1
Exhibit 10.2
US$6,500,000,000 CREDIT AGREEMENT
dated as of October 21, 1998
among
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & SONS, INC.,
as Borrower
THE SEAGRAM COMPANY LTD. and ▇.▇. ▇▇▇▇▇▇▇ CORP.,
as Guarantors
The LENDERS Party Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent
CITIBANK, N.A.,
as Syndication Agent
and
BANK OF AMERICA NT&SA and BANK OF MONTREAL,
as Co-Documentation Agents
__________________________________________
CHASE SECURITIES INC.,
as Arranger
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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................................ 16
SECTION 1.03. Terms Generally ...................................................... 16
SECTION 1.04. Accounting Terms; GAAP................................................ 16
ARTICLE II
The Credits
SECTION 2.01. Commitments........................................................... 17
SECTION 2.02. Loans and Borrowings.................................................. 17
SECTION 2.03. Requests for Revolving Borrowings..................................... 18
SECTION 2.04. Competitive Bid Procedure............................................. 18
SECTION 2.05. Money Market Loans.................................................... 21
SECTION 2.06. Funding of Borrowings................................................. 22
SECTION 2.07. Interest Elections.................................................... 23
SECTION 2.08. Termination and Reduction of
Commitments....................................................... 24
SECTION 2.09. Repayment of Loans; Evidence of Debt.................................. 25
SECTION 2.10. Prepayment of Loans................................................... 26
SECTION 2.11. Fees.................................................................. 26
SECTION 2.12. Interest.............................................................. 27
SECTION 2.13. Alternate Rate of Interest............................................ 28
SECTION 2.14. Additional Interest on Eurodollar Loans;
Increased Costs..................................................... 29
SECTION 2.15. Break Funding Payments................................................ 30
SECTION 2.16. Taxes................................................................. 31
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Setoffs................................................ 33
SECTION 2.18. Mitigation Obligations; Termination or
Replacement of Lenders.............................................. 34
SECTION 2.19. Extension of Termination Date......................................... 35
SECTION 2.20. Extension of Maturity Date............................................ 37
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ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.................................................. 39
SECTION 3.02. Authorization; Enforceability......................................... 39
SECTION 3.03. Governmental Approvals; No Conflicts.................................. 39
SECTION 3.04. Financial Condition; No Material Adverse
Change............................................................. 39
SECTION 3.05. Properties............................................................ 40
SECTION 3.06. Litigation ........................................................... 40
SECTION 3.07. Compliance with Laws.................................................. 40
SECTION 3.08. Investment and Holding Company Status................................. 40
SECTION 3.09. ERISA................................................................. 40
SECTION 3.10. Disclosure............................................................ 41
SECTION 3.11. Regulation U and X.................................................... 41
SECTION 3.12. Pari Passu Ranking.................................................... 41
SECTION 3.13. Year 2000 ............................................................ 41
ARTICLE IV
Conditions
SECTION 4.01. Effective Date........................................................ 41
SECTION 4.02. Each Credit Event..................................................... 43
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other
Information........................................................ 43
SECTION 5.02. Notices of Material Events............................................ 45
SECTION 5.03. Existence; Conduct of Business........................................ 45
SECTION 5.04 Payment of Taxes...................................................... 45
SECTION 5.05. Maintenance of Insurance. ............................................ 45
SECTION 5.06. Books and Records; Inspection Rights.................................. 46
SECTION 5.07. Compliance with Laws.................................................. 46
SECTION 5.08. Use of Proceeds....................................................... 46
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ARTICLE VI
Negative Covenants
SECTION 6.01. Liens and Sale and Lease-Back Transactions............................ 46
SECTION 6.02. Fundamental Changes................................................... 47
SECTION 6.03. Transactions with Affiliates.......................................... 48
SECTION 6.04. Restrictive Agreements................................................ 48
SECTION 6.05. Leverage Ratio........................................................ 49
SECTION 6.06. Interest Coverage Ratio............................................... 49
ARTICLE VII
Events of Default................................................. 50
ARTICLE VIII
The Administrative Agent.............................................. 52
ARTICLE IX
Guarantee..................................................... 54
ARTICLE X
Miscellaneous
SECTION 10.01. Notices............................................................... 56
SECTION 10.02. Waivers; Amendments................................................... 57
SECTION 10.03. Expenses; Indemnity; Damage Waiver.................................... 58
SECTION 10.04. Successors and Assigns................................................ 59
SECTION 10.05. Survival.............................................................. 63
SECTION 10.06. Counterparts; Integration;
Effectiveness....................................................... 63
SECTION 10.07. Severability.......................................................... 64
SECTION 10.08. Right of Setoff....................................................... 64
SECTION 10.09. Governing Law; Jurisdiction; Consent
to Service of Process............................................... 64
SECTION 10.10. WAIVER OF JURY TRIAL.................................................. 65
SECTION 10.11. Headings.............................................................. 65
SECTION 10.12. Confidentiality....................................................... 65
SECTION 10.13. Interest Rate Limitation.............................................. 66
SECTION 10.14. Conversion of Currencies.............................................. 66
SCHEDULES:
Schedule 2.01 -- Commitments
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EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit B-2 -- Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit B-3 -- Form of Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
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CREDIT AGREEMENT dated as of October 21,
1998, among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & SONS, INC., THE
SEAGRAM COMPANY LTD., ▇.▇. ▇▇▇▇▇▇▇ CORP., the LENDERS
party hereto, THE CHASE MANHATTAN BANK, as
Administrative Agent, CITIBANK, N.A., as Syndication
Agent and BANK OF AMERICA NT & SA and BANK OF
MONTREAL, as Co-Documentation Agents.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acquisition" means the acquisition by Seagram, directly and/or through
its Subsidiaries, of not less than 75% of the issued and outstanding capital
stock of Polygram from Philips Electronics N.V. and other public stockholders
for consideration consisting of common shares of Seagram and cash payments.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Lenders hereunder.
"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
under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
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"Applicable Rate" means, for any day, with respect to any Eurodollar
Revolving Loan, or with respect to the facility fees payable hereunder, as the
case may be, the applicable rate per annum set forth below under the caption
"Eurodollar Spread" or "Facility Fee Rate", as the case may be, based upon the
ratings by ▇▇▇▇▇'▇ and S&P, respectively, applicable on such date to the Index
Debt; provided, that (i) before the Termination Date, on any date when
outstanding Loans (including Competitive Loans) exceed 50% of the aggregate
Commitments, or (ii) after the Termination Date, on any date when outstanding
Loans exceed 50% of the aggregate Commitments in effect immediately prior to the
Termination Date, the Eurodollar Spread otherwise applicable to all outstanding
Revolving Loans or Special Term Loans, as the case may be, shall be increased by
0.075%:
==========================================================================
Eurodollar Facility Fee
Index Debt Ratings: Spread Rate
--------------------------------------------------------------------------
Category 1
Greater than = A-/A3 0.230% 0.070%
--------------------------------------------------------------------------
Category 2
BBB+/Baa1 0.270% 0.080%
--------------------------------------------------------------------------
Category 3
BBB/Baa2 0.300% 0.100%
--------------------------------------------------------------------------
Category 4
BBB-/Baa3 0.330% 0.120%
--------------------------------------------------------------------------
Category 5
BB+/Ba1 0.450% 0.175%
--------------------------------------------------------------------------
Category 6 0.550% 0.200%
Less than BB+/Ba1
==========================================================================
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category 6; (ii)
if the ratings established or deemed to have been established by ▇▇▇▇▇'▇ and S&P
for the Index Debt shall fall within different Categories, the Applicable Rate
shall be based on the higher of the two ratings unless one of the two ratings is
two or more Categories lower than the other, in which case the Applicable Rate
shall be determined by reference to the Category next below that of the higher
of the two ratings; and (iii) if the ratings established or deemed to have been
established by ▇▇▇▇▇'▇ and S&P for the Index Debt shall be changed (other than
as a result of a change in the rating system of ▇▇▇▇▇'▇ or S&P), such change
shall be effective as of the date on which it is first announced by the
applicable rating agency. Each change in the Applicable Rate shall apply during
the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change. If the
rating system of ▇▇▇▇▇'▇ or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations, the
Borrower
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and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation. Notwithstanding the foregoing, if as
of the Effective Date any rating agency shall not have changed or affirmed its
rating of the Index Debt to give effect to the Acquisition, then such rating
agency shall be deemed to have in effect a rating in Category 3 until such
rating agency changes or affirms its rating of the Index Debt to give effect to
the Acquisition.
"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.
"Attributable Debt" means, with respect to any Sale and Lease-Back
Transaction at any time of determination, the present value (discounted at the
interest rate assumed in making calculations in accordance with FAS 13) of the
total obligations of the Borrower, any Guarantor or any Subsidiary, as lessee,
for rental payments during the remaining term of the lease included in such Sale
and Lease-Back Transaction (including any period for which such lease has been
extended).
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Termination Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Sons, Inc., an Indiana
corporation.
"Borrower Existing Credit Agreement" means the Credit Agreement dated
as of November 23, 1994, among the Borrower, The Seagram Company Ltd., as
guarantor, ▇.▇. ▇▇▇▇▇▇▇ Corp., as guarantor, The Chase Manhattan Bank (formerly
Chemical Bank), as administrative agent, Citibank, N.A., as syndication agent,
Bank of Montreal, as documentation agent, and the banks party thereto, as the
same has been and may be amended and in effect from time to time.
"Borrowing" means (a) Revolving Loans of the same Type, made, converted
or continued on the same date and, in the case of Eurodollar Loans, as to which
a single Interest Period is in effect or (b) a Competitive Loan or group of
Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.
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"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property or moveable or immoveable
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person
under GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"Change in Control" means (a)(i) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), other than
the Existing Controlling Interests, of shares representing more than 25% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of Seagram; and (ii) occupation of a majority of the seats (other
than vacant seats) on the board of directors by Persons who were neither (A)
nominated by the board of directors of Seagram nor (B) appointed by directors so
nominated; or (b) the failure of Seagram to own and control, directly or through
wholly-owned Subsidiaries, shares representing 100% of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of the
Borrower.
"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, for
purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans hereunder, expressed as an amount representing
the maximum aggregate amount of such Lender's Revolving Credit Exposure
hereunder, as such
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commitment may be (a) reduced from time to time pursuant to Section 2.08, (b)
increased from time to time pursuant to Section 2.19(e) and (c) 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 Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders' Commitments is $6,500,000,000.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan
in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Consenting Lenders" has the meaning set forth in Section 2.19 (c).
"Consolidated Total Assets" means, with respect to any Person at any
time, the total assets of such Person and its consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time (by way of the expiration of any
applicable grace period or otherwise) or both would, unless cured or waived,
become an Event of Default.
"dollars" or "$" refers to lawful money of the United States of
America.
"EBITDA" means, with respect to any Person for any period, the
consolidated net income of such Person and its consolidated subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP, plus,
to the extent deducted in computing such consolidated net income for such
period, the sum (without duplication) of (a) income tax expense, (b) Interest
Expense, (c) depreciation and amortization expense, (d) extraordinary losses,
(e) non-recurring, non-cash charges; provided that if any such non-recurring,
non-cash charges result in cash payments in the future, such cash payments shall
be
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deducted from EBITDA in the period when paid, (f) non-recurring charges relating
to the acquisition and integration of Polygram in an aggregate amount of up to
$750,000,000 and (g) in the case of the consolidated EBITDA of Seagram and its
Subsidiaries, the EBITDA attributable to (i) the minority interests existing on
the date of this Agreement of Matsushita Electric Industrial Co., Ltd. and its
subsidiaries ("Matsushita") in Subsidiaries of Seagram (the "Existing Minority
Investments") and (ii) minority interests in Subsidiaries of Seagram acquired
after the date of this Agreement by Matsushita to the extent acquired in
exchange for Existing Minority Investments and not attributable to any new
investments by Matsushita minus, to the extent added in computing such
consolidated net income for such period, the sum (without duplication) of (a)
consolidated interest income, (b) extraordinary gains and (c) non-recurring,
non-cash gains; provided that (a) EBITDA shall include any EBITDA attributable
to any investment accounted for by the "equity" method of accounting, but shall
exclude any income or loss attributable to any such investment to the extent
reflected in the consolidated net income of such Person and (b) for purposes of
calculating the Leverage Ratio for the quarters ended March 31, 1999, June 30,
1999 and September 30, 1999, the consolidated EBITDA of Seagram and its
Subsidiaries shall include the historical EBITDA of Polygram as if the
Acquisition had occurred on the first day of each such relevant period for
testing compliance with the Leverage Ratio.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02).
"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 or either Guarantor, 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, either Guarantor or any of their ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower, either Guarantor or
any of their ERISA Affiliates from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Borrower, either
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Guarantor or any of their 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, either Guarantor or any of their ERISA Affiliates of
any notice, or the receipt by any Multiemployer Plan from the Borrower, either
Guarantor or any of their ERISA Affiliates of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the LIBO Rate
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower or a Guarantor 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 described in clause (a) above 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 (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office) (other
than (A) any withholding tax imposed on any payment by Seagram and (B) any
withholding tax imposed on any payment by the Borrower or a Guarantor to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to any withholding tax
pursuant to Section 2.16(a)), or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.16(e).
"Existing Controlling Interests" means each Person (including, in the
case of such a Person that is a trust, the individual beneficiaries of such
trust and Affiliates and subsidiaries thereof) (other than Seagram's directors
and executive officers as a group) set forth in the Form S-4 as having
beneficial ownership as of June 30, 1998 (and prior to giving effect to the
Acquisition) of more than 10% of the outstanding shares of common stock of
Seagram and includes any combination of such Persons.
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"Existing Credit Agreements" means the Borrower Existing Credit
Agreement and the Seagram Existing Credit Agreement.
"Existing Maturity Date" has the meaning set forth in Section 2.20(a).
"Existing Minority Investments" has the meaning set forth in the
definition of EBITDA.
"Existing Termination Date" has the meaning set forth in Section
2.19(a).
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer, assistant treasurer or controller of the
Borrower.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurodollar Competitive Loan), the fixed rate of interest per annum specified by
the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower or any Guarantor 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.
"Form S-4" means the registration statement on Form S-4 of Seagram
filed with the Securities and Exchange Commission in connection with the
registration of the exchange offer for the shares of Polygram, as declared
effective by the Securities and Exchange Commission.
"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,
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authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other 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.
"Guarantors" means, collectively, Seagram and, prior to the Release
Date, ▇.▇. ▇▇▇▇▇▇▇ Corp., a Delaware corporation.
"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.
"Indebtedness" of any Person means, all obligations of such Person for
borrowed money, including (a) all obligations of such Person under conditional
sale or other title retention agreements relating to property acquired by such
Person, (b) all Guarantees by such Person of Indebtedness of others, (c) all
Capital Lease Obligations of such Person and (d) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of Seagram that is not guaranteed by any other Person or subject
to any other credit enhancement.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.07.
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"Interest Coverage Ratio" means, for any period, the ratio of (a)
EBITDA for Seagram and its consolidated Subsidiaries for such period to (b)
Interest Expense for such period.
"Interest Expense" means, for any period, the interest expense of
Seagram and its consolidated Subsidiaries for such period, determined on an
consolidated basis in accordance with GAAP.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period and (c) with respect to any Fixed
Rate Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Fixed Rate Borrowing with an
Interest Period of more than 90 days' duration (unless otherwise specified in
the applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or, subject to availability, nine or twelve months) thereafter, as
the Borrower may elect, and (b) with respect to any Fixed Rate Borrowing, the
period (which shall not be less than 7 days or more than 360 days) commencing on
the date of such Borrowing and ending on the date specified in the applicable
Competitive Bid Request; provided, that (i) if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of a Eurodollar Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period pertaining to a Eurodollar Borrowing that commences on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that
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ceases to be a party hereto pursuant to an Assignment and Acceptance.
"Leverage Ratio" means, with respect to the last day of any fiscal
quarter, the ratio of (a) Total Debt at such time to (b) EBITDA for Seagram and
its consolidated Subsidiaries for the most recent period of four consecutive
fiscal quarters of Seagram ended at such time.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the average rate (rounded
upward, if necessary, to the next 1/16th of one percent) at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Reference Banks 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 of a Person that is or would be
required to be reflected on a consolidated balance sheet of such Person, (a) any
mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or
security interest in, on or of such asset and (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset.
"Loans" means the loans (other than Money Market Loans) made by the
Lenders to the Borrower pursuant to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing interest
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations or condition (financial or otherwise), of Seagram and its
Subsidiaries, taken as a whole, (b) the ability of the Borrower or either
Guarantor to perform any
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of its obligations under this Agreement or (c) the rights of or benefits
available to the Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the Loans and
loans under the Existing Credit Agreements), or obligations in respect of one or
more Hedging Agreements, of any one or more of the Borrower, the Guarantors and
the Subsidiaries in an aggregate principal amount exceeding $50,000,000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of the Borrower, any Guarantor or any Subsidiary in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Borrower, such Guarantor or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time.
"Material Subsidiary" means, at any time, any Subsidiary (a) the
Consolidated Total Assets of which exceed 5% of the Consolidated Total Assets of
Seagram and its consolidated Subsidiaries as of the end of the most recent
fiscal quarter of Seagram ended at or prior to such time or (b) the operating
income of which exceeds 5% of the operating income of Seagram and its
consolidated Subsidiaries for the most recent period of four consecutive fiscal
quarters of Seagram at or prior to such time.
"Matsushita" has the meaning set forth in the definition of EBITDA.
"Maturity Date" means the Termination Date (subject to extension as
provided in Section 2.20(b)).
"Maturity Date Extension Notice" has the meaning set forth in Section
2.20(b).
"Money Market Borrower" has the meaning set forth in Section 2.05.
"Money Market Loan" means a loan made by a Lender to a Money Market
Borrower in accordance with Section 2.05.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Non-Extending Lender" has the meaning set forth in Section 2.19(b).
"Obligations" has the meaning set forth in Article IX.
"Other Taxes" means any and all present or future stamp, documentary,
excise, transfer, sales, property or similar taxes, charges or levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
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"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 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.04;
(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) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance 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 VII; and
(f) easements, zoning restrictions, servitudes, rights-of-way
and similar encumbrances on real or immoveable 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;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"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.
"Polygram" means Polygram N.V.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York
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City; each change in the Prime Rate shall be effective from and including the
date such change is publicly announced as being effective.
"Reference Banks" means Bank of America NT&SA, The Chase Manhattan Bank
and Citibank, N.A. or any other Person hereafter appointed as a Reference Bank
pursuant to Section 2.12(g).
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release Date" has the meaning set forth in Article IX.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time; provided
that, for purposes of declaring the Loans to be due and payable pursuant to
Article VII, and for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be included in their respective Revolving
Credit Exposures in determining the Required Lenders.
"Restricted Property Amount" has the meaning set forth in Section 6.04.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the outstanding principal amount of such Lender's Revolving Loans at such
time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Sale and Lease-Back Transaction" shall mean any arrangement, directly
or indirectly, with any Person whereby such Person shall sell or transfer any
property, real or personal, moveable or immoveable, used or useful in its
business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property which it intends to use for substantially the
same purpose or purposes as the property being sold or transferred.
"Seagram" means The Seagram Company Ltd., a Canadian corporation.
"Seagram Existing Credit Agreement" means the Credit Agreement dated as
December 21, 1994, among Seagram, Bank of Montreal, as administrative agent, and
the banks party thereto, as the same has been and may be amended and in effect
from time to time.
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"S&P" means Standard & Poor's Ratings Service.
"Special Term Loans" has the meaning set forth in Section 2.20(b).
"Statutory Reserve Rate" means, with respect to any Lender for any
Interest Period, the aggregate of the maximum reserve percentages applicable for
each day during such Interest Period (including any marginal, special, emergency
or supplemental reserves) expressed as a percentage established by the Board to
which such Lender 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. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held by the parent or one or more
subsidiaries of the parent.
"Subsidiary" means a subsidiary of the Borrower or a Guarantor, as the
context requires.
"Substitute Lender" has the meaning set forth in Section 2.19(b).
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Termination Date" means October 20, 1999 (subject to extension as
provided in Section 2.19).
"Total Debt" means, at any date, all Indebtedness of Seagram and its
consolidated Subsidiaries at such date which at such time would be required to
be reflected as a liability on a consolidated balance sheet of Seagram and its
consolidated Subsidiaries prepared in accordance with GAAP.
"Transactions" means (a) the execution, delivery and performance by the
Borrower and each Guarantor of this Agreement, the borrowing by the Borrower of
Loans and the use of the proceeds thereof and (b) the Acquisition.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate, the Alternate Base Rate
or, in the case of a Competitive Loan or Borrowing, a Fixed Rate.
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"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. 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.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate principal amount
that will not result in (a) the Revolving Credit Exposure plus the aggregate
principal amount of outstanding Money Market Loans of such Lender exceeding such
Lender's Commitment or (b) the sum of the total Revolving Credit Exposures plus
the aggregate principal amount of outstanding Competitive Loans exceeding the
total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.04. 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.
(b) Subject to Section 2.13, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith, and (ii) each Competitive Borrowing shall be comprised
entirely of Eurodollar Loans or Fixed Rate Loans as the Borrower may request in
accordance herewith.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $5,000,000 and not less than $25,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $10,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments. Each Competitive
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. 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 10 Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled (i) to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date or (ii) to request any Revolving Borrowing in an aggregate
amount that, after giving effect to actual repayments of Money Market Loans on
or prior to the date of such Borrowing, would
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result in any Lender being unable to fund its pro rata share of such Borrowing
based on the aggregate Commitments then in effect.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 12:00 noon,
New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon, New
York City time, one Business Day before the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving 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. Nothing contained herein shall be deemed to prohibit the
Borrower from requesting that multiple Borrowings be made on the same date.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
the total Commitments. To request Competitive Bids, the Borrower shall notify
the Administrative
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Agent of such request by telephone, in the case of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City time, four Business Days before the date of
the proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before the date of the
proposed Borrowing; provided that the Borrower may submit up to (but not more
than) three Competitive Bid Requests on the same day, but a Competitive Bid
Request shall not be made within five Business Days after the date of any
previous Competitive Bid Request, unless any and all such previous Competitive
Bid Requests shall have been withdrawn or all Competitive Bids received in
response thereto rejected. Each such telephonic Competitive Bid Request shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Competitive Bid Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Competitive Bid
Request shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the Borrower and the applicable
Lender as promptly as practicable. Each Competitive Bid shall specify (i) the
principal amount (which shall be an integral multiple of $1,000,000 and which
may equal the entire
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principal amount of the Competitive Borrowing requested by the Borrower) of the
Competitive Loan or Loans that the Lender is willing to make, (ii) the
Competitive Bid Rate or Rates at which the Lender is prepared to make such Loan
or Loans (expressed as a percentage rate per annum in the form of a decimal to
no more than four decimal places) and (iii) the Interest Period applicable to
each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower may
accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Competitive Borrowing,
not later than 10:30 a.m., New York City time, three Business Days before the
date of the proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the proposed date
of the Competitive Borrowing; provided that (i) the failure of the Borrower to
give such notice shall be deemed to be a rejection of each Competitive Bid,
(ii) the Borrower shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if the Borrower rejects a Competitive Bid made at a lower
Competitive Bid Rate for the same Interest Period, (iii) the aggregate amount of
the Competitive Bids accepted by the Borrower shall not exceed the aggregate
amount of the requested Competitive Borrowing specified in the related
Competitive Bid Request, (iv) to the extent necessary to comply with clause
(iii) above, the Borrower may accept Competitive Bids at the same Competitive
Bid Rate in part, which acceptance, in the case of multiple Competitive Bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the amount
of each such Competitive Bid, and (v) except pursuant to clause (iv) above, no
Competitive Bid shall be accepted for a Competitive Loan unless the principal
amount of such Competitive Loan is an integral multiple of $1,000,000; provided
further that in calculating the pro rata allocation of acceptances of portions
of multiple Competitive Bids at a particular Competitive Bid Rate pursuant to
clause (iv), the amounts shall be rounded to integral multiples of $1,000,000 in
a manner determined by the Borrower. A notice given by the Borrower pursuant to
this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so,
the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
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(f) If the Administrative Agent shall elect to submit a Competitive Bid
in its capacity as a Lender, it shall submit such Competitive Bid directly to
the Borrower at least one quarter of an hour earlier than the time by which the
other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Money Market Loans. (a) The Borrower and its Subsidiaries
(for purposes of this Section, each such Person is referred to herein as a
"Money Market Borrower") may at any time and from time to time request any one
or more of the Lenders to make offers to make Money Market Loans to such Money
Market Borrower on any Business Day during the Availability Period in the manner
set forth below. Each such Lender may, but shall have no obligation to, make
such offer, and the applicable Money Market Borrower may, but shall have no
obligation to, accept any such offer in the manner set forth in this Section.
(b) In the event that a Money Market Borrower desires to borrow a Money
Market Loan from a Lender, a Money Market Borrower shall request that such
Lender provide a quotation to such Money Market Borrower of the terms under
which such Lender would be willing to provide such Money Market Loan.
(c) In the event that a Money Market Borrower elects to accept a
Lender's offer for a Money Market Loan, such Money Market Borrower shall provide
telephonic notice to such Lender of its election no later than 30 minutes after
the time that such offer was received by such Money Market Borrower. The failure
of a Money Market Borrower to provide such notice of acceptance in a timely
manner shall be deemed to constitute a rejection of the offer of such Lender.
Any Money Market Loan to be made by a Lender pursuant to this Section shall be
made by the applicable Lender crediting an account specified by the applicable
Money Market Borrower with the amount of such advance in same day funds promptly
upon receipt of such Money Market Borrower's timely acceptance of the offer of
such Lender with respect to such Money Market Loan.
(d) The Borrower agrees to forward to the Lender with respect to a
Money Market Loan written evidence of such Money Market Loan by providing, on
the date upon which such Money Market Loan is made, documents, in form and
substance acceptable to both the Borrower and such Lender, executed and
delivered by a duly authorized office of the applicable Money Market Borrower,
confirming the amount so borrowed, the rate of interest applicable thereto and
the maturity thereof (with such Money Market Loan being due and payable on such
date of maturity); provided that the failure of the Borrower to provide such
documents shall not impair the obligation of the applicable Money Market
Borrower to repay any Money Market Loan borrowed by it. All borrowings pursuant
to this Section shall bear interest at the rate quoted to the applicable Money
Market Borrower by the relevant Lender in its quotation described in clause (b)
above, regardless of any change in the interest rate between the time of quoting
and the time of borrowing.
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(e) Upon the occurrence and during the continuance of an Event of
Default, each Lender that has Money Market Loans outstanding may declare its
Money Market Loans (with any applicable interest thereon) to be immediately due
and payable without the consent of, or notice to, any other Lender; provided
that if such event is an Event of Default specified in clause (i) or (j) of
Article VII with respect to the Borrower, such Lender's Money Market Loans (and
any applicable interest thereon) shall automatically become immediately due and
payable.
(f) Each Lender that shall make a Money Market Loan pursuant to this
Section shall promptly notify the Administrative Agent of the amount and term of
such Money Market Loan.
(g) The Borrower and any Lender may at any time and from time to time
enter into written agreements that provide for procedures for soliciting and
extending Money Market Loans that differ from those specified in paragraphs (b)
and (c) of this Section. As between the Borrower and such Lender such agreements
shall supersede the provisions of such paragraphs to the extent specified
therein.
(h) Notwithstanding anything to the contrary contained herein, Money
Market Loans shall not be deemed extensions of credit hereunder and the rights
and obligations of the Borrower in respect of Money Market Loans shall not be
deemed rights and obligations of the Borrower hereunder; provided that Money
Market Loans shall be considered to be extensions of credit under this Agreement
for purposes of determining availability of Revolving Loans pursuant to Section
2.01.
(i) In the event that the availability of any Lender's Commitment has
been reduced pursuant to Section 2.01 on account of Money Market Loans made by
it to a level that is insufficient to permit such Lender to lend its ratable
share of any Revolving Borrowing requested by the Borrower hereunder (based upon
the aggregate Commitments then in effect, regardless of the extent to which
utilized or available), the applicable Money Market Borrower shall repay such
Lender's Money Market Loans simultaneously with or prior to such Revolving
Borrowing (which repayment may be financed with the proceeds of such Revolving
Borrowing) by the amount necessary to cause its unused Commitment (before giving
effect to such Revolving Borrowing, but after giving effect to the proposed
application of the proceeds thereof to the repayment of Money Market Loans) to
be at least equal to its ratable share of such requested Revolving Borrowing.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 1:00 p.m., New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower maintained with the Administrative Agent in New York
City
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and designated by the Borrower in the applicable Borrowing Request or
Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans; provided that the Administrative
Agent shall not seek such compensation from the Borrower unless such Lender has
not actually made its share of the Borrowing available to the Administrative
Agent within 3 Business Days after the relevant borrowing date. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Competitive Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a
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form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar 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 such Borrowing shall be
converted to an ABR Borrowing.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Termination Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $5,000,000 and not less
than $25,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, (A) the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of
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outstanding Competitive Loans would exceed the total Commitments or (B) the
Revolving Credit Exposure plus the aggregate principal amount of outstanding
Money Market Loans of any Lender would exceed such Lender's Commitment.
(c) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments 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 Commitments 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. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
(or, if applicable, Special Term Loan) made by such Lender on the Maturity Date
applicable to such Lender and (ii) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Competitive Loan made by
such Lender on the last day of the Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
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(e) Any Lender may request that Loans 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 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) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section;
provided that the Borrower shall not have the right to prepay any Competitive
Loan without the prior consent of the Lender thereof.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 12:00 noon, New
York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 12:00 noon, New
York City time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.08, then such notice
of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment of a Revolving 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 2.13.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the date
hereof to but excluding the date on which such Commitment terminates; provided
that, if such Lender continues to have any Loans outstanding (whether Revolving
Loans or Special Term Loans) after its Commitment terminates, then such facility
fee shall continue to accrue on the daily outstanding principal amount of such
Loans from and including the date on which its Commitment terminates to but
excluding the date on which such Lender ceases to have any
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Loans outstanding. Accrued facility fees shall be payable in arrears on the last
day of March, June, September and December of each year and on the date on which
the Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that any facility fees (other than facility fees accruing
on the outstanding principal amount of Special Term Loans) accruing after the
date on which the Commitments terminate shall be payable on demand. All facility
fees shall be computed on the basis of a year of 365 days (or 366 days in a leap
year) and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(b) 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.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees, to the Lenders. Fees paid shall not be refundable
under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
(i) in the case of a Eurodollar Revolving Loan, at the LIBO Rate for the
Interest Period in effect for such Borrowing plus the Applicable Rate, or (ii)
in the case of a Eurodollar Competitive Loan, at the LIBO Rate for the Interest
Period in effect for such Borrowing plus (or minus, as applicable) the Margin
applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) 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 or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) 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, upon
termination of the Commitments; 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 an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall
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be payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurodollar Revolving Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(f) 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 or, in
accordance with paragraph (g) below, LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated hereby by 10:30 a.m., New
York City time, on the day such quotations are required to be furnished
hereunder. If any Reference Bank does not furnish a timely quotation, the
Administrative Agent shall determine the relevant LIBO Rate on the basis of the
quotations, if any, furnished by the remaining Reference Banks and, in the event
that all Reference Banks fail to so furnish a quotation, on the basis of such
other information as the Administrative Agent in its sole discretion shall deem
appropriate. If any Reference Bank assigns all its Commitment and Revolving
Loans to an unaffiliated institution, the Administrative Agent shall, in
consultation with the Borrower, appoint another Lender to act as a Reference
Bank hereunder. If the Borrower replaces or removes a Lender (which is also a
Reference Bank) pursuant to the terms of this Agreement, the Administrative
Agent shall, in consultation with the Borrower, appoint a replacement Reference
Bank.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the LIBO Rate for such Interest
Period; or
(b) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Eurodollar Competitive Loan, the Lender
that is required to make such Loan) that the LIBO Rate 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
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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
Revolving Borrowing to, or continuation of any Revolving Borrowing as, a
Eurodollar Borrowing shall be ineffective, (ii) if any Borrowing Request
requests a Eurodollar Revolving Borrowing, such Borrowing shall be made as an
ABR Borrowing and (iii) any request by the Borrower for a Eurodollar Competitive
Borrowing shall be ineffective; provided that, (a) in the case of such a notice
with respect to a Eurodollar Competitive Loan, the Borrower may (at its option)
elect to borrow such Loan from such Lender, based upon a LIBO Rate which is
mutually agreed upon by the Borrower and such Lender and (b) if the
circumstances giving rise to such notice do not affect all the Lenders, then
requests by the Borrower for Eurodollar Competitive Borrowings may be made to
Lenders that are not affected thereby.
SECTION 2.14. Additional Interest on Eurodollar Loans; Increased Costs.
(a) The Borrower shall pay to each Lender, so long as such Lender shall be
required under regulations of the Board to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Loan of such Lender
during such periods as such Loan is a Eurodollar Loan, from the date of such
Loan until the principal amount of such Eurodollar Loan is paid in full, at an
interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the LIBO Rate for the Interest Period for such Eurodollar Loan
from (ii) the rate obtained by dividing such LIBO Rate by a percentage equal to
100% minus the Statutory Reserve Rate applicable to such Lender for such
Interest Period, payable on each date on which interest is payable on such
Eurodollar Loan.
(b) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in additional interest pursuant to
paragraph (a) above); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans or Fixed
Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then (except to the extent that such cost or reduction
already is reflected in the LIBO Rate applicable to such Loan) the Borrower will
pay to such Lender such additional amount or amounts as will compensate such
Lender for such additional costs incurred or reduction suffered.
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(c) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(d) A certificate of a Lender setting forth the additional interest or
the amount or amounts necessary to compensate such Lender or its holding
company, as the case may be, as specified in paragraph (a), (b) or (c) of this
Section shall be delivered to the Borrower (accompanied by a reasonably detailed
description of the basis of such claim) and shall be conclusive absent manifest
error. In the case of paragraphs (b) and (c) above, the Borrower shall pay such
Lender the amount shown as due on any such certificate promptly following
receipt thereof.
(e) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any reserves, increased costs
or reductions incurred more than 270 days prior to the date that such Lender
notifies the Borrower of such event or the Change in Law giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the event or Change in Law
giving rise to such reserves, increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
(f) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan or Fixed Rate Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Loan other than a Competitive Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.10(b) and is revoked in accordance
therewith), (d) the failure to borrow any Competitive Loan after accepting the
Competitive Bid to make such Loan, or (e) the assignment of any
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Eurodollar Loan or Fixed Rate Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower or a Guarantor hereunder shall be made free and clear
of and without deduction for any Indemnified Taxes or Other Taxes; provided that
if the Borrower or a 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 or Lender (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower or such
Guarantor, as the case may be, shall make such deductions and (iii) the Borrower
or such Guarantor, as the case may be, shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower and each Guarantor, as applicable, shall
pay any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) The Borrower and each Guarantor, as applicable, shall indemnify the
Administrative Agent and each Lender, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender, as the case may be, on or with respect
to any payment by or on account of any obligation of the Borrower or a Guarantor
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such
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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 or such Guarantor, as the case
may be, by a Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower or a Guarantor to a Governmental Authority, the
Borrower or such 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) 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 or a Guarantor is located, or any treaty to which such jurisdiction is
a party, with respect to payments under this Agreement shall deliver to the
Borrower or such Guarantor, as applicable (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower or such Guarantor, as applicable, as will permit such
payments to be made without withholding or at a reduced rate; provided, that
such Foreign Lender has received written notice from the Borrower or such
Guarantor, as applicable, advising it of the availability of such exemption or
reduction and attaching all applicable documentation.
(f) If the Administrative Agent or a Lender determines, in its
reasonable discretion, that it has received a refund of any Indemnified Taxes or
Other Taxes as to which it has been indemnified by the Borrower or a Guarantor
or with respect to which the Borrower or a Guarantor has paid additional amounts
pursuant to this Section 2.16, it shall pay over such refund to the Borrower or
applicable Guarantor (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower or applicable 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 applicable Guarantor, upon the request of the Administrative Agent or such
Lender, agrees to repay the amount refunded to the Borrower or applicable
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 paragraph shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating
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to its taxes which it deems confidential) to the Borrower, any Guarantor or any
other Person.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or of amounts payable under
Section 2.14, 2.15 or 2.16, or otherwise) prior to 12:00 noon, New York City
time, on the date when due, in immediately available funds, without setoff or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, 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 the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(c) If any Lender shall, by exercising any right of set off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving 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 Revolving Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower or either Guarantor 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
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participation in any of its Loans to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). Notwithstanding the foregoing, no Lender which
receives a payment of principal or interest on its applicable Maturity Date
shall be obligated to share such payment with any Lender to whom an analogous
payment is not then due and payable. The Borrower and each Guarantor consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower or such Guarantor
rights of setoff and counterclaim with respect to such participation as fully as
if such Lender were a direct creditor of the Borrower or such Guarantor, as the
case may be, in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by
it pursuant to 2.06(b) or 2.17(d), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender
to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Termination or Replacement of
Lenders. (a) If any Lender requests compensation under Section 2.14, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.14 or 2.16, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay
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all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b) If any Lender requests compensation under Section 2.14 (other than
paragraph (a) thereof) or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Borrower may within 90 days of such event, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, (i)
if no Default shall have occurred and be continuing, prepay (without regard to
any provisions hereof that require prepayments to be made ratably among the
Lenders) in full all Loans of such Lender, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and terminate the Commitment
of such Lender in full or (ii) 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 (other than any outstanding Competitive Loans held by it) to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (A) the Borrower
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (B) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans (other than
Competitive 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 (C) 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 2.17, such assignment will result in a material reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
SECTION 2.19. Extension of Termination Date. (a) The Borrower may, by
notice to the Administrative Agent (which shall promptly deliver a copy to each
of the Lenders) given not more than 45 days prior to the Termination Date at any
time in effect (the "Existing Termination Date") request that the Lenders extend
the Termination Date for an additional period of 364 days from the Existing
Termination Date. Each Lender shall, by notice to the Borrower and the
Administrative Agent given not later than the 20th day prior to such Existing
Termination Date, advise the Borrower whether or not it agrees to such extension
on the terms set forth in such notice. Any Lender that has not so advised the
Administrative Agent by the 20th day prior to such Existing Termination Date (or
such later date as the Administrative Agent and the Borrower shall otherwise
agree) shall be deemed to have declined to agree to such extension.
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(b) The Borrower shall have the right at any time prior to the Existing
Termination Date, to (i) require any Lender which shall have advised or been
deemed to advise the Borrower that it will not agree to an extension of the
Existing Termination Date (each a "Non-Extending Lender") to transfer without
recourse prior to the termination of its Commitment (in accordance with and
subject to the restrictions contained in Section 10.04) all its interests,
rights and obligations under this Agreement in respect of Commitments and
Revolving Loans to one or more other banks or financial institutions (any such
bank or other financial institution being called a "Substitute Lender"), which
may include any Lender; provided that such Substitute Lender, if not already a
Lender hereunder, shall be subject to the approval of the Borrower and the
Administrative Agent (which approval shall not be unreasonably withheld) and
shall execute all such documentation as the Administrative Agent shall specify
to evidence its status as a Lender hereunder, (ii) if no Default shall have
occurred and be continuing, prepay (without regard to any provisions hereof that
require prepayments to be made ratably among the Lenders) in full all Loans of a
Non-Extending Lender, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and terminate the Commitment of such Lender in
full or (iii) if no Default shall have occurred and be continuing, extend the
Maturity Date applicable to such Non-Extending Lender pursuant to the provisions
of Section 2.20(c).
(c) The Existing Termination Date for those Lenders (including
Substitute Lenders) consenting (the "Consenting Lenders") to an extension in
accordance with paragraph (a) or (b) above, as applicable, shall be
automatically extended for an additional period of 364 days and the Commitment
of each Non-Extending Lender (after giving effect to each termination, transfer
and assignment pursuant to paragraph (b)(ii) above) shall either (i) terminate
in accordance with paragraph (b) above or (ii) remain in effect until the
Existing Termination Date in effect prior to giving effect to any extension
pursuant to this Section.
(d) The decision to agree or withhold agreement to any extension of the
Existing Termination Date hereunder shall be at the sole discretion of each
Lender.
(e) If the Commitments of one or more Non-Extending Lenders have been
terminated hereunder (either as a result of the Borrower's election to terminate
any such Commitments pursuant to paragraph (b)(ii) above or the occurrence of
the Termination Date with respect to any such Commitments), the Borrower may at
any time, by prior written notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Lenders), request that the aggregate
Commitments of the Consenting Lenders be increased by an amount not in excess of
the aggregate amount of Commitments of Non-Extending Lenders terminated as
described above. Such notice shall set forth the amount of the requested
increase in the aggregate Commitments and the date on which such increase is
requested to become effective (which shall be not less than 25 days after the
date of such notice), and shall offer each
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Lender the opportunity to increase its Commitment by its Applicable Percentage
of the proposed increased amount. Each Lender shall, by notice to the Borrower
and the Administrative Agent given not more than 10 days after the date of the
Borrower's notice, either agree to increase its Commitment by all or a portion
of the offered amount or decline to increase its Commitment (and any Lender that
does not deliver such a notice within such period of 10 days shall be deemed to
have declined to increase its Commitment). In the event that, on the 10th day
after the Borrower shall have delivered a notice pursuant to the first sentence
of this paragraph, the Lenders shall have agreed pursuant to the preceding
sentence to increase their Commitments by an aggregate amount less than the
increase in the aggregate Commitments requested by the Borrower, the Borrower
may arrange for one or more Substitute Lenders, which may include any Lender, to
extend Commitments or increase their existing Commitments, as the case may be,
in an aggregate amount equal to the unsubscribed amount, provided that each
Substitute Lender, if not already a Lender hereunder, shall be subject to the
approval of the Borrower and the Administrative Agent (which approval shall not
be unreasonably withheld) and each Substitute Bank shall execute all such
documentation as the Administrative Agent shall specify to evidence its
Commitment and its status as a Lender hereunder. Increases and new Commitments
created pursuant to this paragraph shall become effective on the date specified
in the notice delivered by the Borrower pursuant to the first sentence of this
paragraph. Notwithstanding the foregoing, no increase in the aggregate
Commitments (or in the Commitment of any Lender) shall become effective under
this paragraph unless, (a) on the date of such increase, no Default shall have
occurred and be continuing, and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by an appropriate
officer of the Borrower, (b) on the date of such increase, no Revolving Loans
shall be outstanding and (c) the Administrative Agent shall have received (with
sufficient copies for each of the Lenders) such opinions of counsel, instruments
and other documents as it shall reasonably have requested to evidence the power
and authority of the Borrower to borrow hereunder after giving effect to such
increase. Notwithstanding the foregoing, in no event shall the Commitments be
increased to an amount in excess of $6,500,000,000 less the amount of Commitment
reductions effected pursuant to Section 2.08(b).
SECTION 2.20. Extension of Maturity Date. (a) If the Existing
Termination Date with respect to the Commitment of any Lender shall be extended
pursuant to Section 2.19, then the Maturity Date at any time in effect (the
"Existing Maturity Date") with respect to the Revolving Loans of such Lender
shall be automatically extended to the date 364 days after such Existing
Maturity Date.
(b) If the Existing Termination Date shall not be extended pursuant to
Section 2.19, then (unless a Default has occurred and is continuing) the
Borrower may elect to extend the Existing Maturity Date with respect to
Revolving Loans outstanding on the Existing Termination Date to the date two
years after such
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Existing Maturity Date by delivering an extension notice (a "Maturity Date
Extension Notice") to the Administrative Agent (which shall promptly deliver a
copy of such Maturity Date Extension Notice to each Lender) not later than 10
days prior to the Existing Termination Date. If a Maturity Date Extension Notice
shall be delivered in accordance with this paragraph, then (i) the Maturity Date
with respect to Revolving Loans outstanding on the Termination Date shall be
automatically extended to the date two years after the Termination Date, (ii)
the principal amount of all Revolving Loans outstanding on the Termination Date
shall remain outstanding as term loans (the "Special Term Loans") which mature
on the date two years after the Termination Date, (iii) all Competitive Loans of
all Lenders (other than the Competitive Loans of any Lenders who otherwise
agree) shall be paid in full on or prior to the Termination Date and (iv) all
Commitments shall terminate on the Termination Date.
(c) If an Existing Termination Date shall be extended pursuant to
Section 2.19, but there shall remain outstanding any Revolving Loans of any
Non-Extending Lenders (after giving effect to any terminations, transfers or
assignments pursuant to Section 2.19(b)) then (unless a Default shall have
occurred and be continuing) the Borrower may elect to extend the Existing
Maturity Date applicable to the Revolving Loans of such Non-Extending Lender
outstanding on the Existing Termination Date to the date two years after the
Existing Maturity Date for such Revolving Loans by delivering a Maturity Date
Extension Notice to the Administrative Agent (which shall promptly deliver a
copy of such Maturity Date Extension Notice to such Non-Extending Lenders) not
later than 10 days prior to the Existing Termination Date applicable to such
Non-Extending Lenders' Revolving Loans. If a Maturity Date Extension Notice
shall be delivered in accordance with this paragraph, then (i) the Existing
Termination Date with respect to the Commitments of the Consenting Lenders shall
be extended in accordance with Section 2.19, (ii) the Commitments of the
Non-Extending Lenders (after giving effect to any termination, transfer or
assignment pursuant to Section 2.19(b)) shall terminate, (iii) the Maturity Date
applicable to the outstanding Revolving Loans of the Non-Extending Lenders shall
be extended to the date two years after the Existing Termination Date, (iv) the
principal amount of all Revolving Loans of the Non-Extending Lenders outstanding
on the Existing Termination Date (after giving effect to any termination,
transfer or assignment pursuant to Section 2.19(b)) shall remain outstanding as
Special Term Loans which mature on the date two years after the Existing
Termination Date and (v) all Competitive Loans of the Non-Extending Lenders
shall be paid in full on or prior to the Existing Termination Date; provided
that the Revolving Loans of Lenders other than the Non-Extending Lenders shall
not be deemed Special Term Loans.
(d) If any Revolving Loans shall remain outstanding as Special Term
Loans pursuant to paragraph (b) or (c) above, such Special Term Loans shall
continue to constitute Loans for all purposes of this Agreement (including
Section 2.11).
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ARTICLE III
Representations and Warranties
The Borrower and each of the Guarantors represents and warrants to the
Lenders that:
SECTION 3.01. Organization; Powers. The Borrower, each Guarantor and
each Material Subsidiary is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions are
within the Borrower's and each Guarantor's corporate powers and have been duly
authorized by all necessary corporate and, if required, stockholder action. This
Agreement has been duly executed and delivered by the Borrower and each
Guarantor and constitutes a legal, valid and binding obligation of the Borrower
and each Guarantor, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally, subject to general principles of equity
regardless of whether considered in a proceeding in equity or at law and subject
to any applicable obligation of good faith contained in Section 1-203 of the
Uniform Commercial Code of the State of New York.
SECTION 3.03. 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 such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Borrower, either Guarantor or any Material Subsidiary or any
order of any Governmental Authority, and (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon the
Borrower, either Guarantor or any Material Subsidiary or their assets, or give
rise to a right thereunder to require any payment to be made by the Borrower,
either Guarantor or any Material Subsidiary, except where such violation or
default, individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
Borrower has heretofore furnished to the Lenders the consolidated balance sheet
and consolidated statements of income and retained earnings and of cash flows
for Seagram as of and for the fiscal year ended June 30, 1998, reported on by
Price Waterhouse, independent public accountants. Such financial statements
present fairly, in all material respects, the financial
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position and results of operations and cash flows of Seagram and its
consolidated Subsidiaries as of such date and for such periods in accordance
with GAAP.
(b) Since June 30, 1998, there has been no material adverse change in
the business, operations or condition (financial or otherwise), of Seagram and
its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) The Borrower, each Guarantor and each
Material Subsidiary has good title to, or valid leasehold interests in, all its
real and personal property, except where any such failure, individually or in
the aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
(b) The Borrower, each Guarantor and each Material Subsidiary owns, or
is licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to the business of Seagram and its Subsidiaries,
taken as a whole, and the use thereof by the Borrower, each Guarantor and each
Material Subsidiary does not infringe upon the rights of any other Person,
except for any such infringements that, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation. There are no actions, suits or proceedings by
or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower or either Guarantor, threatened against or affecting
the Borrower, either Guarantor or any Material Subsidiary (a) as to which there
is a reasonable possibility of an adverse determination and that, if adversely
determined, would reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than those matters disclosed in
filings with the Securities and Exchange Commission) or (b) that involve the
validity or enforceability of this Agreement or the Transactions.
SECTION 3.07. Compliance with Laws. The Borrower, each Guarantor and
each Material Subsidiary is in compliance with all laws, regulations and orders
of any Governmental Authority applicable to it or its property and, except where
the failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.08. Investment and Holding Company Status. Neither the
Borrower nor either Guarantor 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 3.09. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, would reasonably be expected to
result in a Material Adverse Effect.
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SECTION 3.10. Disclosure. Neither the Form S-4 on the date it becomes
effective, the Borrower's and the Guarantors' filings with the Securities and
Exchange Commission on the date filed nor any of the other reports, financial
statements, certificates or other information delivered hereunder (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 and the Guarantors represent only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 3.11. Regulation U and X. The making of the Loans and the use
of the proceeds thereof will not violate Regulation U or X of the Board.
SECTION 3.12. Pari Passu Ranking. The obligations of the Borrower and
each Guarantor under this Agreement rank at least pari passu in priority of
payment with all other unsecured Indebtedness of the Borrower and each
Guarantor, respectively.
SECTION 3.13. Year 2000. The computer and management information
systems of Seagram and its Subsidiaries will be programmed and/or reprogrammed
prior to December 31, 1999, such that the occurrence of January 1, 2000, will
not cause malfunctions of such computer and management information systems which
would, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have
received 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 of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Borrower and the Guarantors, substantially in the form
of Exhibit B-1, (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special Indiana counsel for
the Borrower, substantially in the form of B-2 and (iii) ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Canadian counsel for Seagram, substantially in the
form of B-3. The Borrower and the Guarantors hereby request such
counsel to deliver such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Borrower, each Guarantor, the authorization of the
Transactions and any other legal matters relating to the Borrower, the
Guarantors, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Acquisition shall have been consummated in accordance
with applicable law and in a manner and with consequences not
materially different from the description thereof in the Form S-4.
(e) The Lenders shall have received a pro forma balance sheet
of Seagram as of June 30, 1998, and a pro forma consolidated income
statement of Seagram for the period from July 1, 1997, through June 30,
1998, after giving effect to the Transactions and the consummation of
the other transactions contemplated hereby as if they had occurred on
the date of such balance sheet and at the beginning of the period
covered by such income statement, respectively, and such balance sheet
and income statement shall not be materially inconsistent with the
information and projections previously provided to the Lenders.
(f) The Existing Credit Agreements shall have been amended and
restated in order to conform, to the reasonable satisfaction of the
Administrative Agent, the representations, warranties, covenants,
events of default, financial terms and certain other terms of the
Existing Credit Agreements to those of this Agreement.
(g) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
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 hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) at or prior to 3:00 p.m., New York City time, on
March 31, 1999 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
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SECTION 4.02. Each Credit Event. The obligation of
each Lender to make a Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower and the
Guarantors set forth in this Agreement shall be true and correct in all
material respects on and as of the date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower and each Guarantor on the date thereof as to the matters specified
in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full, the Borrower and each Guarantor covenants and agrees with the Lenders
that:
SECTION 5.01. Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) within 120 days after the end of each fiscal year of
Seagram and the Borrower either (i) the Reports of Seagram and the
Borrower to the Securities and Exchange Commission on Form 10-K for
such year, or (ii) if such Report of Seagram or the Borrower shall not
be prepared for such year, such Person's audited consolidated balance
sheet and related statements of operations and retained earnings and of
cash flows as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on by PricewaterhouseCoopers 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 such
Person and it s consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of Seagram and the Borrower either
(i) the Reports of Seagram and the Borrower to the Securities and
Exchange Commission on Form 10-Q for such quarter, or (ii) if such
Report of Seagram or the
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Borrower shall not be prepared for such quarter, such Person's
consolidated balance sheet and related statements of operations and
retained earnings and of cash flows as of the end of and for such
fiscal quarter 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 (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects
the financial condition and results of operations of such Person 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) above, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and,
if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with
Sections 6.05 and 6.06 and (iii) stating whether any change in GAAP or
in the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 which has had a
material effect on the financial reporting of Seagram and its
Subsidiaries and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such
certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, 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 reports and proxy statements filed by the Borrower, any
Guarantor or any Material Subsidiary 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 Seagram to its shareholders generally, as
the case may be; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower, any Guarantor or any of their Subsidiaries,
or compliance with the terms of this Agreement, as the Administrative
Agent or any Lender (acting through the Administrative Agent) may
reasonably request.
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SECTION 5.02. Notices of Material Events. Upon obtaining knowledge
thereof, 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 Affiliate thereof that would
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, would reasonably be
expected to result in a Material Adverse Effect; and
(d) any other development that results in, or would 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 5.03. Existence; Conduct of Business. The Borrower and each
Guarantor will, and will cause each Material Subsidiary 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
material to the conduct of its business; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.02.
SECTION 5.04. Payment of Taxes. The Borrower and each Guarantor will,
and will cause each of its Subsidiaries to, pay its Tax liabilities, that, if
not paid, would reasonably be expected to result in 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, such Guarantor 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 would not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Insurance. The Borrower and each Guarantor
will, and will cause each Material Subsidiary to maintain, with financially
sound and reputable insurance companies, insurance against loss or damage to its
property in accordance with good business practice, or at the option of Borrower
or a Guarantor, in lieu of all or any part of such insurance, maintain, or cause
each Material Subsidiary to
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maintain, by means of adequate insurance reserves currently set aside or
maintained out of earnings or surplus, a system of self-insurance with respect
to such properties and against such risks.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower and
each Guarantor 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 and each Guarantor will, and will cause each of its Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender
(acting through the Administrative Agent), upon reasonable prior notice, to
visit and inspect its properties during normal business hours, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and, during the continuance of an Event of
Default, independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower and each Guarantor
will, and will cause each Material Subsidiary 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,
would not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used
only for general corporate purposes of Seagram and its Subsidiaries, including
for the financing of the Acquisition and/or the back up of commercial paper
(including commercial paper issued to provide initial financing for the
Acquisition).
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full,
the Borrower and each Guarantor covenants and agrees with the Lenders that:
SECTION 6.01. Liens and Sale and Lease-Back Transactions. The Borrower
and each Guarantor will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues or rights in
respect of any thereof, or enter into any Sale and Lease-Back Transaction
involving real property, plant and equipment, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower, any
Guarantor or any Subsidiary existing on the date hereof;
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provided that (i) such Lien shall not apply to any other property or
asset of the Borrower, any Guarantor or any Subsidiary and (ii) such
Lien shall secure only those obligations which it secures on the date
hereof and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower, any Guarantor or any Subsidiary or
existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes
a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower, any Guarantor or
any Subsidiary and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such
Person becomes a Subsidiary, as the case may be and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof (other than to capitalize accrued interest and
fees thereon and any refinancing costs);
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower, any Guarantor or any Subsidiary (including,
without limitation, capital leases); provided that (i) such security
interests secure only Indebtedness incurred to acquire, construct or
improve such assets and the Indebtedness secured thereby is incurred
prior to or within 180 days after such acquisition or the completion of
such construction or improvement and (ii) such security interests shall
not apply to any other property or assets of the Borrower, any
Guarantor or any Subsidiary;
(e) Sale and Lease-Back Transactions involving real property,
plant and equipment to the extent that the aggregate Attributable Debt
on account of such Sale and Lease-Back Transactions, when added to (A)
the aggregate principal amount of Indebtedness secured at such time by
Liens permitted only pursuant to paragraph (f) of this Section and (B)
the Restricted Property Amount at such time under Section 6.04, does
not exceed 15% of the Consolidated Total Assets of Seagram at such
time; and
(f) other Liens to secure Indebtedness of the Borrower, the
Guarantors and the Subsidiaries; provided that the aggregate principal
amount of Indebtedness so secured, when added to (A) the aggregate
Attributable Debt of Sale and Lease-Back Transactions permitted only by
paragraph (e) of this Section and (B) the Restricted Property Amount at
such time under Section 6.04, does not exceed 15% of the Consolidated
Total Assets of Seagram at such time.
SECTION 6.02. Fundamental Changes. The Borrower and each Guarantor will
not merge into or consolidate with any other
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Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing, (a) any
Person may merge into the Borrower or a Guarantor in a transaction in which the
Borrower or such Guarantor, as the case may be, is the surviving corporation or
(b) the Borrower or a Guarantor, as the case may be, may merge into Seagram or a
wholly-owned Subsidiary of Seagram in a transaction in which Seagram or such
wholly-owned Subsidiary is the surviving corporation; provided that Seagram or
such wholly-owned Subsidiary shall expressly assume all the duties and
obligations of the Borrower or such Guarantor, as the case may be, to be
performed or observed under this Agreement. Seagram will not, and will not
permit any Subsidiary to, sell, transfer, lease or otherwise dispose of (in one
transaction or a series of transactions) all or substantially all of the assets
of Seagram and its Subsidiaries, taken as a whole (in each case, whether now
owned or hereafter acquired).
SECTION 6.03. Transactions with Affiliates. The Borrower and each
Guarantor will not, and will not permit any of their Material 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 Affiliate of Seagram, except in the ordinary course
of business, at prices and on terms and conditions not less favorable to the
Borrower, such Guarantor or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties. For purposes of this Section
6.03, a Subsidiary shall be deemed not to be an Affiliate of Seagram.
SECTION 6.04. Restrictive Agreements. The Borrower and each Guarantor
will not, and will not permit any of its Material Subsidiaries to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Borrower, any Guarantor or any Subsidiary to create, incur or
permit to exist any Lien upon any of its property or assets, or (b) the ability
of any Subsidiary to pay dividends or other distributions with respect to any
shares of its capital stock or to make or repay loans or advances to the
Borrower, any Guarantor or any other Subsidiary or to Guarantee Indebtedness of
the Borrower, any Guarantor or any other Subsidiary, except to the extent that
such prohibition, restriction or condition, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse Effect;
provided that (i) the foregoing shall not apply to prohibitions, restrictions
and conditions imposed by applicable law or regulation or by this Agreement or
an Existing Credit Agreement, (ii) the foregoing shall not apply to
prohibitions, restrictions and conditions existing on the date hereof (but shall
apply to any amendment or modification expanding the scope of any such
prohibition, restriction or condition), (iii) the foregoing shall not apply to
customary prohibitions, restrictions and conditions contained in agreements
relating to the sale of property, assets or a Subsidiary pending such sale,
provided such prohibitions,
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restrictions and conditions apply only to the property, assets or Subsidiary, as
the case may be, that is to be sold and such sale is not prohibited hereunder,
(iv) clause (a) of the foregoing shall not apply to prohibitions, restrictions
and conditions arising in connection with contractual arrangements relating to
the acquisition, financing, license, syndication, sale, transfer or other
disposition of intellectual property (including, without limitation, films,
television programming and music); provided that such prohibitions, restrictions
and conditions apply only to the specific assets which are subject to such
contractual arrangements, (v) clause (a) of the foregoing shall not apply to
prohibitions, restrictions and conditions arising pursuant to contractual
arrangements (other than arrangements with respect to Indebtedness) relating to
specific items of property entered into in the ordinary course of business;
provided that (x) such prohibitions, restrictions and conditions apply only to
such specific items of property which are subject to such contractual
arrangements and (y) if the aggregate amount of property subject to such
prohibitions, restrictions or conditions exceeds 5% of the Consolidated Total
Assets of Seagram at any time, the amount of such excess (the "Restricted
Property Amount"), when added to (A) the aggregate principal amount of
Indebtedness secured by Liens permitted only by paragraph (f) of Section 6.01
and (B) the aggregate amount of Attributable Debt of Sale and Lease-Back
Transactions permitted only by paragraph (e) of Section 6.01 shall not exceed
15% of the Consolidated Total Assets of Seagram at such time, (vi) clause (a) of
the foregoing shall not apply to prohibitions, restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such prohibitions, restrictions or conditions apply only to the
property or assets securing such Indebtedness and (vii) clause (a) of the
foregoing shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof.
SECTION 6.05. Leverage Ratio. The Leverage Ratio will not exceed (a)
5.25 to 1.00 for the period from March 31, 1999 through September 30, 1999, (b)
4.50 to 1.00 for the period from October 1, 1999 through September 30, 2000 and
(c) 3.50 to 1.00 thereafter.
SECTION 6.06. Interest Coverage Ratio. The Interest Coverage Ratio for
any period of four consecutive fiscal quarters of Seagram ending on any date
falling in the periods set forth below will not be less than (a) 2.50 to 1.00
for the period from and including March 31, 1999 through March 31, 2000 and (b)
3.00 to 1.00 thereafter.
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ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue
unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower, any Guarantor or any Subsidiary in this
Agreement or any amendment or modification hereof or waiver hereunder,
or in any report, certificate, financial statement or other document
furnished pursuant to this Agreement or any amendment or modification
hereof or waiver hereunder, shall prove to have been incorrect in any
material respect when made or deemed made;
(d) the Borrower or any Guarantor shall fail to observe or
perform any covenant, condition or agreement contained in Section 5.02
(a) or 5.03 (with respect to the Borrower's existence) or in Article
VI;
(e) the Borrower or any Guarantor 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), and such failure shall continue unremedied for a period of 30
days after notice thereof from the Administrative Agent to the Borrower
(which notice will be given at the request of any Lender);
(f) the Borrower, any Guarantor or any Subsidiary shall fail
to make any payment (after giving effect to any applicable grace
period) in respect of the principal or interest of Indebtedness under
either Existing Credit Agreement, 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 the
Borrower, any Guarantor or any Subsidiary shall fail to repay the
principal of any Material Indebtedness upon its final 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;
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(h) any event or condition occurs that enables or permits
(with or without the giving of notice, the lapse of time or both) the
holder or holders of Indebtedness under either Existing Credit
Agreement or any trustee or agent on its or their behalf to cause such
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
(i) 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, any
Guarantor or any Material Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower, any Guarantor or any
Material Subsidiary or for a substantial part of its assets, and, in
any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(j) the Borrower, any Guarantor or any Material Subsidiary
shall (i) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower, any
Guarantor or any Material Subsidiary or for a substantial part of its
assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(k) the Borrower, any Guarantor or any Material Subsidiary
shall become unable, admit in writing its inability or fail generally
to pay its debts as they become due;
(l) one or more judgments for the payment of money in an
aggregate amount in excess of $50,000,000 shall be rendered against the
Borrower, any Guarantor, any Material Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively
stayed, or any judgment creditor shall attach or levy upon any assets
of the Borrower, any Guarantor or any Material Subsidiary to enforce
any such judgment;
(m) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all
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other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower, the Guarantors and their
Subsidiaries in an aggregate amount exceeding $50,000,000 for all
periods; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
or a Guarantor described in clause (i) or (j) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to the Borrower or a
Guarantor described in clause (i) or (j) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower, any Guarantor or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative
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Agent shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing, (b) the Administrative
Agent shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.02), and (c) except as expressly set forth herein, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower, either Guarantor or any of
their Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
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preceding paragraphs shall apply to any such sub-agent reasonably selected by
the Administrative Agent and to the Related Parties of the Administrative Agent
and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right 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 gives
notice of its resignation, then the retiring Administrative Agent may, on behalf
of the Lenders, appoint a successor Administrative Agent which shall be a bank
with an office in New York, New York, or an Affiliate of any such bank. The
appointment of any such successor shall be subject to the consent of the
Borrower (not to be unreasonably withheld). Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Guarantee
In order to induce the Lenders to extend credit hereunder, each
Guarantor hereby irrevocably and unconditionally guarantees, as a primary
obligor and not merely as a surety, the obligations of the Borrower from time to
time under this Agreement
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with respect to the payment of (a) the principal of and interest on the Loans
when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise and (b) all other monetary obligations of the
Borrower hereunder (the "Obligations"). For the avoidance of doubt, the
obligations of the Borrower with respect to Money Market Loans shall not
constitute Obligations hereunder. Each Guarantor further agrees that the due and
punctual payment of the Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and that it will remain bound
upon its Guarantee hereunder notwithstanding any such extension or renewal of
any Obligation. The obligations of the Guarantors hereunder shall be joint and
several.
Each Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of its obligations and notice of protest for nonpayment. The
obligations of each Guarantor hereunder shall not be affected by (a) the failure
of any Lender or the Administrative Agent to assert any claim or demand or to
enforce any right or remedy against the Borrower or the other Guarantor under
the provisions of this Agreement or otherwise; (b) any rescission, waiver,
amendment or modification of any of the terms or provisions of this Agreement or
any other agreement; or (c) the failure of any Lender to exercise any right or
remedy against the Borrower or the other Guarantor.
Each Guarantor further agrees that its agreement hereunder constitutes
a promise of payment when due (whether or not any bankruptcy or similar
proceeding shall have stayed the accrual or collection of any of the Obligations
or operated as a discharge thereof) and not merely of collection, and waives any
right to require that any resort be had by any Lender to any balance of any
deposit account or credit on the books of any Lender in favor of the Borrower or
any other Person.
The obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, and shall not
be subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever, by reason of the invalidity, illegality or unenforceability of the
Obligations, any impossibility in the performance of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
each Guarantor hereunder shall not be discharged or impaired or otherwise
affected by the failure of the Administrative Agent or any Lender to assert any
claim or demand or to enforce any remedy under this Agreement or any other
agreement, by any waiver or modification in respect of any thereof, by any
default, failure or delay, wilful or otherwise, in the performance of the
Obligations, or by any other act or omission which may or might in any manner or
to any extent vary the risk of either Guarantor or otherwise operate as a
discharge of either Guarantor or the Borrower as a matter of law or equity.
Each Guarantor further agrees that its obligations hereunder shall
continue to be effective or be reinstated, as the
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case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by the Administrative Agent or any
Lender upon the bankruptcy or reorganization of the Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which the Administrative Agent or any Lender may have at law or in equity
against either Guarantor by virtue hereof, upon the failure of the Borrower to
pay any Obligation when and as the same shall become due, whether at maturity,
by acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will, upon receipt of written demand by the Administrative
Agent, forthwith pay, or cause to be paid, in cash the amount of such unpaid
Obligation.
Upon payment by either Guarantor of any Obligation, each Lender shall,
in a reasonable manner, assign to such Guarantor the amount of such Obligation
owed to it and so paid by such Guarantor, such assignment to be pro tanto to the
extent to which the Obligation in question was discharged by such Guarantor, or
make such disposition thereof as such Guarantor shall direct (all without
recourse to any Lender and without any representation or warranty by any
Lender).
Upon payment by either Guarantor of any sums as provided above, all
rights of such Guarantor against the Borrower arising as a result thereof by way
of right of subrogation or otherwise shall in all respects be subordinated and
junior in right of payment to the prior indefeasible payment in full of all the
Obligations owed by the Borrower to the Lenders.
Notwithstanding the foregoing, ▇.▇. ▇▇▇▇▇▇▇ Corp.'s Guarantee of the
Obligations shall remain in effect only for so long as ▇.▇. ▇▇▇▇▇▇▇ Corp.
continues to Guarantee the obligations of the Borrower under the Borrower
Existing Credit Agreement. In the event that ▇.▇. ▇▇▇▇▇▇▇ Corp. shall no longer
Guarantee the Borrower's obligations under the Borrower Existing Credit
Agreement, as result of termination of the commitments thereunder, release of
such Guarantee by the lenders thereunder or otherwise, ▇.▇. ▇▇▇▇▇▇▇ Corp.,
without further action by any party hereto, shall be released from its Guarantee
hereunder (the date of its release from its Guarantee hereunder, the "Release
Date"); provided, that ▇.▇. ▇▇▇▇▇▇▇ Corp. shall continue to be obligated to make
payments with respect to any of its obligations in respect of amounts which were
due and payable pursuant to its Guarantee hereunder accrued as of the Release
Date.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. 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
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overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Vice President and Treasurer (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to Seagram, to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, Attention of Vice President and Treasurer
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to the Borrower;
(c) if to ▇.▇. ▇▇▇▇▇▇▇ Corp., to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Vice President and Treasurer
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(d) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (212)
270-5120;
(e) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower or a
Guarantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan
shall not be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement
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or agreements in writing entered into by the Borrower, each Guarantor and the
Required Lenders or by the Borrower, each Guarantor and the Administrative
Agent, with the consent of the Required Lenders; provided that no such agreement
shall (i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender directly affected thereby, (iii) postpone the scheduled
date of payment of the principal amount of any Loan, or any interest thereon, or
any fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without
the written consent of each Lender directly affected thereby, (iv) change
Section 2.17(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender , (v)
release either Guarantor from, or limit or condition, its obligations under
Article IX, without the written consent of each Lender (except that ▇.▇. ▇▇▇▇▇▇▇
Corp. shall be released from its obligations under the circumstances set forth
in Article IX without the consent of the Lenders), or (vi) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent hereunder without the prior written
consent of the Administrative Agent.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall promptly 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 or any amendments, modifications or waivers
of the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated) and (ii) all reasonable out-of-pocket expenses
incurred by the Administrative Agent or any Lender, including the reasonable
fees, charges and disbursements of any counsel for the Administrative Agent or
any Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in
connection with the Loans made hereunder, including all such out-of-pocket
expenses incurred during any workout or restructuring in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any
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Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, or (iii) 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
result from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to
be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, not
later than 10 days after written demand therefor, 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 in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
SECTION 10.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that
neither the Borrower nor any Guarantor 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 the Borrower or a Guarantor
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans (other than Competitive Loans) at the time owing to
it); provided that
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(i) except in the case of an assignment to a Lender or an Affiliate of a Lender
which is primarily engaged in the business of originating or holding performing
commercial loans or commitments in respect thereof, each of the Borrower and the
Administrative Agent must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld), (ii) except in the case of
an assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $25,000,000 (and
after giving effect thereto, the assigning Lender must continue to have a
Commitment of at least $25,000,000) unless each of the Borrower and the
Administrative Agent otherwise consent, (iii) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement, except that this clause (iii) shall
not apply to rights in respect of outstanding Competitive Loans, (iv) 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
$3,500, (except that no such fee shall be payable with respect to any
assignments made pursuant to Section 2.18 or 2.19), and (v) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; and provided further that any consent of the
Borrower otherwise required under this paragraph shall not be required if an
Event of Default under clause (i) or (j) of Article VII has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to paragraph
(d) of this Section, 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, 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). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York 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 of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the
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Register shall be conclusive, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) 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), any processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
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) Any Lender may, without the consent of the Borrower or, the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and
2.16 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section, provided that such
participant agrees to be subject to Section 2.18(b) as though it were a Lender.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.17(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.14 or 2.16 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
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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) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC") of such Granting Lender, identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to
make any Loan, (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof and (iii) no SPC or
Granting Lender shall be entitled to receive any greater amount pursuant to
Section 2.14 or 2.16 than the Granting Lender would have been entitled to
receive had the Granting Lender not otherwise granted such SPC the option to
provide any Loan to the Borrower. The making of any Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender (and, if such Loan is a
Competitive Loan, shall be deemed to utilize the Commitments of all the Lenders)
to the same extent, and as if, such Loan were made by the Granting Lender. Each
party hereto hereby agrees that no SPC shall be liable, for so long as, and to
the extent, the related Granting Lender makes such payment. Each party hereto
hereby acknowledges and agrees that no SPC shall have any voting rights
hereunder and that the voting rights attributable to any extensions of credit
made by an SPC shall be exercised only by the relevant Granting Lender. Each
Granting Lender shall serve as the administrative agent and attorney in fact for
its SPC and shall on behalf of its SPC: (i) receive any and all payments made
for the benefit of such SPC and (ii) give and receive all communications and
notices and take all actions hereunder to the extent, if any, such SPC shall
have any rights hereunder. To the extent a SPC shall have the right to receive
or give any such notice or take any such action in writing, it shall be signed
by its Granting Lender as administrative agent and attorney-in-fact for such SPC
and need not be signed by such SPC on its own behalf. The Borrower, the
Guarantors, the Administrative Agent and the Lenders may rely thereon without
any requirement that the SPC sign or acknowledge the same. In
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addition, notwithstanding anything to the contrary contained in this Section
10.04, any SPC may (i) with notice to, but without the prior written consent of,
the Borrower or the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to its Granting
Lender or to any financial institutions providing liquidity and/or credit
facilities to or for the account of such SPC to fund the Loans made by such SPC
or to support the securities (if any) issued by such SPC to fund such Loans and
(ii) disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.
SECTION 10.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower and each Guarantor herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 10.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Commitments or the termination of
this Agreement 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 among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
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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 and the Loans are due and payable, each Lender and
each of its Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender. 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; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party hereto may
otherwise have to bring any action or proceeding relating to this Agreement
against any other party hereto or its properties in the courts of any
jurisdiction.
(c) The Borrower and each Guarantor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
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(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 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 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. Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) to the extent that such confidential
Information is directly relevant to the subject matter thereof, in connection
with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Borrower and each Guarantor or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower or a Guarantor.
For the purposes of this Section, "Information" means all information received
from or on behalf of Seagram or any of its Subsidiaries relating to Seagram, any
of its Subsidiaries or any of their respective businesses or assets, other than
any such information that is available to the Administrative Agent or any Lender
on a nonconfidential basis
71
66
prior to disclosure by Seagram or any of its Subsidiaries; provided that, in the
case of information received from (or on behalf of) Seagram or any of its
Subsidiaries after the date hereof, such information is clearly identified at
the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 10.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 10.14. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of Borrower and each Guarantor in respect of any
sum due to any party hereto or any holder of the obligations owing hereunder
(the "Applicable Creditor") shall, notwithstanding any judgment in a currency
(the "Judgment Currency") other than the currency in which such sum is stated to
be due hereunder (the "Agreement Currency"), be discharged only to the extent
that, on the Business Day following receipt by the Applicable Creditor of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may
in accordance with normal banking procedures in the relevant jurisdiction
purchase the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrower or applicable
Guarantor, as applicable, agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the Applicable Creditor against such loss.
72
67
The obligations of the Borrower and each Guarantor contained in this Section
10.14 shall survive the termination of this Agreement and the payment of all
other amounts owing hereunder.
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.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & SONS, INC.
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
THE SEAGRAM COMPANY LTD.
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
▇. ▇. ▇▇▇▇▇▇▇ CORP.
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA NT&SA,
individually and as Co-
Documentation Agent
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
BANK OF MONTREAL, individually
and as Co-Documentation Agent
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
73
68
CITIBANK, N.A., as Syndication
Agent
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
CITICORP USA, INC.
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Attorney-in-fact
MARINE MIDLAND BANK
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Relationship Manager
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Associate
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
by /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
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69
ABN AMRO BANK, N.V.
by /s/ ▇▇▇▇▇▇▇ O'▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ O'▇. ▇▇▇▇▇
Title: Group Vice President
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
CREDIT SUISSE FIRST BOSTON
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
SOCIETE GENERALE FINANCE
(IRELAND) LIMITED
by /s/ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: Managing Director
TORONTO DOMINION (TEXAS), INC.
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
BANQUE NATIONALE DE PARIS
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
by /s/ Sophie Revillard ▇▇▇▇▇▇▇
--------------------------------
Name: Sophie Revillard ▇▇▇▇▇▇▇
Title: Vice President
75
70
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
by /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
DRESDNER BANK AG NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
by /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
COMMERZBANK AG, NEW YORK BRANCH
by /s/ Andreas Schwung
-------------------------
Name: Andreas Schwung
Title: Vice President
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Treasurer
LLOYDS BANK Plc
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director, Acquisition &
Project Finance, USA
B374
76
71
ING BANK
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Country Manager
MELLON BANK, N.A.
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Vice President
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH
by /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Second Vice President
CREDIT AGRICOLE INDOSUEZ
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Team Leader
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President, Team Leader
THE BANK OF TOKYO-MITSUBISHI,
LTD., NEW YORK BRANCH
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-In-Fact
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH, as lender
by /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Corporate Manager
North America
77
72
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH, as lender
by /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Corporate Manager
North America
THE SUMITOMO BANK, LIMITED
by /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
BANKBOSTON, N.A.
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
THE FIRST NATIONAL BANK OF
CHICAGO
by /s/ ▇▇▇ ▇▇▇
-------------------------
Name: ▇▇▇ ▇▇▇
Title: Corporate Banking Officer
ROYAL BANK OF CANADA
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Manager
BANCA MONTE DEI PASCHI DI SIENA
S.p.A.
-------------------------
Name: G. Natalicchi
Title: Senior Vice President
& General Manager
78
73
BANCA NAZIONALE DEL ▇▇▇▇▇▇ S.p.A.
NEW YORK BRANCH
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
BANCO BILBAO VIZCAYA
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BANCO CENTRAL HISPANOAMERICANO
S.A.
by /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
and General Manager
FLEET NATIONAL BANK
by /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
KBC BANK N.V.
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Deputy General Manager
79
74
THE NORINCHUKIN BANK, NEW YORK
BRANCH
by /s/ Kohei Hara
-------------------------
Name: Kohei Hara
Title: Joint General Manager
80
Schedule 2.01
Institution Revolving Commitment
The Chase Manhattan Bank $425,000,000
Bank of America NT&SA 425,000,000
Bank of Montreal 400,000,000
Citicorp USA, Inc. 400,000,000
Marine Midland Bank 310,000,000
The Bank of Nova Scotia 285,000,000
Westdeutsche Landesbank
Girozentrale, New York Branch 285,000,000
The Industrial Bank of Japan,
Limited, New York Branch 275,000,000
ABN AMRO Bank, N.V. 250,000,000
The Bank of New York 250,000,000
Credit Suisse First Boston 250,000,000
Societe Generale Finance
(Ireland) Ltd. 250,000,000
Toronto Dominion (Texas), Inc. 250,000,000
Banque Nationale de Paris 235,000,000
Deutsche Bank AG New York
Branch and/or Cayman Islands
Branch 235,000,000
Dresdner Bank AG New York
Branch and Grand Cayman Branch 235,000,000
Commerzbank AG, New York Branch 210,000,000
Lloyds Bank Plc 185,000,000
ING Bank 150,000,000
Mellon Bank, N.A. 150,000,000
Bayerische Landesbank
Girozentrale, Cayman Islands
Branch 100,000,000
81
Institution Revolving Commitment
----------- --------------------
Credit Agricole Indosuez 100,000,000
The Bank of Tokyo Mitsubishi, Ltd., New York Branch 90,000,000
National Westminster Bank Plc 90,000,000
The Sumitomo Bank, Limited 90,000,000
BankBoston, N.A. 75,000,000
The First National Bank of Chicago 75,000,000
Royal Bank of Canada 75,000,000
Banca Monte Dei Paschi Di Siena S.p.A. 50,000,000
Banca Nazionale Del ▇▇▇▇▇▇ S.p.A. New York Branch 50,000,000
Banco Bilbao Vizcaya 50,000,000
Banco Central HispanoAmericano S.A. 50,000,000
Fleet National Bank 50,000,000
KBC Bank N.V. 50,000,000
The Norinchukin Bank, New York Branch 50,000,000
--------------
TOTAL COMMITMENTS $6,500,000,000
==============