunder). For purposes of
determining Material Indebtedness, the "principal amount" of the obligations of
any Person in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that such Person
would be required to pay if such Hedging Agreement were terminated at such time.
"Material Lender Provision Amendment" means any modification,
supplement or waiver (whether direct or indirect) to the Implementation Deed
which does or may reasonably be expected to do any of the following:
(x) increase the amount of the consideration under the
Schemes; or
(y) have a Material Adverse Effect; or
(z) has the effect of changing any of the conditions
precedent in Section 4.1 of the Implementation Deed
(except with respect to a waiver of any such
conditions in accordance with Section 5.01(a)(ix)).
"▇▇▇▇▇▇▇ ▇▇▇▇▇" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ plc, a company organized
under the laws of England and Wales and a Wholly-Owned Subsidiary of the
Borrower.
"Maximum Receivable Exposure" means, for any Permitted
Receivable Financing, the maximum aggregate amount (expressed in U.S. Dollars)
of Receivable Assets that all Receivable Financiers in respect thereof are
required to purchase, fund or otherwise finance.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Proceeds" means:
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount
of proceeds of insurance, condemnation awards and other
compensation received by the Borrower and its Subsidiaries in
respect of such Casualty Event net of (A) expenses incurred by
the Borrower and its Subsidiaries in connection therewith and (B)
contractually required repayments of Indebtedness (other than
Indebtedness to the Lenders hereunder) to the
-24-
extent secured by a Lien on such Property and any income and
transfer taxes payable by the Borrower or any of its Subsidiaries
in respect of such Casualty Event;
(iii) in the case of any Equity Issuance, the aggregate amount
of all cash received by the Borrower and its Subsidiaries in
respect of such Equity Issuance (net of (x) expenses incurred by
the Borrower and its Subsidiaries in connection therewith and (y)
cash proceeds so received and applied to refinance Subordinated
Indebtedness as contemplated by Section 7.11); and
(iv) in the case of any Debt Incurrence, the aggregate amount
of all cash received by the Borrower and its Subsidiaries in
respect thereof (net of expenses incurred by the Borrower and its
Subsidiaries in connection therewith).
"Net Cash Payments" means, with respect to any Disposition,
the aggregate amount of all cash payments received by the Borrower and its
Subsidiaries directly or indirectly in connection with such Disposition;
provided that (a) Net Cash Payments shall be net of (i) the amount of any legal,
title and recording tax expenses, commissions and other fees and expenses paid
by the Borrower and its Subsidiaries in connection with such Disposition and
(ii) any Federal, state, local and foreign income or other taxes estimated to be
payable by the Borrower and its Subsidiaries as a result of such Disposition
(but only to the extent that such estimated taxes are in fact paid to the
relevant Federal, state, local or foreign governmental authority within three
months of the date of such Disposition) and (b) Net Cash Payments shall be net
of any repayments by the Borrower or any of its Subsidiaries of Indebtedness to
the extent that (i) such Indebtedness is secured by a Lien on the Property that
is the subject of such Disposition and (ii) the transferee of (or holder of a
Lien on) such Property requires that such Indebtedness be repaid as a condition
to the purchase of such Property.
"1999 Credit Agreement" means the Credit Agreement dated as of
October 6, 1999 between the Borrower, the Subsidiary Guarantors party thereto,
the Lenders party thereto, and JPMorgan Chase, as Administrative Agent, as
amended and in effect on the date hereof.
"1999 Indenture" means the Indenture dated as of February 25,
1999 between the Borrower, certain Subsidiaries and BNY Midwest Trust Company
(successor Trustee to ▇▇▇▇▇▇ Trust and Savings Bank), as trustee.
"Obligor" means the Borrower and each Subsidiary Guarantor.
"Operating Cash Flow" means, for any period, the sum, for the
Borrower and its Consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) net
operating income (calculated before income taxes, interest income, Interest
Expense, extraordinary and unusual items and income or loss attributable to
equity in Affiliates) for such period plus (b) depreciation and amortization (to
the extent deducted in determining net operating income) for such period plus
(c) the Adjustment Amount for such period.
Notwithstanding the foregoing, if during any period for which
Operating Cash Flow is being determined the Borrower or any of its Subsidiaries
shall have consummated any
-25-
Acquisition or Disposition for aggregate consideration of U.S.$10,000,000 or
more then, for all purposes of this Agreement (other than for purposes of the
definition of Adjusted Cash Flow), Operating Cash Flow shall be determined on a
pro forma basis as if such Acquisition or Disposition had been made or
consummated on the first day of such period.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document, but excluding all United States Federal taxes other than withholding
taxes.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for Taxes that are not yet due or are being
contested in compliance with Section 6.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 90 days
or are being contested in compliance with Section 6.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) cash deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance or
indemnity bonds and other obligations of a like nature, in each case in the
ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VIII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real Property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected Property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary
thereof; and
(g) liens arising under (i) standard custodial, bailee or depositary
arrangements (including deposit accounts with banks and other financial
institutions) and (ii) standard customer agreements in respect of accounts
for the purchase and sale of securities and other Property with brokerage
firms or other types of financial institutions,
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness, and "Permitted Encumbrances" of the type described in the
foregoing clause (g)
-26-
shall not secure any obligations (including obligations under Hedging
Agreements), other than obligations incidental to the respective custodial,
bailee or depositary arrangements or customer agreements referred to in said
clause (g).
"Permitted Holders" means (i) the Estate of ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, her children, her children's spouses, her grandchildren, or the
estate of any of the foregoing individuals, or the Mac and ▇▇▇▇▇ ▇▇▇▇▇
Foundation, Incorporated, (ii) trusts which are for the benefit of ▇▇▇▇▇▇▇
▇▇▇▇▇, her children, her children's spouses, or her grandchildren or ▇▇▇▇▇▇
▇▇▇▇▇, or any trust for the benefit of any such trust which trusts are under the
control of ▇▇▇▇▇▇▇ ▇▇▇▇▇, her children, her children's spouses, or her
grandchildren or ▇▇▇▇▇▇ ▇▇▇▇▇ or any trustee of such trusts or (iii)
partnerships which are controlled by the Estate of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
her children, her children's spouses, her grandchildren, ▇▇▇▇▇▇ ▇▇▇▇▇, the
estate of any of the foregoing individuals, by a trust referred to in the
foregoing clause (ii) or by a partnership that satisfies the conditions of this
clause (iii).
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from Standard & Poor's or from ▇▇▇▇▇'▇;
(c) investments in certificates of deposit, bankers' acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any office of (x) any commercial bank organized under
the laws of the United States of America or any State thereof which has a
combined capital and surplus and undivided profits of not less than
U.S.$500,000,000 or (y) any Lender hereunder;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) of this definition and
entered into with a financial institution satisfying the criteria described
in clause (c) of this definition; and
(e) money market funds that (i) comply with the criteria set forth in
Securities and Exchange Commission Rule 2a-7 under the Investment Company
Act of 1940, as amended, (ii) are rated AAA by Standard and Poor's and Aaa
by ▇▇▇▇▇'▇, (iii) have portfolio assets of at least $5,000,000,000 and (iv)
invest in investments of the types referenced in clause (a), (b) and (c) of
this defintion.
"Permitted Receivable Financing" means any transaction
involving one or more sales, contributions or other conveyances by the Borrower
or any Subsidiary of any Receivable Assets to a special purpose entity (which
may be a Subsidiary or Affiliate of the Borrower), which special purpose entity
finances such sales, contributions or other conveyances by in turn
-27-
conveying an interest in such Receivable Assets to one or more Receivable
Financiers; provided that (a) such transaction shall not involve any recourse to
the Borrower or any Subsidiary (other than such special purpose entity) for any
reason other than (i) repurchases of non-eligible Receivable Assets, (ii)
indemnification for losses (including any adjustments for dilutions), other than
credit losses related to the Receivable Assets conveyed in such transaction, and
(iii) payment of costs, fees, expenses and indemnities relating to such
transaction, (b) the terms of such transaction, including the discount at which
Receivable Assets are conveyed to any such Receivable Financier and any
termination events, shall be reasonably consistent with those prevailing in the
market for similarly structured transactions involving Receivable Assets and
originators of similar credit quality and a pool Receivable Assets of similar
characteristics and (c) the terms of such transaction shall provide for a
specified Maximum Receivable Exposure for such Receivable Financiers.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreements" means, collectively, the U.S. Pledge
Agreement and the Foreign Equity Pledge Agreements.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMorgan Chase as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Principal Payment Date" means with respect to any Term Loan,
each date on which principal of such Term Loan is payable pursuant to Sections
2.09(a)(ii), (iv) and (vi), and, with respect to each Series of Incremental Term
Loans, each Incremental Principal Payment Date.
"Property" means any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Quarterly Dates" means the 1st day of March, June, September
and December in each year, the first of which shall be the first such day after
the date hereof; provided that if any such day is not a Business Day, then such
Quarterly Date shall be the next succeeding Business Day.
"Receivable Assets" means, collectively, any accounts
receivable and property relating thereto (including the rights to any
collections in respect thereof).
-28-
"Receivable Financier" means any Person (other than a
Subsidiary or Affiliate of the Borrower) that finances the acquisition by a
special purpose entity of Receivable Assets from the Borrower or any Subsidiary.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person,
such specified Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such specified Person and such specified
Person's Affiliates.
"Release" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including the movement of
Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"Required Lenders" means, at any time, subject to the last
paragraph of Section 10.02(b), Lenders having Revolving Exposures, outstanding
Term Loans and unused Commitments representing at least 51% of the sum of the
total Revolving Exposures, outstanding Term Loans and unused Commitments at such
time. The "Required Lenders" of a particular Class of Loans means Lenders having
Revolving Exposures, outstanding Term Loans and unused Commitments of such Class
representing at least 51% of the total Revolving Exposures, outstanding Term
Loans and unused Commitments of such Class at such time.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other Property) with respect to any shares of
any class of capital stock of the Borrower or any of its Subsidiaries, 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 shares of capital stock of
the Borrower or such Subsidiary or any option, warrant or other right to acquire
any such shares of capital stock of the Borrower or such Subsidiary.
"Revolving Commitment Termination Dates" means, collectively,
the U.S. Dollar Revolving Commitment Termination Date and the Australian Dollar
Revolving Commitment Termination Date.
"Revolving Exposures" means, collectively, the U.S. Dollar
Revolving Exposure and the Australian Dollar Revolving Exposure.
"Revolving Lenders" means, collectively, the U.S. Dollar
Revolving Lenders and the Australian Dollar Revolving Lenders.
"Revolving Loans" means, collectively, the U.S. Dollar
Revolving Loans and the Australian Dollar Revolving Loans.
"Revolving Loan Commitments" means, collectively, the U.S.
Dollar Revolving Loan Commitments and the Australian Dollar Revolving Loan
Commitments.
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"Sale and Leaseback Transaction" means a transaction or series
of transactions pursuant to which the Borrower or any Subsidiary thereof shall
sell or transfer to any Person (other than the Borrower or a Subsidiary thereof)
any Property, whether now owned or hereafter acquired, and, as part of the same
transaction or series of transactions, the Borrower or any Subsidiary thereof
shall rent or lease as lessee, or similarly acquire the right to possession or
use of, such Property or one or more Properties which it intends to use for the
same purpose or purposes as such Property, and in circumstances that give rise
to a Capital Lease Obligation of the Borrower or one or more of its
Subsidiaries.
"SCH Business Rules" means the business rules of the ASX
Settlement and Transfer Corporation Pty Ltd.
"Schemes" has the meaning given to such term in the
Implementation Deed.
"Screen" means, in the case of U.S. Dollars, Page 3750 of the
Telerate Service of Bridge Information Services (or any successor thereto or
substitute therefor, the "Service") and in the case of Australian Dollars, the
relevant display page for LIBOR for Australian Dollars (as determined by the
London Agent) of the Service; provided that if the Applicable Agent determines
that there is no such relevant display page for LIBOR for such Loan Currency,
"Screen" shall mean the relevant display page for LIBOR for such Loan Currency
(as determined by the Applicable Agent) of the ▇▇▇▇▇▇ Monitor Money Rates
Service (or any successor thereto or substitute therefor).
"Second Court Date" has the meaning given to such term in the
Implementation Deed.
"Security Documents" means, collectively, the Pledge
Agreements, the Cash Collateral Pledge Agreement, any Borrower Security
Agreement, any Uniform Commercial Code financing statements required by the U.S.
Pledge Agreement and any Additional Security Agreement executed and delivered
pursuant to Sections 6.10.
"Senior Debt Incurrence" means the incurrence by the Borrower
or any of its Subsidiaries after the Effective Date of any Senior Unsecured
Indebtedness.
"Senior Debt Ratio" means, as at the last day of any fiscal
quarter of the Borrower (the "day of determination"), the ratio of (a) the
average of the aggregate amounts of Indebtedness (other than any Subordinated
Indebtedness) of the Borrower and its Consolidated Subsidiaries (determined on a
consolidated basis, without duplication, in accordance with GAAP) as at such day
and as at the last days of each of the three immediately preceding fiscal
quarters to (b) Operating Cash Flow for the period of four consecutive fiscal
quarters ending on such day of determination (provided that Indebtedness as at
the last day of each fiscal quarter included in the determination of average
Indebtedness pursuant to clause (a) above shall be determined under the
assumption that any prepayment of Term Loans hereunder or Indebtedness incurred
under the Bridge Loan from the proceeds of any Equity Issuance or Debt
Incurrence at any time during any such fiscal quarter included in the
calculation thereof shall have been made in the first such fiscal quarter).
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"Senior Subordinated Notes" means Senior Subordinated Notes
issued pursuant to the Senior Subordinated Note Indentures.
"Senior Subordinated Note Indentures" means, collectively, (i)
Supplemental Indenture No. 1, dated as of February 25, 1999, to the 1999
Indenture among the Borrower, as issuer, certain Subsidiaries, as guarantors,
and BNY Midwest Trust Company (as successor to ▇▇▇▇▇▇ Trust and Savings Bank),
as trustee, with respect to the 8.50% Senior Subordinated Notes due 2009 in an
original aggregate principal amount of U.S. $200,000,000 and (ii) Supplemental
Indenture No. 7, dated as of January 23, 2002, to the 1999 Indenture among the
Borrower, as issuer, certain Subsidiaries, as guarantors, and BNY Midwest Trust
Company, as trustee, with respect to the 8 1/8% Senior Subordinated Notes due
2012 in an original aggregate principal amount of U.S. $250,000,000.
"Senior Unsecured Indebtedness" means Indebtedness outstanding
in respect of the Senior Unsecured Notes, Indebtedness outstanding under the
Bridge Credit Agreement and other Indebtedness of the Borrower incurred in
compliance with Section 7.01(c)(ii).
"Senior Unsecured Notes" means the Borrower's Senior Unsecured
Notes issued pursuant to the indentures on the attached Schedule VII.
"Series" has the meaning set forth in Section 2.01(f).
"Solvent" means, with respect to any Person at any time, that
(a) the fair value of the Property of such Person is greater than the total
amount of liabilities (including without limitation contingent liabilities) of
such Person, (b) the present fair saleable value of the Property of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (d) such Person is not engaged in a business and is not about to
engage in a business for which such Person's property would constitute an
unreasonably small capital.
"Standard & Poor's" means Standard & Poor's Ratings Services,
a Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurocurrency Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
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"Stock Based Plans " means, collectively, (i) the stock option
and other stock purchase plans specified on Schedule IV hereto and (ii) all
other stock option, stock-based incentive compensation and stock purchase plans
and other stock-based plans of the Borrower or any of its Subsidiaries adopted
from time to time hereafter in the ordinary course of business.
"Subordinated Debt Incurrence" means the incurrence by the
Borrower or any of its Subsidiaries after the Effective Date of any Subordinated
Indebtedness.
"Subordinated Indebtedness" means, collectively, (a)
Indebtedness of the Borrower in respect of the Senior Subordinated Notes and (b)
other Indebtedness incurred in accordance with the provisions of Section 7.11.
"Subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"Subsidiary Guarantor" means each of the Subsidiaries of the
Borrower identified under the caption "SUBSIDIARY GUARANTORS" on the signature
pages hereto and each Subsidiary of the Borrower that becomes a "Subsidiary
Guarantor" after the date hereof pursuant to Section 6.09(b).
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any U.S. Dollar Revolving Lender at any time shall be its Applicable
Percentage of the total Swingline Exposure at such time.
"Swingline Lender" means JPMorgan Chase, in its capacity as
lender of Swingline Loans hereunder, or such other Lender as the Borrower may
from time to time select as the Swingline Lender hereunder pursuant to Section
2.04(e).
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Syndication Letter" means the Syndication Letter dated
January 16, 2003 between the Borrower, JPMorgan Chase, Citicorp North America,
Inc., UBS AG, Stamford Branch, ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc. and UBS Warburg LLC.
"Target" means BRL Hardy Limited ACN 008 273 907, a company
organized under the laws of Australia.
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"Target Acquisition" means the schemes of arrangement proposed
between the Target and the holders of ordinary shares in the Target and the
holders of options to subscribe for ordinary shares in the Target, by which
Australian Acquisition Company 2 will acquire beneficially and legally all of
the issued capital of the Target in accordance with the approvals granted by the
Supreme Court of South Australia.
"Target Acquisition Documents" means, collectively:
(a) the Implementation Deed;
(b) the document described as "Scheme of Arrangement" proposed to be
made between the Target and the holders of ordinary shares in the Target,
to be dated upon approval of the scheme of arrangement described in the
document;
(c) the document described as "Scheme of Arrangement" proposed to be
made between the Target and the holders of the options to subscribe for the
ordinary shares in the Target; and
(d) the Deed Poll proposed to be made by the Borrower in favor of the
Scheme Shareholders and the Scheme Optionholders (as those terms are
defined in the Implementation Deed).
"Target Credit Facilities" means, collectively:
(a) the Facility Agreement between the Target and Commonwealth Bank of
Australia dated 15 September 1994 (as amended); and
(b) the facilities agreement dated 25 August 1998 between the Target
and Australia and New Zealand Banking Group Limited (as amended).
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan Availability Period" means the period from and
including the Effective Date to and including the earliest of (a) April 30, 2003
(or, if such date is not a Business Day, the next succeeding Business Day), (b)
the date the Implementation Deed is terminated or (c) 5:00 p.m. (New York City
time) on the Implementation Date.
"Term Loan Commitments" means, collectively, the Tranche A
Term Loan Commitments, the Tranche B Term Loan Commitments and the Incremental
Term Loan Commitments.
"Term Loan Maturity Date" means: (a) with respect to the
Tranche A Term Loans, February 29, 2008 (provided that if such day is not a
Business Day, the Tranche A Term Loan Maturity Date shall be the immediately
preceding Business Day), (b) with respect to the Tranche B Term Loans, November
30, 2008 (provided that if such date is not a Business Day, the Tranche B Term
Loan Maturity Date shall be the immediately preceding Business Day) and (c) with
respect to the Incremental Term Loans of any Series, the date specified in the
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Incremental Term Loan Agreement of such Series as the final date upon which any
payment of principal in respect of Incremental Term Loans of such Series is to
be made.
"Term Loans" means, collectively, the Tranche A Term Loans,
the Tranche B Term Loans and the Incremental Term Loans.
"Tranche A Term Loan" means a Loan made pursuant to Section
2.01(c), which may be an ABR Loan and/or a Eurocurrency Loan.
"Tranche A Term Loan Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make one or more Tranche A
Term Loans hereunder in U.S. Dollars during the Term Loan Availability Period,
expressed as an amount in U.S. Dollars representing the maximum aggregate
principal amount of the Tranche A Term Loans to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 or 2.10 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.04. The initial amount
of each Lender's Tranche A Term Loan Commitment is set forth opposite the name
of such Lender on its Lender Addendum under the caption "Tranche A Term Loan
Commitment", or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Tranche A Term Loan Commitment, as applicable. The
initial aggregate amount of the Lenders' Tranche A Term Loan Commitments is
U.S.$400,000,000.
"Tranche A Term Loan Lender" means (a) initially, a Lender
that has a "Tranche A Term Loan Commitment" set forth opposite the name of such
Lender on its Lender Addendum and (b) thereafter, a Lender from time to time
holding a Tranche A Term Loan Commitment or an outstanding Tranche A Term Loan.
"Tranche B Term Loan" means a Loan made pursuant to Section
2.01(d), which may be an ABR Loan and/or a Eurocurrency Loan.
"Tranche B Term Loan Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make one or more Tranche B
Term Loans hereunder in U.S. Dollars during the Term Loan Availability Period,
expressed as an amount in U.S. Dollars representing the maximum aggregate
principal amount of the Tranche B Term Loans to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 or 2.10 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.04. The initial amount
of each Lender's Tranche B Term Loan Commitment is set forth opposite the name
of such Lender on its Lender Addendum under the caption "Tranche B Term Loan
Commitment", or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Tranche B Term Loan Commitment, as applicable. The
initial aggregate amount of the Lenders' Tranche B Term Loan Commitments is
U.S.$800,000,000.
"Tranche B Term Loan Lender" means (a) initially, a Lender
that has a "Tranche B Term Loan Commitment" set forth opposite the name of such
Lender on its Lender Addendum and (b) thereafter, a Lender from time to time
holding a Tranche B Term Loan Commitment or an outstanding Tranche B Term Loan.
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"Transactions" means the execution, delivery and performance
by each Obligor of this Agreement and the other Loan Documents to which such
Obligor is intended to be a party, the borrowing of Loans, the use of the
proceeds thereof, the consummation of the Target Acquisition and the issuance of
Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
constituting such Borrowing, is determined by reference to the Adjusted LIBO
Rate, the Alternate Base Rate or, in the case of Swingline Loans, the Alternate
Base Rate or the Federal Funds Base Rate.
"U.K. Equity Pledge Agreement" means a Mortgage of Shares,
substantially in the forms of Exhibit B-2, executed and delivered by the
Borrower in favor of the Administrative Agent creating in favor of the
Administrative Agent, for the benefit of the Lenders, (a) a security interest in
the shares of Canandaigua Limited and (b) a security interest in the shares of
▇▇▇▇▇▇▇ ▇▇▇▇▇ (in the case of clauses (a) and (b), up to but not exceeding such
portion thereof as does not represent more than 65% of the aggregate outstanding
voting stock issued by Canandaigua Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇, respectively).
"U.S. Dollar Equivalent" means, (a) with respect to any
Australian Dollar Revolving Loan, the amount of U.S. Dollars that would be
required to purchase the amount of Australian Dollars of such Australian Dollar
Revolving Loan on the day two Business Days prior to the day of such Australian
Dollar Revolving Loan , based upon the spot selling rate at which the London
Agent offers to sell Australian Dollars in the London foreign exchange market at
approximately 11:00 a.m. (London time) for delivery two Business Days later and
(b) as used in each Alternative Currency Letter of Credit Report and with
respect to any Alternative Currency Letter of Credit, the amount of U.S. Dollars
that would be required to purchase the amount of the relevant Alternative
Currency with respect to such Alternate Currency Letter of Credit, as specified
in such Alternate Currency Letter of Credit Report as determined by the
Administrative Agent pursuant to Section 1.05 using the applicable Exchange Rate
with respect to such Alternative Currency.
"U.S. Dollar Revolving Availability Period" means the period
from and including the Effective Date to but excluding the earlier of the U.S.
Dollar Revolving Commitment Termination Date and the date of termination of the
U.S. Dollar Revolving Commitments.
"U.S. Dollar Revolving Commitment" means, with respect to each
U.S. Dollar Revolving Lender, the commitment, if any, of such U.S. Dollar
Revolving Lender to make U.S. Dollar Revolving Loans in U.S. Dollars and to
acquire participations in Letters of Credit and Swingline Loans hereunder,
representing the maximum aggregate amount of such U.S. Dollar Revolving Lender's
U.S. Dollar Revolving Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.08 or 2.10 and (b) reduced or increased
from time to time pursuant to assignments by or to such U.S. Dollar Revolving
Lender pursuant to Section 10.04. The initial amount of each U.S. Dollar
Revolving Lender's U.S. Dollar Revolving Commitment is set forth opposite the
name of such Lender on its Lender Addendum under the caption "U.S. Dollar
Revolving Commitment", or in the Assignment and Acceptance pursuant to which
such U.S. Dollar Revolving Lender shall have assumed its U.S. Dollar
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Revolving Commitment, as applicable. The initial aggregate amount of the U.S.
Dollar Revolving Lenders' U.S. Dollar Revolving Commitments is U.S.$400,000,000.
"U.S. Dollar Revolving Commitment Termination Date" means
February 29, 2008 (provided that if such day is not a Business Day, the U.S.
Dollar Revolving Commitment Termination Date shall be the immediately preceding
Business Day).
"U.S. Dollar Revolving Exposure" means, with respect to any
U.S. Dollar Revolving Lender at any time, the sum of the outstanding principal
amount of such U.S. Dollar Revolving Lender's U.S. Dollar Revolving Loans and
its LC Exposure and Swingline Exposure at such time.
"U.S. Dollar Revolving Lender" means (a) initially, a Lender
that has a "U.S. Dollar Revolving Commitment" set forth opposite the name of
such Lender on its Lender Addendum and (b) thereafter, a Lender from time to
time holding a U.S. Dollar Revolving Commitment or a Lender from time to time
with an U.S. Dollar Revolving Exposure.
"U.S. Dollar Revolving Loan" means a Loan made pursuant to
Section 2.01(a), which may be an ABR Loan and/or a Eurocurrency Loan.
"U.S. Dollars" or "U.S.$" refers to lawful money of the United
States of America.
"U.S. Pledge Agreement" means a Pledge Agreement substantially
in the form of Exhibit B-1 between the Borrower, the Subsidiary Guarantors and
the Administrative Agent.
"Voting Stock" means stock of the class or classes pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of a corporation (irrespective of whether or not at the time stock
of any other class or classes shall have or might have voting power by reason of
the happening of any contingency).
"Wholly-Owned Subsidiary" means, with respect to any Person,
any corporation, limited liability company, partnership, association or other
entity of which all of the equity securities or other ownership interests (other
than, in the case of a corporation, directors' qualifying shares) are directly
or indirectly owned or controlled by such Person or one or more Wholly-Owned
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class
and Type (e.g., a "Revolving Eurocurrency Loan"); each Series of Incremental
Term Loans shall be deemed a separate Class of Loans hereunder. Borrowings also
may be classified and referred to by Class (e.g., a "Revolving
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Borrowing") or by Type (e.g., a "Eurocurrency Borrowing") or by Class and Type
(e.g., a "Revolving Eurocurrency Borrowing"); and each Series of Incremental
Term Loan Borrowings and Incremental Term Loan Commitments shall be deemed a
separate Borrowing and Commitment hereunder. Swingline ABR Loans and Swingline
FFBR Loans shall be deemed to be Loans of the same Class but different Types.
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "Property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Currency Equivalents. (a) For purposes of
determining (i) whether the amount of any Borrowing or any issuance, renewal or
extension of any Alternate Currency Letter of Credit, together with all other
Borrowings then outstanding or Alternate Currency Letters of Credit then issued,
would exceed the aggregate amount of Commitments, (ii) the aggregate unutilized
amount of the Commitments and (iii) the outstanding aggregate principal amount
of Borrowings or aggregate face amount of issued Alternate Currency Letters of
Credit, (x) the outstanding principal amount of any Borrowing that is
denominated in Australian Dollars shall be deemed to be the U.S. Dollar
Equivalent of the amount of Australian Dollars of such Borrowing determined as
of the date of such Borrowing (determined in accordance with the last sentence
of the definition of the term "Borrowing") and (y) the face
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amount of any Alternative Currency Letter of Credit shall be deemed to be the
U.S. Dollar Equivalent of the face amount of such Alternative Currency Letter of
Credit determined as of the date of such issuance, renewal or extension.
Wherever in this Agreement in connection with a Borrowing or Loan or issuance,
renewal or extension of a Letter of Credit a required minimum or multiple amount
is expressed in U.S. Dollars, but such Borrowing or Loan is denominated in
Australian Dollars or such Letter of Credit is denominated in an Alternative
Currency, the minimum or multiple amount will be the Australian Dollar
Equivalent or the relevant Alternative Currency Equivalent, as the case may be,
of such U.S. Dollar amount (rounded to the nearest 1,000 units of Australian
Dollars or the relevant Alternative Currency, as the case may be).
(b) Not later than 1:00 p.m., New York City time, on the last
Business Day of each calendar month (each such day, a "Calculation Date"), the
Administrative Agent shall (i) determine the Exchange Rate as of such
Calculation Date to be used for calculating the U.S. Dollar Equivalent amounts
of each Alternative Currency in which there is an outstanding Alternative
Currency Letter of Credit or an unreimbursed LC Disbursement denominated in an
Alternative Currency and (ii) give notice thereof to the Borrower. The Exchange
Rates so determined shall become effective on the first Business Day immediately
following the relevant Calculation Date (a "Reset Date"), shall remain effective
until the next succeeding Reset Date and shall for all purposes of this
Agreement (other than converting into U.S. Dollars under Sections 2.05(f), (g),
(j), (l) and (n) and 2.11(b) the obligations of the Borrower and the U.S. Dollar
Revolving Lenders in respect of LC Disbursements denominated in an Alternative
Currency that have not been reimbursed when due) be the Exchange Rates employed
in converting any amounts between the applicable currencies.
(c) Not later than 5:00 p.m., New York City time, on each
Reset Date, the Administrative Agent shall (i) determine the Alternative
Currency LC Exposure on such date (after giving effect to any Alternative
Currency Letters of Credit issued, renewed or terminated or requested to be
issued, renewed or terminated on such date) and (ii) notify the Borrower and
each Issuing Lender of the results of such determination.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments.
(a) U.S. Dollar Revolving Loans. Subject to the terms and
conditions set forth herein, each U.S. Dollar Revolving Lender agrees to make
U.S. Dollar Revolving Loans to the Borrower from time to time during the U.S.
Dollar Revolving Availability Period in U.S. Dollars in an aggregate principal
amount that will not result in (i) such Lender's U.S. Dollar Revolving Exposure
exceeding such Lender's U.S. Dollar Revolving Commitment and (ii) the sum of the
total U.S. Dollar Revolving Exposures and the U.S. Dollar Equivalent of the
total Australian Dollar Revolving Exposures exceeding the total U.S. Dollar
Revolving Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow U.S.
Dollar Revolving Loans.
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(b) Australian Dollar Revolving Loans. Subject to the terms
and conditions set forth herein, each Australian Dollar Revolving Lender agrees
to make Australian Dollar Revolving Loans to the Borrower from time to time
during the Australian Dollar Revolving Availability Period in Australian Dollars
in an aggregate principal amount that will not result in (i) such Lender's
Australian Dollar Revolving Exposure exceeding such Lender's Australian Dollar
Revolving Commitment and (ii) the total Australian Dollar Revolving Exposures
exceeding the total Australian Dollar Revolving Commitments. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Australian Dollar Revolving Loans.
(c) Tranche A Term Loans. Subject to the terms and conditions
set forth herein, each Tranche A Term Loan Lender agrees to make one or more
Tranche A Term Loans to the Borrower during the Term Loan Availability Period in
U.S. Dollars in a principal amount not exceeding its Tranche A Term Loan
Commitment. Amounts repaid in respect of Tranche A Term Loans may not be
reborrowed hereunder.
(d) Tranche B Term Loans. Subject to the terms and conditions
set forth herein, each Tranche B Term Loan Lender agrees to make one or more
Tranche B Term Loans to the Borrower during the Term Loan Availability Period in
U.S. Dollars in a principal amount not exceeding its Tranche B Term Loan
Commitment. Amounts repaid in respect of Tranche B Term Loans may not be
reborrowed.
(e) Limit on Revolving Loans. Notwithstanding the foregoing
provisions of this Section 2.01, in no event shall (i) the total Revolving
Exposures after giving effect to any borrowing on any date of Revolving Loans,
Swingline Loans or issuance, renewal or extension of any Letter of Credit
hereunder exceed U.S.$400,000,000, (ii) the total U.S. Dollar Revolving
Exposure, after giving effect to any borrowing on any date of U.S. Dollar
Revolving Loans, Swingline Loans or issuance, renewal or extension of any Letter
of Credit hereunder, plus the total Australian Dollar Revolving Exposure, after
giving effect to any borrowing on any date of Australian Dollar Revolving Loans
hereunder, exceed the aggregate outstanding principal amount of the U.S. Dollar
Revolving Commitments on such date and (iii) the total Australian Dollar
Revolving Exposure, after giving effect to any borrowing on any date of
Australian Dollar Revolving Loans hereunder, exceed the aggregate outstanding
principal amount of the Australian Dollar Revolving Commitments on such date.
(f) Incremental Term Loans. In addition to Borrowings of U.S.
Dollar Revolving Loans, Australian Dollar Revolving Loans, Tranche A Term Loans
and Tranche B Term Loans specified in Section 2.01(a), (b), (c) and (d),
respectively, at any time and from time to time prior to the Incremental Term
Loan Availability Date, the Borrower may request that the Lenders offer to enter
into commitments to make Incremental Term Loans to the Borrower in U.S. Dollars.
It is understood in each case that such offer may be made by any financial
institution that is to become a Lender hereunder in connection with the making
of such offer under this paragraph (f), so long as the Administrative Agent
shall have consented to such financial institution being a Lender hereunder
(such consent shall not be unreasonably withheld). In the event that one or more
of the Lenders offer, in their sole discretion, to enter into such commitments,
and such
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Lenders and the Borrower agree as to the amount of such commitments that shall
be allocated to the respective Lenders making such offers, as to the fees (if
any) to be payable by the Borrower in connection therewith and the Applicable
Rate and (in the case of Incremental Term Loans) amortization relating thereto,
the Borrower, the Administrative Agent and such Lenders shall execute and
deliver a Incremental Term Loan Agreement and such Lenders shall become
obligated to make Incremental Term Loans under this Agreement in an amount equal
to the amount of their respective Incremental Term Loan Commitments as specified
in such Incremental Term Loan Agreement. The Incremental Term Loans to be made
pursuant to any Incremental Term Loan Agreement in response to any such request
by the Borrower shall be deemed to be a separate "Series" of Incremental Term
Loans for all purposes of this Agreement.
Anything herein to the contrary notwithstanding, (i) the
minimum aggregate principal amount of Incremental Term Loan Commitments entered
into pursuant to any request specified above (and, accordingly, the minimum
aggregate principal amount of any Series of Incremental Term Loans) shall be
$75,000,000, (ii) the aggregate outstanding principal amount of Incremental Term
Loans of all Series, together with the aggregate unutilized Incremental Term
Commitments of all Series, shall not exceed $300,000,000 at any time, (iii) the
Incremental Term Loan Commitments of any Series shall terminate on the earlier
of the Incremental Term Loan Availability Date and the date 30 days after the
date of the respective Incremental Term Loan Agreement for such Series and (iv)
in no event shall the Incremental Term Loan Agreement for any Series of
Incremental Term Loans provide for the final maturity of the Incremental Term
Loans of such Series to be earlier than the Tranche B Term Loan Maturity Date,
or for the weighted average life to maturity of the Incremental Term Loans of
such Series to be less than the weighted average life to maturity of the Tranche
B Term Loans as of the date of such Incremental Term Loan Agreement (such
determination of average life to be made by the Administrative Agent).
Following agreement by the Borrower and one or more of the
Lenders as provided above, subject to the terms and conditions set forth herein,
each Incremental Term Loan Lender of any Series agrees to make Incremental Term
Loans of such Series to the Borrower from time to time during the period from
and including the date of the respective Incremental Term Loan Agreement for
such Series to and including the earlier of the Incremental Term Loan
Availability Date and the date 30 days after the date of such Incremental Term
Loan Agreement, in an aggregate principal amount up to but not exceeding the
amount of the Incremental Term Loan Commitment of such Series of such
Incremental Term Loan Lender.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Loan shall be made as part of
a Borrowing consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their respective Commitments of the applicable Class.
The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
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(b) Type of Loans. Subject to Section 2.13, each Borrowing
shall be constituted entirely of ABR Loan or Eurocurrency Loans may request in
accordance herewith. Each Lender at its option may make any Eurocurrency Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. At
the commencement of the Interest Period for any Eurocurrency Borrowing , such
Borrowing shall be in an aggregate amount of U.S.$3,000,000 or a larger multiple
of U.S.$100,000. At the time that each ABR Borrowing is made, such Borrowing
shall be in an aggregate amount equal to U.S.$3,000,000 or a larger multiple of
U.S.$100,000; provided that an ABR Borrowing may be in an aggregate amount that
is equal to the entire unused balance of the total Commitments of the applicable
Class or that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(g). Each Swingline Loan shall be in an amount equal
to U.S.$500,000 or a larger multiple of U.S.$100,000. Borrowings of more than
one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of thirty (30) Eurocurrency
Borrowings outstanding.
(d) Limitations on Lengths of Interest Periods.
Notwithstanding any other provision of this Agreement, the Borrower shall not be
entitled to request, or to elect to convert to or continue as a Eurocurrency
Borrowing: (i) any Revolving Borrowing of any Class if the Interest Period
requested therefor would end after the Revolving Commitment Termination Date of
such Class; (ii) any Term Loan Borrowing if the Interest Period requested
therefor would end after the Term Loan Maturity Date for the relevant Class; or
(iii) unless the Borrower shall confirm to the Applicable Agent in connection
with such request or election that the Borrower intends to compensate each
Lender pursuant to Section 2.15 (to the extent required to do so thereunder),
any Term Loan Borrowing if the Interest Period requested therefor would commence
before and end after any Principal Payment Date unless, after giving effect
thereto, the aggregate principal amount of the Tranche A Term Loans, Tranche B
Term Loans or Incremental Term Loans, as the case may be, having Interest
Periods that end after such Principal Payment Date shall be equal to or less
than the aggregate principal amount of the Tranche A Term Loans, Tranche B Term
Loans or Incremental Term Loans, respectively, permitted to be outstanding after
giving effect to the payments of principal required to be made on such Principal
Payment Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing,
the Borrower shall notify the Applicable Agent of such request by telephone (a)
in the case of a Eurocurrency Borrowing denominated in U.S. Dollars, not later
than 11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing, (b) in the case of a Eurocurrency Borrowing denominated in
Australian Dollars, not later than 11:00 a.m., London time, four Business Days
before the date of the proposed Borrowing or (c) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the date of the
proposed Borrowing; provided that any such notice of a Revolving ABR Borrowing
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(g) may be given not later than 10:00 a.m., New York City time, on the date
of the proposed Borrowing. Each such
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telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Applicable Agent of a written
Borrowing Request in a form approved by such Applicable Agent and signed by the
Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a U.S. Dollar
Revolving Borrowing, Australian Dollar Revolving Borrowing,
Tranche A Term Loan Borrowing, Tranche B Term Loan Borrowing or
Incremental Term Loan Borrowing (including, if applicable, the
respective Series of Incremental Term Loans to which such
Borrowing relates);;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) in the case of a Borrowing denominated is in U.S.
Dollars, whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(v) in the case of a Eurocurrency Borrowing, the Interest
Period therefor, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurocurrency Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans.
(a) Agreement to Make Swingline Loans. Subject to the terms
and conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time during the U.S. Dollar Revolving
Availability Period, in U.S. Dollars in an aggregate principal amount at any
time outstanding that will not result in (i) the aggregate principal amount of
outstanding Swingline Loans exceeding U.S.$30,000,000 or (ii) the sum of the
total U.S. Dollar Revolving Exposures and the U.S. Dollar Equivalent of the
total Australian Dollar Revolving Exposures exceeding the total U.S. Dollar
Revolving Commitments; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.
(b) Interest Rates. Swingline Loans shall be ABR Loans or FFBR
Loans (with an Interest Period of two weeks), as selected by the Borrower,
except that the Swingline Lender and the Borrower may agree that the interest
rate in respect of a Swingline Loan made by the Swingline Lender, for a period
ending on the date that is not earlier than one day and not later
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than fifteen days after such Swingline Loan is made, be at an alternative rate
of interest (and with such applicable margins and prepayment premiums) as may
from time to time be offered by the Swingline Lender to the Borrower in its sole
discretion; provided that upon any sale pursuant to Section 2.04(d) of
participations in any Swingline Loan the interest on which is determined by
reference to the Federal Funds Base Rate or any such alternative rate, such
Swingline Loans shall automatically be converted into an ABR Loan.
(c) Notice of Swingline Loans by the Borrower. To request a
Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New
York City time, on the day of a proposed Swingline Loan. Each such notice shall
be irrevocable and shall specify the requested date (which shall be a Business
Day), amount and Type of the requested Swingline Loan. The Administrative Agent
will promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the
Borrower by means of a credit to a deposit account designated by the Borrower
(or, in the case of a Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(g), by remittance to the respective
Issuing Lender) by 3:00 p.m., New York City time, on the requested date of such
Swingline Loan.
(d) Participations by Lenders in Swingline Loans. The
Swingline Lender may by written notice given to the Administrative Agent not
later than 10:00 a.m., New York City time, on any Business Day require the U.S.
Dollar Revolving Lenders to acquire participations on such Business Day in all
or a portion of the Swingline Loans outstanding. Such notice to the
Administrative Agent shall specify the aggregate amount of Swingline Loans in
which U.S. Dollar Revolving Lenders will participate. Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each U.S.
Dollar Revolving Lender, specifying in such notice such U.S. Dollar Revolving
Lender's Applicable Percentage of such Swingline Loan or Swingline Loans on the
applicable Business Day as provided above. Each U.S. Dollar Revolving Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided
above in this paragraph, to pay to the Administrative Agent, for account of the
Swingline Lender, such U.S. Dollar Revolving Lender's Applicable Percentage of
such Swingline Loan or Loans. Each U.S. Dollar Revolving Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans pursuant
to this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
U.S. Dollar Revolving Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such U.S. Dollar
Revolving Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the U.S. Dollar Revolving Lenders), and the Administrative Agent
shall promptly pay to the Swingline Lender the amounts so received by it from
the U.S. Dollar Revolving Lenders. The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline
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Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Lenders that shall have made their payments
pursuant to this paragraph and to the Swingline Lender, as their interests may
appear. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Borrower of any default in the payment thereof.
(e) Replacement of Swingline Lender. The Borrower may at any
time, and from time to time, request that the then-current Swingline Lender be
replaced with another Lender hereunder designated by the Borrower and reasonably
satisfactory to the Administrative Agent. Any such replacement shall be effected
pursuant to a written instrument, in form and substance reasonably satisfactory
to the Administrative Agent, under which such new Lender agrees to become the
"Swingline Lender" hereunder, and the predecessor Swingline Lender is relieved
of all of its obligations hereunder as the "Swingline Lender"; provided that in
no event shall any such replacement occur unless the principal of and interest
on all of the Swingline Loans of the predecessor Swingline Lender shall have
been paid in full.
SECTION 2.05. Letters of Credit.
(a) General. Subject to the terms and conditions set forth
herein, in addition to the Loans provided for in Section 2.01, the Borrower may
request an Issuing Lender to issue, at any time and from time to time during the
U.S. Dollar Revolving Availability Period, Committed Letters of Credit for its
own account in such form as is acceptable to such Issuing Lender in its
reasonable determination. Committed Letters of Credit issued hereunder shall be
issued in U.S. Dollars and shall constitute utilization of the U.S. Dollar
Revolving Commitments specified by the Borrower at the time it requests such
Committed Letter of Credit to be issued hereunder.
(b) Notice of Issuance, Amendment, Renewal or Extension. To
request the issuance of a Committed Letter of Credit (or the amendment, renewal
or extension of an outstanding Committed Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the respective Issuing Lender)
to the respective Issuing Lender and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Committed Letter of Credit, or identifying
the Committed Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be
a Business Day), the date on which such Committed Letter of Credit is to expire
(which shall comply with paragraph (e) of this Section) and the amount of such
Committed Letter of Credit, the name and address of the beneficiary thereof and
such other information as shall be necessary to prepare, amend, renew or extend
such Committed Letter of Credit. If requested by the respective Issuing Lender,
the Borrower also shall submit a letter of credit application on such Issuing
Lender's standard form in connection with any request for a Committed Letter of
Credit. In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, an Issuing Lender relating to any Committed Letter of Credit,
the terms and conditions of this Agreement shall control.
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(c) Alternative Currency Letters of Credit.
(i) Requests for Offers. From time to time during the U.S.
Dollar Revolving Availability Period the Borrower may request the
Issuing Lenders to make offers to issue a Letter of Credit
denominated in an Alternative Currency for account of the
Borrower. Each Issuing Lender may, but shall have no obligation
to, make such offers on terms and conditions that are
satisfactory to such Issuing Lender, and the Borrower may, but
shall have no obligation to, accept any such offers. The issuance
of each Alternative Currency Letter of Credit shall be subject to
the conditions of Section 5.04 and to such other conditions as
are agreed upon by the Borrower and the Issuing Lender issuing
such Alternative Currency Letter of Credit. Subject to the other
provisions of this Section 2.05, each such Alternative Currency
Letter of Credit shall be issued, and subsequently, renewed,
extended, amended and confirmed, on such terms as the Borrower
and such Issuing Lender shall agree, including, without
limitation, expiry, drawing conditions, reimbursement, interest,
fees and provision of cover. Each Alternative Currency Letter of
Credit shall constitute utilization of the U.S. Dollar Revolving
Commitments specified by the Borrower at the time it requests
such Alternative Currency Letter of Credit to be issued hereunder
(ii) Reports to Administrative Agent. Each Issuing Lender
shall deliver to the Administrative Agent and each other Issuing
Lender a report in respect of each Alternative Currency Letter of
Credit (each such report, an "Alternative Currency Letter of
Credit Report") on and as of the date on which (x) such
Alternative Currency Letter of Credit is issued, (y) the
issuance, renewal, extension or amendment of a Committed Letter
of Credit, if any Alternative Currency Letter of Credit is then
outstanding, and (z) the U.S. Dollar Revolving Commitments are to
be reduced pursuant to Section 2.08, specifying for each such
Alternative Currency Letter of Credit (after giving effect to
issuance thereof, as applicable):
(A) the date on which such Alternative Currency Letter
of Credit was or is being issued;
(B) the Alternative Currency of such Alternative
Currency Letter of Credit;
(C) the aggregate undrawn amount of such Alternative
Currency Letter of Credit (in such Alternative Currency);
(D) the aggregate unpaid amount of LC Disbursements
under such Alternative Currency Letter of Credit (in such
Alternative Currency);
(E) the U.S. Dollar Equivalent of the Alternative
Currency LC Exposure in respect of such Alternative Currency
Letter of Credit; and
(F) the U.S. Dollar Equivalent of the aggregate amount
of Alternative Currency LC Exposures in respect of
Alternative Currency Letters of Credit issued by such
Issuing Lender.
Each Alternative Currency Letter of Credit Report shall be delivered to the
Administrative Agent and the Issuing Lenders by 10:00 a.m. (New York City time)
on the date on which it is required
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to be delivered. The Borrower agrees to promptly provide the Issuing Lenders
with such reasonably requested information as may be needed to prepare an
Alternative Currency Letter of Credit Report.
(d) Limitations on Amounts. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the aggregate LC Exposure of all Issuing Lenders
(determined for these purposes without giving effect to the participations
therein of the U.S. Dollar Revolving Lenders pursuant to paragraph (f) of this
Section) shall not exceed U.S.$40,000,000, (ii) the sum of the total U.S. Dollar
Revolving Exposures and the U.S. Dollar Equivalent of the total Australian
Dollar Revolving Exposures shall not exceed the total U.S. Dollar Revolving
Commitments and (iii) the aggregate LC Exposure of such Issuing Lender
(determined for these purposes without giving effect to the participations
therein of the Revolving Lenders pursuant to paragraph (f) of this Section)
shall not exceed the maximum LC Exposure for such Issuing Lender, if any,
specified in the instrument contemplated by clause (k) below.
(e) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date twelve months
after the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, twelve months after the then-current expiration
date of such Letter of Credit, so long as such renewal or extension occurs
within three months of such then-current expiration date) and (ii) the date that
is five Business Days prior to the U.S. Dollar Revolving Commitment Termination
Date.
(f) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) by any Issuing
Lender in respect of the U.S. Dollar Revolving Commitments, and without any
further action on the part of such Issuing Lender or the U.S. Dollar Revolving
Lenders, such Issuing Lender hereby grants to each U.S. Dollar Revolving Lender,
and each such U.S. Dollar Revolving Lender hereby acquires from such Issuing
Lender, a participation in such Letter of Credit equal to such U.S. Dollar
Revolving Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. Each U.S. Dollar Revolving Lender
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 the U.S. Dollar
Revolving Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
In consideration and in furtherance of the foregoing, each
U.S. Dollar Revolving Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for account of the respective Issuing Lender, such
Lender's Applicable Percentage of (x) each LC Disbursement made by an Issuing
Lender in respect of each Committed Letter of Credit and (y) the U.S. Dollar
Equivalent, using the Exchange Rates on the date such payment is required, of
each LC Disbursement made by such Issuing Lender in an Alternative Currency,
promptly upon the request of such Issuing Lender at any time from the time of
such LC Disbursement until such
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LC Disbursement is reimbursed by the Borrower or at any time after any
reimbursement payment is required to be refunded to the Borrower for any reason.
Each such payment shall be made in the same manner as provided in Section 2.06
with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the respective Issuing Lender the amounts so
received by it from the U.S. Dollar Revolving Lenders. Promptly following
receipt by the Administrative Agent of any payment from the Borrower pursuant to
the next following paragraph, the Administrative Agent shall distribute such
payment to the respective Issuing Lender or, to the extent that the Lenders have
made payments pursuant to this paragraph to reimburse such Issuing Lender, then
to such Lenders and such Issuing Lender as their interests may appear. Any
payment made by a U.S. Dollar Revolving Lender pursuant to this paragraph to
reimburse an Issuing Lender for any LC Disbursement shall not constitute a Loan
and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(g) Reimbursement. If an Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
Issuing Lender in respect of such LC Disbursement (i) under a Committed Letter
of Credit by paying to the Administrative Agent an amount in U.S. Dollars equal
to such LC Disbursement not later than 12:00 noon, New York City time, on (x)
the Business Day that the Borrower receives notice of such LC Disbursement, if
such notice is received prior to 10:00 a.m., New York City time, or (y) the
Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time (provided that, if
such LC Disbursement is not less than U.S.$100,000, the Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with a U.S. Dollar Revolving ABR
Borrowing or Swingline Loan in an equivalent amount and, to the extent so
financed, the Borrower's obligation to make such payment shall be discharged and
replaced by the resulting U.S. Dollar Revolving ABR Borrowing or Swingline Loan)
and (ii) under an Alternative Currency Letter of Credit by paying to the London
Agent an amount in the relevant Alternative Currency equal to such LC
Disbursement not later that 12:00 noon, London time, on (x) the Business Day
that the Borrower receives notice of such LC Disbursement, if such notice is
received prior to 10:00 a.m., London time, or (y) the Business Day immediately
following the day that the Borrower receives such notice, if such notice is not
received prior to such time.
If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each U.S. Dollar Revolving Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender's Applicable Percentage thereof together with, in the
case of an LC Disbursement under an Alternative Currency Letter of Credit, the
U.S. Dollar Equivalent of the Lender's Applicable Percentage thereof, using the
Exchange Rates which would apply were such Lender to pay such amount on the date
such notice is delivered to such Lender.
(h) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (g) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit, or any term or provision therein, (ii) any draft or other
document
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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, (iii) payment by the respective Issuing Lender under a Letter of Credit
against presentation of a draft or other document that does not comply strictly
with the terms of such Letter of Credit, and (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing
Lender, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit by the respective Issuing Lender or any payment or failure
to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), 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 control of the
respective Issuing Lender; provided that the foregoing shall not be construed to
excuse an Issuing Lender from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by such Issuing Lender's gross
negligence or willful misconduct when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that:
(i) an Issuing Lender may accept documents that appear on
their face to be in substantial compliance with the terms of a
Letter of Credit without responsibility for further
investigation, regardless of any notice or information to the
contrary, and may make payment upon presentation of documents
that appear on their face to be in substantial compliance with
the terms of such Letter of Credit;
(ii) an Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such
payment if such documents are not in strict compliance with the
terms of such Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by an Issuing Lender when determining whether drafts
and other documents presented under a Letter of Credit comply
with the terms thereof (and the parties hereto hereby waive, to
the extent permitted by applicable law, any standard of care
inconsistent with the foregoing).
(i) Disbursement Procedures. The Issuing Lender for any Letter
of Credit shall, within a reasonable time following its receipt thereof, examine
all documents purporting to represent a demand for payment under such Letter of
Credit. Such Issuing Lender shall promptly after such examination notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether such Issuing Lender has made or will make an
LC Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse such
Issuing Lender and the Lenders with respect to any such LC Disbursement.
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(j) Interim Interest. If the Issuing Lender for any Letter of
Credit shall make any LC Disbursement, then, unless the Borrower shall reimburse
such LC Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR
Loans; provided that, if the Borrower fails to reimburse such LC Disbursement
when due pursuant to paragraph (g) of this Section, then Section 2.12(d) shall
apply; provided further that, in case of any LC Disbursement made under an
Alternative Currency Letter of Credit, the amount of interest due with respect
thereto shall be payable in U.S. Dollars and shall accrue on the U.S. Dollar
Equivalent thereof calculated using the Exchange Rates on the date such LC
Disbursement was made. Interest accrued pursuant to this paragraph shall be for
account of such Issuing Lender, except that interest accrued on and after the
date of payment by any Lender pursuant to paragraph (g) of this Section to
reimburse such Issuing Lender shall be for account of such Lender to the extent
of such payment.
(k) Addition / Termination of Issuing Lenders. Any Lender may
be added as an Issuing Lender (each such Lender, an "Additional Issuing Lender")
at any time pursuant to a written agreement among the Borrower, the
Administrative Agent and such Additional Issuing Lender and to be in form and
substance reasonably satisfactory to such Additional Issuing Lender and the
Administrative Agent. The Administrative Agent shall notify the Lenders of each
Additional Issuing Lender. From and after the effective date of any such
addition, (i) the Additional Issuing Lender shall have all the rights and
obligations of an Issuing Lender under this Agreement with respect to Letters of
Credit to be issued by it thereafter and (ii) references herein to the term
"Issuing Lender" shall be deemed to include such Additional Issuing Lender.
In addition, any Issuing Lender, with the consent of the
Borrower, may cease being an Issuing Lender (each such Issuing Lender, a
"Terminating Issuing Lender") at any time pursuant to a written agreement among
the Borrower, the Administrative Agent and such Terminating Issuing Lender and
to be in form and substance reasonably satisfactory to such Terminating Issuing
Lender, the Administrative Agent and the Borrower. The Administrative Agent
shall notify the Lenders of each Terminating Issuing Lender. At the time such
termination is effective, the Borrower shall pay all unpaid fees accrued for
account of the respective Terminating Issuing Lender. After the termination of a
Terminating Issuing Lender, such Terminating Issuing Lender shall remain a party
hereto as an Issuing Lender and shall continue to have all the rights and
obligations of an Issuing Lender with respect to the Letters of Credit issued by
it prior to such termination, but shall not be required to issue additional
Letters of Credit.
(l) Cash Collateralization. If an Event of Default shall occur
and be continuing and the Borrower receives notice from the Administrative Agent
or the Required Lenders (or, if the maturity of the Loans has been accelerated,
Lenders with LC Exposure representing at least 66-2/3% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall immediately deposit into the Collateral Account an amount in cash
equal to, in the case of an Event of Default, the LC Exposure as of such date
plus any accrued and unpaid interest thereon; provided that (i) the portions of
such amount attributable to Alternative Currency Letters of Credit or LC
Disbursements denominated in Alternative
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Currencies shall be deposited in the applicable Alternative Currencies in the
actual amounts of such undrawn Alternative Currency Letters of Credit and LC
Disbursements and (ii) the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VIII. For purposes of this paragraph, Alternative Currency LC Exposure
shall be calculated using the Exchange Rates on the date notice demanding cash
collateralization is delivered to the Borrower. Such deposit shall be held by
the Administrative Agent in the Collateral Account as collateral in the first
instance for the LC Exposure under this Agreement and thereafter for the payment
of the "Secured Obligations" under and as defined in the U.S. Pledge Agreement,
and for these purposes the Borrower hereby grants a security interest to the
Administrative Agent for the benefit of the Lenders in the Collateral Account
and in any financial assets (as defined in the Uniform Commercial Code) or other
Property held therein.
(m) Existing Letters of Credit. Pursuant to Section 2.05 of
the 1999 Credit Agreement, JPMorgan Chase, as an "Issuing Lender" thereunder,
has issued various "Letters of Credit" under and as defined in the 1999 Credit
Agreement. On the Effective Date, subject to the satisfaction of the conditions
to effectiveness of the obligations of the Lenders hereunder set forth in
Article V, each of such "Letters of Credit" under the 1999 Credit Agreement
shall automatically, and without any action on the part of any Person, become a
Letter of Credit hereunder and constitute a utilization of the U.S. Dollar
Revolving Commitments.
(n) Conversion. In the event that the Loans become immediately
due and payable on any date pursuant to Article VIII, all amounts (i) that the
Borrower is at the time or thereafter becomes required to reimburse or otherwise
pay to the Administrative Agent in respect of LC Disbursements made under any
Alternative Currency Letter of Credit (other than amounts in respect of which
the Borrower has deposited cash collateral pursuant to paragraph (l) of this
Section, if such cash collateral was deposited in the applicable Alternative
Currency to the extent so deposited or applied), (ii) that the U.S. Revolving
Lenders are at the time or thereafter become required to pay to the
Administrative Agent and the Administrative Agent is at the time or thereafter
becomes required to distribute to the Issuing Lenders pursuant to paragraph (g)
of the Section in respect of unreimbursed LC Disbursements made under any
Alternative Currency Letter of Credit and (iii) of each U.S. Revolving Lender's
participation in any Alternative Currency Letter of Credit under which an LC
Disbursement has been made shall, automatically and with no further action
required, be converted into the U.S. Dollar Equivalent, calculated using the
Exchange Rates on such date (or in the case of any LC Disbursement made after
such date, on the date such LC Disbursement is made), of such amounts. On and
after such conversion, all amounts accruing and owed to the Administrative
Agent, the Issuing Lenders or any U.S. Dollar Revolving Lender in respect of the
obligations described in this paragraph shall accrue and be payable in U.S.
Dollars at the rates otherwise applicable hereunder.
SECTION 2.06. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time (or, in the case
of any Australian Dollar Revolving Loan, 12:00 noon,
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London time), to the account of the Applicable Agent most recently designated by
it for such purpose by notice to the Lenders; provided that Swingline Loans
shall be made as provided in Section 2.04. The Applicable Agent will make such
Loans available to the Borrower by promptly remitting the amounts so received,
in like funds, to an account of the Borrower designated by the Borrower in the
applicable Borrowing Request; provided that U.S. Dollar Revolving ABR Borrowings
made to finance the reimbursement of an LC Disbursement as provided in Section
2.05(g) shall be remitted by the Administrative Agent to the respective Issuing
Lender.
(b) Presumption by the Administrative Agent. Unless the
Applicable Agent shall have received notice from a Lender prior to the proposed
date of any Borrowing that such Lender will not make available to the Applicable
Agent such Lender's share of such Borrowing, the Applicable Agent may assume
that such Lender has made such share available on such date in accordance with
paragraph (a) of this Section and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the
Applicable Agent, then the applicable Lender and the Borrower severally agree to
pay to the Applicable Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the Applicable
Agent, at (i) in the case of such Lender, the Federal Funds Effective Rate or
(ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If
such Lender pays such amount to the Applicable Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections.
(a) Elections for Borrowings. Each Borrowing initially shall
be of the Type specified in the applicable Borrowing Request and, in the case of
a Eurocurrency Borrowing, shall have the Interest Period specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert any Borrowing
made to it to a Borrowing of a different Type or to continue such Borrowing as a
Borrowing of the same Type and, the Borrower, in the case of a Eurocurrency
Borrowing, may elect the Interest Period for Borrowings made to it, all as
provided in this Section. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans constituting such
Borrowing, and the Loans constituting each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings, which
may not be converted or continued. Notwithstanding the foregoing, no Australian
Dollar Revolving Loan may be converted to another Type, and the Borrower may not
convert its Loans of other Types to Australian Dollar Revolving Loans.
(b) Notice of Elections. To make an election pursuant to this
Section, the Borrower shall notify the Applicable Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Applicable Agent of a written Interest
Election Request in a form approved by the Applicable Agent and signed by the
Borrower.
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(c) Information in Interest Election Requests. Each telephonic
and written Interest Election Request shall specify the following information in
compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies (including, if applicable, the respective Series of
Incremental Term Loans to which such Interest Election Request
relates) and, if different options are being elected with respect
to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) of
this paragraph shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) if the resulting Borrowing is denominated in U.S.
Dollars, whether such resulting Borrowing is to be an ABR
Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing,
the Interest Period therefor after giving effect to such
election, which shall be a period contemplated by the definition
of the term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Notice by the Applicable Agent to Lenders. Promptly
following receipt of an Interest Election Request, the Applicable Agent shall
advise each relevant Lender of the details thereof and of each such Lender's
portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails
to deliver a timely Interest Election Request with respect to a Eurocurrency
Borrowing denominated in U.S. Dollars prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing, and if the Borrower fails to deliver a timely Interest Election
Request with respect to an Australian Dollar Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period the Borrower shall
be deemed to have requested an Australian Dollar Revolving Borrowing with an
Interest Period of one month's duration. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Borrowing may be converted to or continued as a Eurocurrency Borrowing
denominated in U.S. Dollars and (ii) unless repaid, each Eurocurrency Borrowing
denominated in U.S. Dollars shall be converted to an ABR Borrowing at the end of
the Interest Period applicable thereto.
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SECTION 2.08. Termination and Reduction of the Commitments.
(a) Scheduled Termination. Unless previously terminated, (i)
the Tranche A Term Loan Commitments and the Tranche B Term Loan Commitments
shall terminate at 5:00 p.m., New York City time, on the last day of the Term
Loan Availability Period, (ii) the Incremental Term Loan Commitments of each
Series shall terminate on the Incremental Term Loan Availability Date, (iii) the
U.S. Dollar Revolving Commitments shall terminate on the U.S. Dollar Revolving
Commitment Termination Date and (iv) the Australian Dollar Revolving Commitments
shall terminate on the Australian Dollar Revolving Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at
any time terminate, or from time to time reduce, the Commitments of any Class;
provided that (i) each reduction of the Commitments of any Class pursuant to
this Section shall be in an amount that is U.S.$3,000,000 or a larger multiple
of U.S.$100,000, or the remaining amount of the Commitments of such Class and
(ii) except as provided in Section 2.08(d) (but subject to Section 2.10(c)), the
Borrower shall not terminate or reduce the Revolving Commitments of any Class
if, after giving effect to any concurrent prepayment of the Revolving Loans of
such Class of in accordance with Section 2.10, the total Revolving Exposures of
such Class would exceed the total Revolving Commitments of such Class.
(c) Notice of Voluntary Termination or Reduction. The Borrower
shall notify the Administrative Agent of any election to terminate or reduce the
Commitments of any Class under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Revolving
Commitments of any Class delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied.
(d) Effect of Termination or Reduction. Any termination or
reduction of the Commitments of any Class shall be permanent. Each reduction of
the Commitments of any Class shall be made ratably among the Lenders in
accordance with their respective Commitments of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) Repayment. The Borrower hereby unconditionally promises to
pay the Loans as follows:
(i) to the Administrative Agent for account of the U.S. Dollar
Revolving Lenders the outstanding principal amount of the U.S.
Dollar Revolving Loans on the U.S. Dollar Revolving Commitment
Termination Date;
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(ii) to the Administrative Agent for account of the Tranche A
Term Loan Lenders the outstanding principal amount of the Tranche
A Term Loans on each Principal Payment Date set forth below in
the aggregate principal amount set forth opposite such Principal
Payment Date (subject to adjustment pursuant to the first
sentence of paragraph (b) of this Section):
Principal Payment Date Amount (U.S.$)
August 31, 2003 13,300,000
November 30, 2003 13,300,000
February 29, 2004 13,400,000
May 31, 2004 15,000,000
August 31, 2004 15,000,000
November 30, 2004 15,000,000
February 28, 2005 15,000,000
May 31, 2005 20,000,000
August 31, 2005 20,000,000
November 30, 2005 20,000,000
February 28, 2006 20,000,000
May 31, 2006 25,000,000
August 31, 2006 25,000,000
November 30, 2006 25,000,000
February 28, 2007 25,000,000
May 31, 2007 30,000,000
August 31, 2007 30,000,000
November 30, 2007 30,000,000
February 29, 2008 30,000,000
(iii) to the London Agent for account of the Australian Dollar
Revolving Lenders the outstanding principal amount of the
Australian Dollar Revolving Loans on the Australian Dollar
Revolving Commitment Termination Date;
(iv) to the Administrative Agent for account of the Tranche B
Term Loan Lenders the outstanding principal amount of the Tranche
B Term Loans on each Principal Payment Date set forth below in
the aggregate principal amount set forth opposite such Principal
Payment Date (subject to adjustment pursuant to the first
sentence of paragraph (b) of this Section):
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Principal Payment Date Amount (U.S.$)
August 31, 2003 3,300,000
November 30, 2003 3,300,000
February 29, 2004 3,400,000
May 31, 2004 13,750,000
August 31, 2004 13,750,000
November 30, 2004 13,750,000
February 28, 2005 13,750,000
May 31, 2005 20,000,000
August 31, 2005 20,000,000
November 30, 2005 20,000,000
February 28, 2006 20,000,000
May 31, 2006 20,000,000
August 31, 2006 20,000,000
November 30, 2006 20,000,000
February 28, 2007 20,000,000
May 31, 2007 43,750,000
August 31, 2007 43,750,000
November 30, 2007 43,750,000
February 29, 2008 43,750,000
May 31, 2008 133,300,000
August 31, 2008 133,300,000
November 30, 2008 133,400,000
(v) to the Swingline Lender the then unpaid principal amount
of each Swingline Loan on the earliest of (A) the U.S. Dollar
Revolving Commitment Termination Date, (B) the fifteenth day
after such Loan is made (but not earlier than one Business Day
after such Swingline Loan is made) and (C) in the case of any
Swingline FFBR Loan, the earlier of (x) the last day of the
Interest Period for such Loan and (y) the last day of each March,
June, September and December in each year; provided that (i) if
any such day is not a Business Day, then the Borrower shall pay
such Swingline Loan on the next preceding Business Day and (ii)
on each date that a U.S. Dollar Revolving Borrowing is made, the
Borrower shall repay all Swingline ABR Loans then outstanding;
and
(vi) to the Administrative Agent for the account of each
Incremental Term Loan Lender of any Series the outstanding
principal amount of each Incremental Term Loan of such Lender of
such Series on the respective Incremental Term Loan Principal
Payments Dates for the Incremental Term Loans of such Series,
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(b) Adjustment of Amortization Schedule. If the initial
aggregate amount of the Term Loan Commitments of any Class exceeds the aggregate
principal amount of Term Loans of such Class that are made during the Term Loan
Availability Period, then the scheduled repayments of Borrowings of such Class
to be made pursuant to clause (a)(ii) and (iv) as applicable above shall be
reduced ratably by an aggregate amount equal to such excess. To the extent not
previously paid, all Term Loans of each Class shall be due and payable on the
Term Loan Maturity Date for such Class.
(c) Manner of Payment. Prior to any repayment or prepayment of
any Borrowings of any Class hereunder, the Borrower shall select the Borrowing
or Borrowings of the applicable Class to be paid and shall notify the Applicable
Agent by telephone (confirmed by telecopy) of such selection not later than
11:00 a.m., New York City time (or in the case of any repayment or prepayment of
any Australian Dollar Revolving Borrowing, 11:00 a.m., London time), four
Business Days before the scheduled date of such payment; provided that, in the
case of a payment by the Borrower, unless otherwise specified by the Borrower,
each payment of Borrowings by the Borrower of any Class shall be applied to pay
any outstanding ABR Borrowings of such Class before any other Borrowings by the
Borrower of such Class. If the Borrower fails to make a selection of the
Borrowing or Borrowings by the Borrower to be repaid or prepaid within the
applicable time period, such payment shall be applied, first, to pay any
outstanding ABR Borrowings of the applicable Class and, second, to other
Borrowings of the Borrower of such Class in the order of the remaining duration
of their respective Interest Periods (the Borrowing with the shortest remaining
Interest Period to be paid first). Each payment of a Borrowing shall be applied
ratably to the Loans included in such Borrowing.
(d) Maintenance of Loan Accounts by Lenders. Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(e) Maintenance of Loan Accounts by the Applicable Agent. The
Applicable Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and each Interest Period
therefor, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Applicable Agent hereunder for account of the
Lenders and each Lender's share thereof.
(f) Effect of Entries. The entries made in the accounts
maintained pursuant to paragraph (d) or (e) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Applicable Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay the Loans in accordance with the terms of this Agreement.
(g) Promissory Notes. Any Lender may request that Loans of any
Class made by it be evidenced by a promissory note. In such event, the Borrower
shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and
its registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest
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thereon shall at all times (including after assignment pursuant to Section
10.04) be represented by one or more promissory notes in such form payable to
the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
SECTION 2.10. Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing made to it identified by
the Borrower in whole or in part, subject to the requirements of this Section;
provided that the aggregate principal amount of any prepayment on any date
pursuant to this paragraph shall be at least equal to U.S.$1,000,000. Any
prepayment of a Tranche A Term Loan Borrowing, Tranche B Term Loan Borrowering
or a Incremental Term Loan Borrowing pursuant to this paragraph shall be applied
first to reduce the next three scheduled repayments thereof in direct
chronological order and second to reduce the remaining scheduled repayments
thereof on a pro rata basis.
(b) Mandatory Prepayments - All Loans. The Borrower will make
prepayments of the Loans hereunder as follows:
(i) Casualty Events. Upon the date 270 days following the
receipt by the Borrower of the proceeds of insurance,
condemnation award or other compensation in respect of any
Casualty Event affecting any Property of the Borrower or any of
its Subsidiaries (or upon such earlier date as the Borrower or
such Subsidiary, as the case may be, shall have determined not to
repair or replace the Property affected by such Casualty Event),
the Borrower shall prepay the Loans in an aggregate amount, if
any, equal to 100% of the Net Available Proceeds of such Casualty
Event not theretofore applied to the repair or replacement of
such Property, such prepayment to be effected in each case in the
manner and to the extent specified in clause (viii) below;
provided that, notwithstanding the foregoing, the Borrower shall
not be required to make a prepayment under this clause (i) to the
extent that
(A) the Borrower advises the Administrative Agent at
the time of receipt thereof that it intends to reinvest such
Net Available Proceeds into the business of the Borrower and
its Subsidiaries,
(B) such Net Available Proceeds are held by the
Borrower in a segregated investment or other account (or,
alternatively, applied to the prepayment of Revolving
Loans), to the extent such Net Available Proceeds equal an
amount greater than $10,000,000, until so used to make such
reinvestment as contemplated above, and
(C) such Net Available Proceeds are in fact so applied
to such reinvestment within 270 days of receipt thereof (it
being understood that, in the event Net Available Proceeds
from more than one Casualty Event are held by the Borrower,
or have been applied to the prepayment of Revolving Loans,
such Net Available Proceeds shall be deemed to be utilized
in the same order in which such Dispositions occurred and,
accordingly, any such Net Available Proceeds so held
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or applied to the prepayment of Revolving Loans for more
than 270 days shall be forthwith applied to the prepayment
of Loans as provided above),
it being understood that, if the Borrower does not so advise the
Administrative Agent that it intends to use such Net Available
Proceeds to make such reinvestment as provided above, or does not
in fact apply such Net Available Proceeds to reinvestments within
the time periods specified above, the Borrower shall immediately
prepay Loans in an amount equal to the amount specified above.
(ii) Equity Issuance. Until the repayment in full of all
Indebtedness incurred under the Bridge Credit Agreement with the
proceeds of an issuance of equity securities of the Borrower or,
if such repayment is not made with the proceeds of an issuance of
equity securities of the Borrower, until such time as the Debt
Ratio is less than 4.0 to 1 (after which time the Borrower shall
have no obligation to prepay Loans as set forth in this clause
(ii)), on or prior to the date 90 days after any Equity Issuance,
the Borrower shall prepay the Loans in an aggregate amount equal
to 100% of the Net Available Proceeds thereof, such prepayment to
be effected in each case in the manner and to the extent
specified in clause (viii) below; provided that, notwithstanding
the foregoing, the Borrower shall not be required to make a
prepayment under this clause (ii) (x) from Net Available Proceeds
received from the issuance or sale of capital stock in connection
with Stock Based Plans in effect from time to time or (y) to the
extent that
(A) the Borrower advises the Administrative Agent at
the time of the relevant Equity Issuance that it intends to
use such Net Available Proceeds to repay Indebtedness under
the Bridge Credit Agreement,
(B) such Net Available Proceeds are held by the
Borrower in a segregated investment or other account (or,
alternatively, applied to the prepayment of Revolving
Loans), until so used to repay such Indebtedness, and
(C) such Net Available Proceeds (or portion thereof
necessary to repay such Indebtedness) are in fact so applied
to the repayment of such Indebtedness within 180 days of
such Equity Issuance (it being understood that, in the event
Net Available Proceeds from more than one Equity Issuance
are held by the Borrower, or have been applied to the
prepayment of Revolving Loans, such Net Available Proceeds
shall be deemed to be utilized in the same order in which
such Equity Issuances occurred and, accordingly, any such
Net Available Proceeds so held or applied to the prepayment
of Revolving Loans for more than 180 days shall be forthwith
applied to the prepayment of Loans as provided above),
it being understood that, if the Borrower does not so advise the
Administrative Agent that it intends to use such Net Available
Proceeds to repay such Indebtedness as provided above, or does
not in fact apply such Net Available Proceeds to the repayment of
such Indebtedness within the time periods specified above, the
Borrower shall immediately prepay Loans in an amount equal to the
amount specified above.
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(iii) Dispositions. In the event that the Net Available
Proceeds of any Disposition (herein, the "Current Disposition"),
and of all prior Dispositions consummated in the then-current
fiscal year of the Borrower as to which a prepayment has not yet
been made under this paragraph, shall exceed U.S.$15,000,000
then, no later than 180 days after the occurrence of the Current
Disposition, the Borrower will deliver to the Lenders a
statement, certified by a Financial Officer of the Borrower , in
reasonable detail, of the amount of the Net Available Proceeds of
the Current Disposition and of all such prior Dispositions and
will prepay Loans in an aggregate amount equal to 100% of the Net
Available Proceeds of the Current Disposition and such prior
Dispositions, such prepayment to be effected in each case in the
manner and to the extent specified in clause (viii) below;
provided that, notwithstanding the foregoing, so long as the
Current Disposition is not a Disposition of Receivable Assets as
part of a Permitted Receivables Securitization, the Borrower
shall not be required to make a prepayment under this clause
(iii) to the extent that
(A) the Borrower advises the Administrative Agent at
the time of such Disposition that it intends to use such Net
Available Proceeds to finance one or more Acquisitions
pursuant to Section 7.05(b), or otherwise to reinvest the
proceeds thereof into the business of the Borrower and its
Subsidiaries,
(B) such Net Available Proceeds are held by the
Borrower in a segregated investment or other account (or,
alternatively, applied to the prepayment of Revolving
Loans), to the extent such Net Available Proceeds equal an
amount greater than $10,000,000, until so used to finance
one or more Acquisitions or to make such reinvestment as
contemplated above, and
(C) such Net Available Proceeds are in fact so applied
to such Acquisition(s) or reinvestment within 270 days of
such Disposition (it being understood that, in the event Net
Available Proceeds from more than one Disposition are held
by the Borrower, or have been applied to the prepayment of
Revolving Loans, such Net Available Proceeds shall be deemed
to be utilized in the same order in which such Dispositions
occurred and, accordingly, any such Net Available Proceeds
so held or applied to the prepayment of Revolving Loans for
more than 270 days shall be forthwith applied to the
prepayment of Loans as provided above),
it being understood that, if the Borrower does not so advise the
Administrative Agent that it intends to use such Net Available Proceeds
to finance one or more Acquisitions or make such reinvestment as
provided above, or does not in fact apply such Net Available Proceeds
to one or more Acquisitions or reinvestments within the time periods
specified above, the Borrower shall immediately prepay Loans in an
amount equal to the amount specified above.
Notwithstanding the foregoing, to the extent that the amount
of the required prepayment on any date is not greater than
U.S.$20,000,000, the Borrower shall not be required to make any
prepayment of a Eurocurrency Borrowing until the expiration(s) of the
then-current Interest Periods.
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(iv) Senior Debt Incurrence. On or prior to the date 90 days
after the date of any Senior Debt Incurrence, the Borrower shall
prepay Loans in an aggregate amount equal to the Net Available
Proceeds thereof, such prepayment to be effected in each case in
the manner and to the extent specified in clause (viii) below;
provided that, notwithstanding the foregoing, the Borrower shall
not be required to make a prepayment under this clause (iv) with
respect to the Net Available Proceeds of Senior Debt Incurrences
after the date hereof to the extent that
(A) the Borrower advises the Administrative Agent at
the time of the relevant Senior Debt Incurrence that it
intends to use such Net Available Proceeds, in compliance
with Section 7.01(c)(ii)(A), to finance one or more
Acquisitions pursuant to Section 7.05(b), to prepay a
Designated Revolving Borrowing in respect of which the
related Acquisition has been consummated as of the time of
the relevant Senior Debt Incurrence, to repay Senior
Unsecured Indebtedness, or a combination of such
Acquisitions and payments,
(B) such Net Available Proceeds are held by the
Borrower in a segregated investment or other account (or,
alternatively, applied to the prepayment of a Designated
Revolving Borrowing or other Revolving Loans), until so used
to finance one or more Acquisitions, or to repay such Senior
Unsecured Indebtedness, as contemplated above, and
(C) such Net Available Proceeds are in fact so applied
to such Acquisition(s), or to the repayment of such Senior
Unsecured Indebtedness, within 180 days of such Senior Debt
Incurrence (it being understood that, in the event Net
Available Proceeds from more than one Senior Debt Incurrence
are held by the Borrower, or have been applied to the
prepayment of Revolving Loans, such Net Available Proceeds
shall be deemed to be utilized in the same order in which
such Senior Debt Incurrences occurred and, accordingly, any
such Net Available Proceeds so held or applied to the
prepayment of Revolving Loans (other than any Designated
Revolving Borrowing) for more than 180 days shall be
forthwith applied to the prepayment of Loans as provided
above),
it being understood that, if the Borrower does not so advise the
Administrative Agent that it intends to use such Net Available
Proceeds to finance one or more Acquisitions, to prepay a
Designated Revolving Borrowing or to repay such Senior Unsecured
Indebtedness, or does not in fact apply such Net Available
Proceeds to one or more Acquisitions, to the prepayment of a
Designated Revolving Borrowing or to the repayment of such Senior
Unsecured Indebtedness within the time periods specified above,
the Borrower shall immediately prepay Loans in an amount equal to
the amount specified above.
(v) Subordinated Debt Incurrence. On or prior to the date 90
days after the date of any Subordinated Debt Incurrence, the
Borrower shall prepay Loans in an aggregate amount equal to the
portion of the Net Available Proceeds thereof that exceeds (in
the aggregate for all Subordinated Debt Incurrences after the
date hereof) U.S.$100,000,000, such prepayment to be effected in
each case in the manner and to the extent specified in
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clause (viii) below; provided that, notwithstanding the
foregoing, the Borrower shall not be required to make a
prepayment under this clause (v) to the extent that
(A) the Borrower advises the Administrative Agent at
the time of the relevant Subordinated Debt Incurrence that
it intends to use such Net Available Proceeds to finance one
or more Acquisitions pursuant to Section 7.05(b), to prepay
a Designated Revolving Borrowing in respect of which the
related Acquisition has been consummated as of the time of
the relevant Subordinated Debt Incurrence, to repay or
prepay Subordinated Indebtedness or Senior Unsecured
Indebtedness, or a combination of such Acquisitions and
payments,
(B) such Net Available Proceeds are held by the
Borrower in a segregated investment or other account (or,
alternatively, applied to the prepayment of a Designated
Revolving Borrowing or other Revolving Loans), until so used
to finance one or more Acquisitions or pay such
Indebtedness, as contemplated above, and
(C) such Net Available Proceeds are in fact so applied
to such Acquisition(s) or to the payment of such
Indebtedness within 180 days of such Debt Incurrence (it
being understood that, in the event Net Available Proceeds
from more than one Subordinated Debt Incurrence are held by
the Borrower, or have been applied to the prepayment of
Revolving Loans, such Net Available Proceeds shall be deemed
to be utilized in the same order in which such Subordinated
Debt Incurrences occurred and, accordingly, any such Net
Available Proceeds so held or applied to the prepayment of
Revolving Loans (other than any Designated Revolving
Borrowing) for more than 180 days shall be forthwith applied
to the prepayment of Loans as provided above),
it being understood that, if the Borrower does not so advise the
Administrative Agent that it intends to use such Net Available
Proceeds to finance one or more Acquisitions or pay such
Indebtedness, or does not in fact apply such Net Available
Proceeds to one or more Acquisitions or pay such Indebtedness
within the time periods specified above, the Borrower shall
immediately prepay Loans in an amount equal to the amount
specified above.
(vi) Foreign Subsidiary Debt Incurrence. On or prior to the
date 90 days after the date of any Foreign Subsidiary Debt
Incurrence, the Borrower shall prepay Loans in an aggregate
amount equal to the Net Available Proceeds thereof unless such
Net Available Proceeds are applied or maintained for working
capital or other general corporate purposes of the applicable
Foreign Subsidiary, such prepayment to be effected in each case
in the manner and to the extent specified in clause (viii) below.
(vii) Excess Cash Flow. Not later than the date 100 days after
the end of each fiscal year of the Borrower ending on or after
February 28, 2004 (unless as of the last day of such fiscal
period (x) all Indebtedness incurred under the Bridge Credit
Agreement has been repaid in full with the proceeds of an
issuance of equity securities of the Borrower or (y) if such
repayment is not made with the proceeds of an issuance of equity
securities
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of the Borrower, the Debt Ratio is less than 4 to 1, in the case
of either, this clause (vii) shall not apply for such fiscal year
or for any fiscal year thereafter), the Borrower shall prepay the
Loans in an aggregate amount equal to 50% of Excess Cash Flow for
such fiscal year, such prepayment to be effected in each case in
the manner and to the extent specified in clause (viii) below.
(viii) Application. Prepayments by the Borrower pursuant to
this paragraph (b) shall be applied as follows:
first, such prepayment shall be applied to
any then outstanding Term Loans, ratably in
accordance with the then-outstanding aggregate
principal amounts thereof; and
second, after the payment in full of any
then outstanding Term Loans, such prepayment shall be
applied to any then outstanding Revolving Loans
(without reduction of Revolving Commitments), ratably
in accordance with the then-outstanding aggregate
principal amounts thereof.
Notwithstanding anything in this clause (viii) to the contrary,
if at any time Tranche A Terms Loans are outstanding, any Tranche
B Term Loan Lender shall have the option to forego any such
prepayment of a Tranche B Term Loan held by it in its sole
discretion, and in any such case, the amount that would otherwise
be applied to prepay such Tranche B Term Loan will be applied pro
rata to the outstanding Tranche B Term Loans of the Tranche B
Term Loan Lenders who have not foregone the related prepayment,
and any amount remaining after prepayment in full of the Tranche
B Term Loans of any Tranche B Term Loan Lenders who have not
foregone such prepayment will be applied pro rata to the
outstanding Tranche A Term Loans.
Each such prepayment of the Term Loans of any Class pursuant
to this clause (b)(viii) shall be applied to the remaining
installments thereof on a pro rata basis.
(c) Mandatory Prepayments - U.S. Dollar Revolving Loans. The
Borrower will prepay the U.S. Dollar Revolving Loans hereunder if requested by
the Required U.S. Dollar Revolving Lenders (through the Administrative Agent) if
the Administrative Agent or such Lenders determine on any date that the total
U.S. Dollar Revolving Exposure, after giving effect to any Borrowing on any date
of U.S. Dollar Revolving Loans or issuance, renewal or extension of any Letter
of Credit hereunder, plus the total Australian Dollar Revolving Exposure, after
giving effect to any Borrowing on any date of Australian Dollar Revolving Loans
hereunder, exceeds the aggregate outstanding principal amount of the U.S. Dollar
Revolving Commitments on such date, in an aggregate principal amount equal to
such excess.
(d) Notices, Etc. The Borrower shall notify the Applicable
Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender)
by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurocurrency Borrowing, not later than 11:00 a.m., New York
City time, three Business Days before the date of prepayment (or in the case of
prepayment of a Eurocurrency Borrowing denominated in
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Australian Dollars, not later than 11:00 a.m., London time, four Business Days
before the date of prepayment), (ii) in the case of prepayment of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of prepayment or (iii) in the case of prepayment of a Swingline
Loan, not later than 12:00 noon, New York City time, on the date of prepayment.
Each such notice shall be irrevocable and shall specify the prepayment date, the
principal amount of each Borrowing or portion thereof to be prepaid and, in the
case of a mandatory prepayment, a reasonably detailed calculation of the amount
of such prepayment; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Revolving Commitments
as contemplated by Section 2.08(c), then such notice of prepayment may be
revoked if such notice of termination is revoked in accordance with Section
2.08(c). Promptly following receipt of any such notice relating to a Borrowing,
the Applicable Agent shall advise the relevant Lenders of the contents thereof.
Each partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of a Borrowing of the same Type as provided in Section
2.02, except as necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12 and shall be made in the manner
specified in Section 2.09(c).
SECTION 2.11. Fees.
(a) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for account of each U.S. Dollar Revolving Lender a
commitment fee, which shall accrue at the Applicable Rate on the daily amount of
the unused U.S. Dollar Revolving Commitments of such U.S. Dollar Revolving
Lender during the period from and including the Effective Date to but excluding
the earlier of the date such U.S. Dollar Revolving Commitment terminates and the
applicable U.S. Dollar Revolving Commitment Termination Date. The Borrower
agrees to pay to the Administrative Agent for account of each Australian Dollar
Revolving Lender a commitment fee, which shall accrue at the Applicable Rate on
the daily amount of the unused Australian Dollar Revolving Commitments of such
Australian Dollar Revolving Lender during the period from and including the date
hereof to but excluding the earlier of the date such Australian Dollar Revolving
Commitment terminates and the applicable Australian Dollar Revolving Commitment
Termination Date. Accrued commitment fees shall be payable on each Quarterly
Date and on the earlier of the date the Revolving Commitments of the applicable
Class terminate and the applicable Revolving Commitment Termination Date of such
Class, commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to
the Administrative Agent for account of each U.S. Dollar Revolving Lender a
participation fee with respect to its participations in Letters of Credit, which
shall accrue at a rate per annum equal to the Applicable Rate applicable to
interest on Eurocurrency U.S. Dollar Revolving Loans on the average daily amount
of such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender's
U.S. Dollar Revolving Commitment
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terminates and the date on which such Lender ceases to have any LC Exposure, and
(ii) to each Issuing Lender, a fronting fee, which shall accrue at the rate set
forth in the instrument of such Issuing Lender contemplated by Section 2.05(k)
on the average daily amount of the LC Exposure of such Issuing Lender (excluding
any portion thereof attributable to unreimbursed LC Disbursements and determined
for these purposes without giving effect to the participations therein of the
U.S. Dollar Revolving Lenders pursuant to paragraph (f) of Section 2.05) during
the period from and including the Effective Date to but excluding the later of
the date of termination of the U.S. Dollar Revolving Commitments and the date on
which there ceases to be any LC Exposure, as well as such Issuing Lender's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including each Quarterly Date shall be
payable on the third Business Day following such Quarterly Date, commencing on
the first such date to occur after the Effective Date; provided that all such
fees shall be payable on the date on which the U.S. Dollar Revolving Commitments
terminate and any such fees accruing after the date on which the U.S. Dollar
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to any Issuing Lender pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For the
purposes of calculating the average daily balance of the LC Exposure for any
period under this Section 2.11(b), the average daily amount of the Alternative
Currency LC Exposure for such period shall be calculated by multiplying (x) the
average daily balance of each Alternative Currency Letter of Credit (expressed
in the Alternate Currency of such Alternative Currency Letter of Credit) by (y)
the Exchange Rate for each such Alternative Currency in effect on the last
Business Day of such period or by such other reasonable method that the
Administrative Agent deems appropriate.
(c) Administrative Agent Fees. The Borrower agrees to pay to
the Administrative Agent, for its own account, fees payable in the amounts and
at the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid
on the dates due, in U.S. Dollars and in immediately available funds, to the
Administrative Agent (or to the respective Issuing Lender, in the case of fees
payable to it) for distribution, in the case of commitment fees and
participation fees, to the Lenders entitled thereto. Fees paid shall not be
refundable under any circumstances.
SECTION 2.12. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing
(other than in respect of Swingline Loans, as to which paragraph (c) below shall
apply) shall bear interest at a rate per annum equal to the Alternate Base Rate
plus the Applicable Rate.
(b) Eurocurrency Loans. The Loans constituting each
Eurocurrency Borrowing shall bear interest at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period for such Borrowing plus the
Applicable Rate.
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(c) Swingline ABR and FFBR Borrowings. Each ABR Borrowing
constituting a Swingline Loan shall bear interest at a rate per annum equal to
the Alternate Base Rate plus the Applicable Rate. Each Swingline Borrowing the
interest on which is determined by reference to the Federal Funds Base Rate for
any Interest Period therefor shall bear interest at a rate per annum, for each
day during such Interest Period, equal to the Federal Funds Base Rate for such
period plus the Applicable Rate plus 0.50%. Each Swingline Borrowing the
interest on which is determined at an alternate rate of interest as contemplated
in Section 2.04(b), shall bear interest at the respective alternate rate of
interest so agreed for the period so contemplated by Section 2.04(b).
(d) Default Interest. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration, by mandatory prepayment or otherwise, such overdue amount shall
bear interest, after as well as before judgment, at a rate per annum equal to
(i) in the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided above or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of
this Section.
(e) Payment of Interest. Accrued interest on each Loan shall
be payable in arrears on each Interest Payment Date for such Loan and, in the
case of Revolving Loans of any Class, upon termination of the Revolving
Commitments of such Class; provided that (i) interest accrued pursuant to
paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of a Revolving
ABR Loan prior to the U.S. Dollar Revolving Commitment Termination Date),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurocurrency Borrowing prior to the end of the Interest Period
therefor, accrued interest on such Borrowing shall be payable on the effective
date of such conversion.
(f) Computation. All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of the Interest Period for a Eurocurrency Borrowing (the Loan
Currency of such Borrowing herein called the "Affected Currency"):
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate for such
Affected Currency, as applicable, for such Interest Period; or
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(b) if such Borrowing is of a particular Class of Loans, the
Administrative Agent is advised by the Required Lenders of such Class that the
Adjusted LIBO Rate or the LIBO Rate for such Affected Currency, as applicable,
for such Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan) included
in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing denominated in the
Affected Currency shall be ineffective, and, if the Affected Currency is U.S.
Dollars, such Borrowing (unless prepaid) shall be continued as, or converted to,
an ABR Borrowing, (ii) if the Affected Currency is U.S. Dollars and any
Borrowing Request requests a Eurocurrency Borrowing denominated in U.S. Dollars,
such Borrowing shall be made as an ABR Borrowing and (iii) if the Affected
Currency is Australian Dollars, any Borrowing Request that requests a
Eurocurrency Borrowing denominated in the Australian Dollars shall be
ineffective.
SECTION 2.14. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with
or for account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted LIBO Rate) or
any Issuing Lender; or
(ii) impose on any Lender or any Issuing Lender or the London
interbank market any other condition affecting this Agreement or
Eurocurrency Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or such
Issuing Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or such Issuing Lender, as the case may be,
such additional amount or amounts as will compensate such Lender or such Issuing
Lender, as the case may be, for such additional costs incurred or reduction
suffered.
(b) Capital Requirements. If any Lender or any Issuing Lender
determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's or such Issuing
Lender's capital or on the capital of such Lender's or such Issuing Lender's
holding company, if any, as a consequence of this Agreement or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by such Issuing Lender, to a level below that which such Lender
or such Issuing
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Lender or such Lender's or such Issuing Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
such Issuing Lender's policies and the policies of such Lender's or such Issuing
Lender's holding company with respect to capital adequacy), then from time to
time the Borrower will pay to such Lender or such Issuing Lender, as the case
may be, such additional amount or amounts as will compensate such Lender or such
Issuing Lender or such Lender's or such Issuing Lender's holding company for any
such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender or an
Issuing Lender setting forth the amount or amounts necessary to compensate such
Lender or such Issuing Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error (such certificate, in the
case of any amount payable as specified in paragraph (a) of this Section, shall
set forth in reasonable detail the calculation of such amount). The Borrower
shall pay such Lender or such Issuing Lender, as the case may be, the amount
shown as due on any such certificate within 30 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender or any Issuing Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender's or such Issuing Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender or an Issuing Lender pursuant to this Section for any
increased costs or reductions incurred more than six months prior to the date
that such Lender or such Issuing Lender, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender's or such Issuing Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan, Australian Dollar Revolving
Loan or Swingline FFBR Loan other than on the last day of an Interest Period
therefor (including as a result of an Event of Default), (b) the conversion of
any Eurocurrency Loan other than on the last day of an Interest Period therefor,
(c) the failure to borrow, convert, continue or prepay any Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice is permitted to be revocable under Section 2.10(d) and is revoked in
accordance herewith), (c) the Borrowing of any Term Loan the Interest Period for
which commences before and ends after any Principal Payment Date (unless, after
giving effect thereto, the aggregate principal amount of the Tranche A Term
Loans, Tranche B Term Loans or Incremental Term Loans, as the case may be,
having Interest Periods that end after such Principal Payment Date shall be
equal to or less than the aggregate principal amount of the Tranche A Term
Loans, Tranche B Term Loans or Incremental Term Loans, respectively, permitted
to be outstanding after giving effect to the payments of principal required to
be made on such Principal Payment Date), or (e) the assignment of any
Eurocurrency Loan other than on the last day of an Interest Period therefor as a
result of a request by the Borrower pursuant to Section 2.18, then, in any such
event, the relevant Borrower shall compensate each Lender for the loss, cost and
expense attributable to
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such event (including such loss, cost and expense as calculated below but
otherwise excluding any lost profit):
(a) in the case of a Eurocurrency Loan, the loss to any Lender
attributable to any such event shall be deemed to include an amount determined
by such Lender to be equal to the excess, if any, of (i) the amount of interest
that such Lender would pay for a deposit equal to the principal amount of such
Loan for the period from the date of such payment, conversion, Borrowing,
failure or assignment to the last day of then current Interest Period for such
Loan (or (x) in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation and (y) in the case of a Borrowing of any Term Loan,
the period from the date of such Borrowing to the applicable Principal Payment
Date) if the interest rate payable on such deposit were equal to the Adjusted
LIBO Rate for such Interest Period (or, in the case of any Borrowing of Term
Loans, such other period), over (ii) the amount of interest that such Lender
would earn on such principal amount for such period if such Lender were to
invest such principal amount for such period at the interest rate that would be
bid by such Lender (or an affiliate of such Lender) for deposits in U.S. Dollars
from other banks in the eurocurrency market at the commencement of such period;
and
(b) in the case of a Swingline FFBR Loan, the loss to the
Swingline Lender attributable to any such event shall be deemed to include an
amount determined by the Swingline Lender to be equal to the excess, if any, of
(i) the Federal Funds Base Rate for the period commencing on the date of such
payment to but not including the last day of the Interest Period for such
Swingline FFBR Loan, over (ii) the Federal Funds Base Rate for such Interest
Period.
A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error (such
certificate to include in reasonable detail the calculation of such amount or
amounts). The Borrower shall pay such Lender the amount shown as due on any such
certificate within 30 days after receipt thereof.
SECTION 2.16. Taxes.
(a) Payments Free of Covered Taxes. Any and all payments by or
on account of any obligation of the Borrower or Subsidiary Guarantor hereunder
or under any other Loan Document shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower or such Subsidiary Guarantor shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Lender (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower or such Subsidiary Guarantor shall make such deductions
and (iii) the Borrower or such Subsidiary Guarantor shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
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(b) Payment of Other Taxes by the Borrower. In addition, the
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrowers. The Borrower shall
indemnify the Administrative Agent, each Lender and each Issuing Lender, within
30 days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or such Issuing Lender, as the case may be,
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or an Issuing Lender, or by the Administrative Agent on its
own behalf or on behalf of a Lender or an Issuing Lender, shall be conclusive
absent manifest error (such certificate to include in reasonable detail the
calculation of such amount).
(d) Evidence of Payments. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by the Borrower or any Subsidiary
Guarantor to a Governmental Authority, the Borrower or such Subsidiary
Guarantor, as the case may be, shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
(f) Refund. If the Administrative Agent or a Lender
determines, in its sole discretion, that it has received a refund of any
Indemnified Tax or Other Tax as to which it has been indemnified by the Borrower
or any Subsidiary Guarantor under this Section 2.16, it shall pay over such
refund to the Borrower or such Subsidiary Guarantor (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower or such
Subsidiary Guarantor under this Section 2.16 with respect to the Indemnified
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided, that the Borrower or such Subsidiary Guarantor, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower or such Subsidiary Guarantor (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or
such Lender is required to repay such refund to such Governmental Authority.
This Section shall not be construed to require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to the Borrower, any Subsidiary Guarantor
or any other Person.
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SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs.
(a) Payments by the Obligors. Each Obligor shall make each
payment required to be made by it hereunder (whether of principal, interest,
fees or reimbursement of LC Disbursements, or under Section 2.14, 2.15 or 2.16,
or otherwise) or under any other Loan Document (except to the extent otherwise
provided therein) prior to 12:00 noon, New York City time (or, in the case of
any payment of any Australian Dollar Revolving Loan, London time), on the date
when due, in immediately available funds, without set-off or counterclaim;
provided that if a new Loan is to be made by any Lender on a date the Borrower
is to repay any principal of an outstanding Loan of such Lender, such Lender
shall apply the proceeds of such new Loan to the payment of the principal to be
repaid and only an amount equal to the difference between the principal to be
borrowed and the principal to be repaid shall be made available by such Lender
to the Administrative Agent as provided in Section 2.06 or paid by the Borrower
to the Administrative Agent pursuant to this paragraph, as the case may be. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at an office specified by it, except
as otherwise expressly provided in the relevant Loan Document, and except
payments to be made directly to an Issuing Lender or the Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 10.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder or
under any other Loan Document shall be made in U.S. Dollars (except for payments
in respect of Loans denominated in Australian Dollars, which are payable in
Australian Dollars).
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, unreimbursed LC Disbursements, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Borrowing of a particular Class shall be made from the
relevant Lenders, each payment of commitment fee under Section 2.11 shall be
made for account of the relevant Revolving Lenders, and each termination or
reduction of the amount of the Commitments of a particular Class under Section
2.08 shall be applied to the respective Commitments of such Class of the
relevant Lenders, pro rata according to the amounts of their respective
Commitments of such Class; (ii) each Borrowing of any Class shall be allocated
pro rata among the relevant Lenders according to the amounts of their respective
Commitments of such Class (in the case of the
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making of Loans) or their respective Loans of such Class (in the case of
conversions and continuations of Loans); (iii) each payment or prepayment of
principal of U.S. Dollar Revolving Loans, Australian Dollar Revolving Loans,
Tranche A Term Loans, Tranche B Term Loans and Incremental Term Loans by the
Borrower shall be made for account of the relevant Lenders pro rata in
accordance with the respective unpaid principal amounts of the Loans of such
Class held by them; and (iv) each payment of interest on U.S. Dollar Revolving
Loans, Australian Dollar Revolving Loans, Tranche A Term Loans, Tranche B Term
Loans and Incremental Term Loans by the Borrower shall be made for account of
the relevant Lenders pro rata in accordance with the amounts of interest on such
Loans then due and payable to the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or participations in
LC Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Loans and participations
in LC Disbursements and Swingline Loans and accrued interest thereon then due
than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans and participations in LC Disbursements and Swingline Loans of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans and participations
in LC Disbursements and Swingline Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Obligor pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each Obligor consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against such Obligor rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Obligor
in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent
shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for account of the Lenders or an
Issuing Lender hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or such Issuing Lender, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such payment, then each
of the Lenders or such Issuing Lender, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or such Issuing Lender with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the Federal Funds Effective
Rate.
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(f) Certain Deductions by the Administrative Agent. If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(d), 2.05(f) or (g), 2.06(b) or 2.17(e), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for account of
such Lender to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.14, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.16, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.14 or 2.16, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under Section 2.14, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.16, or if any Lender defaults in its obligation to
fund Loans hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a U.S. Dollar Revolving
Commitment is being assigned, each Issuing Lender and the Swingline Lender),
which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.14 or payments required to be made pursuant to Section 2.16, such assignment
will result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
relevant Borrower to require such assignment and delegation cease to apply.
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ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee. The Subsidiary Guarantors hereby
jointly and severally guarantee to each Lender and the Administrative Agent and
their respective successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the principal of
and interest on the Loans made by the Lenders to the Borrower and all other
amounts from time to time owing to the Lenders or the Administrative Agent by
the Borrower under this Agreement and by any Obligor under any of the other Loan
Documents, and all obligations of the Borrower or any of its Subsidiaries to any
Lender (or any Affiliate of any Lender) in respect of any Hedging Agreement, in
each case strictly in accordance with the terms hereof and thereof (such
obligations being herein collectively called the "Guaranteed Obligations"). The
Subsidiary Guarantors hereby further jointly and severally agree that if the
Borrower shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Guaranteed Obligations, the Subsidiary
Guarantors will promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal.
SECTION 3.02. Obligations Unconditional. The obligations of
the Subsidary Guarantors under Section 3.01 are absolute and unconditional,
joint and several, irrespective of the value, genuineness, validity, regularity
or enforceability of the obligations of the Borrower under this Agreement or any
other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section that the obligations of the
Subsidiary Guarantors hereunder shall be absolute and unconditional, joint and
several, under any and all circumstances. In full recognition and in furtherance
of the foregoing, each Subsidiary Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of
Section 3.01 in accordance with its terms and without affecting, limiting,
reducing, discharging or terminating the liability of such Subsidiary Guarantor,
or the rights, remedies, powers and privileges of the Administrative Agent and
the Lenders under this Agreement or any other agreement or instrument referred
to herein or therein, the Administrative Agent and the Lenders may, at any time
and from time to time and without notice or demand of any kind or nature
whatsoever:
(i) amend, supplement, modify, extend, renew, waive,
accelerate or otherwise change the time for payment or
performance of, or the terms of, all or any part of the
Guaranteed Obligations (including any increase or decrease in the
rate or rates of interest on all or any part of the Guaranteed
Obligations);
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(ii) amend, supplement, modify, extend, renew, waive or
otherwise change, or enter into or give, any Loan Document or any
agreement, security document, guarantee, approval, consent or
other instrument with respect to all or any part of the
Guaranteed Obligations, any Loan Document or any such other
instrument or any term or provision of the foregoing (it being
understood that this clause (ii) shall not be deemed to
constitute a consent by any Subsidiary Guarantor to any such
amendment with respect to any Loan Document to which it is a
party);
(iii) accept or enter into new or additional agreements,
security documents, guarantees (including letters of credit) or
other instruments in addition to, in exchange for or relative to
any Loan Document, all or any part of the Guaranteed Obligations
or any collateral now or in the future serving as security for
the Guaranteed Obligations;
(iv) accept or receive (including from any other Subsidiary
Guarantor) partial payments or performance on the Guaranteed
Obligations (whether as a result of the exercise of any right,
remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all
or any part of the Guaranteed Obligations (including from any
other Subsidiary Guarantor);
(vi) release, reconvey, terminate, waive, abandon, allow to
lapse or expire, fail to perfect, subordinate, exchange,
substitute, transfer, foreclose upon or enforce any collateral,
security documents or guarantees (including letters of credit or
the obligations of any other Subsidiary Guarantor) for or
relative to all or any part of the Guaranteed Obligations;
(vii) apply any collateral or the proceeds of any collateral
or guarantee (including any letter of credit or the obligations
of any other Subsidiary Guarantor) to all or any part of the
Guaranteed Obligations in such manner and extent as the
Administrative Agent or any Lender may in its discretion
determine;
(viii) release any Person (including any other guarantor) from
any personal liability with respect to all or any part of the
Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon
such terms and in such manner as the Administrative Agent or the
Lenders may determine or as applicable law may dictate all or any
part of the Guaranteed Obligations or any collateral on or
guarantee (including any letter of credit issued with respect to)
of all or any part of the Guaranteed Obligations;
(x) consent to the merger or consolidation of, the sale of
substantial assets by, or other restructuring or termination of
the corporate existence of the Borrower or any other Person
(including any other Subsidiary Guarantor);
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(xi) proceed against the Borrower, such or any other
Subsidiary Guarantor or any other guarantor of (including any
issuer of any letter of credit issued with respect to) all or any
part of the Guaranteed Obligations or any collateral provided by
any Person and exercise the right, remedies, powers and
privileges of the Administrative Agent and the Lenders under this
Agreement or any other agreement or instrument referred to herein
or therein, or otherwise in such order and such manner as the
Administrative Agent or any Lender may, in its discretion,
determine, without any necessity to proceed upon or against or
exhaust any collateral, right, remedy, power or privilege before
proceeding to call upon or otherwise enforce Section 3.01 as to
any Subsidiary Guarantor;
(xii) foreclose upon any deed of trust, mortgage or other
instrument creating or granting liens on any interest in real
Property by judicial or nonjudicial sale or by deed in lieu of
foreclosure, bid any amount or make no bid in any foreclosure
sale or make any other election of remedies with respect to such
liens or exercise any right of set-off;
(xiii) obtain the appointment of a receiver with respect to
any collateral for all or any part of the Guaranteed Obligations
and apply the proceeds of such receivership as the Administrative
Agent or any Lender may in its discretion determine (it being
agreed that nothing in this clause (xiii) shall be deemed to make
the Administrative Agent or any Lender a party in possession in
contemplation of law, except at its option);
(xiv) enter into such other transactions or business dealings
with any other Subsidiary Guarantor, the Borrower, any Subsidiary
or Affiliate of the Borrower or any other guarantor of all or any
part of the Guaranteed Obligations as the Administrative Agent or
any Lender may desire; and
(xv) do all or any combination of the actions set forth in
this Section.
(b) The enforceability and effectiveness of this Article and
the liability of the Subsidiary Guarantors, and the rights remedies, powers and
privileges of the Administrative Agent and the Lenders, under this Agreement or
any other agreement or instrument referred to herein or therein, shall not be
affected, limited, reduced, discharged or terminated, and each Subsidiary
Guarantor hereby expressly waives any defense now or in the future arising, by
reason of:
(i) the illegality, invalidity, irregularity, authenticity, or
unenforceability of all or any part of the Guaranteed
Obligations, this Agreement or any other agreement or instrument
referred to herein or therein, or any agreement, security
document, guarantee or other instrument relative to all or any
part of the Guaranteed Obligations;
(ii) any disability or other defense of the Borrower or any
other Subsidiary Guarantor with respect to all or any part of the
Guaranteed Obligations or any other guarantor of all or any part
of the Guaranteed Obligations (including
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any issuer of any letters of credit), including the effect of any
statute of limitations that may bar the enforcement of all or any
part of the Guaranteed Obligations or the obligations of any such
other guarantor;
(iii) the illegality, invalidity, irregularity, authenticity
or unenforceability of any security or guarantee (including any
letter of credit) for all or any part of the Guaranteed
Obligations or the lack of perfection or continuing perfection or
failure of the priority of any lien on any collateral for all or
any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability
of the Borrower or any other Subsidiary Guarantor (other than
subject to Section 3.05, by reason of the full payment and
performance of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to
marshal assets in favor of the Borrower or any other Person
(including any other guarantor), to exhaust any collateral for
all or any part of the Guaranteed Obligations, to pursue or
exhaust any right, remedy, power or privilege it may have against
any other Subsidiary Guarantor, the Borrower, any other
guarantor, all or any part of the Guaranteed Obligations
(including any Issuing Lender in respect of Letters of Credit) or
any other Person or to take any action whatsoever to mitigate or
reduce such or any other Subsidiary Guarantor's liability under
this Article, neither the Administrative Agent nor any Lender
being under any obligation to take any such action
notwithstanding the fact that all or any part of the Guaranteed
Obligations may be due and payable and that the Borrower may be
in default of its obligations under this Agreement or any other
agreement or instrument referred to herein or therein;
(vi) any failure of the Administrative Agent or any Lender to
give notice after any Default of sale or other disposition of any
collateral (including any notice of any judicial or nonjudicial
foreclosure or sale of any interest in real Property serving as
collateral for all or any part of the Guaranteed Obligations) for
all or any part of the Guaranteed Obligations to the Borrower,
any Subsidiary Guarantor or any other Person or any defect in, or
any failure by any Subsidiary Guarantor or any other Person to
receive, any notice that may be given in connection with any sale
or disposition of any collateral;
(vii) any failure of the Administrative Agent or any Lender to
comply with applicable laws in connection with the sale or other
disposition of any collateral for all or any part of the
Guaranteed Obligations, including any failure to conduct a
commercially reasonable sale or other disposition of any
collateral for all or any part of the Guaranteed Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or
other election of remedies with respect to, any interest in real
Property or other collateral serving as security for all or any
part of the Guaranteed Obligations, even though such foreclosure,
sale or election of remedies may impair the subrogation rights of
any
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Subsidiary Guarantor or may preclude any Subsidiary Guarantor
from obtaining reimbursement, contribution, indemnification or
other recovery from any other Subsidiary Guarantor, the Borrower
any other guarantor or any other Person and even though the
Borrower may not, as a result of such foreclosure, sale or
election of remedies, be liable for any deficiency;
(ix) any benefits the Borrower, any Subsidiary Guarantor or
any other guarantor may otherwise derive from Sections 580(a),
580(b), 580(d) or 726 of the California Code of Civil Procedure
or any comparable provisions of the laws of any other
jurisdiction;
(x) any act or omission of the Administrative Agent, any
Lender or any other person that directly or indirectly results in
or aids the discharge or release of the Borrower or any other
Subsidiary Guarantor, of all or any part of the Guaranteed
Obligations or any security or guarantee (including any letter of
credit) for all or any part of the Guaranteed Obligations by
operation of law or otherwise;
(xi) any law which provides that the obligation of a surety or
guarantor must neither be larger in amount nor in other respects
more burdensome than that of the principal or which reduces a
surety's principal obligation;
(xii) the possibility that the obligations of the Borrower to
the Administrative Agent and the Lenders may at any time and from
time to time exceed the aggregate liability of the Subsidiary
Guarantors under this Article;
(xiii) any counterclaim, set-off or other claim which the
Borrower or any other Subsidiary Guarantor has or alleges to have
with respect to all or any part of the Guaranteed Obligations;
(xiv) any failure of the Administrative Agent or any Lender to
file or enforce a claim in any bankruptcy or other proceeding
with respect to any Person;
(xv) the election by the Administrative Agent or any Lender,
in a bankruptcy proceeding of any Person, of the application or
nonapplication of Section 1111(b)(2) of the United States
Bankruptcy Code;
(xvi) any extension of credit or the grant of any lien under
▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code;
(xvii) any use of cash collateral under Section 363 of the
United States Bankruptcy Code;
(xviii) any agreement or stipulation with respect to the
provision of adequate protection in any bankruptcy proceeding of
any Person;
(xix) the avoidance of any lien in favor of the Administrative
Agent or any Lender for any reason;
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(xx) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding
commenced by or against any Person, including any discharge of,
or bar or stay against collecting, all or any part of the
Guaranteed Obligations (or any interest on all or any part of the
Guaranteed Obligations) in or as a result of any such proceeding;
(xxi) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety
or guarantor, including by reason of Sections 2809, 2810, 2819,
2839, 2845, 2850, 2899, 3275 and 3433 of the California Civil
Code, and any future judicial decisions or legislation or of any
comparable provisions of the laws of any other jurisdiction; or
(xxiii) diligence, presentment, demand of payment, protest and
all notices whatsoever.
(c) Each Subsidiary Guarantor represents and warrants to the
Administrative Agent that it has established adequate means of obtaining
financial and other information pertaining to the business, operations and
condition (financial and otherwise) of the Borrower and its properties on a
continuing basis and that such Subsidiary Guarantor is now and will in the
future remain fully familiar with the business, operations and condition
(financial and otherwise) of the Borrower and its properties. Each Subsidiary
Guarantor further represents and warrants that it has reviewed and approved this
Agreement and the related Loan Documents and is fully familiar with the
transactions contemplated by such Loan Documents and that it will in the future
remain fully familiar with such transaction and with any new Loan Documents and
the transaction contemplated by such Loan Documents. Each Subsidiary Guarantor
hereby expressly waives and relinquishes any duty on the part of the
Administrative Agent or the Lenders (should any such duty exist) to disclose to
such or any other Subsidiary Guarantor any matter of fact or other information
related to the business, operations or condition (financial or otherwise) of the
Borrower or its properties or to any Loan Documents or the transactions
undertaken pursuant to, or contemplated by, such Loan Documents, whether now or
in the future known by the Administrative Agent or any Lender.
SECTION 3.03. Reinstatement. The obligations of the Subsidiary
Guarantors under this Article shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including fees of counsel) incurred by the Administrative Agent or
such Lender in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
SECTION 3.04. Subrogation. Each Subsidiary Guarantor hereby
waives all rights of subrogation or contribution, whether arising by contract or
operation of law (including
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any such right arising under the Bankruptcy Code) or otherwise by reason of any
payment by it pursuant to the provisions of this Article until such time as the
obligations under this Agreement have been indefeasibly paid and satisfied in
full and the Commitments have terminated. Each Subsidiary Guarantor understands
that, by reason of the foregoing provisions of this Section, the exercise by the
Administrative Agent or any Lender of the rights, remedies, powers and
privileges that it has under this Article and under the other Loan Documents
will result in nonreimbursable liabilities under this Agreement. Nevertheless,
each Subsidiary Guarantor hereby authorizes and empowers the Administrative
Agent and the Lenders to exercise, in its or their sole discretion, any
combination of such rights, remedies, powers and privileges as they, in their
sole discretion, shall deem appropriate.
SECTION 3.05. Remedies. Each Subsidiary Guarantor jointly and
severally agrees that, as between the Subsidiary Guarantors and the Lenders, the
obligations of the Borrower under this Agreement may be declared to be forthwith
due and payable as provided in Article VIII (and shall be deemed to have become
automatically due and payable in the circumstances provided in Article VIII) for
purposes of Section 3.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Subsidiary Guarantors
for purposes of Section 3.01.
SECTION 3.06. Instrument for the Payment of Money. Each
Subsidiary Guarantor hereby acknowledges that the guarantee in this Article
constitutes an instrument for the payment of money, and consents and agrees that
any Lender or the Administrative Agent, at its sole option, in the event of a
dispute by such Subsidiary Guarantor in the payment of any moneys due hereunder,
shall have the right to bring motion-action under New York CPLR Section 3213.
SECTION 3.07. Continuing Guarantee. The guarantee in this
Article is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
SECTION 3.08. Rights of Contribution. The Subsidiary
Guarantors hereby agree, as between themselves, that if any Subsidiary Guarantor
shall become an Excess Funding Guarantor (as defined below) by reason of the
payment by such Subsidiary Guarantor of any Guaranteed Obligations, each other
Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Subsidiary Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section shall be
subordinate and subject in right of payment to the prior payment in full of the
obligations of such Subsidiary Guarantor under the other provisions of this
Article and such Excess Funding Guarantor shall not exercise any right or remedy
with respect to such excess until payment and satisfaction in full of all of
such obligations.
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For purposes of this Section, (i) "Excess Funding Guarantor"
means, in respect of any Guaranteed Obligations, a Subsidiary Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(ii) "Excess Payment" means, in respect of any Guaranteed Obligations, the
amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of
such Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Subsidiary
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all properties of such Subsidiary
Guarantor (excluding any shares of stock of any other Subsidiary Guarantor)
exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any
obligations of any other Subsidiary Guarantor that have been Guaranteed by such
Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable
value of all properties of all of the Subsidiary Guarantors exceeds the amount
of all the debts and liabilities (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of the Borrower and
the Subsidiary Guarantors hereunder and under the other Loan Documents) of all
of the Subsidiary Guarantors, determined (A) with respect to any Subsidiary
Guarantor that is a party hereto on the Effective Date, as of the Effective
Date, and (B) with respect to any other Subsidiary Guarantor, as of the date
such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In
any action or proceeding involving any state corporate law, or any state,
Federal or foreign bankruptcy, insolvency, reorganization or other law affecting
the rights of creditors generally (including "financial assistance" rules under
the laws of England, including Sections 151 to and including 158 of the
Companies Act), if the obligations of any Subsidiary Guarantor under Section
3.01 would otherwise, taking into account the provisions of Section 3.08, be
held or determined to be void, invalid or unenforceable, or subordinated to the
claims of any other creditors, on account of the amount of its liability under
Section 3.01, then, notwithstanding any other provision hereof to the contrary,
the amount of such liability shall, without any further action by such
Subsidiary Guarantor, any Lender, the Administrative Agent or any other Person,
be automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding (or, in the case of Canandaigua Limited, be limited
so as not to guarantee the portion of the Loans that are not permitted to be
guaranteed under such "financial assistance" rules).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that
(subject to Section 10.15):
SECTION 4.01. Organization; Powers. Each of the Borrower and
its Subsidiaries (excluding Inactive Subsidiaries) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and
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authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, is qualified to do business in, and
is in good standing in, every jurisdiction where such qualification is required.
SECTION 4.02. Authorization; Enforceability. The Transactions
are within each Obligor's corporate powers and (other than with respect to
Borrowings of Incremental Term Loans until such date as any such Borrowings are
made) have been duly authorized by all necessary corporate and, if required, by
all necessary shareholder action. This Agreement has been duly executed and
delivered by each Obligor and constitutes, and each of the other Loan Documents
to which it is a party when executed and delivered by such Obligor will
constitute, a legal, valid and binding obligation of such Obligor, enforceable
against each Obligor in accordance with its terms, except as such enforceability
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or
similar laws of general applicability affecting the enforcement of creditors'
rights and (b) the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
SECTION 4.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except for (i)
such as have been obtained or made and are in full force and effect, (ii)
filings and recordings in respect of the Liens created pursuant to the Security
Documents and (iii) in the case of the Target Acquisition, as specified in
Section 1.4(c)(i) of Schedule 1 of the Implementation Deed, (b) will not violate
any applicable law or regulation or the charter, by-laws or other organizational
documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Borrower or any of its
Subsidiaries or assets, or give rise to a right thereunder to require any
payment to be made by any such Person, and (d) except for the Liens created
pursuant to the Security Documents, will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
The Borrower is not, on the date hereof, subject to any indenture, agreement,
instrument or other arrangement of the type described in the second paragraph of
Section 7.09 (and not permitted by clauses (i) through (iii) of said paragraph).
SECTION 4.04. Financial Condition; No Material Adverse Change.
(a) Financial Condition. The Borrower has heretofore furnished
to the Lenders the following:
(i) its consolidated balance sheet and statements of income,
stockholders' equity and cash flows (x) as of and for the fiscal
year ended February 28, 2002, reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public accountants, and (y) as of and for the fiscal
quarter and the portion of the fiscal year ended November 30,
2002, certified by a financial officer of the Borrower; and
(ii) the consolidated balance sheet and income statement of
the Target as of and for the sixth-month period ended June 30,
2002.
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Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and
its Consolidated Subsidiaries as of such dates and for such periods, with
respect to statements in clause (i) above only, in accordance with GAAP, subject
to year-end audit adjustments and the absence of footnotes in the case of the
statements referred to in subclause (y) of clause (a)(i) and in clause (a)(ii)
above.
(b) No Material Adverse Change. Since February 28, 2002, there
has been no material adverse change in the business, assets, operations or
condition, financial or otherwise, of the Borrower and its Subsidiaries (and
including the Target and its Subsidiaries prior to the date that the Target
becomes a Subsidiary of the Borrower), taken as a whole.
SECTION 4.05. Properties.
(a) Property Generally. Each of the Borrower and its
Subsidiaries (excluding Inactive Subsidiaries) has good title to, or valid
leasehold interests in, all its real and personal Properties material to its
business, subject only to Liens permitted by Section 7.02 and except for minor
defects in title or leasehold interests that do not interfere with its ability
to conduct its business as currently conducted or to utilize such Properties for
their intended purposes or where failure to have such title or interest could
not reasonably be expected to have a Material Adverse Effect.
(b) Intellectual Property. Each of the Borrower and its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by the Borrower and its Subsidiaries does not infringe upon
the rights of any other Person, except for any failure to own or license any
such trademarks, tradenames, copyrights, patents and other intellectual
property, or any such infringements, that, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.06. Litigation.
(a) Actions, Suits and Proceedings. There are no actions,
suits, investigations or proceedings by or before any arbitrator or Governmental
Authority now pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect (other than the Disclosed Matters)
or (ii) that involve this Agreement or the Transactions (other than the review
of the Target Acquisition by the Supreme Court of South Australia and customary
proceedings arising in the ordinary course of business and from or otherwise
relating to the Target Acquisition).
(b) Disclosed Matters. Since the date of this Agreement, there
has been no change in the status of the Disclosed Matters that, individually or
in the aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 4.07. Environmental Matters. Except as described in
the Disclosed Matters, each of the Borrower and its Subsidiaries has obtained
all environmental, health and
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safety permits, licenses and other authorizations required under all
Environmental Laws to carry on its business as now being or as proposed to be
conducted, except to the extent failure to have any such permit, license or
authorization could not reasonably be expected to have a Material Adverse
Effect. Each of such permits, licenses and authorizations is in full force and
effect and each of the Borrower and its Subsidiaries is in compliance with the
terms and conditions thereof, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
Law or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder,
except as described in Disclosed Matters and except to the extent failure to
comply therewith could not (either individually or in the aggregate) reasonably
be expected to have a Material Adverse Effect.
In addition, except as described in Disclosed Matters:
(a) No Pending Environmental Matters. No notice, notification,
demand, request for information, citation, summons or order has been issued, no
complaint has been filed, no penalty has been assessed and no investigation or
review is pending or threatened by any governmental or other entity with respect
to any alleged failure by the Borrower or any of its Subsidiaries to have any
environmental, health or safety permit, license or other authorization required
under any Environmental Law in connection with the conduct of the business of
the Borrower or any of its Subsidiaries or with respect to any generation,
treatment, storage, recycling, transportation, discharge or disposal, or any
Release of any Hazardous Materials generated by the Borrower or any of its
Subsidiaries, in each case in circumstances which could reasonably be expected
to have a Material Adverse Effect.
(b) No Permits Required; Certain Specific Representations.
Neither the Borrower nor any of its Subsidiaries owns, operates or leases a
treatment, storage or disposal facility requiring a permit under the Resource
Conservation and Recovery Act of 1976, as amended, or under any comparable
state, local or foreign statute; and
(i) no polychlorinated biphenyls (PCB's) are or have been
present at any site or facility now or, during the Borrower's
period or ownership, operation or lease, previously owned,
operated or leased by the Borrower or any of its Subsidiaries;
(ii) no asbestos or asbestos-containing materials is or has
been present at any site or facility now or, during the
Borrower's period of ownership, operation or lease, previously
owned, operated or leased by the Borrower or any of its
Subsidiaries;
(iii) there are no underground storage tanks or surface
impoundments for Hazardous Materials, active or abandoned, at any
site or facility now or, during the Borrower's period of
ownership, operation or lease, previously owned, operated or
leased by the Borrower or any of its Subsidiaries;
(iv) except as otherwise authorized by Environmental Laws
and/or environmental, health and safety permits and licenses, no
Hazardous Materials
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have been Released at, on or under any site or facility now or,
during the Borrower's period of ownership, operation or lease,
previously owned, operated or leased by the Borrower or any of
its Subsidiaries in a reportable quantity established by statute,
ordinance, rule, regulation or order; and
(v) no Hazardous Materials have been otherwise Released at,
on or under any site or facility now or, during the Borrower's
period of ownership, operation or lease, previously owned,
operated or leased by the Borrower or any of its Subsidiaries;
that, in the case of any of clauses (i) through (v) above, could reasonably be
expected to have a Material Adverse Effect.
(c) No Hazardous Material Transported to NPL Sites. Neither
the Borrower nor any of its Subsidiaries has transported or arranged for the
transportation of any Hazardous Material to any location that is listed on the
National Priorities List ("NPL") under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), listed for
possible inclusion on the NPL by the Environmental Protection Agency in the
Comprehensive Environmental Response and Liability Information System, as
provided for by 40 C.F.R. ss. 300.5 ("CERCLIS"), or on any similar state or
local list or that is the subject of Federal, state or local enforcement actions
or other investigations that may lead to Environmental Claims against the
Borrower or any of its Subsidiaries, except to the extent any such listing,
enforcement action or other investigation could not reasonably be expected to
(either individually or in the aggregate) have a Material Adverse Effect.
(d) No Notifications or Listings. No oral or written
notification of a Release of a Hazardous Material has been filed by or on behalf
of the Borrower or any of its Subsidiaries and no site or facility now or, to
the Borrower's knowledge, previously owned, operated or leased by the Borrower
or any of its Subsidiaries is listed or proposed for listing on the NPL, CERCLIS
or any similar state list of sites requiring investigation or clean-up that in
any such case could reasonably be expected to result in remediation costs and
fines that in the aggregate could reasonably be expected to have a Material
Adverse Effect.
(e) No Liens or Restrictions. No Liens have arisen under or
pursuant to any Environmental Laws on any site or facility owned, operated or
leased by the Borrower or any of its Subsidiaries, and no government action has
been taken or is in process that could subject any such site or facility to such
Liens and neither the Borrower nor any of its Subsidiaries would be required to
place any notice or restriction relating to the presence of Hazardous Materials
at any site or facility owned by it in any deed to the real Property on which
such site or facility is located, except to the extent any such event or action
could not (either individually or in the aggregate) reasonably be expected to
have a Material Adverse Effect.
(f) Full Disclosure. All environmental investigations,
studies, audits, tests, reviews or other analyses conducted by or that are in
the possession of the Borrower or
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any of its Subsidiaries in relation to facts, circumstances or conditions at or
affecting any site or facility now or previously owned, operated or leased by
the Borrower or any of its Subsidiaries and that could reasonably be expected to
have a Material Adverse Effect have been made available to the Lenders.
SECTION 4.08. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its Property and all
indentures, agreements and other instruments binding upon it or its Property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. On the date
hereof, no Default has occurred and is continuing.
SECTION 4.09. Investment and Holding Company Status. Neither
the Borrower nor any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 4.10. Taxes. Each of the Borrower and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Person has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to have in a Material Adverse Effect.
SECTION 4.11. ERISA. The Borrower and its ERISA Affiliates
have fulfilled their respective obligations under the minimum funding standards
of ERISA and the Code with respect to each Plan and are in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code, and have not incurred any liability to the PBGC or any Plan or
Multiemployer Plan (other than to make contributions, pay annual PBGC premiums
or pay out benefits in the ordinary course of business).
SECTION 4.12. Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which
it or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect (for the purposes of this Section 4.12, the
definition of "Material Adverse Effect" shall include the Target and its
Subsidiaries as Subsidiaries of the Borrower). None of the reports, financial
statements, certificates or other information furnished by or on behalf of the
Obligors to the Lenders in connection with the negotiation of this Agreement and
the other Loan Documents or the Transactions or delivered hereunder or
thereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time and does not omit information that would render such
projections misleading in any material respect.
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SECTION 4.13. Use of Credit. Neither the Borrower nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose, whether immediate,
incidental or ultimate, of buying or carrying Margin Stock, and no part of the
proceeds of any extension of credit hereunder will be used to buy or carry any
Margin Stock.
SECTION 4.14. Material Agreements and Liens.
(a) Material Agreements. Part A of Schedule I is a complete
and correct list of each credit agreement (other than this Agreement), loan
agreement, indenture, purchase agreement, guarantee, letter of credit or other
arrangement providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or guarantee
by, the Borrower or any of its Subsidiaries outstanding as of January 16, 2003
the aggregate principal or face amount of which equals or exceeds (or may equal
or exceed) U.S.$10,000,000, and the aggregate principal or face amount
outstanding or that may become outstanding under each such arrangement is
correctly described in Part A of Schedule I.
(b) Liens. Part B of Schedule I is a complete and correct list
of each Lien securing Indebtedness of any Person outstanding as of January 16,
2003 the aggregate principal or face amount of which equals or exceeds (or may
equal or exceed) U.S.$5,000,000 and covering any Property of the Borrower or any
of its Subsidiaries, and the aggregate Indebtedness secured (or that may be
secured) by each such Lien and the Property covered by each such Lien is
correctly described in Part B of Schedule I.
SECTION 4.15. Capitalization. Except for conversion rights
associated with the Borrower's Class B common stock, purchase rights and options
associated with Stock Based Plans and as disclosed in Schedule IV, as of January
16, 2003 there are no outstanding Equity Rights with respect to the Borrower. As
of January 16, 2003, except Stock Based Plans, there are no outstanding
obligations of the Borrower or any of its Subsidiaries to repurchase, redeem, or
otherwise acquire any shares of capital stock of the Borrower nor are there any
outstanding obligations of the Borrower or any of its Subsidiaries to make
payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
the Borrower or any Subsidiary. The Borrower has heretofore delivered to the
Administrative Agent a complete and correct copy of each Stock Based Plans
specified on Schedule IV (as in effect as of January 16, 2003).
SECTION 4.16. Subsidiaries and Investments.
(a) Subsidiaries. Set forth in Part A of Schedule III (subject
to the footnotes therein) is a complete and correct list of all of the
Subsidiaries of the Borrower as of the date hereof, together with, for each such
Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each
Person holding ownership interests in such Subsidiary and (iii) the nature of
the ownership interests held by each such Person and the percentage of ownership
of such Subsidiary represented by such ownership interests. Except as disclosed
in Part A of Schedule III, (x) each of the Borrower and its Subsidiaries owns,
free and clear of Liens (other than Liens created pursuant to the Security
Documents), and (except with respect to Joint Venture Entities) has the
unencumbered right to vote, all outstanding ownership interests in each
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Person shown to be held by it in Part A of Schedule III, (y) all of the issued
and outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (z) there are no outstanding
Equity Rights with respect to such Person (other than Joint Venture Entities).
(b) Investments. Set forth in Part B of Schedule III is a
complete and correct list of all Investments (other than Investments disclosed
in Part A of Schedule III and other than Investments of the types referred to in
clauses (b), (c), (e) and (f) of Section 7.06) held by the Borrower or any of
its Subsidiaries in any Person as of January 16, 2003 and, for each such
Investment, (x) the identity of the Person or Persons holding such Investment
and (y) the nature of such Investment. Except as disclosed in Part B of Schedule
III, as of January 16, 2003 each of the Borrower and its Subsidiaries owns, free
and clear of all Liens (other than Liens created pursuant to the Security
Documents), all such Investments.
(c) Restrictions on Subsidiaries. None of the Subsidiaries of
the Borrower is, on the date hereof, subject to any indenture, agreement,
instrument or other arrangement of the type described in the first paragraph of
Section 7.09 (and not permitted by clauses (i) through (iv) of said paragraph).
SECTION 4.17. Solvency. The Borrower and the Subsidiary
Guarantors, taken as a whole, are, and immediately after the making of each
Borrowing and issuance, renewal and extension of each Letter of Credit will be,
Solvent.
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Lenders to issue Letters of Credit hereunder
shall not become effective until the date requested by the Borrower pursuant to
paragraph (b) below, provided that on such requested date each of the following
conditions has been satisfied (or waived in accordance with Section 10.02):
(a) Documents. The Administrative Agent shall have received
each of the following documents, each of which shall be satisfactory to the
Administrative Agent (and to the extent specified below, to each Lender) in form
and substance:
(i) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or
(ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature
page to this Agreement) that such party has signed a counterpart
of this Agreement.
(ii) Opinions of Counsel to the Obligors. Favorable written
opinions (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of (w) ▇▇▇▇▇ Peabody LLP, U.S.
counsel for the Obligors, in the form of
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Exhibit D-1, and covering such other customary matters relating
to the Borrower, this Agreement or the Transactions as the
Administrative Agent shall reasonably request, (x) ▇▇▇▇▇▇▇▇▇,
Will and ▇▇▇▇▇, U.K. counsel for the Obligors, in the form of
Exhibit D-2, and covering such other customary matters relating
to the Borrower, Canandaigua Limited and the U.K. Equity Pledge
Agreement as the Administrative Agent shall reasonably request
(and each Obligor hereby instructs such counsel to deliver such
opinions to the Lenders and the Administrative Agent), (y)
▇▇▇▇▇▇▇▇ Chance, Luxembourg counsel for certain of the Obligors,
in the form of Exhibit D-3, and covering such other customary
matters relating to ▇▇▇▇▇ and the Luxembourg Equity Pledge
Agreement as the Administrative Agent shall reasonably request
and (z) ▇▇▇▇▇▇▇ ▇▇▇, Australian counsel for certain of the
Obligors, in the form of Exhibit D-4, and covering such other
customary matters relating to Australian Acquisition Company 1
and Australian Acquisition Company 2 and the Australian Equity
Pledge Agreements as the Administrative Agent shall reasonably
request (and each such Obligor hereby instructs such counsel to
deliver such opinions to the Lenders and the Administrative
Agent).
(iii) Opinion of Special New York Counsel to JPMorgan Chase.
An opinion, dated the Effective Date, of Milbank, Tweed, ▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, special New York counsel to JPMorgan Chase, in the
form of Exhibit E (and JPMorgan Chase hereby instructs such
counsel to deliver such opinion to the Lenders).
(iv) Corporate Documents. Such documents and certificates as
the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of each
Obligor and ▇▇▇▇▇, the authorization of the Transactions and any
other legal matters relating to the Obligors, ▇▇▇▇▇, this
Agreement or the Transactions, all in form and substance
reasonably satisfactory to the Administrative Agent and its
counsel (it being understood in respect of any Obligor that
documents and certificates in substantially similar forms to
documents and certificates delivered in respect of such Obligor
under the 1999 Credit Agreement shall be deemed to be reasonably
satisfactory for purposes of this clause (iv)).
(v) Officer's Certificate. A certificate in the form of
Exhibit G, dated the Effective Date and signed by the President,
a Vice President or a Financial Officer of the Borrower,
confirming compliance with Section 5.01(b), (c), (d) and (e).
(vi) Security Documents. (v) The U.S. Pledge Agreement, duly
executed and delivered by the Borrower, the Subsidiaries
specified therein and the Administrative Agent and the
certificates identified under the name of such Obligor in Annex 1
thereto (it being understood that such Subsidiaries shall not
include Joint Venture Entities, Inactive Subsidiaries and, for so
long as it shall conduct no business other than holding
Indebtedness of Canandaigua Limited and having Indebtedness
outstanding to Constellation International Holdings, Canandaigua
B.V.), accompanied by undated stock powers executed in blank, (w)
U.K. Equity Pledge Agreements, duly executed and delivered by the
Borrower
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and Canandaigua Limited, respectively, together with certificates
evidencing the applicable shares of Canandaigua Limited and
▇▇▇▇▇▇▇ ▇▇▇▇▇, (x) the Luxembourg Equity Pledge Agreement, duly
executed and delivered by the Borrower, together with
certificates evidencing the applicable shares of ▇▇▇▇▇, (y)
Australian Equity Pledge Agreements, duly executed and delivered
by Constellation International Holdings and Australian
Acquisition Company 1, respectively, together with certificates
evidencing the applicable shares of Australian Acquisition
Company 1 and Australian Acquisition Company 2 and (z) the Cash
Collateral Pledge Agreement, duly executed and delivered by the
Borrower and the Administrative Agent. In addition, the Borrower
shall have taken such other action as the Administrative Agent
shall have reasonably requested in order to perfect the security
interests created pursuant to such Security Documents.
(vii) Target Acquisition Documents. Copies of the Target
Acquisition Documents, and of all other documents and materials
filed or released publicly by the Borrower in connection with the
Target Acquisition, certified as true, correct and complete
copies thereof as of the Effective Date by the President, a Vice
President or a Financial Officer of the Borrower;
(viii) Bridge Credit Agreement. Evidence that the Bridge
Credit Agreement is in full force and effect;
(ix) Amendments to Implementation Deed. Evidence that the
Borrower has not (x) entered into, or consented to, whether
directly or indirectly, to any Material Lender Provision
Amendment or (y) exercised its discretion in relation to the
provision of consent to a "BRL Hardy Prescribed Occurrence" (as
defined in the Implementation Deed) where such BRL Hardy
Prescribed Occurrence is reasonably likely to result in a BRL
Hardy Material Adverse Change (as defined in the Implementation
Deed), in either case, between the date of the Existing Credit
Agreement and the Effective Date without the prior written
consent of the Administrative Agent acting with the consent of
the Required Lenders or (z) entered into the Implementation Deed
in a form materially different from the version of the
Implementation Deed attached hereto as Exhibit H without the
prior written consent of the Required Lenders (such consent not
to be unreasonably withheld);
(x) Amendments to the Legal and Compliance Report after
signing. The Administrative Agent (acting at the instruction of
the Required Lenders) shall not have advised the Borrower in
writing by the expiry of 5 Business Days from the date that the
Borrower provides the Administrative Agent with a certified copy
of the Legal and Compliance Report under section 6.01(h) that it
has an objection to any matter not contained in the version of
the Legal and Compliance Report annexed as Exhibit J to this
Agreement which in the reasonable opinion of the Required Lenders
could reasonably be expected to have a material adverse effect on
the business, assets, operations or condition, financial or
otherwise of the Target and its Subsidiaries taken as a whole;
and
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(xi) Other Documents. Such other documents as the
Administrative Agent or any Lender or special New York counsel to
JPMorgan Chase may reasonably request.
(b) the Borrower shall have notified the Administrative Agent
of a requested Effective Date under this Agreement and certified to the
Administrative Agent that such requested Effective Date is the first date on
which an application is to be made to the Supreme Court of South Australia for
an order approving the "Share Scheme" (as defined in the Implementation Deed);
(c) the representations and warranties of the Borrower set
forth in Sections 4.01, 4.02, 4.03, 4.04(a), 4.05, 4.06(a)(ii), 4.07(f), 4.08,
4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16 of this Agreement (but as to
representations and warranties set forth in Sections 4.14 and 4.16, in all
material respects), shall be true and correct on and as of the Effective Date
(or, if any such representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date);
(d) no Default shall have occurred and be continuing on the
Effective Date under clause (a), (b), (c) (insofar as it relates to the
representations made on the Effective Date), (d), (f), (g), (h), (i), (j), (n)
or (o) of Article VIII; and no Default shall have occurred and be continuing on
the Effective Date under paragraph (e) of Article VIII to the extent such
Default occurred due to the Borrower's failure to observe or perform any
covenant, condition or agreement specified in Section 6.01(f), 6.01(g), 6.02(a),
6.03, 6.04, 6.05, 6.06, 6.07, 6.08, 6.10, 6.11 or 6.12; and no Event of Default
shall have occurred and be continuing on the Effective Date under paragraph (e)
of Article VIII to the extent such Default occurred due to the Borrower's
failure to observe or perform any other covenant, condition or agreement
contained in this Agreement (assuming for this purpose that the 45 day period
specified in said clause (e) is 10 days);
(e) prior to and during the syndication of the credit
facilities evidenced by this Agreement there shall be no offering, placement or
arrangement of any debt securities or bank financing by or on behalf of the
Borrower or the Target or any Affiliate thereof in competition with the credit
facilities evidenced hereby, and the Administrative Agent shall have received a
written certificate from an officer of the Borrower to such effect;
(f) the Borrower shall not have received written notice
(together with a reasonably detailed description thereof) from any Existing
Lender prior to 8 a.m. (Adelaide, Australia time) on the Approval Date to the
effect that there shall have occurred a material disruption of or material
adverse change in the financial, banking or capital market conditions that, in
the reasonable judgment of such Existing Lender, has materially impaired the
syndication of the credit facilities evidenced by this Agreement;
(g) the Borrower shall not have received written notice
(together with a reasonably detailed description thereof) from any Existing
Lender prior to 8 a.m. on the Approval Date to the effect that, since February
28, 2002, there has been a material adverse change in the business, assets,
operations or condition, financial or otherwise, of the Borrower and its
Subsidiaries taken as a whole (for the purposes of this paragraph (g),
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the definition of "Material Adverse Effect" shall include the Target and its
Subsidiaries as Subsidiaries of the Borrower).
The obligation of any Lender to make its initial extension of
credit hereunder is also subject to the payment by the Borrower of such fees as
the Borrower shall have agreed to pay to any Lender or the Administrative Agent
in connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel to JPMorgan Chase, in
connection with the negotiation, preparation, execution and delivery of this
Agreement and the other Loan Documents and the extensions of credit hereunder
(to the extent that statements for such fees and expenses have been delivered to
the Borrower).
The Administrative Agent shall notify the Borrower and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Lenders to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) on or prior to 3:00 p.m., New York City time, on
April 30, 2003 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 5.02. Initial Borrowing of Loans. The obligations of
the Lenders to make the initial Loans shall be subject to the satisfaction (or
waiver in accordance with Section 10.02) of the following conditions precedent
on the date of the making of such Loans:
(a) the Administrative Agent shall have received evidence
satisfactory to it that the principal of and interest on, and all other amounts
owing in respect of, the Indebtedness outstanding under the 1999 Credit
Agreement shall have been (or shall be simultaneously) paid in full, that any
commitments to extend credit under the agreements or instruments relating to
such Indebtedness shall have been canceled or terminated and that all Guarantees
in respect of, and all Liens securing, any such Indebtedness shall have been
released (or arrangements for such release reasonably satisfactory to the
Required Lenders shall have been made);
(b) the representations and warranties of the Borrower set
forth in Sections 4.01, 4.02, 4.03, 4.04(a), 4.05, 4.06(a)(ii), 4.07(f), 4.08,
4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16 of this Agreement (but as to
representations and warranties set forth in Sections 4.14 and 4.16, in all
material respects), shall be true and correct on and as of such date (or, if any
such representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date);
(c) no Default shall have occurred and be continuing on such
date under clause (a), (b), (c) (insofar as it relates to the representations
made on the Effective Date), (d), (f), (g), (h), (i), (j), (n) or (o) of Article
VIII; and no Default shall have occurred and be continuing on such date under
paragraph (e) of Article VIII to the extent such Default occurred due to the
Borrower's failure to observe or perform any covenant, condition or agreement
specified in Section 6.01(f), 6.01(g), 6.02(a), 6.03, 6.04, 6.05, 6.06, 6.07,
6.08, 6.10, 6.11 or 6.12; and no Event of Default shall have occurred and be
continuing on such date under paragraph (e) of Article VIII to the extent such
Default occurred due to the
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Borrower's failure to observe or perform any other covenant, condition or
agreement contained in this Agreement (assuming for this purpose that the 45 day
period specified in said clause (e) is 10 days);
(d) such date shall be on or after the "Effective Date" (as
defined in the Implementation Deed);
(e) if the "Effective Date" (as defined in the Implementation
Deed) has not occurred by 7 p.m. (Adelaide, Australia time) on the 10th Business
Day following the Approval Date, the Borrower shall not have received written
notice (together with a reasonably detailed description thereof) from any
Existing Lender prior to 8 a.m. (Adelaide, Australia time) on the Second Court
Date to the effect that there shall have occurred a material disruption of or
material adverse change in the financial, banking or capital market conditions
that, in the reasonable judgment of such Existing Lender, has materially
impaired the syndication of the credit facilities evidenced by this Agreement;
(f) if the "Effective Date" (as defined in the Implementation
Deed) has not occurred by 7 p.m. (Adelaide, Australia time) on the 10th Business
Day following the Approval Date, the Borrower shall not have received written
notice (together with a reasonably detailed description thereof) from any
Existing Lender prior to 8 a.m. (Adelaide, Australia time) on the Second Court
Date to the effect that, since February 28, 2002, there has been a material
adverse change in the business, assets, operations or condition, financial or
otherwise, of the Borrower and its Subsidiaries taken as a whole (for the
purposes of this paragraph (e), the definition of "Material Adverse Effect"
shall include the Target and its Subsidiaries as Subsidiaries of the Borrower);
and
(g) the initial borrowing of Loans pursuant to this Section
5.02 shall be comprised of the entire unfunded amount of the Tranche A Term
Loans and the entire unfunded amount of the Tranche B Term Loans.
The Administrative Agent shall apply the proceeds of the Loans
borrowed pursuant to this Section 5.02 first to repay all Indebtedness owing
under the 1999 Credit Agreement and second, to a deposit to the Loan Collateral
Account under the Cash Collateral Pledge Agreement.
The Borrowing of Loans pursuant to this Section 5.02 shall be
deemed to constitute a representation and warranty by the Borrower on the date
of such Borrowing as to the matters specified in clauses (b) and (c) of this
Section.
SECTION 5.03. Release of Funds from Loan Collateral Account.
Funds on deposit in or credited to the Loan Collateral Account shall be released
by the Administrative Agent to (or for the account of) the Borrower (to finance
the Target Acquisition and to repay Indebtedness under the Target Credit
Facilities) (i) by transfer of an amount sufficient to pay all or a portion of
the Cash Consideration to the Australian Account (as defined in Section
5.03(b)(v) below) and (ii) by transfer of an amount sufficient to repay the
Target Credit Facilities to the relevant financial institutions pursuant to
written transfer instructions provided by the
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Borrower, in each case upon satisfaction (or waiver in accordance with Section
10.02) of the following conditions on the date of the release of such funds:
(a) the Administrative Agent shall have received evidence
satisfactory to it that the principal of and interest on, and all other amounts
owing in respect of, the Indebtedness outstanding under the Target Credit
Facilities shall have been (or shall be simultaneously) paid in full, that any
commitments to extend credit under the agreements or instruments relating to
such Indebtedness shall have been canceled or terminated and that all Guarantees
in respect of, and all Liens securing, any such Indebtedness shall have been
released (or arrangements for such release reasonably satisfactory to the
Required Lenders shall have been made); and
(b) the Administrative Agent shall have received each of the
following documents, each of which shall be satisfactory to the Administrative
Agent (and to the extent specified below, to each Lender) in form and substance:
(i) a certificate of the President, a Vice President or a
Financial Officer of the Borrower addressed to the Administrative
Agent and the Lenders certifying that, to his or her knowledge,
all conditions precedent to Section 4.1 of the Implementation
Deed have been satisfied, except for (i) the waiver by the Target
of clauses 4.1(j) and/or (k) thereof, or clauses 4.1(j) and (k)
thereof cease to have effect pursuant to clause 4.6 of the
Implementation Deed, (ii) the waiver by the Borrower and, as
required, the Target of any of the conditions in clauses (a),
(b), (c), (l), (m), (n) and (o), of said Section 4.1, (iii)
waiver by the Borrower of clauses 4.1(e) and/or (f) thereof
(provided that the certificate is provided in accordance with
Section 5.03(b)(iv) of this Agreement) or clauses 4.1(e) and (f)
thereof cease to have effect pursuant to clause 4.6 of the
Implementation Deed and (iv) with the prior written consent of
the Required Lenders (which shall not be unreasonably withheld or
delayed and which shall be required only where the event which is
the subject of the waiver is reasonably likely to result in a BRL
Hardy Material Adverse Change (as defined in the Implementation
Deed) ), the waiver by the Borrower of clauses 4.1 (g), (h) or
(i) of the Implementation Deed, together with certified copies of
each of the documents delivered under said Section 4.1;
(ii) a copy of the court orders approving the Target
Acquisition in accordance with Section 411(4) of the Corporations
Act (bearing an acknowledgement of receipt by the Australian
Securities and Investment Commission) and certified by ▇▇▇▇▇▇▇
▇▇▇;
(iii) a certificate signed by ▇▇▇▇▇▇▇ ▇▇▇ stating that an
office copy of the court orders referred to in clause (ii) above
has been lodged with the Australian Securities and Investment
Commission;
(iv) a certificate of the President, Vice President or a
Financial Officer of the Borrower certifying:
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(x) that all necessary actions have been
taken and all legal requirements satisfied to permit
the valid issue of the Borrower Shares and Borrower
CDIs to satisfy that part of the consideration
payable by the Borrower in Borrower Shares or
Borrower CDIs pursuant to the orders of the South
Australian Supreme Court approving the Share Scheme
(as defined in the Implementation Deed) and the
number of such Borrower Shares and Borrower CDIs and
that there is existing no judgment, injunction or
other order which would prevent such issue; or
(y) that the Borrower will not to use
Borrower Shares or Borrower CDIs to satisfy that part
of the consideration payable by the Borrower in
Borrower Shares or Borrower CDIs, and specifying the
amount (if any) to be drawn pursuant to the Bridge
Credit Agreement;
in either case to ensure to the reasonable satisfaction of the
Administrative Agent that the full consideration payable by the
Borrower pursuant to the orders of the South Australian Supreme
Court approving the Share Scheme (as defined in the
Implementation Deed) will be satisfied;
(v) evidence that the following steps have taken place: (u)
delivery of a transfer or transfers in respect of all of the
shares in the Target to Computershare Investor Services Pty
Limited ACN 078 279 277 ("Compushare") in a form approved by the
Administrative Agent, acting reasonably; (v) confirmation of
registration of the transfer or transfers by Compushare by the
issuing of an issuer-sponsored holding statement in the name of
Australian Acquisition Company 2 for all of the shares of the
Target as evidence that all of the shares of the Target have been
validly and effectively transferred to Australian Acquisition
Company 2; (w) establishment by the Borrower (or another Obligor
designated by the Borrower) of an Australian Dollar denominated
account (the "Australian Account") with and in the name of a bank
(the "Account Bank") that is an affiliate of Citibank, N.A.
located in Australia; (x) the execution and delivery of an
agreement in form and substance reasonably satisfactory to the
Administrative Agent among, inter alia, the Account Bank and the
Borrower (or such other Obligor), which agreement shall (A)
provide the mechanism and procedures for the payment of funds
from the Australian Account to the Target shareholders (by
issuance of checks drawn on the Australian Account or by such
other means as may be reasonably acceptable to the Administrative
Agent) and (B) provide that (i) funds on deposit in the
Australian Account shall be held for payment to the Target
shareholders, (ii) without the prior written consent of the
Administrative Agent, the Borrower (or such other Obligor) shall
have no access to or right to direct the disposition of any of
the funds in the Australian Account and (iii) without the prior
written consent of the Administrative Agent, such agreement may
not be amended, modified or terminated and no provision of such
agreement may be waived; and (y) receipt by the Administrative
Agent of a transfer direction from the Borrower to transfer to
the Australian Account sufficient funds from the
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Loan Collateral Account to satisfy that part of the cash
consideration payable by Australian Acquisition Company 2;
(vi) prior to the time of delivery of a transfer or transfers
in respect of all of the shares in the Target to Compushare,
evidence that the Borrower has established a share register in
the Australian Capital Territory and has done everything required
(including giving all necessary notices) to ensure that after
registration of the transfer or transfers, all of the shares in
the Target will be on that share register;
(vii) a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Implementation
Date) of ▇▇▇▇▇▇▇ ▇▇▇, Australian counsel for the Obligors, in the
form of Exhibit D-5, and covering such other customary matters
relating to Australian Acquisition Company 2 and the Target and
the Australian Equity Pledge Agreement as the Administrative
Agent shall reasonably request (and each such Obligor hereby
instructs such counsel to deliver such opinions to the Lenders
and the Administrative Agent);
(viii) an Australian Equity Pledge Agreement, duly executed
and delivered by Australian Acquisition Company 2 and the
Administrative Agent. In addition, the Borrower shall have taken
such other action as the Administrative Agent shall have
reasonably requested in order to perfect the security interests
created pursuant to such Pledge Agreement, including without
limitation that the Borrower procure that the Target cause a
Holding Lock for the benefit of the Lenders in accordance with
ASX Listing Rule 8.10.1(i) or other equivalent effective
mechanism to be applied to 65% of the Target Shares to prevent a
transfer of those shares and the Target unconditionally and
irrevocably undertakes to the Administrative Agent in writing not
to permit or procure the removal of such Holding Lock without the
prior written consent of the Administrative Agent; and
(ix) a certificate of the President, Vice President or a
Financial Officer of the Borrower certifying the Cash
Consideration in respect of the Target Acquisition and the
aggregate amount of Indebtedness owing under the Target Credit
Facilities and the amount of proceeds of the Tranche A Term
Loans, Tranche B Term Loans and U.S. Dollar Revolving Loans (in
each case applied from the Loan Collateral Account), and the
amount of Indebtedness incurred under the Bridge Credit
Agreement, that the Borrower intends to apply to pay such Cash
Consideration and Indebtedness.
The Administrative Agent shall notify the Borrower and the
Lenders of the satisfaction (or waiver in accordance with Section 10.02) of the
conditions specified in this Section 5.03, and such notice shall be conclusive
and binding. Upon delivery of such notice, the Administrative Agent shall remit
the proceeds of the Loans held in the Loan Collateral Account to (or for the
account of) the Borrower. Anything herein to the contrary notwithstanding, (a)
the aggregate amount of Loans the proceeds of which are to be applied to finance
the Target Acquisition may not exceed (together with any Indebtedness borrowed
under the Bridge Credit
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Agreement) the aggregate amount of the Cash Consideration in respect of the
Target Acquisition and all Indebtedness owing under the Target Credit Facilities
and (b) funds may not be applied from the Loan Collateral Account as provided
herein unless each of the foregoing conditions is satisfied (or waived pursuant
to Section 10.02) on or prior to 3:00 p.m., New York City time, on April 30,
2003.
SECTION 5.04. Each Credit Event. The obligation of each
Revolving Lender to make a Revolving Loan or a Swingline Loan on the occasion of
any Borrowing (excluding any Borrowing of Revolving Loans pursuant to Section
5.02, as to which the conditions precedent set forth therein shall apply), and
of each Issuing Lender to issue, amend, renew or extend any Letter of Credit, is
subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set
forth in this Agreement, and of each Obligor in each of the other Loan Documents
to which it is a party (but as to such other Loan Documents, in all material
respects), shall be true and correct on and as of the date of such Borrowing or
the date of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date); and
(b) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing of a Revolving Loan or a Swingline Loan pursuant to this Section
5.04 and each issuance, amendment, renewal or extension of a Letter of Credit
shall be deemed to constitute a representation and warranty by the Borrower on
the date thereof as to the matters specified in the preceding sentence.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 100 days after the end of each fiscal year of the
Borrower (or ten (10) days after such shorter period as may be required for
filing the Borrower's Annual Report on Form 10-K with the Securities and
Exchange Commission), the audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows of the Borrower
and its Consolidated Subsidiaries as of the end of and for such fiscal year,
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setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by KPMG LLP or other independent public accountants
of recognized national standing (without a "going concern" or like qualification
or exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Borrower and its Consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower (or ten (10) days after such
shorter period as may be required for filing the Borrower's Quarterly Report on
Form 10-Q with the Securities and Exchange Commission), the consolidated balance
sheet and related statements of operations and cash flows of the Borrower and
its Consolidated Subsidiaries as of the end of and for such fiscal quarter (for
the statement of operations only) and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of the previous fiscal year (or, in the case of
the balance sheet, as of the end of the previous fiscal year), all certified by
a Financial Officer of the Borrower as presenting fairly in all material
respects the financial condition and results of operations of the Borrower and
its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) of this Section, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth calculations in
form and detail satisfactory to the Administrative Agent demonstrating
compliance with Sections 7.01(g), 7.01(i), 7.06(e), 7.06(h) and 7.10, (iii)
setting forth a calculation of the Debt Ratio as at the end of the respective
fiscal period (and indicating which Category of Applicable Rate shall become
effective upon the delivery of such financial statements as contemplated by the
definition of the term "Applicable Rate" in Section 1.01), (iv) stating whether
any change in GAAP or in the application thereof has occurred since the date of
the audited financial statements referred to in Section 4.04 and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate and (v) certifying that, except as
otherwise specified, no Subsidiaries that were Inactive Subsidiaries as at the
delivery of the immediately preceding certificate under this paragraph (c) (or,
in the case of the first such delivery, as at the date hereof) has ceased to be
an Inactive Subsidiary;
(d) concurrently with any delivery of financial statements
under clause (a) of this Section, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained knowledge
during the course of their examination of such financial statements of any
Default (which certificate may be limited to the extent required by accounting
rules or guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials filed by
the Borrower or any of its
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Subsidiaries with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by the Borrower to its
shareholders generally or to holders of Senior Unsecured Indebtedness or
Subordinated Indebtedness generally, as the case may be;
(f) promptly after the same becomes available, copies of (i)
the consolidated balance sheet, statement of income and cash flows of the Target
as of and for the nine-month period ended November 30, 2002 (with a
reconciliation to GAAP for any material discrepancies) and (ii) the Appendix 4B
(or any replacement thereof) of the ASX Listing Rules in respect of the Target
for the year ending December 31, 2002 and copies of the audited accounts on
which that Appendix 4B is based;
(g) promptly after the same becomes available, copies of the
pro forma consolidated balance sheet, statement of income and cash flows of the
Borrower (including of the Target and its Subsidiaries) as of and for the
nine-month period ended November 30, 2002 and based on estimates with respect to
the Target as at November 30, 2002 prepared under the assumption that the Target
Acquisition had been consummated on March 1, 2002;
(h) promptly after the same becomes available, a certified
copy of any Legal and Compliance Report received by the Borrower under the
Implementation Deed, any other document or information received by the Borrower
that qualifies the representations and warranties made by the Target or any of
its Related Parties under the Implementation Deed and any further or new
information received by the Borrower under clause 1.2(d) of Schedule 1 of the
Implementation Deed; and
(i) promptly following any request therefor, such other
information (including without limitation information regarding the operations,
business affairs and financial condition) of the Borrower or any of its
Subsidiaries, or compliance with the terms of this Agreement and the other Loan
Documents, as the Administrative Agent or any Lender may reasonably request.
SECTION 6.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or
affecting the Borrower or any of its Affiliates that, if adversely determined,
could reasonably be expected to have a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding U.S.$2,500,000;
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(d) the assertion of any Environmental Claim by any Person
against, or with respect to the activities of, the Borrower or any of its
Subsidiaries and any alleged violation of or non-compliance with any
Environmental Laws or any permits, licenses or authorizations, other than any
Environmental Claim or alleged violation that, if adversely determined, could
not (either individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect;
(e) the downgrading of the published rating of the senior
secured bank debt of the Borrower by Moody's or Standard & Poor's to below "Ba2"
or "BB", respectively, or the withdrawal of such published rating by Moody's or
Standard and Poor's; and
(f) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 6.03. Existence; Conduct of Business. Except as
otherwise expressly permitted hereunder, the Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence and the rights,
licenses, permits, privileges and franchises relating to the conduct of its
business (except where the failure to do so (in each case other than with
respect to the existence of the Borrower), individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect); provided
that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 7.03.
SECTION 6.04. Payment of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could reasonably be expected to have a Material
Adverse Effect before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance with GAAP and (c)
the failure to make payment pending such contest could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.05. Maintenance of Properties; Insurance. The
Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain
all Property relating to the conduct of its business in good working order and
condition, ordinary wear and tear excepted (except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect and except for Dispositions permitted by Section 7.04),
and (b) maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are customarily maintained
by companies engaged in the same or similar businesses operating in the same or
similar locations.
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SECTION 6.06. Books and Records; Inspection Rights. The
Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 6.07. Compliance with Laws. The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its Property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 6.08. Use of Proceeds. The proceeds of the Tranche A
Term Loans and the Tranche B Term Loans will be used solely to (a) repay
Indebtedness owing under the 1999 Credit Agreement and (b) finance the Target
Acquisition and repay Indebtedness owing under the Target Credit Facilities
(and, pending such application pursuant to clause (b), will be pledged by the
Borrower pursuant to the Cash Collateral Pledge Agreement). The proceeds of the
Revolving Loans will be used solely to (i) finance the Target Acquisition and
repay Indebtedness owing under the Target Credit Facilities, (ii) provide
working capital for the Borrower and its Subsidiaries and (iii) provide funds
for the other general corporate purposes (including Capital Expenditures) of the
Borrower and it Subsidiaries (provided that, as provided in Section 7.05(b), the
Borrower will not use more than U.S.$250,000,000 of the proceeds of each U.S.
Dollar Revolving Loan Borrowing to fund each transaction described therein
and/or pay any related fees or expenses referred to in said Section). No part of
the proceeds of any Loan or other extension of credit hereunder will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations U and X. Letters of
Credit will be issued only to support general corporate purposes of the Borrower
and its Subsidiaries.
SECTION 6.09. Certain Obligations Respecting Subsidiaries.
(a) Ownership of Subsidiaries. The Borrower will, and will
cause each of its Subsidiaries to, take such action from time to time as shall
be necessary to ensure that each of the Borrower's Subsidiaries (other than
Joint Venture Entities and Inactive Subsidiaries) is a Wholly-Owned Subsidiary.
(b) Subsidiary Guarantors. The Borrower will take such action,
and will cause each of its Subsidiaries to take such action, from time to time
as shall be necessary to ensure that all Subsidiaries of the Borrower that are
not Excluded Entities are "Subsidiary Guarantors" hereunder. In furtherance of
the foregoing, in the event that (x) the Borrower or any of its Subsidiaries
shall acquire or form any new Subsidiary after the date hereof that is not at
such time an Excluded Entity or (y) any Excluded Entity shall cease to be an
Excluded Entity but shall continue to be a Subsidiary of the Borrower, the
Borrower will cause (or will cause its Subsidiaries to cause) such new
Subsidiary or previously Excluded Entity to (i) become a "Subsidiary Guarantor"
hereunder, and a "Subsidiary Guarantor" under the U.S. Pledge
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Agreement, by delivering to the Administrative Agent a Guarantee Assumption
Agreement; (ii) take the actions, if any, required to be taken by such new
Subsidiary or previously Excluded Entity under paragraph (c) below and (iii)
deliver such proof of corporate action, incumbency of officers, opinions of
counsel and other documents as is consistent with those delivered by each
Obligor pursuant to Section 5.01 on the Effective Date or as the Administrative
Agent shall have requested.
(c) Pledge Agreements. If after the date hereof (x) any
Obligor, including any Subsidiary (herein, a "Paragraph (b) Obligor") that
becomes a Subsidiary Guarantor pursuant to paragraph (b) above and therefor an
Obligor hereunder, shall acquire or form any new Subsidiary (it being understood
that the term "new Subsidiary" includes any entity that is a Subsidiary of any
Paragraph (b) Obligor at the time it becomes an Obligor hereunder), or (y) any
Excluded Entity shall cease to be an Excluded Entity but shall continue to be a
Subsidiary of the Borrower, then, in addition to any actions that may be
required to be taken as a result thereof pursuant to paragraph (b) above, each
Obligor (including any Paragraph (b) Obligor) will take the following actions
with respect to such new Subsidiary or previously Excluded Entity:
(i) if such new Subsidiary or previously Excluded Entity is
organized under the laws of the United States of America or a
State thereof, each Obligor that holds any of the shares of
capital stock or other ownership interests in such new Subsidiary
or previously Excluded Entity shall take such action (including
delivering the certificates, if any, evidencing such shares or
other ownership interests, accompanied by undated stock or other
powers executed in blank) as shall be necessary to create and
perfect valid and enforceable first priority Liens in such shares
and other ownership interests under the U.S. Pledge Agreement
(or, if necessary, a supplement thereto);
(ii) if such new Subsidiary or previously Excluded Entity is
organized under the laws of a jurisdiction other than the United
States of America or a State thereof, the Borrower shall ensure
that each Obligor that holds any of the shares of capital stock
or other ownership interests in such new Subsidiary or previously
Excluded Entity shall execute and deliver a Foreign Equity Pledge
Agreement (or, as applicable, supplement the U.K Equity Pledge
Agreement or Australian Equity Pledge Agreement) with respect to
such shares of capital stock or other ownership interests and
take such other action (including delivering the certificates, if
any, evidencing such shares or other ownership interests,
accompanied by undated stock or other powers executed in blank)
as shall be necessary to create and perfect valid and enforceable
first priority Liens in such shares and other ownership interests
under the law governing such Foreign Equity Pledge Agreement (or,
as applicable, U.K. Equity Pledge Agreement or the Australian
Equity Pledge Agreement); and
(iii) deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is
consistent with those delivered by each Obligor pursuant to
Section 5.01 on the Effective Date or as the Administrative Agent
shall have requested;
provided, however, that (A) the foregoing shall not require any action that the
Borrower and the Administrative Agent have determined would either result in
adverse tax consequences under
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Section 956 of the Code or would contravene any applicable law, rule or
regulation, (B) notwithstanding anything in this Agreement or the Pledge
Agreements to the contrary none of the Borrower or any of its Subsidiaries shall
be required to pledge more than 65% of the outstanding shares of voting stock of
any Foreign Subsidiary and (C) the foregoing shall not require the Borrower or
any of its Subsidiaries to pledge any shares of stock or other ownership
interests in Inactive Subsidiaries, Joint Venture Entities and, for so long as
it shall conduct no business other than holding Indebtedness of Canandaigua
Limited and having Indebtedness outstanding to the Constellation International
Holdings, Canandaigua B.V.
(d) Shares of Subsidiary Stock; Reclassification of Shares of
Target.
(i) In the event that any additional shares of stock shall be
issued to any Obligor by any Subsidiary of the Borrower, such
Obligor agrees forthwith to deliver to the Administrative Agent
pursuant to the U.S. Pledge Agreement and, if applicable, any
Foreign Equity Pledge Agreement, the certificates evidencing such
shares of stock, accompanied by undated stock powers executed in
blank and to take such other action as the Administrative Agent
shall reasonably request to perfect the security interest created
therein pursuant to such Pledge Agreement; provided that
notwithstanding anything in this Agreement to the contrary, the
Obligors shall not be required to pledge more than 65% of the
outstanding shares of voting stock of any Foreign Subsidiary.
(ii) After the consummation of the Target Acquisition, the
Borrower will use reasonable commercial efforts to cause as
promptly as practicable a reclassification of the shares of
capital stock of the Target resulting in two classes of stock,
voting common and non-voting preferred, in such respective
amounts as may be reasonably requested by the Administrative
Agent, but only so long as, in the reasonable opinion of
Administrative Agent and the Borrower, this will not have (or
cannot be reasonably expected to have) any adverse tax
consequences to the Borrower and its Subsidiaries in any material
respect (taking into account present and future tax structures
and fundings).
(e) Intercompany Notes. If required by the terms of Section
7.06(e)(ii) or 7.06(e)(iv), the Borrower shall, concurrently with the making of
any loan or advance to a Foreign Subsidiary specified therein, cause such
Foreign Subsidiary to execute an Intercompany Note in favor of the Borrower and
shall forthwith deliver to the Administrative Agent pursuant to the U.S. Pledge
Agreement such Intercompany Note, accompanied by an undated bond power executed
in blank, and shall take such other action as the Administrative Agent shall
reasonably request to perfect the security interest created therein pursuant to
such Pledge Agreement.
(f) Further Assurances. The Borrower will, and will cause each
of its Subsidiaries (other than Excluded Entities) to, take such action from
time to time (including executing and delivering such assignments, security
agreements and other instruments) as shall be reasonably requested by the
Administrative Agent to create, in favor of the Administrative Agent for the
benefit of the Lenders, perfected security interests and Liens in all Collateral
required to be pledged by such Subsidiary under the U.S. Pledge Agreement and,
if applicable, any Foreign Equity Pledge Agreement.
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SECTION 6.10. Pledge of Certain Collateral of the Borrower. If
at any time prior to the Debt Reduction Date (as defined below) the published
rating of the Borrower's senior secured bank debt shall be downgraded to less
than "Ba2" by Moody's or "BB" by Standard & Poor's, respectively, or if Moody's
or Standard & Poor's shall withdraw its published rating of the Borrower's
senior secured bank debt, then the Borrower shall, and shall cause each
Subsidiary Guarantor to, promptly pledge to the Administrative Agent for the
benefit of the Lenders all Relevant Assets of the Borrower and such Subsidiary
Guarantor and, in furtherance of the foregoing, the Borrower shall, and shall
cause each Subsidiary Guarantor to, execute and deliver an Additional Security
Agreement and, concurrently with the execution and delivery (or amendment)
thereof, (A) take such action as shall be necessary to create and perfect valid
and enforceable first priority Liens on any Collateral to be pledged thereunder
and (B) deliver such proof of corporate action, incumbency of officers, opinions
of counsel and other documents as is consistent with those delivered by the
Obligors pursuant to Section 5.01 on the Effective Date or as the Administrative
Agent shall have requested; provided that this Section 6.10 shall cease to apply
and be of no further effect upon the Debt Reduction Date.
For purposes hereof "Debt Reduction Date" means either (i) the
first date after the Effective Date on which all Indebtedness incurred under the
Bridge Credit Agreement is repaid with the proceeds of an issuance of equity
securities of the Borrower or (ii) if such repayment is not made with the
proceeds of an issuance of equity securities of the Borrower, the first date
after the Effective Date on which the Debt Ratio is less than 4.0 to 1.
For purposes hereof "Relevant Assets" has the meaning assigned
thereto on Schedule VIII.
SECTION 6.11. Target Acquisition.
(a) In connection with the Target Acquisition, the Borrower
will:
(i) comply in all material respects with all applicable laws
and regulations relevant in the context of the Target
Acquisition;
(ii) provide the Administrative Agent with such information
regarding the progress of the Target Acquisition as it may
reasonably request or that is publicly available;
(iii) provide the Administrative Agent and its counsel with
all information reasonably requested by either of them in any due
diligence inquiry with respect to the Target prior to the date of
the Scheme Meetings (as defined in the Implementation Deed);
(iv) not issue any press release or make any statement during
the course of the Target Acquisition that contains any
information or statement concerning this Agreement or the Lenders
without first obtaining the prior approval of the information or
statement from the Administrative Agent or the Required Lenders;
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(v) ensure that all of its obligations in connection with the
Target Acquisition are complied with and performed in all
material respects;
(vi) as soon as practicable after the acquisition by the
Borrower of any of the shares of the Target, cause such shares
(if the same are not in certificated form) to be converted into
certificated form, and to be delivered in pledge to the
Administrative Agent pursuant to the Australian Equity Pledge
Agreement executed and delivered by the Borrower, provided that
in no event shall the Borrower be required to deliver and pledge
to the Administrative Agent more than 65% of the issued Voting
Stock of the Target; and
(vii) promptly upon registration by the Australian Securities
and Investments Commission provide the Administrative Agent and
the Lenders with a certified copy of the document described as
"Scheme Booklet" to be prepared by the Target and to be sent to
the shareholders and optionholders of the Target, and ensure that
such "Scheme Booklet" is consistent with the matters set forth in
the Target Acquisition Documents;
(b) Implementation Deed. The Borrower will:
(i) not enter into, or consent to, any Material Lender
Provision Amendment or exercise its discretion in relation to the
provision of consent to a "BRL Hardy Prescribed Occurrence" (as
defined in the Implementation Deed) where such BRL Hardy
Prescribed Occurrence is reasonably likely to result in a BRL
Hardy Material Adverse Change (as defined in the Implementation
Deed); and
(ii) promptly notify the Administrative Agent in writing if it
becomes aware of any proposal described in sub-paragraph (i) and
seek the prior written approval of the Required Lenders thereto.
(c) Conditions Under Implementation Deed. The Borrower must:
(i) keep the Administrative Agent promptly and reasonably
informed of the steps the parties to the Implementation Deed have
taken and of their progress towards satisfaction of the
conditions precedent set out in clause 4.1 of the Implementation
Deed;
(ii) promptly notify the Administrative Agent in writing if it
becomes aware that any condition precedent set out in clause 4.1
of the Implementation Deed has been satisfied or has become
incapable of being satisfied; and
(iii) to the extent that it wishes to exercise any waiver
under clause 4.2 of the Implementation Deed, and the exercise of
such right requires the prior written approval of the
Administrative Agent acting with the consent of the Required
Lenders under Section 5.03(b)(i) of this Agreement, promptly
notify the Administrative Agent in writing of this fact and seek
such prior written approval of the Administrative Agent to such
waiver.
(d) Constituent Documents. The Borrower will ensure that on
and after the Effective Date there is no restriction, in relevant constituent
documents or otherwise, on a
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transfer or registration of a transfer pursuant to an Australian Equity Pledge
Agreement, of an interest or shares in an Australian Acquisition Entity or a
share in the Target.
SECTION 6.12. Syndication Letter. The Borrower will comply
with its obligations under the Syndication Letter and the fee letters referred
to therein.
ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 7.01. Indebtedness. The Borrower will not, nor will it
permit any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in
Part A of Schedule I (or, to the extent not meeting the minimum thresholds for
required listing on said Schedule I pursuant to Section 4.14, in an aggregate
amount not exceeding U.S.$5,000,000); provided that the principal of and
interest on, and all other amounts owing in respect of Indebtedness under the
1999 Credit Agreement (other than in respect of letters of credit which, as
provided in Section 2.05(m) are to become Letters of Credit hereunder) and the
Target Credit Facilities shall in any event be (or shall be simultaneously)
repaid in full on the Effective Date and the Implementation Date, respectively);
(c) (i) Indebtedness outstanding in respect of the Senior
Unsecured Notes and (ii) other unsecured Indebtedness (other than Subordinated
Indebtedness); provided that the following conditions shall be satisfied with
respect to such other Indebtedness (each of which shall be fulfilled in form and
substance reasonably satisfactory to the Administrative Agent):
(A) the Net Available Proceeds of such other
Indebtedness shall be applied to (x) prepay Loans in
accordance with Section 2.10(b)(iv), (y) refinance or pay at
maturity the Senior Unsecured Indebtedness (in accordance
with Section 7.12) or (z) finance one or more Acquisitions
pursuant to Section 7.05(b) (provided that the aggregate
principal amount of such Senior Unsecured Indebtedness the
Net Available proceeds of which is applied to finance one or
more such Acquisitions shall not exceed U.S.$500,000,000
unless at the time such Indebtedness is incurred, the Senior
Debt Ratio is less than 2.5 to 1 (the determination of such
ratio to be calculated as of the last day of the most
recently-
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ended fiscal quarter of the Borrower under the assumption
that such Indebtedness was issued at the beginning of the
applicable calculation period);
(B) the terms of such Indebtedness shall not provide
for payment of any portion of the principal thereof prior to
the date six months after the final maturity of the Loans
hereunder;
(C) terms in respect of financial and other covenants,
events of default and mandatory prepayments applicable to
such Indebtedness shall be no more restrictive in any
material respect on the Borrower or any of its Subsidiaries
than the terms of the Senior Unsecured Notes;
(D) at the time of issuance of such Indebtedness, and
after giving effect thereto, the Borrower shall be in
compliance with Section 7.10 (the determination of such
ratios to be calculated under the assumption that such
Indebtedness was issued at the beginning of the respective
period and that any other Indebtedness to be retired with
the proceeds thereof was in fact retired on such date of
issuance), and the Borrower shall have delivered to the
Administrative Agent a certificate of its chief financial
officer to such effect setting forth in reasonable detail
the computations necessary to determine such compliance
(including, if applicable, computations in reasonable detail
as to the satisfaction of the conditions specified in
clauses (A) above);
(E) at the time of such issuance, and after giving
effect thereto, no Default or Event of Default shall have
occurred and be continuing hereunder; and
(F) prior to such issuance, the Borrower shall deliver
to the Administrative Agent a certificate of a Financial
Officer to the effect specified in the foregoing clauses
(C), (D) and (E) (and setting forth in reasonable detail the
computations necessary to determine compliance with said
clause (D) and including, if applicable, computations in
reasonable detail as to the satisfaction of the conditions
specified in the foregoing clauses (A));
(d) Indebtedness created under the Bridge Credit Agreement in
an aggregate principal amount not exceeding U.S.$450,000,000 at any time
outstanding;
(e) Subordinated Indebtedness;
(f) Indebtedness (i) of any Subsidiary to the Borrower or to
any other Subsidiary or (ii) of the Borrower to any Subsidiary Guarantor or to
any other Subsidiary (provided, that (x) the aggregate principal amount of such
Indebtedness of the Borrower outstanding to such other Subsidiaries shall at no
time exceed U.S.$50,000,000 (or its Australian Equivalent) and (y) such
Indebtedness of the Borrower shall be subordinated to the obligations of the
Borrower to pay principal of and interest on the Loans, the reimbursement
obligation in respect of each LC Disbursement and all other amounts payable
hereunder on terms and conditions reasonably satisfactory to the Administrative
Agent);
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(g) Indebtedness of any one or more Foreign Subsidiaries
denominated in U.S. Dollars or in any other currency that is convertible into
U.S. Dollars in an aggregate principal amount not exceeding U.S.$250,000,000 (or
the spot rate equivalent thereof in such other currency as reasonably determined
by the Borrower) at any time outstanding;
(h) Guarantees by the Borrower of Indebtedness or other
obligations of any Subsidiary (subject to the terms of Section 7.06(e) and (h))
and by any Subsidiary of Indebtedness or other obligations of the Borrower or
any other Subsidiary;
(i) Guarantees by the Borrower or by any Subsidiary of
Indebtedness of any Person (other than the Borrower or any of its Subsidiaries);
provided that the aggregate principal amount of Indebtedness in respect of all
such Guarantees shall not exceed U.S.$40,000,000 at any time outstanding;
(j) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that (i) such Indebtedness is incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement and (ii) the aggregate principal amount of
Indebtedness permitted by this clause (j) shall not exceed $75,000,000 at any
time outstanding; and
(k) other Indebtedness to the extent not otherwise permitted
by the forgoing paragraphs of this Section of the Borrower and its Subsidiaries;
provided that at any time after giving effect thereto the aggregate principal
amount of such Indebtedness shall not exceed U.S.$50,000,000.
SECTION 7.02. Liens. The Borrower will not, nor will it permit
any of its Subsidiaries to, create, incur, assume or permit to exist any Lien on
any Property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Liens created pursuant to the Security Documents;
(b) Permitted Encumbrances;
(c) any Lien on any Property or asset of the Borrower or any
of its Subsidiaries existing on the date hereof and set forth in Part B of
Schedule I (or, to the extent not meeting the minimum thresholds for required
listing on said Schedule I pursuant to Section 4.14, in an aggregate amount not
exceeding U.S.$5,000,000); provided that (i) no such Lien shall extend to any
other Property or asset of the Borrower or any of its Subsidiaries and (ii) any
such Lien shall secure only those obligations which it secures on the date
hereof and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
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(d) any Lien upon tangible Property acquired after the date
hereof by the Borrower or any of its Subsidiaries, which Lien either (A) existed
on such Property before the time of its acquisition and was not created in
anticipation thereof, or (B) was created solely for the purpose of securing
Indebtedness permitted under Section 7.01(j) representing, or incurred to
finance, refinance or refund, the cost of such Property; provided that (i) such
Lien shall not apply to any other Property or assets of the Borrower or any
Subsidiary and (ii) such Lien shall secure only those obligations which it
secures on the date of such acquisition and extensions, renewals and
replacements thereof permitted under clause (g) below;
(e) any Lien on Property or assets of any Foreign Subsidiary
specified in Section 7.01(g) securing Indebtedness of such Foreign Subsidiary
permitted thereunder, so long as the 1999 Indenture and the Senior Subordinated
Notes Indentures do not prohibit the incurrence of such Lien (provided that such
Lien shall not in any event apply to any Property or assets of the Borrower or
any other Subsidiary);
(f) at any time when (x) the Indebtedness under the Bridge
Credit Agreement has been repaid in full from the proceeds of an Equity Issuance
and (y) the published rating of the senior secured bank debt of the Borrower by
▇▇▇▇▇'▇ or Standard & Poor's is at least "Ba2" and "BB", respectively (and such
rating is not on credit watch with negative implications (or its equivalent)),
any Lien in favor of a special purpose company or Receivable Financier created
or deemed to exist pursuant to a Permitted Receivable Financing, but only to the
extent such Lien relates to the applicable Receivable Assets conveyed by the
Borrower or any Subsidiary;
(g) any Lien on any Property or assets securing Indebtedness
of the Borrower or any of its Subsidiaries permitted to be incurred by this
Agreement in an aggregate amount not to exceed U.S.$10,000,000 at any time
outstanding;
(h) any purchase option or similar right on securities held by
the Borrower or any of its Subsidiaries in any Joint Venture Entity permitted by
Section 7.06(h) which option or similar right is granted to a third-party who
holds securities in such Joint Venture Entity; and
(i) any extension, renewal or replacement of the foregoing;
provided, however, that the Liens permitted hereunder shall not be spread to
cover any additional Indebtedness or Property (other than a substitution of like
Property).
SECTION 7.03. Fundamental Changes. The Borrower will not, nor
will it permit any of its Subsidiaries to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or substantially all of its assets, or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether
now owned or hereafter acquired), or liquidate or dissolve, except that (x) the
Borrower or any Subsidiary may enter into transactions permitted by Section 7.05
and (y) if at the time thereof and immediately after giving effect thereto no
Default shall have occurred and be continuing:
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(a) any Subsidiary of the Borrower may be merged or
consolidated with or into: (i) the Borrower if the Borrower shall be the
continuing or surviving corporation, (ii) any Wholly-Owned Subsidiary of the
Borrower that is not a Foreign Subsidiary or (iii) if such Subsidiary is a
Foreign Subsidiary, any Wholly-Owned Subsidiary of the Borrower that is a
Foreign Subsidiary; provided that in any such transaction, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation;
(b) the Borrower or any such Subsidiary may convey, sell,
lease, transfer or otherwise dispose of any or all of its Property (upon
voluntary liquidation or otherwise) either (A) in compliance with the provisions
of Section 7.04(i), (ii) or (iv) or (B) in the case of any such Subsidiary, to
(i) the Borrower, (ii) any Wholly-Owned Subsidiary of the Borrower that is not a
Foreign Subsidiary or (iii) if such Subsidiary is a Foreign Subsidiary, any
Wholly-Owned Subsidiary of the Borrower that is a Foreign Subsidiary;
(c) the Borrower or any Subsidiary of the Borrower may merge
or consolidate with any other Person if, in the case of a merger or
consolidation of the Borrower, the Borrower is the surviving corporation, and,
in any other case, the surviving corporation is a Wholly-Owned Subsidiary of the
Borrower that is not a Foreign Subsidiary or, if such merging or consolidating
Subsidiary is a Foreign Subsidiary, any Wholly-Owned Subsidiary of the Borrower
that is a Foreign Subsidiary; and
(d) the Borrower may, for the purpose of transferring its
jurisdiction of incorporation from Delaware to another state of incorporation,
merge with and into a Wholly-Owned Subsidiary in a transaction constituting a
tax-free reorganization under 368(a)(1)(F) of the Code, so long as:
(x) the Borrower shall give the Lenders and the
Administrative Agent at least 15 days prior written notice
of the occurrence of such merger;
(y) such Subsidiary shall execute and deliver an
instrument in form and substance satisfactory to each Lender
and the Administrative Agent pursuant to which such
Subsidiary shall, effective upon such merger, assume all of
the obligations of the Borrower hereunder and under the
Security Documents (and execute and deliver such other
instruments as the Administrative Agent shall request to
ensure the continued perfection and priority of any Liens
granted by the Borrower pursuant to the Security Documents);
and
(z) such Subsidiary shall deliver such proof of
corporate action, incumbency of officers, opinions of
counsel and other documents as is consistent with those
delivered by the Borrower pursuant to Section 5.01 hereof
upon the Effective Date or as any Lender or the
Administrative Agent shall have requested;
provided, that (A) if any such merger shall be between a Subsidiary Guarantor
and a Subsidiary not a Subsidiary Guarantor, and such Subsidiary Guarantor is
not the continuing or surviving corporation, then the continuing or surviving
corporation shall have assumed all of the obligations of such Subsidiary
Guarantor hereunder and under the other Loan Documents and (B) if any such sale
is by a Subsidiary Guarantor to a Subsidiary of the Borrower not a
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Subsidiary Guarantor, then such Subsidiary shall have assumed all of the
obligations of such Subsidiary Guarantor hereunder and under the other Loan
Documents.
SECTION 7.04. Disposition of Property. The Borrower will not,
nor will it permit any of its Subsidiaries to, convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, any part
of its business or Property, whether now owned or hereafter acquired (including,
without limitation, receivables and leasehold interests); provided that the
Borrower or any Subsidiary may convey, sell, lease, transfer or otherwise
dispose of (i) any inventory or other Property sold or disposed of in the
ordinary course of business and on ordinary business terms, (ii) Receivable
Assets pursuant to any Permitted Receivable Financing, (iii) any Property to the
extent permitted by Section 7.03(b) and (iv) other Property so long as the
amount of such other Property sold in any single fiscal year by the Borrower and
its Subsidiaries shall have a fair market value not in excess of 10% of the
Consolidated Tangible Assets as at the last day of the fiscal quarter of the
Borrower ending prior to the date of determination.
SECTION 7.05. Acquisition of Property. The Borrower will not,
nor will it permit any of its Subsidiaries to, acquire any business or Property
from, or capital stock of, or be a party to any acquisition of, any Person;
provided that:
(a) the Borrower or any such Subsidiary may (i) purchase
inventory and other Property to be sold or used in the ordinary course of
business, (ii) make Investments permitted under Section 7.06 and (iii) make
Capital Expenditures;
(b) the Borrower may (either directly, or indirectly through
its Wholly-Owned Subsidiaries) acquire the business and related assets from, or
capital stock of, or enter into a joint venture with, or be a party to an
Acquisition of, another Person, so long as at the time thereof and after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing hereunder and the Borrower shall have delivered to the Administrative
Agent a certificate of a Financial Officer to such effect; provided that (i) at
the time of any such transaction, and after giving effect thereto, the Borrower
shall be in compliance with Section 7.10(a), (b) and (c) (the determination of
such ratios to be calculated under the assumption that such transaction was
consummated at the beginning of the respective period) and, to the extent the
aggregate consideration to be delivered by the Borrower and its Subsidiaries in
connection with such transaction shall exceed U.S.$20,000,000, the Borrower
shall have furnished to the Administrative Agent a certificate of a Financial
Officer to such effect setting forth in reasonable detail the computations
necessary to determine such compliance, (ii) the Borrower will not use more than
U.S.$250,000,000 of the proceeds of one or more U.S. Dollar Revolving Loans to
fund any single such transaction and/or pay any related fees or expenses, (iii)
at any time until the repayment in full of all Indebtedness incurred under the
Bridge Credit Agreement with the proceeds of an issuance of equity securities of
the Borrower or, if such repayment is not made with the proceeds of an issuance
of equity securities of the Borrower, at any time when the Debt Ratio is 4.0 to
1 or higher (the determination of such ratio to be calculated as of the last day
of the most recently-ended fiscal quarter of the Borrower under the assumption
that such transaction was consummated at the beginning of the applicable
calculation period) (after which time the restrictions of this
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sub-clause (iii) shall cease to apply), the Borrower may not enter into any
transaction otherwise permitted by this clause (b) if the aggregate
consideration to be delivered by the Borrower and its Subsidiaries in connection
with such transaction when added to the aggregate consideration delivered by the
Borrower and its Subsidiaries in connection with each other transaction
permitted by this clause (b) consummated prior thereto but after the date hereof
(other than the Target Acquisition) shall exceed U.S.$250,000,000 and (iv) in
the case of an Acquisition of a Person, such Acquisition has been approved by
the board of directors of such Person prior to the commencement of any tender
offer, proxy contest or the like in respect thereof; and
(c) the Borrower may consummate the Target Acquisition.
SECTION 7.06. Investments. The Borrower will not, nor will it
permit any of its Subsidiaries to, make or permit to remain outstanding any
Investments except:
(a) Investments outstanding on the date hereof and identified
in Part B of Schedule III;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments (including Guarantees permitted under Section
7.01 and other Guarantees) by the Borrower and its Wholly-Owned Subsidiaries in
the Borrower and its Wholly-Owned Subsidiaries (excluding Foreign Subsidiaries)
after the date hereof;
(e) Investments by the Borrower and its Wholly-Owned
Subsidiaries in Foreign Subsidiaries consisting of (i) Guarantees by the
Borrower of Indebtedness of Foreign Subsidiaries specified in Section 7.01(g),
(ii) loans and advances by the Borrower to any Foreign Subsidiary for working
capital and other general corporate purposes (provided that such Foreign
Subsidiary shall execute and deliver an Intercompany Note evidencing such
Investments and the Borrower shall comply with the requirements of Section
6.09(e)), (iii) capital contributions by the Borrower which are made, directly
or indirectly, to any Foreign Subsidiary with the proceeds of an Equity Issuance
of the Borrower, and (iv) other Investments not exceeding U.S.$250,000,000 at
any one time,
(f) Investments consisting of (i) security deposits with
utilities, lessors and other like Persons made in the ordinary course of
business, (ii) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations or (iii) cash deposits to secure the performance of
bids, trade contracts, leases, statutory obligations, surety and appeal bonds,
performance or indemnity bonds and other obligations of a like nature, in each
case in the ordinary course of business;
(g) any Guarantee by a Subsidiary of the Borrower of (i)
Senior Unsecured Indebtedness incurred in compliance with Section 7.01(c) and
7.01(d) and (ii) Subordinated Indebtedness incurred in compliance with Section
7.11 (provided that such
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Guarantee of Subordinated Indebtedness shall comply with the requirements
Section 7.11(b));
(h) Investments (including Guarantees permitted under Section
7.01) by the Borrower and its Subsidiaries in Joint Venture Entities (and
Investments by Joint Venture Entities in other Persons) after the date hereof;
provided that the aggregate amount of such Investments in Joint Venture Entities
shall not exceed U.S.$150,000,000 at any one time (or at any time the Senior
Debt Ratio is less than 2.5 to 1 (the determination of such ratio to be
calculated as of the last day of the most recently-ended fiscal quarter of the
Borrower under the assumption that such Investment was made at the beginning of
the applicable calculation period), $200,000,000 at any one time);
(i) (x) Investments by the Borrower and its Subsidiaries in
connection with the Target Acquisition consisting of (A) Investments by the
Borrower in Australian Acquisition Company 2 (directly or indirectly through the
Australian Acquisition Entities) for the purpose of providing funds and other
Property to pay the consideration in respect thereof, (B) the purchase of the
ordinary shares (and related options) of the Target by Australian Acquisition
Company 2 and the Target, as applicable, and (C) Investments by the Borrower in
Australian Acquisition Company 2 and the Target (directly or indirectly through
the Australian Acquisition Entities) for the purpose of repaying outstanding
Indebtedness under the Target Credit Facilities and funding the repurchase of
options in respect of the shares of the Target, and (D) the reclassification or
conversion of such Investments to debt or equity or any combination thereof, and
(y) acquisitions permitted by Section 7.05(b) (but in the case of any
acquisition of any Foreign Subsidiary or Joint Venture Entity, subject to the
limitations specified in this Section 7.06);
(j) Hedging Agreements entered into in the ordinary course of
business and not for speculative purposes;
(k) (x) Guarantees by Foreign Subsidiaries of the Borrower of
Indebtedness or other obligations of other Foreign Subsidiaries of the Borrower
that are Wholly-Owned Subsidiaries of the Borrower and (y) Investments (other
than any such Investment made with the proceeds of loans and advances specified
in Section 7.06(e)(ii)) by Foreign Subsidiaries of the Borrower in other Foreign
Subsidiaries of the Borrower that are Wholly-Owned Subsidiaries of the Borrower,
made directly or indirectly (including through any Obligor), in connection with
the corporate reorganization of the Target and the Subsidiaries of the Target
after the Implementation Date (provided, that if the ownership interests of any
such Foreign Subsidiary whose assets are the subject of such an Investment are
required to be pledged to the Administrative Agent pursuant to Section 6.09, the
requisite amount of ownership interests of the Foreign Subsidiary that is the
recipient of such Investment shall also be pledged to the Administrative Agent
as provided in Section 6.09); and
(l) additional Investments by the Borrower or any of its
Subsidiaries not otherwise permitted by the foregoing paragraphs of this Section
up to but not exceeding U.S.$50,000,000 in the aggregate at any one time
outstanding.
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The aggregate amount of an Investment at any one time outstanding for purposes
of clauses (d), (e), (h) and (k) above shall be deemed to be equal to (A) the
aggregate amount of cash, together with the aggregate fair market value of
Property, loaned, advanced, contributed, transferred or otherwise invested that
gives rise to such Investment minus (B) the aggregate amount of dividends,
distributions or other payments received in cash in respect of such Investment;
the amount of an Investment shall not in any event be reduced by reason of any
write-off of such Investment nor increased by any increase in the amount of
earnings retained in the Person in which such Investment is made that have not
been dividended, distributed or otherwise paid out.
SECTION 7.07. Restricted Payments. (a) The Borrower will not,
nor will it permit any of its Subsidiaries (other than Joint Venture Entities)
to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except that the Borrower may (i) declare and pay dividends
with respect to its capital stock payable solely in additional shares of its
capital stock (other than Disqualified Stock), (ii) make Restricted Payments in
respect of stock appreciation rights, or other stock-based awards, under any
stock option plan of the Borrower (including without limitation any Stock Based
Plan) so long as no Default shall have occurred and be continuing or would
result therefrom, (iii) cancel or terminate any warrants, options or any other
rights to acquire any shares of capital stock of the Borrower in exchange for
the issuance of any other warrants, options or rights to acquire shares of
capital stock of the Borrower, (iv) repurchase its capital stock to the extent
provided in paragraph (b) below and (v) declare and make Restricted Payments in
cash, subject (in the case of this clause (v)) to the satisfaction of each of
the following conditions on the date of such Restricted Payment and after giving
effect thereto:
(w) no Default shall have occurred and be continuing;
(x) the aggregate amount of Restricted Payments made
during any fiscal year, including the fiscal year ending
February 28, 2002, shall not exceed an amount equal to 50%
of consolidated net income of the Borrower and its
Consolidated Subsidiaries for such fiscal year;
(y) the Debt Ratio for the period of four consecutive
fiscal quarters most recently ended prior to the date of any
such Restricted Payment shall not exceed 2.00 to 1; and
(z) the Borrower shall have delivered to the
Administrative Agent, at least 10 Business Days (but not
more than 20 Business Days) prior to the date of declaration
of any such Restricted Payment, a certificate of a Financial
Officer of the Borrower setting forth computations in
reasonable detail demonstrating satisfaction of the
foregoing conditions as at the date of such certificate and
stating that such Financial Officer believes in good faith
that none of such conditions will fail to be satisfied on
the date of payment of such Restricted Payment,
it being understood that to the extent the conditions specified in the foregoing
clauses (w) through (y) are satisfied on the date of declaration of such
Restricted Payment by the board of directors of the Borrower, such Restricted
Payment may be made at any time within the 60-day period thereafter, regardless
of whether such conditions continue to be satisfied.
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(b) The Borrower may make Restricted Payments consisting of
repurchases of its capital stock; provided that:
(i) the aggregate amount of all such Restricted Payments made
during the term of this Agreement shall not exceed
U.S.$100,000,000;
(ii) after giving effect to any such Restricted Payment, the
Borrower shall be in compliance, on a pro forma basis, with
Section 7.10 during the four quarter period most-recently ended
under the assumption that such Restricted Payment, and any
related borrowing, shall have been made or incurred at the
beginning of such period (and, to the extent requested by the
Administrative Agent, the Borrower shall have delivered a
calculation demonstrating such pro forma compliance satisfactory
to the Administrative Agent); and
(iii) the Borrower will not make any Restricted Payment under
this paragraph (b) unless at the time thereof, and after giving
effect thereto, no Default shall have occurred and be continuing.
(c) Nothing in this Section shall be deemed to prohibit the
making or paying of any dividends (in any type of Property), or entering into
any agreement to pay or make dividends, directly or indirectly, by any
Subsidiary of the Borrower to the Borrower or to any other Subsidiary of the
Borrower.
SECTION 7.08. Transactions with Affiliates. The Borrower will
not, nor will it permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates; provided that (x) any Affiliate who is an individual may
serve as a director, officer or employee of the Borrower or any of its
Subsidiaries and receive reasonable compensation for his or her services in such
capacity and (y) the Borrower and its Subsidiaries may enter into transactions
with any Affiliate of the Borrower or any Subsidiary (other than extensions of
credit by the Borrower or any of its Subsidiaries to an Affiliate) providing for
the leasing of Property, the rendering or receipt of services or the purchase or
sale of inventory and other Property in the ordinary course of business if the
monetary or business consideration arising therefrom would be substantially as
advantageous to the Borrower and its Subsidiaries as the monetary or business
consideration which would obtain in a comparable transaction with a Person not
an Affiliate.
During any period that the Borrower is a public company
regulated by, and required to file regular periodic reports with, the Securities
and Exchange Commission, any compensation paid to an executive officer of the
Borrower or any Subsidiary (who is an Affiliate) which has been specifically
approved by the board of directors of the Borrower (or by the Human Resources
Committee of the board of directors of the Borrower or other committee
responsible for such approval) during such period will be deemed to be
reasonable for purposes of the foregoing. Notwithstanding the foregoing, the
Borrower and/or any Subsidiary may enter into so-called split-dollar life
insurance agreements with Affiliates, so long as the aggregate amount of
premiums payable by the Borrower during any fiscal year pursuant to such
agreements shall not exceed U.S.$2,000,000 in the aggregate.
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SECTION 7.09. Certain Restrictions. The Borrower will not
permit any of its Subsidiaries (other then Joint Venture Entities) to enter
into, after the date hereof, any indenture, agreement, instrument or other
arrangement that, directly or indirectly, prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially adverse conditions
upon, the incurrence or payment of Indebtedness, the granting of Liens, the
declaration or payment of dividends, the making of loans, advances, guarantees
or Investments or the sale, assignment, transfer or other disposition of
Property; provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law, by this Agreement or, in the case of any restrictions
or conditions other than in respect of the declaration or payment of dividends
by Subsidiaries, restrictions or conditions imposed by any evidence of Senior
Unsecured Indebtedness, Subordinated Indebtedness or Foreign Subsidiary
Indebtedness (so long as no such restriction or condition is materially more
restrictive on the Borrower or any Subsidiary than the corresponding provisions
of the 1999 Indenture or the Senior Subordinated Note Indentures as in effect on
the date hereof), (ii) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary or
its assets pending such sale; provided that such restrictions and conditions
apply only to the Subsidiary or its assets that are to be sold and such sale is
permitted hereunder, (iii) as applied to Liens, the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (iv) as applied
to Liens, the foregoing shall not apply to restrictions or conditions imposed by
any agreement relating to Indebtedness of Foreign Subsidiaries obligated in
respect of such Indebtedness and (v) as applied to Liens, the foregoing shall
not apply to customary provisions in leases and other contracts restricting the
assignment thereof.
In addition, the Borrower will not enter into, after the date
hereof, any indenture, agreement, instrument or other arrangement that, directly
or indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon the granting of Liens
contemplated by Section 6.10; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law, (ii) the foregoing shall not apply
to restrictions or conditions imposed by the Bridge Credit Agreement or any
agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness and (iii) the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof.
SECTION 7.10. Certain Financial Covenants.
(a) Debt Ratio. The Borrower will not permit the Debt Ratio
to exceed the following respective ratios at any time during the following
respective periods:
Period Ratio
-------------------- ---------
From the date hereof
through February 29, 2004 5.25 to 1
From March 1, 2004
through February 28, 2005 4.75 to 1
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From March 1, 2005
and at all times thereafter 4.00 to 1
provided, that if after the date of this Agreement Indebtedness created under
the Bridge Credit Agreement is repaid with the proceeds of an issuance of equity
securities of the Borrower or commitments outstanding under the Bridge Credit
Agreement are permanently reduced due to the issuance of equity securities of
the Borrower to shareholders of the Target, then (x) to the extent the aggregate
amount of such repayments of Indebtedness and such reductions of commitments
(effected at any time after the date of this Agreement) is greater than
$100,000,000 but less than $300,000,000, each Debt Ratio level specified above
shall be reduced by 0.25 and (y) to the extent the aggregate amount of such
repayments of Indebtedness and such reductions of commitments (effected at any
time after the date of this Agreement) is greater than or equal to $300,000,000,
each Debt Ratio level specified above shall be reduced by 0.50, but in any event
the required Debt Ratio level shall not at any time be lower than 4.00 to 1.
(b) Senior Debt Ratio. The Borrower will not permit the Senior
Debt Ratio to exceed the following respective ratios at any time during the
following respective periods:
Period Ratio
-------------------- ---------
From the date hereof
through February 29, 2004 4.50 to 1
From March 1, 2004
through February 28, 2005 4.00 to 1
From March 1, 2005
through February 28, 2006 3.50 to 1
From March 1, 2006
and at all times thereafter 3.00 to 1
provided, that if after the date of this Agreement Indebtedness created under
the Bridge Credit Agreement is repaid with the proceeds of an issuance of equity
securities of the Borrower or commitments outstanding under the Bridge Credit
Agreement are permanently reduced due to the issuance of equity securities of
the Borrower to shareholders of the Target, then (x) to the extent the aggregate
amount of such repayments of Indebtedness and such reductions of commitments
(effected at any time after the date of this Agreement) is greater than
$100,000,000 but less than $300,000,000, each Senior Debt Ratio level specified
above shall be reduced by 0.25 and (y) to the extent the aggregate amount of
such repayments of Indebtedness and such reductions of commitments (effected at
any time after the date of this Agreement) is greater than or equal to
$300,000,000, each Senior Debt Ratio level specified above shall be reduced by
0.50, but in any event the required Senior Debt Ratio level shall not at any
time be lower than 3.00 to 1.
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(c) Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio to be less than the following respective ratios at any
time during the following respective periods:
Period Ratio
-------------------- ---------
From the date hereof
through February 28, 2005 2.75 to 1
From March 1, 2005
and at all times thereafter 3.00 to 1
(d) Fixed Charges Ratio. The Borrower will not permit the
Fixed Charges Ratio to be less than 1.00 to 1 as at the last day of any fiscal
quarter of each fiscal year.
SECTION 7.11. Subordinated Indebtedness. The Borrower may
after the date hereof incur additional Subordinated Indebtedness subject to the
following conditions (each of which shall have been fulfilled in form and
substance reasonably satisfactory to the Administrative Agent):
(a) such Indebtedness shall be subordinated to the obligations
of the Borrower to pay principal of and interest on the Loans, the reimbursement
obligation in respect of each LC Disbursement and all other amounts payable
hereunder on terms and conditions no less favorable to the Lenders than the
terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower
only, and none of its Subsidiaries shall be contingently or otherwise obligated
in respect thereof, unless subordinated to the obligations of such Subsidiary to
pay principal of and interest on the Loans, the Reimbursement Obligations and
all other amounts payable hereunder on terms and conditions no less favorable to
the Lenders than the terms and conditions of the Senior Subordinated Note
Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be
applied to (i) prepay Loans in accordance with Section 2.10(b)(v), (ii) repay or
prepay Subordinated Indebtedness (in accordance with this Section 7.11) or
Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance
one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for
payment of any portion of the principal thereof prior to the date six months
after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events
of default and mandatory prepayments applicable to such Indebtedness shall be
terms that are at the time customary in the market for subordinated debt being
incurred by the Borrower, and in transactions, comparable to the Borrower's
proposed debt issuance;
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(f) at the time of issuance of such Indebtedness, and after
giving effect thereto, the Borrower shall be in compliance with Section 7.10
(the determination of such ratios to be calculated under the assumption that
such Indebtedness was issued, at the beginning of the respective period and that
any other Indebtedness to be retired with the proceeds thereof was in fact
retired on such date of issuance);
(g) at the time of such issuance, and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing
hereunder; and
(h) prior to such issuance the Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer to the effect
specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth
in reasonable detail the computations necessary to determine compliance with
said clause (f)).
Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire
or otherwise acquire for value, or set apart any money for a sinking, defeasance
or other analogous fund for, the purchase, redemption, retirement or other
acquisition of, or make any voluntary payment or prepayment of the principal of
or interest on, or any other amount owing in respect of, any Subordinated
Indebtedness, except that (i) the Borrower may make payments on the
regularly-scheduled payment dates with respect to the principal of and interest
on the Subordinated Indebtedness as in effect on the date hereof (or, as to any
Subordinated Indebtedness issued after the date hereof, as originally in
effect), (ii) so long as no Default shall have occurred and be continuing (or
will occur as a result of such payment), from the proceeds of Subordinated
Indebtedness issued in accordance with the first paragraph of this Section, the
Borrower may redeem or prepay Subordinated Indebtedness that is being refinanced
with such proceeds and (iii) the Borrower or any Subsidiary may acquire
Subordinated Indebtedness to the extent that the Borrower's investment therein
is permitted by Section 7.06(i). Neither the Borrower nor any of its
Subsidiaries will consent to any modification, supplement or waiver of any of
the provisions of any Subordinated Indebtedness if such amendment, supplement or
waiver would (A) increase the amount of principal, interest or other amounts
payable by the Borrower or any Subsidiary in respect thereof or change the date
when any such amount is due, (B) amend any financial or other covenant, term of
subordination, event of default or mandatory prepayment provision in respect
thereof (in the case of any covenant, if such covenant, as amended, would be
materially more restrictive on the Borrower or any Subsidiary) or (C) have a
material adverse effect on (x) the legal ability or financial capacity of any
Obligor to perform any of its obligations under this Agreement or any of the
other Loan Documents to which it is a party or (y) the rights of or benefits
available to the Lenders under this Agreement or any of the other Loan
Documents.
SECTION 7.12. Senior Unsecured Indebtedness. Neither the
Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise
acquire for value, or set apart any money for a sinking, defeasance or other
analogous fund for the purchase, redemption, retirement or other acquisition of,
or make any voluntary payment or prepayment of the principal of or interest on,
or any other amount owing in respect of, Senior Unsecured Indebtedness, except
that the Borrower may (i) make payments on the regularly-scheduled payment dates
with respect to the principal of and interest on Senior Unsecured Indebtedness
and (ii) so long as no Default shall have occurred and be continuing (or will
occur as a result of such payment), from the proceeds of Senior Unsecured
Indebtedness incurred in accordance with Section 7.01(c)
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or the proceeds of Subordinated Indebtedness issued in accordance with the first
paragraph of Section 7.11, redeem any Senior Unsecured Indebtedness being
refinanced with such proceeds. Neither the Borrower nor any of its Subsidiaries
will consent to any modification, supplement or waiver of any of the provisions
of any Senior Unsecured Indebtedness if such amendment, supplement or waiver
could reasonably be expected to have a Material Adverse Effect on (x) the legal
ability or financial capacity of any Obligor to perform any of its obligations
under this Agreement or any of the other Loan Documents to which it is a party
or (y) the rights of or benefits available to the Lenders under this Agreement
or any of the other Loan Documents.
SECTION 7.13. Modifications of Certificate of Incorporation.
Notwithstanding the provisions of clause (d) of Section 7.03, the Borrower will
not modify or supplement its Certificate of Incorporation as in effect on the
date hereof in any manner materially adverse to the interests of the Lenders
without the prior consent of the Administrative Agent (with the approval of the
Required Lenders).
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or under any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five or more Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any of its Subsidiaries in or in connection with
this Agreement or any other Loan Document or any amendment or modification
hereof or thereof, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or any other
Loan Document or any amendment or modification hereof or thereof, shall prove to
have been incorrect when made or deemed made in any material respect;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 6.02(a) or (e), 6.03 (with
respect to the Borrower's existence), 6.08, 6.11, 6.12 (with respect to
covenants, conditions or agreements contained in any fee letter referred to in
the Syndication Letter) or in Article VII;
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(e) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (a), (b) or (d) of this Article) or any other Loan Document and such
failure shall continue unremedied for a period of 45 or more days after notice
thereof from the Administrative Agent (given at the request of any Lender) to
the Borrower;
(f) the Borrower or any of its Subsidiaries shall fail to make
any payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the Property
or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any of its Subsidiaries or its debts,
or of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
administrator, conservator or similar official for the Borrower or any of its
Subsidiaries or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for a period of 60 or
more days or an order or decree approving or ordering any of the foregoing shall
be entered;
(i) the Borrower or any of its Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, administration, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, administrator, conservator or similar official for the
Borrower or any of its Subsidiaries or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit
of creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Borrower or any of its Subsidiaries shall become
unable, admit in writing its inability or fail generally to pay its debts as
they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of U.S.$15,000,000 (exclusive of any judgment amount
to the extent covered by insurance, bond, surety or similar instrument where the
insurer or holder of such bond,
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surety or instrument, as the case may be, has not contested liability in respect
of such judgment so long as the Borrower or such Subsidiary is seeking to
recover under such insurance, bond, surety or similar instrument) shall be
rendered against the Borrower or any of its Subsidiaries or any combination
thereof and the same shall remain undischarged for a period of 45 consecutive
days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to attach or levy upon any assets of the
Borrower or any of its Subsidiaries to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to have a Material Adverse Effect;
(m) a reasonable basis shall exist for the assertion against
the Borrower or any of its Subsidiaries of (or there shall have been asserted
against the Borrower or any of its Subsidiaries) claims or liabilities, whether
accrued, absolute or contingent, based on or arising from the generation,
storage, transport, handling or disposal of Hazardous Materials by the Borrower
or any of its Subsidiaries or Affiliates, or any predecessor in interest of the
Borrower or any of its Subsidiaries or Affiliates, or relating to any site or
facility owned, operated or leased by the Borrower or any of its Subsidiaries or
Affiliates, which claims or liabilities (insofar as they are payable by the
Borrower or any of its Subsidiaries but after deducting any portion thereof
which is reasonably expected to be paid by other creditworthy Persons jointly
and severally liable therefor), in the judgment of the Required Lenders are
reasonably likely to be determined adversely to the Borrower or any of its
Subsidiaries, and the amount thereof is reasonably likely to have a Material
Adverse Effect;
(n) a Change in Control shall occur; or
(o) any Lien created by the Security Documents shall at any
time not constitute a valid and perfected Lien on the collateral intended to be
covered thereby (to the extent perfection by filing, registration, recordation
or possession is required herein or therein) in favor of the Administrative
Agent for the benefit of the Lenders, free and clear of all other Liens (other
than Liens permitted under Section 7.02 or under the respective Security
Documents), or, except for expiration or termination in accordance with its
terms, any of the Security Documents shall for whatever reason be terminated or
cease to be in full force and effect, or the enforceability thereof shall be
contested by any Obligor;
then, and in every such event (other than an event with respect to any Obligor
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Obligors accrued
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hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
each Obligor; and in case of any event with respect to any Obligor described in
clause (h) or (i) of this Article, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Obligors accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by each Obligor.
In the event that any outstanding U.S. Dollar Revolving Loans,
Australian Dollar Revolving Loans or Swingline Loans are declared to be, or
become, due and payable pursuant to this Article, the Administrative Agent shall
calculate the Funding Percentages of the U.S. Dollar Revolving Lenders and the
Australian Dollar Revolving Lenders as of the date that such Loans are declared
to be, or become, due and payable (the "Acceleration Date") and shall, on or
prior to the Business Day next succeeding the Acceleration Date, provide notice
of such Funding Percentages to all U.S. Dollar Revolving Lenders and Australian
Dollar Revolving Lenders, together with a calculation of any amounts required to
be paid by the Underfunded Revolving Lenders as provided below. If on the
Acceleration Date either (i) the Funding Percentage of the U.S. Dollar Revolving
Lenders exceeds the Funding Percentage of the Australian Dollar Revolving
Lenders or (ii) the Funding Percentage of the Australian Dollar Revolving
Lenders exceeds the Funding Percentage of the U.S. Dollar Revolving Lenders
(such Revolving Lenders whose Funding Percentage is so in excess being referred
to herein as the "Overfunded Revolving Lenders" and such other Revolving Lenders
being referred to herein as the "Underfunded Revolving Lenders"), each
Underfunded Revolving Lender shall be deemed to have acquired, on the
Acceleration Date, a participation in each outstanding Revolving Loan or
Swingline Loan made by, and in the LC Exposure of, each Overfunded Revolving
Lender (on a pro rata basis based on the Applicable Percentage of such
Underfunded Revolving Lender as of the Acceleration Date) such that, after
giving effect thereto, the Funding Percentage of the Overfunded Revolving
Lenders is equal to the Funding Percentage of the Underfunded Revolving Lenders.
Each U.S. Dollar Revolving Lender and Australian Dollar
Revolving Lender hereby absolutely and unconditionally agrees that, if such
Lender is an Underfunded Revolving Lender as provided above, upon receipt of
notice from the Administrative Agent as provided above, such Revolving Lender
shall on or prior to the date five Business Days after the Acceleration Date pay
to the Administrative Agent, for the account of the Overfunded Revolving
Lenders, an amount equal to the aggregate purchase price for all of the
participations acquired by such Revolving Lender as provided above. Each U.S.
Dollar Revolving Lender and Australian Dollar Revolving Lender acknowledges and
agrees that its obligation to acquire participations in Revolving Loans,
Swingline Loans and LC Exposure pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or Event of Default or the
reduction or termination of the Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever. Each
U.S. Dollar Revolving Lender and Australian Dollar Revolving Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall
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apply, mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Overfunded Revolving Lenders (as
their interests may appear) the respective amounts so received by it from the
Underfunded Revolving Lenders. The Administrative Agent shall notify the
Borrower of any participations in any Loans and LC Exposure acquired pursuant to
this paragraph. The purchase of participations in any Loan pursuant to this
paragraph shall not relieve the Borrower of any default in the payment thereof.
ARTICLE IX
THE ADMINISTRATIVE AGENT AND THE LONDON AGENT
Each of the Lenders and the Issuing Lenders hereby appoints
the Administrative Agent as its agent hereunder and under the other Loan
Documents and as its trustee in respect of the U.K. Equity Pledge Agreement and
the Australian Equity Pledge Agreements and authorizes the Administrative Agent
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. Each of the Australian
Dollar Revolving Lenders appoints the London Agent as its agent hereunder.
The Person serving as the Administrative Agent or the London
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent or the London Agent, and such Person and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with the Borrower or any Subsidiary or other Affiliate thereof as if it were not
the Administrative Agent or the London Agent hereunder.
The Administrative Agent and the London Agent shall not have
any duties or obligations except those expressly set forth herein and in the
other Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent and the London Agent shall not be subject to any fiduciary
or other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent and the London Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby or by the
other Loan Documents that the Administrative Agent or the London Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein and in the other Loan Documents, the Administrative
Agent and the London Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent, London Agent or any of its Affiliates in any capacity.
The Administrative Agent and the London Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent and the London Agent shall be deemed not to have knowledge
of any Default unless and until written notice thereof is given to the
Administrative Agent and the London Agent by the Borrower or a Lender, and the
Administrative Agent and the London Agent shall not be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other Loan
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Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or therein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article V or elsewhere herein or therein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent or the London Agent.
The Administrative Agent and the London Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the
proper Person. The Administrative Agent and the London Agent also may rely upon
any statement made to it orally or by telephone and believed by it to be made by
the proper Person, and shall not incur any liability for relying thereon. The
Administrative Agent and the London Agent may consult with legal counsel (who
may be counsel for an Obligor), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent and the London Agent may perform any
and all its duties and exercise its rights and powers by or through any one or
more sub-agents appointed by the Administrative Agent or the London Agent. The
Administrative Agent, the London Agent and any such sub-agent may perform any
and all its duties and exercise its rights and powers through their respective
Related Parties. The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent, the London Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent and
the London Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent or London Agent as provided in this paragraph, the
Administrative Agent or the London Agent may resign at any time by notifying the
Lenders and the Borrower. Upon any such resignation, the Required Lenders shall
have the right, in consultation with the Borrower (no such consultation being
required if an Event of Default shall have occurred and be continuing), to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent or London Agent gives notice of its
resignation, then the retiring Administrative Agent or London Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent or London Agent
which shall be a bank with an office in New York, New York (or London in the
case of the London Agent), or an Affiliate of any such bank. Upon the acceptance
of its appointment as Administrative Agent or London Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent or
London Agent, and the retiring Administrative Agent or London Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent or London Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the
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Administrative Agent's or the London Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent or London Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while it was acting as Administrative Agent or London
Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent, the London Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Agent, the London Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any
document furnished hereunder or thereunder.
Without the authorization of the Required Lenders, neither the
Administrative Agent nor the London Agent nor any Lender shall send to the
Borrower or the Trustee under the Senior Subordinated Note Indentures any notice
of a Default or Event of Default hereunder if such notice would result in a
payment block in respect of the Senior Subordinated Notes.
The Administrative Agent in its capacity as trustee or
otherwise under the U.K. Equity Pledge Agreement and the Australian Equity
Pledge Agreements:
(a) shall not be liable for any failure, omission, or defect
in perfecting the security constituted or created by the U.K. Equity Pledge
Agreement or the Australian Equity Pledge Agreements including, without
limitation, any failure to (i) register the same in accordance with the
provisions of any of the documents of title of the Chargor (as defined in the
U.K. Equity Pledge Agreement) to any of the assets thereby charged or (ii)
effect or procure registration of or otherwise protect the security created by
this deed under any registration laws in any jurisdiction;
(b) may accept without inquiry such title as the Chargor (as
defined in the U.K. Equity Pledge Agreement) or the Mortgagor (as defined in
each Australian Equity Pledge Agreement) may have to the Shares (as so
respectively defined); and
(c) shall not be under any obligation to hold any title deed
or any other documents in connection with the U.K. Equity Pledge Agreement or
the Australian Equity Pledge Agreements or to take any steps to protect or
preserve the same. The Administrative Agent may permit the Chargor (as defined
in the U.K. Equity Pledge Agreement) or the Mortgagor (as defined in each
Australian Equity Pledge Agreement) to retain all such title deeds and other
documents in its possession.
Except as otherwise provided in the U.K. Equity Pledge
Agreement and the Australian Equity Pledge Agreements, all moneys which under
the trusts therein contained are received by the Administrative Agent in its
capacity as trustee or otherwise may be invested in the name of or under the
control of the Administrative Agent in any investment for the time being
authorized by English law (or in the case of the Australian Equity Pledge
Agreements,
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Australian law) for the investment by trustees of trust money or in any other
investments which may be selected by the Administrative Agent. Additionally, the
same may be placed on deposit in the name of or under the control of the
Administrative Agent at such bank or institution (including JPMorgan Chase) and
upon such terms as the Administrative Agent may think fit.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. (a) Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Borrower or any Subsidiary Guarantor, to it at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq. (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(iii) if to the London Agent, as notified by the London Agent
to each other party hereto;
(iv) if to an Issuing Lender, to it at such address as may be
notified by it to the other parties hereto;
(v) if to the Swingline Lender, to it at such address as may
be notified by it to the other parties hereto; and
(vi) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
(b) Any party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to the other parties
hereto (or, in the case of any such change by a Lender, by notice to the
Borrower and the Administrative Agent (and the London Agent in the case of an
Australian Dollar Revolving Lender). All notices and other communications given
to any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt.
(c) Notices and other communications to the Lenders hereunder
may be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent and the London Agent; provided
that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent, the London Agent and the
applicable Lender. The Administrative Agent, the London Agent or the Borrower
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may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices
or communications.
SECTION 10.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or
delay by the Administrative Agent, the London Agent, any Issuing Lender or any
Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the London
Agent, the Issuing Lenders and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Obligor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, the London Agent, any
Lender or any Issuing Lender may have had notice or knowledge of such Default at
the time.
(b) Amendments. Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders or
by the Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall (i) increase any Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) alter the manner in which payments
or prepayments of principal, interest or other amounts hereunder shall be
applied as among the Lenders or Types or Classes of Loans, without the written
consent of each Lender, (v) change any of the provisions of this Section or the
definition of the term "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender or (vi) release all or
substantially all of the Subsidiary Guarantors from their guarantee obligations
under Article III without the written consent of each Lender; and provided
further that (x) no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, the London Agent, any Issuing
Lender or the Swingline Lender hereunder without the prior written consent of
the Administrative Agent, the London Agent, such Issuing Lender or the Swingline
Lender, as the case may be, (y) any modification or supplement of Article III
shall require the consent of each Subsidiary Guarantor and (z) subject to the
foregoing clause (vi), any Subsidiary Guarantor may
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be released from its guarantee obligations under Article III if such Subsidiary
Guarantor is the subject of a Disposition permitted by this Agreement or if such
Subsidiary Guarantor becomes an Inactive Subsidiary (and any other release of a
Subsidiary Guarantor not described in the foregoing clause (vi) may be effected
only with the consent of the Required Lenders).
Anything in this Agreement to the contrary notwithstanding, no
waiver or modification of any provision of this Agreement that has the effect
(either immediately or at some later time) of enabling the Borrower to satisfy a
condition precedent to the making of a Loan of any Class shall be effective
against the Lenders of such Class for purposes of the Commitments of such Class
unless the Required Lenders of such Class shall have concurred with such waiver
or modification, and no waiver or modification of any provision of this
Agreement or any other Loan Document that could reasonably be expected to
adversely affect the Lenders of any Class in a manner that does not affect all
Classes equally shall be effective against the Lenders of such Class unless the
Required Lenders of such Class shall have concurred with such waiver or
modification.
(c) Amendments to Security Documents. No Security Document nor
any provision thereof may be waived, amended or modified, nor may the Liens
thereof be spread to secure any additional or other obligations (including any
increase in Loans hereunder) of the Obligors except pursuant to an agreement or
agreements in writing entered into by the Borrower or any Subsidiary party
thereto, and by the Administrative Agent with the consent of the Required
Lenders; provided that, (i) any provision of the Cash Collateral Pledge
Agreement may be waived, amended or modified to the extent provided therein,
(ii) without the written consent of each Lender, no such agreement shall release
all or substantially all of the Borrower and Subsidiaries from their respective
obligations under the Security Documents and (iii) without the written consent
of each Lender, no such agreement shall release all or substantially all of the
collateral security or otherwise terminate all or substantially all of the Liens
under the Security Documents, alter the relative priorities of the obligations
entitled to the Liens created under the Security Documents (except in connection
with securing additional or other obligations equally and ratably with the Loans
and other obligations hereunder) with respect to all or substantially all of the
collateral security provided thereby, except that (A) no such consent shall be
required, and the Administrative Agent is hereby authorized (and so agrees with
the Borrower and the Subsidiary Guarantors), to release any Lien covering
property (and to release any such Subsidiary Guarantor) that is the subject of
either a Disposition permitted hereunder or a Disposition to which the Required
Lenders have consented and (B) no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent without the
prior written consent of the Administrative Agent.
(d) Syndication. Notwithstanding anything in this Section
10.02 to the contrary, if the syndication of the credit facilities provided by
this Agreement has not been completed on or before the date 120 days after the
Implementation Date and the Existing Lenders determine that changes to the terms
of this Agreement are advisable in order to ensure a successful syndication of
such facilities, this Agreement may be amended to the extent provided in the
Syndication Letter or in any fee letter referred to therein. With respect to
such changes, the Borrower and the Lenders agree that, notwithstanding anything
to the contrary in Section 10.02 or otherwise, no consent of any Lender is
required to amend or modify the terms of this
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Agreement or any other Loan Document as provided in the previous sentence so
long as such amendments and modifications will not adversely affect the Lenders.
The Administrative Agent agrees to promptly notify the Lenders of any amendments
or modifications to the Loan Documents permitted by this clause (d).
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by any Issuing Lender in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, (iii) all out-of-pocket expenses incurred by the
Administrative Agent, the London Agent, any Issuing Lender or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent, the London Agent, any Issuing Lender or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement and the other Loan Documents, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof and (iv) and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
any Security Document or any other document referred to therein.
(b) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent, the London Agent, each Issuing Lender and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by any Issuing Lender to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any Property owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are
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determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower
fails to pay any amount required to be paid by it to the Administrative Agent,
the London Agent, an Issuing Lender or the Swingline Lender under paragraph (a)
or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent, the London Agent, such Issuing Lender or the Swingline
Lender, as the case may be, such Lender's Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent, the London
Agent, such Issuing Lender or the Swingline Lender in its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent
permitted by applicable law, no Obligor shall assert, and each Obligor hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be
payable promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that (i) (unless in
connection with a transaction expressly permitted under Section 7.03) no Obligor
may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by any Obligor without such consent shall be null and void) and (ii)
no Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section 10.04. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, Participants referred to in
paragraph (e) below and the directors, officers, employees, attorneys and agents
of each of the Administrative Agent, the London Agent, each Issuing Lender and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders.
(i) Assignments Generally. Subject to the conditions set forth
in clause (ii) below, any Lender may assign to one or more
assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment(s),
Loan(s), LC Exposure and Swingline Exposure) with the prior
written consent (such consent not to be unreasonably withheld or
delayed) of:
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(A) the Borrower; provided that no consent of the
Borrower shall be required for an assignment (x) to a
Lender, an Affiliate of a Lender, an Approved Fund, (y) if
an Event of Default has occurred and is continuing, any
other assignee or (z) in connection with the syndication
contemplated by the Syndication Letter; and
(B) the Administrative Agent (and the London Agent in
the case of an Australian Dollar Revolving Commitment or
Loan), provided that no consent of the Administrative Agent
or the London Agent shall be required for an assignment of
any Commitment, Loan, LC Exposure or Swingline Exposure to
an assignee that is a Lender with a Commitment, Loan, LC
Exposure or Swingline Exposure immediately prior to giving
effect to such assignment.
(ii) Certain Conditions to Assignments. Assignments shall be
subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or
an Affiliate of a Lender or an Approved Fund of such
assigning Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment(s), Loan(s), LC
Exposure or Swingline Exposure, the amount of the
Commitment(s), Loan(s), LC Exposure or Swingline Exposure of
the assigning Lender subject to each such assignment
(determined as of the date of the Assignment and Acceptance
with respect to such assignment is delivered to the
Administrative Agent) shall not be less than U.S.$5,000,000
(or, in the case of any assignment of a Tranche B Terms Loan
or Tranche B Term Loan Commitment, U.S.$1,000,000) unless
each of the Borrower and the Administrative Agent otherwise
consent; provided that no such consent of the Borrower shall
be required if an Event of Default has occurred and is
continuing;
(B) each partial assignment of any Commitment, Loan, LC
Exposure or Swingline Exposure shall be made as an
assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement in
respect of its Commitment, Loan, LC Exposure and Swingline
Exposure;
(C) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee
of U.S.$3,500; and
(D) the assignee, if it shall not already be a Lender,
shall deliver to the Administrative Agent an Administrative
Questionnaire.
(iii) Effectiveness of Assignments. Subject to acceptance and
recording thereof pursuant to paragraph (c) of this Section
10.04, from and after the effective date specified in each
Assignment and Acceptance the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance,
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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 2.14, 2.15, 2.16 and 10.03 hereof). Any
assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this Section 10.04 shall
be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in
accordance with paragraph (e) of this Section 10.04.
(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in New York City a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment(s) of, and principal amount of the
Loan(s), LC Exposure and Swingline Exposure held by, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent, each Issuing
Lender and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, any Issuing Lender and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Acceptance of Assignments by Administrative Agent. Upon
its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section
10.04 and any written consent to such assignment required by paragraph (b) of
this Section 10.04, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Participations. Any Lender may, without the consent of the
Borrower, the Administrative Agent, the London Agent, any Issuing Lender or the
Swingline Lender, sell participations to one or more Lenders or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement and the other Loan Documents (including all or a portion of
its Commitment(s), Loan(s), LC Exposure and Swingline Exposure held by it);
provided that (i) such Lender's obligations under this Agreement and the other
Loan Documents shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the London Agent, the Issuing
Lenders and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and the other Loan Documents and
to approve any amendment, modification or waiver of any provision of this
Agreement or any other Loan Document;
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provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 10.02(b) hereof
that affects such Participant. Subject to paragraph (f) of this Section 10.04,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.14, 2.15 and 2.16 hereof to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of this
Section 10.04. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 hereof as though it were a Lender;
provided that such Participant agrees to be subject to Section 2.17(d) hereof as
though it were a Lender hereunder.
(f) Limitations on Rights of Participants. A Participant shall
not be entitled to receive any greater payment under Sections 2.14, 2.15 and
2.16 hereof than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.16 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.16(e) as though it were a
Lender.
(g) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank or a Farm Credit Bank, and this Section
10.04 shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such assignee
for such Lender as a party hereto.
(h) No Assignments to the Borrower or Affiliates. Anything in
this Section 10.04 to the contrary notwithstanding, no Lender may assign or
participate any interest in any Commitment, Loan, LC Exposure or Swingline
Exposure held by it hereunder to the Borrower or any of its Affiliates or
Subsidiaries without the prior consent of each Lender.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the London Agent, any Issuing Lender or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.14, 2.15, 2.16, 3.03 and 10.03 and Article IX shall survive and
remain in full force and effect regardless of the consummation of the
transactions
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contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 5.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
or Affiliate thereof to or for the credit or the account of any Obligor against
any of and all the obligations of any Obligor now or hereafter existing under
this Agreement or any other Loan Document held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby
irrevocably and unconditionally submits, for itself and its Property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the Syndication
Letter, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such
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Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or the Syndication Letter shall affect any right that
the Administrative Agent, the London Agent, any Issuing Lender or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the Syndication Letter against any Obligor or its properties in the courts of
any jurisdiction.
(c) Waiver of Venue. Each Obligor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the Syndication Letter in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 10.01 except that process may not be served by telecopy. Nothing in this
Agreement or the Syndication Letter will affect the right of any party to this
Agreement or the Syndication Letter to serve process in any other manner
permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE SYNDICATION LETTER OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. Treatment of Certain Information; Disclosure.
(a) The Borrower acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Borrower or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Lender or by one or more subsidiaries or
affiliates of such Lender and the Borrower hereby authorizes each Lender,
subject to applicable Federal or State securities laws, to share any information
delivered to such Lender by the Borrower and its Subsidiaries pursuant to this
Agreement, or in connection
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with the decision of such Lender to enter into this Agreement, to any such
subsidiary or affiliate. Such authorization shall survive the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
(b) The Borrower hereby agrees that each Subsidiary Guarantor,
each Lender, the Administrative Agent and the London Agent (and each of their
respective, and their respective affiliates', employees, officers, directors,
agents and advisors (collectively, "Agent/Lender Representatives") is, and has
been from the commencement of discussions with respect to the facility
established by this Agreement (the "Facility"), permitted to disclose to any and
all Persons, without limitation of any kind, the tax treatment and tax structure
of the Facility, and all materials of any kind (including opinions or other tax
analyses) that are or have been provided to such Lender, the Administrative
Agent, the London Agent or such Subsidiary Guarantor related to such tax
treatment and tax structure . In this regard, each of the Lenders, the
Administrative Agent, the London Agent and the Subsidiary Guarantors
acknowledges and agrees that its disclosure of the tax treatment and tax
structure of the Facility is not limited in any way by an express or implied
understanding or agreement, oral or written (whether or not such understanding
or agreement is legally binding). Furthermore, each of the Lenders, the
Administrative Agent, the London Agent and the Subsidiary Guarantors
acknowledges and agrees that it does not know or have reason to know that its
use or disclosure of information relating to the tax treatment or tax structure
of the Facility is limited in any other manner (such as where the Facility is
claimed to be proprietary or exclusive) for the benefit of any other Person.
(c) Notwithstanding anything to the contrary herein, neither
the Lenders, the Administrative Agent, the London Agent nor the Subsidiary
Guarantors may disclose to any Person any information that constitutes material
non-public information regarding the Borrower or its securities for purposes of
Regulation FD of the Securities and Exchange Commission or any other federal or
state securities laws (it being acknowledged and agreed that the provisions of
this Section 10.12 with respect to such information are reasonably necessary to
comply with Regulation FD and/or such other federal and state securities laws)
(such information referred to collectively herein as the "Borrower
Information"), except that each of the Administrative Agent, the London Agent
and each of the Lenders may disclose Borrower Information (i) to its and its
affiliates' Agent/Lender Representatives (it being understood that the Persons
to whom such disclosure is made will be informed of the confidential nature of
such Borrower Information and instructed to keep such Borrower Information
confidential), (ii) to the extent requested by any regulatory authority or the
National Association of Insurance Commissioners, (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (iv)
to any other party to this Agreement, (v) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (vi) subject to an agreement
containing provisions substantially the same as those of this paragraph, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement or to any direct or
indirect contractual counterparties in swap agreements or such contractual
counterparties' professional advisors, (vi) to the extent such Borrower
Information (A) is or becomes generally available to the public on a
non-confidential basis through no fault or action by any of the Lenders, the
Administrative Agent, the London
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Agent or the Subsidiary Guarantors, or (B) is or becomes available to the such
Lenders, the Administrative Agent, the London Agent or the Subsidiary Guarantors
on a nonconfidential basis from a source other than the Borrower and (vii) with
the consent of the Borrower.
SECTION 10.13. "Credit Agreement" under Indentures; 1999
Credit Agreement.
(a) It is the intention of the parties hereto that this
Agreement constitutes one of the successive renewals, substitutions,
refinancings or replacements of the Credit Agreement dated as of June 29, 1993
between the Borrower, the Subsidiaries of the Borrower identified on the
signature pages thereof under the caption "Subsidiary Guarantors", the lenders
named therein and JPMorgan Chase Bank, as agent, referred to in the definition
of "Credit Agreement" in Section 101 of the Senior Subordinated Note Indentures
and that, accordingly, this Agreement constitutes the "Credit Agreement" under
and as defined in the Senior Subordinated Notes Indentures.
(b) It is the intention of the parties hereto that this
Agreement constitutes one of the successive renewals, substitutions,
refinancings or replacements of the "Credit Agreement" referred to in each of
the indentures listed in Part A of Schedule I, and that, accordingly, this
Agreement constitutes the "Credit Agreement" under and as defined in each such
indenture.
(c) Notwithstanding anything to the contrary in this
Agreement, to the extent that compliance by the Borrower with any provision of
Article VI or VII would violate or conflict with any provision of the 1999
Credit Agreement, then such provision of Article VI or VII (as applicable) shall
have no force or effect until on and after the Effective Date.
SECTION 10.14. Judgment Currency. This is an international
loan transaction in which the specification of U.S. Dollars, Australian Dollars
or an Alternative Currency, as the case may be (the "Specified Currency"), and
any payment in New York County or the country of the Specified Currency, as the
case may be (the "Specified Place"), is of the essence, and the Specified
Currency shall be the currency of account in all events relating to Loans
denominated in the Specified Currency. The payment obligations of the Borrower
under this Agreement shall not be discharged by an amount paid in another
currency or in another place, whether pursuant to a judgment or otherwise, to
the extent that the amount so paid on conversion to the Specified Currency and
transfer to the Specified Place under normal banking procedures does not yield
the amount of the Specified Currency at the Specified Place due hereunder. If
for the purpose of obtaining judgment in any court it is necessary to convert a
sum due hereunder in the Specified Currency into another currency (the "Second
Currency"), the rate of exchange which shall be applied shall be that at which
in accordance with normal banking procedures the Applicable Agent could purchase
the Specified Currency with the Second Currency on the Business Day next
preceding that on which such judgment is rendered. The obligation of the
Borrower in respect of any such sum due from it to the Applicable Agent or any
Lender hereunder shall, notwithstanding the rate of exchange actually applied in
rendering such judgment, be discharged only to the extent that on the Business
Day following receipt by the Applicable Agent or such Lender, as the case may
be, of any sum adjudged to be due hereunder in the Second Currency to the
Applicable Agent or such Lender, as the case may be, the Applicable Agent or
such Lender, as the case may be, may in accordance with normal banking
procedures purchase and transfer to
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the Specified Place the Specified Currency with the amount of the Second
Currency so adjudged to be due; and the Borrower hereby, as a separate
obligation and notwithstanding any such judgment, agrees to indemnify the
Applicable Agent or such Lender, as the case may be, against, and to pay the
Applicable Agent or such Lender, as the case may be, on demand in the Specified
Currency, any difference between the sum originally due to the Applicable Agent
or such Lender, as the case may be, in the Specified Currency and the amount of
the Specified Currency so purchased and transferred.
SECTION 10.15. Cleanup Period. The Lenders and the
Administrative Agent acknowledge and agree that if, at any time during the
period (herein, the "Cleanup Period") commencing on the Effective Date through
but not including the 60th day following the Effective Date, the Borrower shall
fail to cause the Target or any of its Subsidiaries to comply with any of the
covenants herein or in any of the other Loan Documents, or if any of the
representations or warranties made herein or in any of the other Loan Documents
(or in any report, financial statement, certificate or other document furnished
in connection herewith or therewith) by or on behalf of the Target or any of its
Subsidiaries shall prove to have been incorrect in any material respect, then,
notwithstanding anything herein to the contrary, such failure to comply with
covenants (other than any such failure that is caused or authorized by the
Borrower, it being understood that mere knowledge of a failure to comply shall
not constitute authorization for purposes hereof) and any such incorrectness
with respect to representations or warranties shall not constitute a Default or
Event of Default hereunder until after the expiration of the Cleanup Period (and
then only to the extent that the same is continuing).
SECTION 10.16. Delivery of Lender Addenda. Each Lender (other
than the Swingline Lender and the Issuing Lender) shall become a party to this
Agreement by delivering to the Administrative Agent a Lender Addendum duly
executed by such Lender and the Borrower and, by executing its Lender Addendum,
each such Lender agrees to be bound by the provisions hereof with the
Commitments set forth opposite its name in such Lender Addendum.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
CONSTELLATION BRANDS, INC.
By /s/ ▇▇▇▇▇▇ ▇. Summer
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. Summer
Title: Executive Vice President and
Chief Financial Officer
JPMORGAN CHASE BANK, as Swingline
Lender, Issuing Lender and
Administrative Agent
By /s/▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED,
as London Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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SUBSIDIARY GUARANTORS
▇▇▇▇▇▇▇▇, INC.
CLOUD PEAK CORPORATION
FRANCISCAN VINEYARDS, INC.
MT. ▇▇▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. Summer
----------------------------------
Name: ▇▇▇▇▇▇ ▇. Summer
Title: Vice President and Treasurer
▇▇▇▇▇▇▇ TRADING CORP.
By /s/ ▇▇▇▇▇▇ ▇. Summer
----------------------------------
Name: ▇▇▇▇▇▇ ▇. Summer
Title: President and Treasurer
BATAVIA WINE CELLARS, INC.
CONSTELLATION INTERNATIONAL HOLDINGS LIMITED
CANANDAIGUA WINE COMPANY, INC.
By /s/ ▇▇▇▇▇▇ ▇. Summer
----------------------------------
Name: ▇▇▇▇▇▇ ▇. Summer
Title: Treasurer
▇▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ BRANDS, LTD.
▇▇▇▇▇▇ ▇▇▇▇▇, LTD.
▇▇▇▇▇▇ ▇▇▇▇▇ OF WISCONSIN, LTD.
▇▇▇▇▇▇ BRANDS OF CALIFORNIA, INC.
▇▇▇▇▇▇ BRANDS OF GEORGIA, INC.
▇▇▇▇▇▇ CANADA, LTD.
▇▇▇▇▇▇ DISTILLERS IMPORT CORP.
MONARCH IMPORT COMPANY
▇▇▇▇▇▇ FINANCIAL CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. Summer
----------------------------------
Name: ▇▇▇▇▇▇ ▇. Summer
Title: Vice President
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CANANDAIGUA LIMITED
By /s/ ▇▇▇▇▇▇ ▇. Summer
----------------------------------
Name: ▇▇▇▇▇▇ ▇. Summer
Title: Finance Director
CBI AUSTRALIA HOLDINGS PTY LIMITED
By /s/ ▇▇▇▇▇▇ ▇. Summer
----------------------------------
Name: ▇▇▇▇▇▇ ▇. Summer
Title: Director and Chief Financial Officer
CONSTELLATION AUSTRALIA PTY LIMITED
By /s/ ▇▇▇▇▇▇ ▇. Summer
----------------------------------
Name: ▇▇▇▇▇▇ ▇. Summer
Title: Director and Chief Financial Officer
Exhibit K
[Form of Lender Addendum]
LENDER ADDENDUM
Reference is made to the Amended and Restated Credit Agreement
dated as of March 19, 2003 (as in effect on the date hereof, the "Credit
Agreement") between Constellation Brands, Inc. (the "Borrower"), the Subsidiary
Guarantors party thereto, the lenders party thereto (the "Lenders") and JPMorgan
Chase Bank as Administrative Agent. Capitalized terms used and not defined
herein have the respective meanings assigned thereto in the Credit Agreement.
Upon execution and delivery of this Lender Addendum by the
parties hereto as provided in Section 10.16 of the Credit Agreement, the
undersigned hereby becomes a Lender thereunder having the Commitments set forth
opposite it signature below, effective as of the Effective Date.
This Lender Addendum shall be construed in accordance with and
governed by the law of the State of New York. This Lender Addendum may be
executed by one or more of the parties hereto on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page
hereof by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Lender
Addendum to be duly executed and delivered by their proper and duly authorized
officers as of this ____ day of _________, 2003.
Commitments: [NAME OF LENDER]
By:___________________________
Name:
Title:
Accepted and agreed:
CONSTELLATION BRANDS, INC.
By:___________________________
Name:
Title:
--2--
JPMORGAN CHASE BANK,
as Administrative Agent
By:___________________________
Name:
Title:
The preceding form of Lender Addendum had been entered into with the Lenders
listed below on or prior to March 27, 2003, the date of funding under the Credit
Agreement. The Lender Addendum with respect to each Lender contains the
commitments set forth opposite such Lender's name below. Subsequent to
March 27, 2003, certain of the Lenders listed below have assigned all or a
portion of their loans under the Credit Agreement pursuant to the terms of the
Credit Agreement. Such assignments may also occur in the future.
COMMITMENTS
-----------------------------------------------------
REVOLVING
---------
LENDERS TRANCHE A TRANCHE B LOAN
------- --------- --------- ----
JPMorgan Chase Bank.................................. $25,000,000 $229,659,200 $25,000,000
Citicorp North America, Inc.......................... $25,000,000 $229,659,200 $25,000,000
UBS AG, Cayman Islands Branch........................ $14,000,000 $114,829,600 $14,000,000
Bank of America, N.A................................. $13,000,000 $4,000,000 $13,000,000
Bank One, NA......................................... $13,000,000 $4,000,000 $13,000,000
Barclays Bank Plc.................................... $13,000,000 $3,000,000 $13,000,000
CoBank, ACB.......................................... $75,000,000 $30,000,000 $75,000,000
Commerzbank AG, New York and Grand Cayman Branches... $8,750,000 $3,000,000 $8,750,000
Commonwealth Bank of Australia....................... $13,000,000 $13,000,000
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
"Rabobank International", New York Branch........ $20,000,000 $10,000,000 $20,000,000
Credit Industriel et Commercial...................... $8,750,000 $3,000,000 $8,750,000
Erste Bank........................................... $4,500,000 $4,500,000
Farm Credit Services of Mid-America, PCA............. $12,000,000 $12,000,000
Fleet National Bank.................................. $13,000,000 $4,000,000 $13,000,000
General Electric Capital Corporation................. $24,000,000
▇▇▇▇▇▇▇▇ Floating Rate Fund, LLC..................... $2,000,000
▇▇▇▇▇▇ Trust & Savings Bank.......................... $13,000,000 $4,000,000 $13,000,000
HSBC Bank USA........................................ $13,000,000 $13,000,000
IKB Capital Corporation.............................. $9,000,000
Jupiter Loan Funding LLC............................. $2,000,000
KeyBank National Association......................... $8,750,000 $8,750,000
KZH CNC LLC.......................................... $3,000,000
KZH Crescent LLC..................................... $1,000,000
KZH Crescent-2 LLC................................... $2,000,000
KZH Crescent-3 LLC................................... $1,000,000
KZH Cypress Tree-1 LLC............................... $6,000,000
KZH Highland-2 LLC................................... $2,000,000
KZH ING-2 LLC........................................ $6,000,000
KZH Riverside LLC.................................... $2,034,000
KZH Soleil LLC....................................... $2,106,000
KZH Soleil-2 LLC..................................... $4,212,000
KZH Sterling LLC..................................... $3,500,000
KZH Waterside LLC.................................... $4,000,000
Manufacturers and Traders Trust Company.............. $12,500,000 $12,500,000
Metropolitan Life Insurance Company.................. $25,000,000
COMMITMENTS
-----------------------------------------------------
REVOLVING
---------
LENDERS TRANCHE A TRANCHE B LOAN
------- --------- --------- ----
MONY Life Insurance Company
of America....................................... $8,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Prime Income Trust.................... $8,000,000
Natexis Banques Populaires........................... $10,000,000
Pinehurst Trading, Inc............................... $3,000,000
Seminole Funding LLC................................. $2,000,000
Stanwich Loan Funding LLC............................ $2,000,000
SunTrust Bank........................................ $20,000,000 $2,000,000 $20,000,000
The Bank of New York................................. $7,500,000 $7,500,000
The Bank of Nova Scotia.............................. $20,000,000 $20,000,000
The Norichunkin Bank, New York Branch................ $7,500,000 $7,500,000
Toronto Dominion (New York), Inc..................... $11,000,000
United Overseas Bank Ltd., New York Agency........... $11,000,000 $11,000,000
US Bank National Association......................... $8,750,000 $8,750,000
▇▇▇▇▇ Fargo Bank, N.A................................ $20,000,000 $10,000,000 $20,000,000
Winged Foot Funding Trust............................ $6,000,000
--------------- ------------ -------------
TOTAL $400,000,000 $800,000,000 $400,000,000
The Registrant has omitted from this filing the Schedules and Exhibits listed
below. The Registrant will furnish supplementally to the Commission, upon
request, a copy of such Schedules and Exhibits.
SCHEDULE I - Material Agreements and Liens
SCHEDULE II - Disclosed Matters
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Stock Options and Stock Based Plans
SCHEDULE V - Certain Adjustment Amounts
SCHEDULE VI - Foreign Subsidiaries
SCHEDULE VII - Senior Unsecured Notes
SCHEDULE VIII - Relevant Assets
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B-1 - Form of U.S. Pledge Agreement
EXHIBIT B-2 - Form of U.K. Equity Pledge Agreement
EXHIBIT B-3 - Form of Australian Equity Pledge Agreement
EXHIBIT B-4 - Form of Luxembourg Equity Pledge Agreement
EXHIBIT C - Form of Guarantee Assumption Agreement
EXHIBIT D-1 - Form of Opinion of U.S. Counsel to the Obligors
EXHIBIT D-2 - Form of Opinion of U.K. Counsel to the Obligors
EXHIBIT D-3 - Form of Opinion of Luxembourg Counsel to the Obligors
EXHIBIT D-4 Form of Opinion of Australian Counsel to the Obligors (Effective Date)
EXHIBIT D-5 - Form of Opinion of Australian Counsel to the Obligors
(Implementation Date)
EXHIBIT E - Form of Opinion of Special New York Counsel to
JPMorgan Chase
EXHIBIT F - Form of Intercompany Note
EXHIBIT G - Form of Officer's Certificate
EXHIBIT H - Draft Implementation Deed
EXHIBIT I - Cash Collateral Pledge Agreement
EXHIBIT J - Legal and Compliance Report