SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 1, 1998
----------------
COMMISSION FILE NUMBER 0-7570
DELAWARE CANANDAIGUA BRANDS, INC. 16-0716709
AND ITS SUBSIDIARIES:
NEW YORK BATAVIA WINE CELLARS, INC. 16-1222994
NEW YORK CANANDAIGUA WINE COMPANY, INC. 16-1462887
NEW YORK CANANDAIGUA EUROPE LIMITED 16-1195581
ENGLAND AND WALES CANANDAIGUA LIMITED ---
NEW YORK POLYPHENOLICS, INC. 16-1546354
NEW YORK ROBERTS TRADING CORP. 16-0865491
DELAWARE BARTON INCORPORATED 36-3500366
DELAWARE BARTON BRANDS, LTD. 36-3185921
MARYLAND BARTON BEERS, LTD. 36-2855879
CONNECTICUT BARTON BRANDS OF CALIFORNIA, INC. 06-1048198
GEORGIA BARTON BRANDS OF GEORGIA, INC. 58-1215938
NEW YORK BARTON DISTILLERS IMPORT CORP. 13-1794441
DELAWARE BARTON FINANCIAL CORPORATION 51-0311795
WISCONSIN STEVENS POINT BEVERAGE CO. 39-0638900
ILLINOIS MONARCH IMPORT COMPANY 36-3539106
GEORGIA THE VIKING DISTILLERY, INC. 58-2183528
(State or other (Exact name of registrant as (I.R.S. Employer
jurisdiction of specified in its charter) Identification
incorporation or No.)
organization)
300 WillowBrook Office Park, Fairport, New York 14450
----------------------------------------------- -----
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (716) 393-4130
--------------
-------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE>
- 1 -
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On November 3, 1998, Canandaigua Limited, a wholly-owned subsidiary of
Canandaigua Brands, Inc., announced a cash tender offer for the entire issued
and to be issued ordinary share capital of Matthew Clark plc ("Matthew Clark").
The offer valued each Matthew Clark share at 243 pence, valuing the whole of the
issued ordinary share capital of Matthew Clark at approximately (pound)215
million. The amount offered for the shares of Matthew Clark was determined on an
arms-length basis following negotiations between the Board of Directors of each
of Matthew Clark and Canandaigua Brands, Inc. (the "Company") and their
respective advisors.
On December 1, 1998, Canandaigua Limited declared the cash tender offer to be
wholly unconditional--all conditions to the offer having either been satisfied
or waived. Canandaigua Limited thereby acquired control of Matthew Clark. On
December 15, 1998, Canandaigua Limited paid for all shares tendered at the time
the offer was declared wholly unconditional. The cash tender offer remains open
for acceptance by Matthew Clark's shareholders until further notice. By 3:00
p.m. (London Time) on Monday, December 14, 1998, valid acceptances had been
received in respect of 84,590,156 Matthew Clark shares, representing
approximately 95.6 percent of the existing issued ordinary share capital of
Matthew Clark. Therefore, Canandaigua Limited has utilized certain provisions of
the UK Companies Act to enable it to compulsorily acquire Matthew Clark shares
that have not been tendered pursuant to the offer by the end of a prescribed
statutory period.
The purchase price for the Matthew Clark shares was funded with proceeds from
loans under a First Amended and Restated Credit Agreement (the "Credit
Agreement"), dated as of November 2, 1998, between the Company and The Chase
Manhattan Bank, as administrative agent, and a syndicate of 27 other lenders who
are parties to the Credit Agreement. The Credit Agreement provides for revolving
credit and term loans in an original aggregate principal amount not to exceed
$1,000,000,000 (subject to increase as therein provided to $1,200,000,000).
Matthew Clark is a major UK drinks group which produces, distributes and
wholesales a variety of alcoholic and bottled water beverages in the United
Kingdom. Matthew Clark operates through two divisions: Matthew Clark Brands and
Matthew Clark Wholesale. Matthew Clark Brands is the branded drinks division
which comprises cider products, wine and bottled water products. Cider products
include cider sold predominantly under the Blackthorn brand and premium packaged
cider sold under the Diamond White and K brands. Wine and bottled water products
include Stowell's of Chelsea wine box, QC fortified British wine, light British
wine/perry and Strathmore bottled water. New products include Stone's Cream
Liqueur, Jinzu and Espri. Matthew Clark Wholesale is the United Kingdom's
leading independent drinks wholesaler. Matthew Clark provides a full range of
wines, spirits, ciders, beers and soft drinks to over 17,000 on-licensed
outlets. Matthew Clark also distributes the Grants of St James's wine list. The
Company intends to continue to operate the business of Matthew Clark.
Prior to the transactions described above, there was no material relationship
between the officers, directors or shareholders of Matthew Clark and the Company
or any of its affiliates, any director or officer of the Company or any
associate of any such director or officer, except that certain directors of
Matthew Clark and members of their immediate families and certain shareholders
made certain irrevocable undertakings to accept the cash offer.
<PAGE>
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED.
The Matthew Clark plc Balance Sheets, as of 30 April 1998 and 1997,
and the related Consolidated Profit and Loss Accounts and Consolidated
Cash Flow Statements for each of the three years in the period ended
30 April 1998, and the report of KPMG Audit Plc, independent auditors,
thereon, together with the notes thereto, are located at pages 3
through 27 of this Report.
(b) PRO FORMA FINANCIAL INFORMATION.
The pro forma condensed combined balance sheet (unaudited) as of
August 31, 1998, and the pro forma condensed combined statement of
income (unaudited) for the year ended February 28, 1998, and the pro
forma condensed combined statement of income (unaudited) for the six
months ended August 31, 1998, and the notes thereto, are located at
pages 28 through 35 of this Report.
(c) EXHIBITS.
See Index to Exhibits.
<PAGE>
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MATTHEW CLARK plc
FINANCIAL STATEMENTS
FOR THE YEARS ENDED 30 APRIL 1998, 1997 AND 1996
WITH INDEPENDENT AUDITORS' REPORT
<PAGE>
- 4 -
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Shareholders
Matthew Clark plc
We have audited the accompanying consolidated balance sheets of Matthew Clark
plc and its subsidiaries at 30 April 1998 and 1997, and the related consolidated
profit and loss accounts and cash flow statements for each of the years in the
three-year period ended 30 April 1998. These consolidated financial statements
are the responsibility of the management of Matthew Clark plc. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United Kingdom which are substantially equivalent to generally accepted
auditing standards in the United States of America. Those standards require that
we plan and perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Matthew Clark plc
and its subsidiaries at 30 April 1998 and 1997, and the results of their
operations and their cash flows for each of the years in the three-year period
ended 30 April 1998, in conformity with generally accepted accounting principles
in the United Kingdom.
Accounting principles generally accepted in the United Kingdom vary in certain
significant respects from accounting principles generally accepted in the United
States of America. Application of accounting principles generally accepted in
the United States would have affected net profit for the two years ended 30
April 1998 and shareholders' equity at 30 April 1998 and 1997, to the extent
summarised in Note 26 to the consolidated financial statements.
/s/ KPMG Audit Plc
Chartered Accountants
Registered Auditor
London, England
30 November 1998
<PAGE>
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MATTHEW CLARK plc
BALANCE SHEETS
(in (pound) millions)
30 APRIL
------------------
NOTE 1998 1997(1)
---- ----- -------
Fixed assets
Intangible assets....................... 12 9.7 9.7
Tangible assets......................... 13 97.1 98.6
----- -----
106.8 108.3
----- -----
Current assets
Stocks.................................. 14 44.6 49.3
Debtors................................. 15 115.7 123.7
Cash at bank and in hand................ 17.3 5.8
----- -----
177.6 178.8
----- -----
Creditors: amounts falling due within
one year
Trade and other creditors............... 16 (105.2) (116.3)
Proposed dividend....................... 10 (7.1) (13.3)
Bank loans and overdrafts............... - (56.4)
----- -----
(112.3) (186.0)
----- -----
Net current assets/(liabilities)
Amounts due within one year............. 44.4 (29.6)
Debtors due after more than one year.... 15 20.9 22.4
----- -----
65.3 (7.2)
----- -----
Total assets less current liabilities....... 172.1 101.1
Creditors: amounts falling due after
more than one year........................ 17 (61.2) (1.9)
Provisions for liabilities and charges...... 18 (15.5) (17.6)
----- -----
Net assets.............................. 2 95.4 81.6
===== =====
Capital and reserves
Called up share capital................. 19 22.1 22.1
Share premium account................... 21 105.5 105.5
Capital redemption reserve.............. 21 0.1 0.1
Profit and loss account................. 21 (32.3) (46.1)
----- -----
Equity shareholders' funds.................. 22 95.4 81.6
===== =====
(1) As restated Note 1 (Goodwill)
<PAGE>
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MATTHEW CLARK plc
CONSOLIDATED PROFIT AND LOSS ACCOUNTS
(in (pound) millions, except per share amounts)
FOR THE YEARS
NOTE ENDED 30 APRIL
---- -----------------------------
1998 1997 1996(1)
------ ------ -------
Turnover.................................. 2 553.1 570.7 450.9
Operating costs........................... 3 (516.0) (525.6) (429.4)
------ ------ ------
Operating profit.......................... 4 37.1 45.1 21.5
Profit/(loss) on fixed asset sales........ 7 3.7 0.4 (2.0)
------ ------ ------
Profit before interest and tax............ 2 40.8 45.5 19.5
Interest receivable....................... 0.1 0.2 0.4
Interest payable and similar charges...... 8 (5.1) (5.1) (2.7)
------ ------ ------
Profit on ordinary activities before tax.. 2 35.8 40.6 17.2
Tax on profit on ordinary activities...... 9 (10.5) (12.4) (5.0)
------ ------ ------
Profit on ordinary activities after tax... 25.3 28.2 12.2
Equity minority interests................. - - (0.1)
Dividends................................. 10 (11.5) (21.2) (21.2)
------ ------ ------
Retained profit/(loss) for the year....... 21 13.8 7.0 (9.1)
====== ====== ======
Earnings per share........................ 11 28.6p 31.9p 18.4p
====== ====== ======
(1) Includes exceptional items for reorganisation as a result of integration of
acquisitions (Note 4). Pre-exceptional items, profit attributable to
ordinary shareholders was (pound)29.3m and earnings per share was 44.4p.
There are no recognised gains or losses in any year other than the profit/(loss)
for the year.
The results above derive from continuing activities.
<PAGE>
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MATTHEW CLARK plc
CONSOLIDATED CASH FLOW STATEMENTS
(in (pound) millions)
FOR THE YEARS
NOTE ENDED 30 APRIL
---- -------------------------
1998 1997 1996
----- ----- -----
Cash inflow from operating activities....... 25 49.8 52.3 29.1
----- ----- -----
Returns on investments and servicing of
finance
Interest received....................... 0.1 0.2 0.5
Interest paid........................... (6.1) (5.0) (2.7)
Interest element of finance lease
rental payments....................... (0.1) (0.1) -
----- ----- -----
(6.1) (4.9) (2.2)
----- ----- -----
Taxation paid........................... (7.5) (7.0) (3.5)
----- ----- -----
Capital expenditure
Purchase of tangible fixed assets....... (31.6) (21.3) (18.4)
Receipts from sale of fixed assets...... 22.2 2.6 2.4
----- ----- -----
(9.4) (18.7) (16.0)
----- ----- -----
Acquisitions............................ (0.8) 0.3 (32.5)
----- ----- -----
Dividends paid.......................... (17.7) (21.2) (13.9)
----- ----- -----
Cash inflow/(outflow) before financing...... 8.3 0.8 (39.0)
----- ----- -----
Financing
Drawdown of committed loan.............. 25.0 10.0 10.0
Repayment of other loan................. - - (1.0)
Issue of ordinary share capital......... - 0.6 0.2
Capital element of finance lease
payments.............................. (0.4) (0.2) (0.8)
----- ----- -----
24.6 10.4 8.4
----- ----- -----
Increase/(decrease) in cash in the period... 32.9 11.2 (30.6)
===== ===== =====
Reconciliation of net cashflow to movement
in net debt
Increase/(decrease) in cash in period... 32.9 11.2 (30.6)
Cash inflow from increase in debt and
lease financing....................... (25.6) (9.8) (8.2)
----- ----- -----
Change in net debt resulting from
cashflows............................. 7.3 1.4 (38.8)
Loans and finance leases acquired with
subsidiary............................ - - (0.1)
----- ----- -----
Movement in net debt in the period...... 7.3 1.4 (38.9)
Net debt at the start of the period..... (51.2) (52.6) (13.7)
----- ----- -----
Net debt at the end of the period....... (43.9) (51.2) (52.6)
===== ===== =====
Analysis of net debt
Cash at bank and in hand................ 17.3 5.8 4.6
Bank loans and overdrafts............... (60.0) (56.4) (56.4)
Finance lease obligations............... (1.2) (0.6) (0.8)
----- ----- -----
(43.9) (51.2) (52.6)
===== ===== =====
<PAGE>
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MATTHEW CLARK plc
NOTES TO THE ACCOUNTS
NOTE 1. ACCOUNTING POLICIES
The accounts have been prepared under the historical cost convention, using
the following accounting policies, which have been applied consistently except
as noted below under 'Goodwill', and in compliance with applicable accounting
standards including Financial Reporting Standard 10.
BASIS OF CONSOLIDATION--
The Group accounts consist of a consolidation of the accounts of the
Company which those of its subsidiary undertakings. All accounts are drawn up to
30 April. The acquisition method of accounting has been adopted. Under this
method, the results of acquired subsidiaries and other businesses are included
in the consolidated profit and loss account from the date when control passes.
GOODWILL--
During the year Financial Reporting Standard 10 'Goodwill and intangible
assets' was issued and is mandatory for periods ending on or after 23 December
1998. The Group has chosen to adopt the requirements of this standard early. The
Group's policy for acquisitions which occurred prior to the issue of the
standard is that purchased goodwill, being the excess of the fair value of
consideration paid or payable over the fair value of the identifiable net assets
acquired, has been taken directly to reserves. On subsequent disposal, goodwill
previously taken direct to reserves is included in determining the profit or
loss on disposal. Previously, such goodwill was presented separately within
reserves as a 'goodwill write off reserve'. This is not permitted by the
Standard and, accordingly, goodwill has been taken to merger reserve to the
extent available ((pound)309.5m) and the balance ((pound)52.8m) taken to the
profit and loss account reserve. The comparatives have been restated
accordingly.
TURNOVER--
Turnover consists of the value of goods and services supplied to customers
outside the Group, including duty and excluding VAT.
DEPRECIATION--
Depreciation of fixed assets is provided on the original cost of the Group
or its acquired businesses at rates calculated to write down the assets to their
estimated residual values on a straight line basis over the total expected
economic lives of the assets. The principal periods used are:
Freehold buildings....................... 50 years
Leasehold buildings...................... Length of lease
Plant and machinery...................... 8 to 25 years
Computer equipment....................... 3 to 5 years
Motor vehicles........................... 4 to 7 years
Assets in the course of construction are not depreciated. They are
transferred to the relevant fixed asset category when they become operational.
Freehold land is not depreciated.
<PAGE>
- 9 -
STOCKS--
Stocks have been valued at the lower of cost (including Customs and Excise
Duty where incurred), determined on a first in first out basis, and net
realisable value. In the case of beverages produced by the Group, cost includes
direct materials and labour together with appropriate overheads incurred in
bringing the product to its present location and condition.
DEFERRED TAX--
Deferred tax is provided using the liability method in respect of the tax
effect of all timing differences to the extent that it is probable that
liabilities or assets will crystallise in the future.
FOREIGN CURRENCY--
Receipts and payments of foreign currency are recorded at actual rates
obtained. Foreign currency balances at the year end are translated at the rate
ruling at that date. All exchange differences are dealt with through the profit
and loss account.
BRAND VALUATION--
The cost of acquired brands is capitalised as an intangible asset at the
time of acquisition. No annual amortisation is provided on these assets but the
directors assess the value of the brands each year and any permanent diminution
in value is written off to the profit and loss account.
LEASES--
Where the Group enters into a lease which entails taking substantially all
the risks and rewards of ownership of an asset, the lease is treated as a
'finance lease'. The asset is recorded in the balance sheet as a tangible fixed
asset and is depreciated over its estimated useful economic life or the term of
the lease, whichever is shorter. Future instalments under such leases, net of
finance charges, are included within creditors. Rentals payable are apportioned
between the finance element, which is charged to the profit and loss account,
and the capital element which reduces the outstanding obligation for future
instalments. All other rentals relating to assets held under operating leases
are charged to the profit and loss account on a straight line basis over the
period of the lease.
PENSION COSTS--
Pension costs for the Group's defined benefit pension schemes are charged
against profits so as to spread the cost of pensions over the employees'
expected working lives within the Group.
<PAGE>
- 10 -
NOTE 2. SEGMENTAL INFORMATION
All turnover and profit originates in the UK. There are no material sales
to customers outside the UK.
<TABLE>
<CAPTION>
BRANDED DRINKS WHOLESALE GROUP
------------------------ ----------------------- ------------------------
1998 1997 1996 1998 1997 1996 1998 1997 1996
------ ------ ------ ----- ----- ----- ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(in (pound) millions)
Turnover:
Total........................................ 343.5 367.0 297.0 225.2 215.1 162.5 568.7 582.1 459.5
Less intersegmental sales.................... (15.6) (11.4) (8.6) - - - (15.6) (11.4) (8.6)
----- ----- ----- ----- ----- ----- ----- ----- -----
Sales to third parties....................... 327.9 355.6 288.4 225.2 215.1 162.5 553.1 570.7 450.9
===== ===== ===== ===== ===== ===== ===== ===== =====
Operating profit............................... 28.7 38.1 41.2 8.4 7.0 2.7 37.1 45.1 21.5
Profit on fixed asset disposals................ 3.7 - 0.7 - 0.4 - 3.7 0.4 (2.0)
----- ----- ----- ----- ----- ----- ----- ----- -----
Profit before interest and tax................. 32.4 38.1 41.9 8.4 7.4 2.7 40.8 45.5 19.5
Net interest payable........................... (5.0) (4.9) (2.3)
----- ----- -----
Profit before tax.............................. 35.8 40.6 17.2
===== ===== =====
Net assets:
Segment net assets........................... 120.3 116.7 20.6 27.0 140.9 143.7
Unallocated net liabilities.................. (45.5) (62.1)
----- -----
Total net assets............................. 95.4 81.6
===== =====
Unallocated assets and liabilities consist of:
Cash at bank and in hand..................... 17.3 5.8
Pension prepayment........................... 19.0 19.1
Dividends payable............................ (7.1) (13.3)
Finance lease liabilities and deferred (2.8) (2.9)
consideration..............................
Loans and overdrafts......................... (60.0) (56.4)
Provisions................................... (11.9) (14.4)
----- -----
(45.5) (62.1)
===== =====
</TABLE>
<PAGE>
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NOTE 3. OPERATING COSTS
NOTE 1998 1997 1996
---- ----- ----- -----
(in (pound) millions)
Change in stocks of finished goods and
work in progress.......................... 7.5 11.7 (1.6)
Raw materials, consummables and other
external charges (incl. duty)............. 466.2 474.6 387.6
Staff costs................................. 6 32.8 30.9 37.3
Depreciation and amounts written off
fixed asset investments................... 13 9.8 8.7 6.4
Royalties from overseas..................... (0.3) (0.3) (0.3)
----- ----- -----
516.0 525.6 429.4
===== ===== =====
NOTE 4. OPERATING PROFIT
1998 1997 1996
---- ---- ----
(in (pound) millions)
Operating profit is stated after charging/(crediting):
Operating lease charges:
Plant and machinery.................................. 0.4 0.4 0.5
Other................................................ 1.7 1.4 1.6
Auditors' remuneration for audit services................ 0.2 0.3 0.3
Loss on disposal of fixed assets......................... 3.6 2.9 0.7
Release of amounts charged as exceptional costs in
prior years no longer required......................... (1.2) - -
Exceptional write down of wine dispense equipment with
customers.............................................. 1.0 - -
Amounts payable to the auditors and their associates for non audit services
were (pound)0.1m (1997--(pound)0.1m, 1996--(pound)0.4m).
Exceptional items in the year ended 30 April 1996 were as follows:
BRANDED
DRINKS WHOLESALE TOTAL
DIVISION DIVISION 1996
-------- --------- -----
(in (pound) millions)
Reorganisation:
Employee severance and relocation costs........ 3.7 3.6 7.3
Stock write downs.............................. 1.5 0.7 2.2
Property, plant relocation and other costs..... 7.5 5.4 12.9
---- --- ----
12.7 9.7 22.4
Provision for loss on disposal of fixed assets... 2.5 0.2 2.7
---- --- ----
15.2 9.9 25.1
==== === ====
<PAGE>
- 12 -
The reorganisation costs arose as a result of integration programmes within
the divisions following acquisition of businesses. The costs charged in 1996
were net of a release of provisions of (pound)2,249,000 established in 1995 and
which were no longer required.
NOTE 5. DIRECTORS' INTERESTS
DIRECTORS' EMOLUMENTS
<TABLE>
<CAPTION>
TOTAL EMOLUMENTS
CASH VALUE OF (EXCLUDING PENSION
BASIC SALARY BENEFITS IN KIND CONTRIBUTIONS)
------------------ ------------------ ------------------
1997/98 1996/97 1997/98 1996/97 1997/98 1996/97
------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
(in (pound) thousands)
Peter Aikens.................... 230 230 14 14 244 244
Hugh Etheridge.................. 130 130 13 13 143 143
Peter Huntley................... 119 130 10 11 129 141
Robert MacNevin................. 128 - 18 - 146 -
Kevin Philp..................... 100 - 6 - 106 -
Martin Boase.................... 21 21 - - 21 21
Michael Garner.................. 21 40 - - 21 40
Graham Wilson................... 60 - - - 60 -
Andrew Nash..................... - 130 - 12 - 142
Former directors................ - 67 - 6 - 73
--- --- --- --- --- ---
809 748 61 56 870 804
=== === === === === ===
</TABLE>
<TABLE>
<CAPTION>
TOTAL EMOLUMENTS
CASH VALUE (EXCLUDING
BONUS PAID BONUS INVESTED OF BENEFITS RELOCATION PENSION
BASIC SALARY AS CASH IN SHARES IN KIND ASSISTANCE CONTRIBUTIONS)
------------ ---------- -------------- ----------- ---------- ----------------
1995/96 1995/96 1995/96 1995/96 1995/96 1995/96
------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
(in (pound) thousands)
Peter Aikens............ 151 62 120 8 431 772
Hugh Etheridge.......... 87 35 70 13 - 205
Peter Huntley........... 87 35 70 11 - 203
Martin Boase............ 10 - - - - 10
Michael Garner.......... 10 - - - - 10
Michael Cottrell........ 70 26 - 6 - 102
Andrew Nash............. 50 20 79 3 - 152
Alan Dean............... 20 - - - - 20
David Fisher............ 47 - - 3 - 50
Robin Manners........... 20 - - - - 20
--- --- --- --- --- -----
552 178 339 44 431 1,544
=== === === === === =====
</TABLE>
<PAGE>
- 13 -
On 19 March 1998 the sum of (pound)110,000 was paid to Peter Huntley by way
of compensation for the termination of his employment with the Company. On 12
May 1997 the sum of (pound)177,630 was paid to Andrew Nash (a former director)
by way of compensation for the termination of his employment with the Company.
DIRECTORS' PENSION CONTRIBUTIONS
Directors who were members of the Matthew Clark Executive Pension Plan had
benefits as follows:
HUGH MICHAEL ROBERT KEVIN
ETHERIDGE COTTRELL MACNEVIN PHILP
--------- -------- -------- ------
(in (pound))
Increase in accrued pension
during 1996/97 ((pound)p.a.)...... 2,767 1,812 - -
Transfer value of the increase...... 26,242 25,363 - -
Contributions by individual
director.......................... 4,200 3,875 - -
Increase attributable to Company.... 22,042 21,488 - -
Accumulated accrued pension
at 30 April 1997.................. 17,026 13,671 - -
Increase in accrued pension during
1997/98 ((pound)p.a.)............. 3,036 - 2,920 1,585
Transfer value of the increase...... 35,000 - 24,056 13,618
Contributions by individual
director.......................... 4,200 - 4,200 4,908
Increase attributable to Company.... 30,800 - 19,856 8,710
Accumulated accrued pension
at 30 April 1998.................. 20,672 - 2,920 32,463
Contributions to Personal Pension schemes in 1997/98 and 1996/97 and
Pension schemes in 1995/96 were as follows:
1997/98 1996/97 1995/96
------- ------- -------
(in (pound) thousands)
Peter Aikens ................. 83 83 42
Peter Huntley ................ 35 37 18
Andrew Nash .................. - 39 14
Hugh Etheridge ............... 13 14 18
Robert MacNevin .............. 10 - -
Michael Cottrell ............. - - 12
Contributions in respect of Peter Aikens, Andrew Nash and Peter Huntley
were to their respective personal pension plans up to the maximum permitted
under Inland Revenue rules. The element of contributions in excess of Inland
Revenue rules is paid into a Funded Unapproved Retirement Benefit Scheme for the
benefit of each individual.
<PAGE>
- 14 -
DIRECTORS' BENEFICIAL INTEREST IN SHARES
30 APRIL 1998 1 MAY 1997
------------- ----------
Peter Aikens ................... 79,467* 71,267
Hugh Etheridge ................. 31,591* 28,891
Peter Huntley .................. - 29,391
Robert MacNevin ................ - -
Kevin Philp .................... 5,000 5,000
Martin Boase ................... 10,000 10,000
Michael Garner ................. 10,000 10,000
Graham Wilson .................. 10,000 10,000
* Note: A number of these shares were purchased from bonus paid under
the Capital Incentive Scheme which imposes a minimum period before
such shares may be sold. Details are provided below:
SHARES TO BE HELD SHARES TO BE HELD
UNTIL 1998 UNTIL 1999
----------------- -----------------
Peter Aikens........... 8,227 9,715
Hugh Etheridge......... 4,775 5,675
There were no changes between 30 April 1998 and 6 July 1998.
DIRECTORS' SHARE OPTIONS
DATE FROM
EXERCISE WHICH EXPIRY
1 MAY 1997 30 APRIL 1998 PRICE EXERCISABLE DATE
---------- ------------- -------- ----------- ------
Peter Aikens...... 52,652 52,652 331p 1996 2003
24,723 24,723 566p 1997 2004
56,811 56,811 561p 1997 2004
59,000 59,000 662p 1998 2005
------- -------
193,186 193,186
======= =======
Hugh Etheridge.... 24,723 24,723 566p 1997 2004
18,937 18,937 561p 1997 2004
33,000 33,000 662p 1998 2005
------- -------
76,660 76,660
======= =======
Robert MacNevin... - 40,000 247.5p 2000 2007
======= =======
Kevin Philip...... 21,041 21,041 566p 1997 2004
10,521 10,521 523p 1997 2004
10,000 10,000 555p 1998 2005
2,000 2,000 662p 1998 2005
2,000 2,000 680p 1999 2005
- 60,000 247.5p 2000 2007
------- -------
45,562 105,562
======= =======
<PAGE>
- 15 -
At 30 April 1998, the Company's share price was 201.5p. The highest and
lowest share prices during the year were 277.5p and 162.5p, respectively.
Exercise of the above options was not conditional upon any performance criteria.
All options were granted for nil consideration.
NOTE 6. STAFF NUMBERS AND COSTS
The average number of people employed by the Group, including directors,
within each category of activity was:
1998 1997 1996
----- ----- -----
(number of people)
Production staff................................ 471 516 513
Sales, marketing and distribution staff......... 883 792 663
Administration staff............................ 268 270 276
----- ----- -----
1,622 1,578 1,452
===== ===== =====
The aggregate payroll costs of these persons were as follows:
1998 1997 1996
---- ---- ----
(in (pound) millions)
Wages and salaries ............................. 30.2 28.6 27.3
Social security costs .......................... 2.4 2.4 2.4
Other pension costs ............................ 0.2 (0.1) 0.3
---- ---- ----
32.8 30.9 30.0
==== ==== ====
NOTE 7. PROFIT/(LOSS) ON FIXED ASSET SALES
The profit/(loss) on fixed asset sales comprises:
1998 1997 1996
---- ---- ----
(in (pound) millions)
Profit on property sales............................... 4.2 0.4 -
Provision for loss on plant and machinery sales........ (0.5) - (2.0)
---- ---- ----
3.7 0.4 (2.0)
==== ==== ====
The tax charge for 1998 includes (pound)1.2m in respect of property sales.
<PAGE>
- 16 -
NOTE 8. INTEREST PAYABLE AND SIMILAR CHARGES
1998 1997 1996
---- ---- ----
(in (pound) millions)
Bank interest and interest on loans repayable
within 5 years.................................... 5.0 4.9 2.5
Finance charges on finance leases................... 0.1 0.1 0.1
Other............................................... - 0.1 0.1
---- ---- ----
5.1 5.1 2.7
==== ==== ====
In addition interest capitalised into tangible fixed assets during the year
was (pound)0.6m (1997--(pound)nil, 1996--(pound)nil).
NOTE 9. TAX ON PROFIT ON ORDINARY ACTIVITIES
1998 1997 1996
---- ---- ----
(in (pound) millions)
The charge in the profit and loss account consists of:
Corporation tax at 31% (1997--33%, 1996--33%) ...... 14.9 7.6 1.8
Deferred tax--effect of change in rate from
33% to 30% ....................................... (0.9) - -
Deferred tax--other ................................ (3.5) 4.8 3.2
---- ---- ----
10.5 12.4 5.0
==== ==== ====
1998 1997
---- ----
The deferred tax provision/(asset) represents:
Excess of capital allowances over depreciation ..... (1.4) 6.6
Unutilised losses .................................. - (1.3)
Pensions timing differences ........................ 5.7 6.3
Other timing differences ........................... (0.7) (3.6)
Offset of ACT recoverable .......................... - (4.8)
---- ----
3.6 3.2
==== ====
The tax effect of exceptional items for the year ended 30 April 1996 was a
credit of (pound)7.9m, which included a credit of (pound)0.8m attributable to
the provision for loss on fixed asset disposals.
<PAGE>
- 17 -
Full provision has been made for deferred tax except for a deferred tax
asset of (pound)0.1m (1997--(pound)0.2m) on the excess of capital allowances
over depreciation.
1998 1997
---- ----
(in (pound) millions)
Deferred tax
At the beginning of the year................................ 3.2 (0.4)
ACT and losses transferred to/(from) corporation tax........ 4.8 (2.9)
Adjustment to fair value.................................... - 1.7
Deferred tax (credit)/charge to profit and loss account..... (4.4) 4.8
---- ----
At the end of the year...................................... 3.6 3.2
==== ====
NOTE 10. DIVIDENDS
1998 1997 1996
PENCE PENCE PENCE 1998 1997 1996
PER PER PER (pound) (pound) (pound)
SHARE SHARE SHARE m m m
----- ----- ----- ----- ----- -----
Dividends paid or proposed:
Ordinary shares
Interim dividend paid of...... 5.0 9.0 9.0 4.4 7.9 7.9
Proposed final dividend of.... 8.0 15.0 15.0 7.1 13.3 13.3
----- ---- ---- ---- ---- ----
Total........................... 13.0 24.0 24.0 11.5 21.2 21.2
===== ==== ==== ==== ==== ====
Gross equivalent per share...... 16.25 30.0 30.0
===== ==== ====
NOTE 11. EARNINGS PER SHARE
The calculation of earnings per share is based on a profit of (pound)25.3m
(1997--(pound)28.2m, 1996--(pound)12.1m) and 88,520,498 shares (1997--88,469,740
shares, 1996--66,023,926 shares), being the weighted average number in issue. A
fully diluted earnings per share figure based on share options outstanding is
not provided as the effect on earnings per share is not material.
NOTE 12. INTANGIBLE ASSETS
GROUP
-----
(in (pound) millions)
Cost and net book value of Strathmore brand
At 30 April 1998, 30 April 1997 and 30 April 1996 ....... 9.7
===
<PAGE>
- 18 -
NOTE 13. TANGIBLE ASSETS
<TABLE>
<CAPTION>
LAND AND BUILDING
--------------------------------
PLANT FIXTURES,
ASSETS MACHINERY FITTINGS,
LONG SHORT UNDER AND TOOLS AND
GROUP FREEHOLD LEASEHOLD LEASEHOLD CONSTRUCTION VEHICLES EQUIPMENT TOTAL
- ------------------------ -------- --------- --------- ------------ -------- --------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
(in (pound) millions)
Cost
At 30 April 1996 ..... 28.5 2.0 0.9 5.2 101.0 11.9 149.5
Additions ............ 0.5 - 0.1 9.7 13.3 1.6 25.2
Reclassifications .... 1.4 - - (10.2) 8.5 0.3 -
Disposals ............ (1.3) - (0.1) - (12.5) (2.1) (16.0)
---- ---- ---- ---- ----- ---- -----
At 30 April 1997 ..... 29.1 2.0 0.9 4.7 110.3 11.7 158.7
Additions ............ 1.2 0.7 0.3 14.2 12.2 2.5 31.1
Reclassifications .... 16.1 (0.1) - (18.3) 1.7 0.6 -
Disposals ............ (22.2) (1.3) - - (8.9) (2.8) (35.2)
---- ---- ---- ---- ----- ---- -----
At 30 April 1998 ..... 24.2 1.3 1.2 0.6 115.3 12.0 154.6
==== ==== ==== ==== ===== ==== =====
Depreciation
At 30 April 1996 ..... 7.2 0.7 0.1 - 45.6 8.7 62.3
Charged in the year... 0.4 - 0.1 - 7.0 1.2 8.7
Disposals ............ - - - - (8.8) (2.1) (10.9)
---- ---- ---- ---- ----- ---- -----
At 30 April 1997 ..... 7.6 0.7 0.2 - 43.8 7.8 60.1
Charged in the year... 0.4 - - - 8.2 1.2 9.8
Disposals ............ (5.2) (0.4) - - (4.2) (2.6) (12.4)
---- ---- ---- ---- ----- ---- -----
At 30 April 1998 ..... 2.8 0.3 0.2 - 47.8 6.4 57.5
==== ==== ==== ==== ===== ==== =====
Net book amounts:
At 30 April 1996 ..... 21.3 1.3 0.8 5.2 55.4 3.2 87.2
==== ==== ==== ==== ===== ==== =====
At 30 April 1997 ..... 21.5 1.3 0.7 4.7 66.5 3.9 98.6
==== ==== ==== ==== ===== ==== =====
At 30 April 1998 ..... 21.4 1.0 1.0 0.6 67.5 5.6 97.1
==== ==== ==== ==== ===== ==== =====
</TABLE>
Included within the depreciation charge for 1998 for plant machinery and
vehicles of (pound)8.2m is an exceptional write down of (pound)1.0m of wine
dispensing equipment with customers.
The net book value of assets held under finance leases within plant
machinery and vehicles as at 30 April 1998 was (pound)1.1m (1997--(pound)0.9m,
1996--(pound)1.4m). Depreciation on assets held under finance leases during the
year ended 30 April 1998 was (pound)0.2m (1997--(pound)0.4m, 1996--(pound)0.4m).
Freehold land and buildings includes (pound)4.6m (1997--(pound)4.6m,
1996--(pound)5.9m) in respect of land.
<PAGE>
- 19 -
NOTE 14. STOCKS
1998 1997
---- ----
(in (pound) millions)
Raw materials and consummables ......... 8.7 5.9
Work in progress ....................... 7.3 9.7
Finished goods for resale .............. 28.6 33.7
---- ----
44.6 49.3
==== ====
NOTE 15. DEBTORS
1998 1997
----- -----
(in (pound) millions)
Amounts falling due within one year:
Trade debtors....................................... 83.3 91.2
ACT recoverable..................................... - 1.7
Other debtors....................................... 6.4 4.9
Prepayments and accrued income...................... 5.1 3.5
----- -----
94.8 101.3
===== =====
Amounts falling due after more than one year:
ACT recoverable..................................... 1.9 3.3
Pension prepayment.................................. 19.0 19.1
----- -----
20.9 22.4
----- -----
115.7 123.7
===== =====
NOTE 16. CREDITORS: AMOUNTS FALLING DUE WITHIN ONE YEAR
1998 1997
---- ----
(in (pound) millions)
Trade and other creditors
Trade creditors............................................. 52.0 52.8
Corporation tax............................................. 4.7 2.9
Other tax, including social security and ACT payable........ 10.4 12.3
Finance lease obligations less than one year (note 17)...... 0.4 0.4
Other creditors, including deferred duty.................... 11.0 12.5
Accruals and deferred income................................ 26.7 35.4
----- -----
105.2 116.3
===== =====
<PAGE>
- 20 -
NOTE 17. CREDITORS: AMOUNTS FALLING DUE AFTER MORE THAN ONE YEAR
1998 1997
---- ----
(in (pound) millions)
Bank loans and overdrafts (unsecured) ....... 60.0 -
Obligations under finance leases ............ 0.8 0.2
Deferred purchase consideration ............. 0.4 1.7
---- ----
61.2 1.9
==== ====
The deferred purchase consideration of (pound)0.4m in the current year is
in addition to (pound)1.2m (1997--(pound)0.6m, 1996--(pound)nil) included within
other creditors due in less than one year and relates to the acquisitions of
Dunn & Moore and Liddingtons and is related to future profits. The amount
provided represents both the current best estimate of the amount payable in due
course, and the maximum amount payable.
The maturity of net obligations under finance leases and hire purchase
contracts is as follows:
1998 1997
---- ----
(in (pound) millions)
Within one year ..................... 0.4 0.4
In the second to fifth years ........ 0.4 0.2
Over five years ..................... 0.4 -
--- ---
1.2 0.6
=== ===
NOTE 18. PROVISIONS FOR LIABILITIES AND CHARGES
1998 1997
---- ----
(in (pound) millions)
Deferred tax (see note 9) ................ 3.6 3.2
Provisions ............................... 11.9 14.4
---- ----
15.5 17.6
==== ====
Provisions:
At the beginning of the year ........... 14.4 17.5
Transfer to creditors .................. - (0.4)
Release to profit and loss account
within exceptional item .............. (1.0) -
Used during the year ................... (1.5) (2.3)
Released to goodwill ................... - (0.4)
---- ----
At the end of the year ................. 11.9 14.4
==== ====
Provisions primarily relate to surplus property costs.
<PAGE>
- 21 -
The Group has a number of freehold and leasehold properties which are
surplus to operational requirements. Provision has been made for future fixed
costs associated with these properties for the period up to their expected
disposal. To the extent that these properties are disposed of earlier than
anticipated a benefit will arise; conversely if the properties are not disposed
of within the anticipated period a contingent liability exists for the ongoing
fixed costs.
NOTE 19. SHARE CAPITAL
<TABLE>
<CAPTION>
4.9 PER CENT
CUMULATIVE
REDEEMABLE
PREFERENCE SHARES ORDINARY SHARES
OF (pound)1 EACH OF 25p EACH TOTAL
----------------- ----------------------- --------
NUMBER (pound)m NUMBER (pound)m (pound)m
------- -------- ----------- -------- --------
<S> <C> <C> <C> <C> <C>
Authorised:
Beginning and end of the year....................... 260,000 0.3 117,920,000 29.5 29.8
Allocated, called up and fully paid
In issue at the beginning and end of the year....... - - 88,520,498 22.1 22.1
</TABLE>
During the year no ordinary shares were issued under the share option
schemes (1997--217,240 shares were issued for a total consideration of
(pound)0.6m, 1996--64,270 shares for (pound)0.2m). In 1996 42.4m shares were
issued for a non cash consideration of (pound)267.6m.
NOTE 20. SHARE OPTIONS
SAVINGS RELATED SHARE OPTION SCHEME: Employees and directors in the UK with
a minimum of two years' service were entitled to apply for options to acquire
ordinary shares at 100% (1997--100%) of the average of the middle market price
on the three dealing days immediately preceding the date of the invitation.
At 30 April 1998 options granted and outstanding under employee share
schemes amounted to 458,102 ordinary shares. These options are exercisable at
varying dates up to 2002 at prices ranging from (pound)2.92 to (pound)5.26 per
share. During the year the Company issued no ordinary shares under the employee
share schemes.
EXECUTIVE SHARE OPTION SCHEME: Under the Company's executive scheme the
board may offer options to executives, whose performance contributes
significantly to the Company's results, at the middle market price on the
dealing day immediately preceding the date of the grant of the option.
<PAGE>
- 22 -
At 30 April 1998 options exercisable were as follows:
PRICE PER NUMBER OF
OPTIONS EXERCISABLE BETWEEN: SHARE SHARES
---------------------------- --------- ---------
15 March 1992 and 14 March 1999 .................. 338p 1,300
22 June 1996 and 21 June 2003 .................... 331p 65,652
20 January 1997 and 19 January 2004 .............. 566p 123,089
11 July 1997 and 10 July 2004 .................... 523p 50,497
17 October 1997 and 16 October 2004 .............. 561p 93,633
16 January 1998 and 15 January 2005 .............. 555p 61,000
20 July 1998 and 19 July 2005 .................... 628p 13,000
10 November 1998 and 9 November 2005 ............. 662p 106,000
16 January 1999 and 15 January 2006 .............. 680p 43,000
28 January 2000 and 27 January 2007 .............. 296.5p 203,000
25 July 2000 and 24 July 2007 .................... 247.5p 580,000
8 January 2001 and 7 January 2008 ................ 163p 225,000
During the year the Company issued no ordinary shares under the executive
share option schemes.
NOTE 21. RESERVES
<TABLE>
<CAPTION>
CAPITAL GOODWILL PROFIT AND
SHARE REDEMPTION MERGER WRITE-OFF LOSS
PREMIUM RESERVE RESERVE RESERVE ACCOUNT
------- ---------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
(in (pound) millions)
At 30 April 1996 as previously stated ........ 104.9 0.1 309.5 (364.4) (0.3)
Prior year adjustments (note 1 (Goodwill)).... - - (309.5) 364.4 (54.9)
----- ---- ----- ----- ----
At 30 April 1996 as restated ................. 104.9 0.1 - - (55.2)
Shares issued ................................ 0.6 - - - -
Goodwill arising on acquisitions ............. - - - - 2.1
Retained profit for the year ................. - - - - 7.0
----- ---- ----- ----- ----
At 30 April 1997 as restated ................. 105.5 0.1 - - (46.1)
Retained profit for the year ................. - - - - 13.8
----- ---- ----- ----- ----
At 30 April 1998 ............................. 105.5 0.1 - - (32.3)
===== ==== ===== ===== ====
</TABLE>
The Cumulative amount of goodwill written off to reserves is (pound)362.3m
(1997--(pound)362.3m, 1996--(pound)364.4m).
<PAGE>
- 23 -
NOTE 22. RECONCILIATIONS OF MOVEMENTS IN SHAREHOLDERS' FUNDS
1998 1997 1996
------ ------ ------
(in (pound) millions)
Opening shareholders' funds.......................... 81.6 71.9 79.6
------ ------ ------
Profit for the year.................................. 25.3 28.2 12.1
Dividends paid and proposed.......................... (11.5) (21.2) (21.2)
------ ------ ------
Retained profit/(loss) for the year.................. 13.8 7.0 (9.1)
New share capital subscribed......................... - 0.6 267.9
Goodwill adjustment.................................. - 2.1 (266.5)
------ ------ ------
Net addition/(reduction) to the shareholders' funds.. 13.8 9.7 (7.7)
------ ------ ------
Closing shareholders' funds.......................... 95.4 81.6 71.9
====== ====== ======
NOTE 23. FINANCIAL AND CAPITAL COMMITMENTS
1998 1997
---- ----
(in (pound) millions)
Contracted commitments for capital expenditure....... 2.2 11.8
==== ====
1998 1997
----------------- -----------------
LAND & LAND &
BUILDINGS OTHER BUILDINGS OTHER
--------- ----- --------- -----
(in (pound) millions)
Annual commitments under operating
leases which expire:
Within one year................... - - 0.1 0.1
In the second to fifth years
inclusive....................... 0.1 0.6 - 0.1
Over five years................... 2.9 - 2.3 0.3
--- --- --- ---
3.0 0.6 2.4 0.5
=== === === ===
The Group had (pound)9.8m (1997--(pound)5.0m) of commitments under forward
currency contracts at 30 April 1998.
NOTE 24. PENSIONS
The Company and its subsidiaries currently operate two Pension Plans, the
Matthew Clark Group Pension Plan and the Matthew Clark Executive Pension Plan.
These Plans are of the defined benefit type with assets held in Trustee
administered funds separate from the Company's finances. In addition, a further
Plan was acquired with the acquisition of Taunton Cider. This scheme was merged
with the Matthew Clark Group Pension Plan on 1 April 1997.
<PAGE>
- 24 -
Actuarial valuations of the Matthew Clark Group Pension Plan have been
carried out by independent actuaries as at 1 January 1996. The funding level of
the combined Plans on the assumptions stated below as at 1 January 1996 was
141%. The combined market value of the assets at 1 January 1996 was
approximately (pound)92m. The pension cost is assessed in accordance with a
qualified actuary's advice. The Actuary has considered the long-term effects of
the removal of ACT relief for pension funds on the level of funding of the
Plans. The increase in the pension expense is not significant.
The assumptions adopted for the purposes of SSAP 24 were as follows:
Long-term investment return ........ 9.00%
Salary escalation .................. 6.00%
Pension increases were allowed for in accordance with the Rules of the Plan
and the past practice of granting discretionary increases. Assets were taken
into account at 94.6% of their market value.
On a discontinuance of either of the Plans, the market value of the assets
exceeded the cost of securing the liabilities at the appropriate valuation date,
assuming that cash equivalent transfer values were paid in respect of active or
deferred members.
NOTE 25. RECONCILIATION OF OPERATING PROFIT TO OPERATING CASHFLOWS
1998 1997 1996
------ ------ ------
(in (pound) millions)
Operating profit................................... 37.1 45.1 21.5
Exceptional charges................................ - - 22.4
Depreciation charges............................... 9.8 8.7 6.4
Loss of disposal and write-off of tangible
fixed assets..................................... 3.6 2.9 0.7
Cashflow relating to previous year's
restructuring provisions......................... (4.5) (11.2) (15.8)
Decrease/(increase) in stocks...................... 4.7 11.7 (0.1)
Decrease/(increase) in debtors..................... 5.4 13.6 (7.3)
(Decrease)/increase in creditors and provisions.... (6.3) (18.5) 1.3
------ ------ ------
Net cash inflow from operating activities.......... 49.8 52.3 29.1
====== ====== ======
NOTE 26. SUMMARY OF SIGNIFICANT DIFFERENCES BETWEEN UNITED KINGDOM (UK) AND
UNITED STATES OF AMERICA (US) GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
(GAAP)
The Group's consolidated financial statements are prepared in conformity with
generally accepted accounting principles applicable in the United Kingdom (UK
GAAP), which differ in certain significant respects from those applicable in the
United States of America (US GAAP). These differences together with the
approximate effects of the adjustments on net profit and equity shareholders'
funds, relate principally to the items set out below:
(a) GOODWILL: During 1998 the Group adopted Financial Reporting Standard 10
'Goodwill and intangible assets'. The Group's policy for acquisitions which
occurred prior to the issue of the standard is that purchased goodwill,
<PAGE>
- 25 -
being the excess of the fair value of consideration paid or payable over
the fair value of the identifiable net assets acquired, has been taken
directly to reserves. On subsequent disposal, goodwill previously taken
direct to reserves is included in determining the profit and loss on
disposal. Previously such goodwill was presented separately within reserves
as a 'goodwill write off reserve'. This is not permitted by the Standard
and, accordingly, goodwill has been taken to merger reserve to the extent
available and the balance taken to the profit and loss account. Under US
GAAP, these intangible assets would be capitalised in the balance sheet and
amortised through the statement of income over a period not exceeding 40
years.
For the purposes of calculating the effect of capitalising the goodwill on
the balance sheet and amortising the goodwill and brands through the
statement of income, a life of 40 years has generally been assumed.
However, under UK GAAP, the value of the brands, goodwill and other
intangibles is reviewed annually by reference to historic and forecast
contributions to operating income and an additional charge to the statement
of income is made where a permanent diminution in net book value is
identified.
(b) BRANDS: Significant owned brands by the Group are capitalised as intangible
assets at the time of acquisition. The Group does not provide amortisation
on these assets. Under US GAAP, these would be amortised through the
statement of income over a period not exceeding 40 years.
(c) ACQUISITION ACCOUNTING: Prior to the adoption of Financial Reporting
Standard 7, 'Fair values in acquisition accounting', the Group provided for
certain costs as part of the purchase accounting adjustments on acquisition
which under US GAAP would be included in the statement of income when those
costs were incurred. Examples of such items include certain costs in
respect of salaries of individuals made redundant, the closure of certain
of the Group's existing operations and the rectification of inadequate
operating systems.
With effect from 30 April 1995, the Group adopted Financial Reporting
Standard 7. This new standard sets out rules for accounting for
acquisitions in consolidated financial statements resulting in a change in
the difference between UK and US GAAP. US GAAP remained unchanged. The fair
value balance sheet of an acquired company cannot include provisions for
integration and reorganisation costs set up by the acquiring company. In
compliance with the standard, comparative figures were not restated. Under
US GAAP, certain integration and reorganisation costs may be considered
liabilities assumed and included in the allocation of the acquisition cost.
(d) RESTRUCTURING AND INTEGRATION COSTS: Under UK GAAP, when a decision has
been taken to restructure part of the Group's business, provisions are made
for the impairment of asset values together with severance and other costs.
US GAAP requires a number of specific criteria to be met before such costs
can be recognised as an expense. Among these is the requirement that all
the significant actions arising from a restructuring and integration plan
and their expected completion dates must be identified by the balance sheet
date. US GAAP also requires recognition of the estimated net present value
of future net lease obligations of vacant properties.
(e) PENSIONS: The Group accounts for the costs of pensions under the rules set
out in UK accounting standards. US GAAP is more prescriptive in respect of
actuarial assumptions and the allocation of costs to accounting periods.
<PAGE>
- 26 -
(f) LEASES: Under UK GAAP, provided certain conditions are met, it may be
permissible to recognise any profit arising on the sale and leaseback, as
an operating lease, of an asset. Under US GAAP, the gain or loss is
deferred and amortised in proportion to the rental payments due over the
term of the lease.
(g) DEFERRED TAXATION: UK GAAP requires that no provision for deferred taxation
should be made if there is reasonable evidence that such taxation will not
be payable within the foreseeable future and that deferred tax assets
should only be recognised if the realisation of such assets can be assessed
with reasonable certainty. US GAAP requires full provision for deferred
taxation liabilities, and permits deferred tax assets to be recognised if
their realisation is considered to be more likely than not.
(h) STATEMENT OF CASH FLOWS: Under UK GAAP, cash flows are presented separately
for operating activities, returns on investments and servicing of finance,
taxation paid, capital expenditure, acquisitions, dividends paid, and
financing activities. Under US GAAP, cash flows are reported as operating
activities, investing activities, and financing activities. Cash flows from
taxation and returns on investments and servicing of finance would, with
the exception of ordinary dividends paid, be included as operating
activities. The payment of dividends would be included under financing
activities.
Under UK GAAP, cash includes bank overdrafts repayable on demand. Under US
GAAP, cash flows in respect of overdrafts are included under financing
activities.
(i) EARNINGS PER ORDINARY SHARE: Under UK and US GAAP, basic earnings per share
is computed using the weighted average number of ordinary shares in issue
during the year. US GAAP also requires the computation of diluted earnings
per share which includes the effect of potential common stock under the
treasury stock method.
(j) ORDINARY DIVIDENDS: Under UK GAAP, the proposed dividends on ordinary
shares, as recommended by the directors, are deducted from shareholders'
equity and shown as a liability in the balance sheet at the end of the
period to which they relate. Under US GAAP, such dividends are only
deducted from shareholders' equity at the date of declaration of the
dividend.
Set out below is a summary combined statement of cash flows under US GAAP.
30 April 1998 30 April 1997
------------- -------------
(in (pound) millions)
Net cash provided by operating activities 36.2 40.4
Net cash used in investing activities (10.2) (18.4)
Net cash used in financing activities (14.5) (20.8)
----- -----
Net increase in cash under US GAAP 11.5 1.2
===== =====
<PAGE>
- 27 -
The following is a summary of the material adjustments to net income and
shareholders' equity which would have been required if US GAAP had been applied
instead of UK GAAP:
1998 1997
----- -----
(in (pound) millions)
NET INCOME - UK GAAP AFTER EXCEPTIONAL ITEMS 25.3 28.2
----- -----
ADJUSTMENTS TO CONFORM WITH US GAAP
- - Amortisation of goodwill and intangibles (9.1) (9.1)
- - Restructuring costs (1.4) (1.7)
- - Pension expense 0.1 0.7
- - Sale and leaseback (3.7) -
- - Deferred tax on US GAAP adjustments 1.5 0.3
----- -----
Total US GAAP adjustments (12.6) (9.8)
----- -----
NET INCOME - US GAAP 12.7 18.4
===== =====
Pence Pence
----- -----
Basic earnings per Ordinary Share in accordance
with US GAAP 14.3 20.8
Diluted earnings per Ordinary Share in accordance
with US GAAP 14.3 20.8
1998 1997
----- -----
(in (pound) millions)
SHAREHOLDERS' EQUITY, AS SHOWN IN THE GROUP BALANCE
SHEETS - UK GAAP 95.4 81.6
----- -----
ADJUSTMENTS TO CONFORM WITH US GAAP
- - Goodwill and intangibles 322.8 331.9
- - Restructuring provisions 5.0 6.4
- - Pension expense 2.5 2.4
- - Sale and leaseback (3.7) -
- - Deferred taxation on US GAAP adjustments 0.4 (1.2)
- - Dividends 7.1 13.3
----- -----
Total US GAAP adjustments 334.1 352.8
----- -----
TOTAL SHAREHOLDERS' EQUITY IN ACCORDANCE WITH US GAAP 429.5 434.4
===== =====
<PAGE>
- 28 -
PRO FORMA COMBINED FINANCIAL DATA
(UNAUDITED)
On November 3, 1998, Canandaigua Limited, a wholly-owned subsidiary of
Canandaigua Brands, Inc., announced a cash tender offer for the entire issued
and to be issued ordinary share capital of Matthew Clark. The offer valued each
Matthew Clark share at 243 pence, valuing the whole of the issued ordinary share
capital of Matthew Clark at approximately (pound)215 million. On December 1,
1998, Canandaigua Limited declared the cash tender offer to be wholly
unconditional - all conditions to the offer having either been satisfied or
waived. Canandaigua Limited thereby acquired control of Matthew Clark (the
"Matthew Clark Acquisition").
The following pro forma financial data of the Company consists of (i) a pro
forma condensed combined balance sheet (unaudited) as of August 31, 1998 (the
"Pro Forma Balance Sheet"), (ii) a 1998 fiscal year pro forma condensed combined
statement of income (unaudited) (the "1998 Pro Forma Statement of Income") and
(iii) a 1999 six month pro forma condensed combined statement of income
(unaudited) (the "1999 Six Month Pro Forma Statement of Income") (collectively,
the "Pro Forma Statements").
The Pro Forma Balance Sheet reflects the combination of the balance sheet
of the Company as of August 31, 1998, and the balance sheet of Matthew Clark as
of October 31, 1998, as adjusted for the Matthew Clark Acquisition. The Pro
Forma Balance Sheet is presented as if the Matthew Clark Acquisition was
consummated on August 31, 1998.
The 1998 Pro Forma Statement of Income reflects the combination of the
income statement of the Company for the year ended February 28, 1998, and the
income statement of Matthew Clark for the year ended April 30, 1998, as adjusted
for the Matthew Clark Acquisition. The 1998 Pro Forma Statement of Income is
presented as if the Matthew Clark Acquisition was consummated on March 1, 1997.
The 1999 Six Month Pro Forma Statement of Income reflects the combination
of the income statement of the Company for the six months ended August 31, 1998,
and the income statement of Matthew Clark for the six months ended October 31,
1998, as adjusted for the Matthew Clark Acquisition. The 1999 Six Month Pro
Forma Statement of Income is presented as if the Matthew Clark Acquisition was
consummated on March 1, 1997.
The Pro Forma Statements should be read in conjunction with the separate
historical financial statements of the Company and Matthew Clark and the notes
thereto and with the accompanying notes to the Pro Forma Statements. The Pro
Forma Statements are based upon currently available information and upon certain
assumptions that the Company believes are reasonable under the circumstances.
The Pro Forma Statements do not purport to represent what the Company's
financial position or results of operations would actually have been if the
aforementioned transaction in fact had occurred on such date or at the beginning
of the period indicated or to project the Company's financial position or the
results of operations at any future date or for any future period.
<PAGE>
- 29 -
<TABLE>
CANANDAIGUA BRANDS, INC. AND MATTHEW CLARK plc
PRO FORMA CONDENSED COMBINED BALANCE SHEET
AUGUST 31, 1998
(UNAUDITED)
(in thousands)
<CAPTION>
Pro Forma
Historical Adjustments
----------------------------- -----------
Company Matthew Clark
as of as of
August 31, October 31, For the Pro Forma
1998 1998 Acquisition Combined
------------ ------------- ----------- ---------
<S> <C> <C> <C> <C>
ASSETS:
Cash and cash equivalents $ 1,473 $ 12,130 $ 13,603
Accounts receivable, net 154,550 137,196 291,746
Inventories, net 345,972 94,533 440,505
Prepaid expenses and other current assets 37,550 22,113 59,663
Property, plant and equipment, net 246,157 151,589 $ 13,609 (a) 411,355
Other assets 262,004 585,476 (320,910)(a) 540,446
17,260 (b)
(3,384)(f)
----------- ----------- --------- ----------
Total assets $ 1,047,706 $ 1,003,037 $(293,425) $1,757,318
=========== =========== ========= ==========
LIABILITIES AND STOCKHOLDERS' EQUITY:
Notes payable $ 63,000 $ 63,000
Current maturities of long-term debt 24,118 $ 1,038 25,156
Accounts payable 65,624 92,685 $ 8,919 (b) 167,228
Accrued Federal and state excise taxes 21,561 14,273 35,834
Other accrued expenses and liabilities 101,569 74,671 5,058 (b) 179,911
(1,387)(f)
Long-term debt, less current maturities 297,407 102,008 379,599 (c) 779,014
Deferred income taxes 59,237 (8) 18,946 (e) 78,175
Other liabilities 5,445 15,807 21,252
----------- ----------- --------- ----------
Total liabilities 637,961 300,474 411,135 1,349,570
----------- ----------- --------- ----------
Common stock 217 37,061 (37,061)(d) 217
Additional paid-in capital 234,992 695,193 (695,193)(d) 234,992
Retained earnings (Accumulated deficit) 249,733 (29,691) 29,691 (d) 247,736
(1,997)(f)
Less: Treasury stock (75,197) (75,197)
----------- ----------- --------- ----------
Total stockholders' equity 409,745 702,563 (704,560) 407,748
----------- ----------- --------- ----------
Total liabilities and stockholders' equity $ 1,047,706 $ 1,003,037 $(293,425) $1,757,318
=========== =========== ========= ==========
</TABLE>
<PAGE>
- 30 -
CANANDAIGUA BRANDS, INC. AND MATTHEW CLARK plc
NOTES TO THE PRO FORMA CONDENSED COMBINED BALANCE SHEET
AS OF AUGUST 31, 1998
(UNAUDITED)
(IN THOUSANDS)
(a) Reflects the estimated purchase accounting adjustments for the Matthew
Clark Acquisition based upon a preliminary appraisal of the assets and
liabilities assumed. For purchase accounting, Matthew Clark assets have
been recorded at estimated fair market value subject to adjustment based
upon the results of an independent appraisal. The estimated amounts
recorded for assets and liabilities acquired from Matthew Clark are not
expected to differ materially from the final assigned values. Purchase
accounting adjustments were recorded to increase property, plant and
equipment by $13,609, to increase the recorded value of tradenames and
other intangible assets by $54,604 and to reduce the recorded excess of
purchase cost over fair market value of assets acquired by $375,514. These
adjustments are required to record these assets at their estimated fair
market values.
The calculation of excess purchase cost over fair value of net assets
acquired is as follows:
Cash paid $ 362,339
Financing costs 17,260
Direct acquisition costs 8,919
---------
388,518
Liabilities assumed 5,058
---------
Total purchase cost 393,576
Net book value of Matthew Clark (702,563)
Write-down of acquired goodwill 532,946
Increase in appraised net assets (68,213)
Finance costs capitalized (17,260)
Deferred taxes provided 18,946
---------
Excess of purchase cost over fair value of
assets acquired and liabilities assumed $ 157,432
=========
(b) Reflects the liability for direct acquisition costs of $8,919 and assumed
liabilities of $5,058. Capitalized financing costs of $17,260 were funded
through the Credit Agreement.
(c) Reflects the borrowings in connection with the Matthew Clark Acquisition.
The sources and application of funds in connection with the Matthew Clark
Acquisition is as follows:
Sources of funds:
Borrowings under the Credit Agreement $ 379,599
Accrued liabilities 8,919
---------
Total sources of funds $ 388,518
=========
<PAGE>
- 31 -
Application of funds:
Cash purchase price $ 362,339
Payment of financing costs 17,260
Payment of direct acquisition costs 8,919
---------
Total application of funds $ 388,518
=========
(d) Reflects the elimination of Matthew Clark's shareholders' equity.
(e) Represents deferred taxes of $18,946 provided on a step-up in basis on
appraised net assets.
(f) Represents the write-off of the net book value of bank fees associated with
the Company's previously existing credit agreement, tax effected at the
Company's historical rate of 41%.
<PAGE>
- 32 -
<TABLE>
CANANDAIGUA BRANDS, INC. AND MATTHEW CLARK plc
1998 FISCAL YEAR PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME
(UNAUDITED)
(In thousands, except per share data)
<CAPTION>
Pro Forma
Historical Adjustments
-------------------------------- -----------
US GAAP
Company Matthew Clark
Year Ended Year Ended
February 28, April 30, For The Pro Forma
1998 1998 Acquisition Combined
------------ ------------- ----------- -----------
<S> <C> <C> <C> <C>
Net sales $ 1,212,788 $ 685,939 $ 1,898,727
Cost of product sold (864,053) (460,093) $ 1,474 (a) (1,322,672)
----------- --------- --------- -----------
Gross profit 348,735 225,846 1,474 576,055
Selling, general and administrative
expenses (231,680) (181,572) 1,723 (a) (404,286)
8,801 (b)
(1,558)(c)
----------- --------- --------- -----------
Operating income 117,055 44,274 10,440 171,769
Interest expense, net (32,189) (8,575) (35,366)(d) (76,130)
----------- --------- --------- -----------
Income (loss) before income taxes 84,866 35,699 (24,926) 95,639
(Provision for) benefit from income taxes (34,795) (14,792) 11,331 (e) (38,256)
----------- --------- --------- -----------
Net income (loss) $ 50,071 $ 20,907 $ (13,595)(f) $ 57,383
=========== ========= ========= ===========
Share Data:
Earnings per common share:
Basic $ 2.68 $ 3.07
=========== ===========
Diluted $ 2.62 $ 3.00
=========== ===========
Weighted average common shares outstanding:
Basic 18,672 18,672
Diluted 19,105 19,105
</TABLE>
<PAGE>
- 33 -
CANANDAIGUA BRANDS, INC. AND MATTHEW CLARK plc
NOTES TO THE PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME
FOR THE YEAR ENDED FEBRUARY 28, 1998
(UNAUDITED)
(IN THOUSANDS)
(a) Reflects the adjusted depreciation expense related to the acquired
property, plant and equipment of Matthew Clark on the assumption that the
Matthew Clark Acquisition had taken place on March 1, 1997. These assets
have been restated at their estimated fair market values and depreciated
using the Company's depreciation methods over the remaining useful lives of
the assets. The decrease in depreciation expense of $3,197, as compared to
that recorded by Matthew Clark, was allocated to cost of product sold and
selling, general and administrative expenses as indicated.
(b) Reflects a decrease in amortization expense of intangible assets of $8,801
based upon their appraised values, using the straight-line method and
estimated useful lives, predominately 40 years.
(c) Reflects the amortization expense of deferred financing costs of $2,877
over the term of the Credit Agreement used to finance the Matthew Clark
Acquisition (72 months) using the effective interest method, net of $1,319
of amortization expense recorded under the Company's previously existing
credit agreement.
(d) Reflects the additional interest expense incurred on the debt to finance
the Matthew Clark Acquisition and the incremental interest expense on the
Company's and Matthew Clark's existing borrowings, resulting from the
higher interest rate in the Credit Agreement. The overall effective
interest rate was 8.8% per annum.
(e) Reflects the tax effect of the pro forma adjustments and the repatriation
of profits, excluding the impact of nondeductible items, primarily
goodwill, using an effective tax rate of 40%.
(f) Does not reflect the extraordinary treatment for the after tax write-off of
$2.7 million ($0.14 per diluted share), representing the net book value of
bank fees resulting from the extinguishment of debt remaining under the
Company's previously existing credit agreement, tax effected at the
Company's historical rate of 41%.
<PAGE>
- 34 -
<TABLE>
CANANDAIGUA BRANDS, INC. AND MATTHEW CLARK plc
1999 SIX MONTH PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME
(UNAUDITED)
(In thousands, except per share data)
<CAPTION>
Pro Forma
Historical Adjustments
------------------------------------- -----------
US GAAP
Company Matthew Clark
Six Months Ended Six Months Ended
August 31, October 31, For The Pro Forma
1998 1998 Acquisition Combined
---------------- ---------------- ----------- -----------
<S> <C> <C> <C> <C>
Net sales $ 662,314 $ 339,312 $ 1,001,626
Cost of product sold (467,767) (232,494) $ 659 (a) (699,602)
--------- --------- -------- -----------
Gross profit 194,547 106,818 659 302,024
Selling, general and administrative
expenses (128,786) (87,782) 686 (a) (212,160)
4,445 (b)
(723)(c)
Nonrecurring restructuring expenses (18,263) (18,263)
--------- --------- -------- -----------
Operating income 65,761 773 5,067 71,601
Interest expense, net (15,952) (4,284) (18,089)(d) (38,325)
--------- --------- -------- -----------
Income (loss) before income taxes 49,809 (3,511) (13,022) 33,276
(Provision for) benefit from income taxes (20,422) (1,265) 8,377 (e) (13,310)
--------- --------- -------- -----------
Net income (loss) $ 29,387 $ (4,776) $ (4,645) $ 19,966
========= ========= ======== ===========
Share Data:
Earnings per common share:
Basic $ 1.57 $ 1.07
========= ===========
Diluted $ 1.53 $ 1.04
========= ===========
Weighted average common shares outstanding:
Basic 18,669 18,669
Diluted 19,168 19,168
</TABLE>
<PAGE>
- 35 -
CANANDAIGUA BRANDS, INC. AND MATTHEW CLARK plc
NOTES TO THE PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME
FOR THE SIX MONTHS ENDED AUGUST 31, 1998
(UNAUDITED)
(IN THOUSANDS)
(a) Reflects the adjusted depreciation expense related to the acquired
property, plant and equipment of Matthew Clark on the assumption that the
Matthew Clark Acquisition had taken place on March 1, 1997. These assets
have been restated at their estimated fair market values and depreciated
using the Company's depreciation methods over the remaining useful lives of
the assets. The decrease in depreciation expense of $1,345, as compared to
that recorded by Matthew Clark, was allocated to cost of product sold and
selling, general and administrative expenses as indicated.
(b) Reflects a decrease in amortization expense of intangible assets of $4,445
based upon their appraised values, using the straight-line method and
estimated useful lives, predominately 40 years.
(c) Reflects the amortization expense of deferred financing costs of $1,438
over the term of the Credit Agreement used to finance the Matthew Clark
Acquisition (72 months) using the effective interest method, net of $715 of
amortization expense recorded under the Company's previously existing
credit agreement.
(d) Reflects the additional interest expense incurred on the debt to finance
the Matthew Clark Acquisition and the incremental interest expense on the
Company's and Matthew Clark's existing borrowings, resulting from the
higher interest rate in the Credit Agreement. The overall effective
interest rate was 8.5% per annum.
(e) Reflects the tax effect of the pro forma adjustments and the repatriation
of profits, excluding the impact of nondeductible items, primarily
goodwill, using an effective tax rate of 40%.
<PAGE>
- 36 -
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, each
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
CANANDAIGUA BRANDS, INC.
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Senior Vice
President and Chief Financial
Officer
SUBSIDIARIES
BATAVIA WINE CELLARS, INC.
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Treasurer
CANANDAIGUA WINE COMPANY, INC.
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Treasurer
CANANDAIGUA EUROPE LIMITED
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Treasurer
CANANDAIGUA LIMITED
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Director
(Principal Financial Officer and
Principal Accounting Officer)
POLYPHENOLICS, INC.
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Vice President
and Treasurer
<PAGE>
- 37 -
ROBERTS TRADING CORP.
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Treasurer
BARTON INCORPORATED
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Vice President
BARTON BRANDS, LTD.
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Vice President
BARTON BEERS, LTD.
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Vice President
BARTON BRANDS OF CALIFORNIA, INC.
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Vice President
BARTON BRANDS OF GEORGIA, INC.
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Vice President
BARTON DISTILLERS IMPORT CORP.
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Vice President
BARTON FINANCIAL CORPORATION
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Vice President
<PAGE>
- 38 -
STEVENS POINT BEVERAGE CO.
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Vice President
MONARCH IMPORT COMPANY
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Vice President
THE VIKING DISTILLERY, INC.
Dated: December 16, 1998 By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer, Vice President
<PAGE>
- 39 -
INDEX TO EXHIBITS
(1) UNDERWRITING AGREEMENT
Not Applicable.
(2) PLAN OF ACQUISITION, REORGANIZATION, ARRANGEMENT, LIQUIDATION OR SUCCESSION
2.1 Recommended Cash Offer, by Schroders on behalf of Canandaigua Limited, a
wholly-owned subsidiary of the Company, to acquire Matthew Clark plc (filed
herewith).
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING INDENTURES
4.1 First Amended and Restated Credit Agreement, dated as of November 2, 1998,
between the Company, its principal operating subsidiaries, and certain
banks for which The Chase Manhattan Bank acts as Administrative Agent
(including a list briefly identifying the contents of all omitted schedules
and exhibits thereto)(filed herewith). The Company will furnish
supplementally to the Commission, upon request, a copy of any omitted
schedule or exhibit.
(16) LETTER RE CHANGE IN CERTIFYING ACCOUNTANT
Not Applicable.
(17) LETTER RE DIRECTOR RESIGNATION
Not Applicable.
(20) OTHER DOCUMENTS OR STATEMENTS TO SECURITY HOLDERS
Not Applicable.
(23) CONSENTS OF EXPERTS AND COUNSEL
23.1 Consent of KPMG Audit Plc (filed herewith).
(24) POWER OF ATTORNEY
Not Applicable.
(27) FINANCIAL DATA SCHEDULE
Not Applicable.
(99) ADDITIONAL EXHIBITS
None
EXHIBIT 2.1
-----------
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. If you are in
any doubt about the action you should take, you are recommended immediately to
seek your own personal financial advice from your stockbroker, bank manager,
solicitor, accountant or other independent financial adviser duly authorised
under the Financial Services Act 1986.
This document should be read in conjunction with the accompanying Form of
Acceptance.
If you have sold or otherwise transferred all your Matthew Clark Shares, please
send this document, the accompanying Form of Acceptance and reply-paid envelope
as soon as possible to the purchaser or transferee or to the stockbroker, bank
or other agent through whom the sale or transfer was effected, for transmission
to the purchaser or transferee. However, such documents should not be forwarded
or transmitted in or into the United States, Canada, Australia or Japan.
The Offer referred to in this document is not being made, directly or
indirectly, in or into the United States, Canada, Australia or Japan and this
document and the Form of Acceptance are not being, and must not be, mailed,
forwarded, transmitted or otherwise distributed or sent in or into the United
States, Canada, Australia or Japan.
- --------------------------------------------------------------------------------
Recommended cash offer
by
Schroders
on behalf of
Canandaigua Limited
a wholly-owned subsidiary of Canandaigua Brands, Inc.
to acquire
Matthew Clark plc
- --------------------------------------------------------------------------------
A LETTER OF RECOMMENDATION TO ACCEPT THE OFFER FROM THE CHAIRMAN OF Matthew
Clark IS SET OUT ON PAGES 3 AND 4 OF THIS DOCUMENT.
TO ACCEPT THE OFFER, THE FORM OF ACCEPTANCE MUST BE COMPLETED AND RETURNED,
WHETHER OR NOT YOUR Matthew Clark SHARES ARE IN CREST, AS SOON AS POSSIBLE, AND
IN ANY EVENT SO AS TO BE RECEIVED BY HAND OR BY POST BY IRG PLC, NEW ISSUES
DEPARTMENT, P.O. BOX NO. 166, BOURNE HOUSE, 34 BECKENHAM ROAD, BECKENHAM, KENT
BR3 4TH OR BY HAND ONLY DURING NORMAL BUSINESS HOURS TO IRG PLC, 23 IRONMONGER
LANE, LONDON EC2 NO LATER THAN 3.00 P.M. ON 24 NOVEMBER 1998.
THE PROCEDURE FOR ACCEPTANCE OF THE OFFER IS SET OUT ON PAGES 8 TO 11 OF THIS
DOCUMENT AND IN THE ACCOMPANYING FORM OF ACCEPTANCE.
Schroders, which is regulated in the United Kingdom by The Securities and
Futures Authority Limited, is acting for Canandaigua Brands, Inc. and
Canandaigua Limited and no-one else in connection with the Offer and will not be
responsible to anyone other than Canandaigua Brands, Inc. and Canandaigua
Limited for providing the protections afforded to customers of Schroders or for
providing advice in relation to the Offer.
Warburg Dillon Read, which is regulated in the United Kingdom by The Securities
and Futures Authority Limited, is acting for Matthew Clark plc and no-one else
in connection with the Offer and will not be responsible to anyone other than
Matthew Clark plc for providing the protections afforded to customers of Warburg
Dillon Read or for providing advice in relation to the Offer.
<PAGE>
Page
Letter of recommendation from the Chairman of Matthew Clark ................ 3
Letter from Schroders ...................................................... 5
1. Introduction ....................................................... 5
2. Irrevocable undertakings and holdings .............................. 5
3. The Offer .......................................................... 5
4. Further terms of the Offer ......................................... 6
5. Information relating to Canandaigua ................................ 6
6. Information relating to Canandaigua Limited ........................ 6
7. Information relating to Matthew Clark .............................. 6
8. Background to and reasons for the Offer ............................ 7
9. Financial effects of acceptance .................................... 7
10. Management and employees ........................................... 8
11. Matthew Clark Share Option Schemes ................................. 8
12. Procedure for acceptance of the Offer .............................. 8
13. Settlement ......................................................... 11
14. United Kingdom taxation ............................................ 12
15. Further information ................................................ 12
16. Action to be taken ................................................. 13
Appendices
I Conditions and further terms of the Offer and
Form of Acceptance ................................................. 14
II Further information on Canandaigua ................................. 32
III Further information on Matthew Clark ............................... 55
IV Additional information ............................................. 69
V Definitions ........................................................ 78
2
<PAGE>
________________
Matthew Clark pc
________________
Whitchurch Lane, Bristol BS14 0JZ
Tel: 01275 830345 Telex: 445565 Fax: 01275 890697
Directors:
Graham Wilson (Chairman)*
Peter Aikens (Chief Executive)
Martin Boase*
Hugh Etheridge (Finance Director)
Michael Garner*
Robert MacNevin
Richard Peters
Kevin Philp
*Non-executive
3 November 1998
To Matthew Clark Shareholders and, for information only, to participants in the
Matthew Clark Share Option Schemes
Dear Matthew Clark Shareholder,
Recommended cash offer by Canandaigua Limited
It was announced today that agreement had been reached between the boards of
Matthew Clark and Canandaigua on the terms of a recommended cash offer to be
made by Schroders on behalf of Canandaigua Limited, a wholly-owned subsidiary of
Canandaigua, for the entire issued and to be issued ordinary share capital of
Matthew Clark. This letter sets out the background to the Offer and the reasons
why the board of Matthew Clark is recommending all Matthew Clark Shareholders to
accept it. The formal offer is set out in this document.
The Offer
The Offer values each Matthew Clark Share at 243 pence, valuing the whole of the
existing issued ordinary share capital of Matthew Clark at approximately 215.1
million pounds sterling. Further terms of the Offer and the conditions to which
it is subject are set out in Appendix I.
Background to and reasons for recommending the Offer
The Matthew Clark Group, which grew rapidly by acquisition during the 1990s, is
now a major producer of cider, wine, water and other drinks, and a leading
drinks wholesaler. In recent years a number of significant challenges have had
to be faced: the rapid rise of what are commonly known as "alcopops", the
aggressive pricing policy of Matthew Clark's principal cider competitor and the
influx of cheap imported beers, lagers and wines, as well as the extremely
active management by supermarket stores and cash and carry outlets of their
buying margins.
As we indicated in the 1997 annual report, the board has adopted a strategy of
rebuilding the value of Matthew Clark's brands over the medium term and of
rationalising and then expanding its wholesale operations. As a result, the
decision was taken to make a substantial investment in brand development and
support, particularly in cider brands, as well as centralising production
facilities and achieving economies of scale in the wholesale business. The full
benefits of these investments would, it was recognised, take time to work
through and the board of Matthew Clark would not expect to see these reflected
in Matthew Clark's market valuation in the immediate future.
Following the adoption of this strategy, and in light of the ratings that were
being attributed to Matthew Clark's historic and future earnings relative to its
industry sector peers, in February 1998 the board of
Registered Office: Whitchurch Lane, Bristol BS14 0JZ. Registered in England
163952
3
<PAGE>
Matthew Clark conducted a review of the options available to it to enhance
shareholder value. The board then reaffirmed that the adopted strategy was the
one most likely to deliver increased earnings, although it was anticipated that
the rating improvement would not be realised for some time. Since then, Matthew
Clark has received tentative approaches from parties interested in taking
advantage of Matthew Clark's recent share price, none of which your board felt
reflected full value for shareholders.
In September of this year, Canandaigua made an approach to the Matthew Clark
board with respect to a potential offer for the company at a level which the
directors of Matthew Clark felt offered the value to its shareholders today that
its own strategy was planned to deliver in two to three years time. Because of
the prevailing market uncertainty over Matthew Clark's share price and the
recent series of adverse comments from the alcoholic beverages industry, your
board has concluded that Matthew Clark's businesses can more effectively be
developed within a larger and more broadly based drinks group, with a strong
balance sheet able to support the future development of the business. In these
circumstances, the board has decided to recommend Canandaigua Limited's offer as
set out in this document.
Management and employees
Canandaigua has indicated that it attaches great importance to the skills and
experience of the existing management and employees of Matthew Clark and
believes that they will have greater opportunities as a result of the proposed
acquisition. It is intended that the Matthew Clark executive management team
will continue to operate the business following the Offer becoming unconditional
in all respects. Canandaigua has given assurances to the board of Matthew Clark
that the existing employment rights, including pension rights, of all Matthew
Clark employees will be fully safeguarded.
Matthew Clark Share Option Schemes
The Offer extends to any Matthew Clark Shares which are unconditionally allotted
or issued by reason of the exercise of options under the Matthew Clark Share
Option Schemes whilst the Offer remains open for acceptance. Appropriate
proposals will be made, in due course, to participants in the Matthew Clark
Share Option Schemes if the Offer becomes unconditional in all respects.
Action to be taken to accept the Offer
The procedures for acceptance of the Offer are set out on pages 8 to 11 of this
document and in the accompanying Form of Acceptance.
In deciding whether to accept the Offer, you should have regard to your personal
circumstances, including your taxation position. If you are in any doubt as to
the action you should take, you should consult your professional adviser.
If you intend to accept the Offer, you should ensure that you complete and
return your Form of Acceptance as soon as possible and, in any event, so as to
arrive by no later than 3.00 pm on 24 November 1998.
Recommendation to accept the Offer
The directors of Matthew Clark, who have been so advised by Warburg Dillon Read,
consider the terms of the Offer to be fair and reasonable. The directors of
Matthew Clark unanimously recommend Matthew Clark Shareholders to accept the
Offer, as they and certain members of their immediate families have undertaken
to do in respect of their own holdings, which amount to 147,889 Matthew Clark
Shares, representing approximately 0.2 per cent. of Matthew Clark's issued share
capital. In providing advice to the directors of Matthew Clark, Warburg Dillon
Read has taken into account the Matthew Clark directors' commercial assessments.
Yours sincerely,
/s/Graham Wilson
Graham Wilson
Chairman
4
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Schroders
Investment Banking
3 November 1998
To Matthew Clark Shareholders and, for information only, to participants in the
Matthew Clark Share Option Schemes
Dear Shareholder
Recommended cash offer by Canandaigua Limited for Matthew Clark plc
1. Introduction
The boards of Canandaigua and Matthew Clark announced today that they have
agreed the terms of a recommended cash offer, to be made by Schroders on behalf
of Canandaigua Limited, a wholly-owned subsidiary of Canandaigua, for the whole
of the issued and to be issued ordinary share capital of Matthew Clark.
This document contains the formal offer. Your attention is drawn to the letter
from the Chairman of Matthew Clark set out on pages 3 and 4 of this document,
which outlines the background to the Offer and states that the directors of
Matthew Clark consider the terms of the Offer to be fair and reasonable.
Accordingly, the directors of Matthew Clark have unanimously recommended Matthew
Clark Shareholders to accept the Offer, as they and certain members of their
immediate families have undertaken to do in respect of their personal holdings
of 147,889 Matthew Clark Shares, representing approximately 0.2 per cent. of
Matthew Clark's issued ordinary share capital.
2. Irrevocable undertakings and holdings
Canandaigua Limited has received irrevocable undertakings to accept the Offer
(including those from the directors of Matthew Clark and certain members of
their immediate families) in respect of a total of 24,514,352 Matthew Clark
Shares representing 27.7 per cent. of Matthew Clark's existing issued ordinary
share capital. The terms of the irrevocable undertakings require acceptance of
the Offer even if a competing or higher offer is made by a third party except
that irrevocable undertakings from shareholders (other than directors and
certain members of their immediate families) cease to be binding if a competing
or higher offer is made by a third party at, or in excess of, 267 pence per
Matthew Clark Share.
3. The Offer
On behalf of Canandaigua Limited, we hereby offer to purchase, upon the terms
and subject to the conditions set out in this Offer Document and in the Form of
Acceptance, all outstanding Matthew Clark Shares on the following basis:
for each Matthew Clark Share 243 pence in cash
The Offer values the entire issued ordinary share capital of Matthew Clark at
approximately 215.1 million pounds sterling. The Offer represents a premium of
over 81 per cent. to the closing middle-market price of 134 pence per Matthew
Clark Share, as derived from the Official List on 21 October 1998 (the day prior
to the announcement by Matthew Clark that it was in discussions which may or may
not lead to an offer for the whole of the issued share capital of Matthew
Clark).
________________________________________________________________________________
Telephone 0171-658 6000 Regulated by SFA J. Henry Schroder & Co. Limited
Facsimile 0171-658 6459 120 Cheapside, London EC2V 6DS
DX 42615 Registered office at above address
Registered number 532081 England
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To accept the Offer you should return the Form of Acceptance as soon as
possible, and in any event, so as to be received by IRG plc no later than 3.00pm
on 24 November 1998.
4. Further terms of the Offer
Matthew Clark Shares will be acquired pursuant to the Offer fully paid and free
from all liens, charges, encumbrances, rights of pre-emption and any other third
party rights of any nature whatsoever and together with all rights now or
hereafter attaching thereto, including the right to receive in full all
dividends and other distributions, if any, declared, made or paid on or after
the date of this document.
The Offer will extend to all existing issued Matthew Clark Shares and to any
Matthew Clark Shares which are unconditionally allotted or issued prior to the
date on which the Offer closes (or such earlier date as the Offeror may, subject
to the City Code, decide) including Matthew Clark Shares issued pursuant to the
exercise of options under the Matthew Clark Share Option Schemes or otherwise.
5. Information relating to Canandaigua
Canandaigua is the largest single-source supplier of imported beers, wines and
distilled spirits in the United States, with over 130 brands distributed by more
than 850 wholesalers throughout the United States and in selected international
markets.
Canandaigua's brands are marketed in three general categories:
Imported Beer: Canandaigua is the second largest marketer of imported beer in
the United States. Canandaigua's portfolio includes five of the top twenty-five
imported beers in the United States: Corona Extra (the leading imported beer in
the United States), Modelo Especial, Corona Light, St. Pauli Girl and Pacifico;
Wine: Canandaigua is the second largest producer and marketer of wines in the
United States, with over 70 brands including internationally-known brands such
as Inglenook, Almaden, Paul Masson and Manischewitz; and
Distilled Spirits: Canandaigua ranks fourth in the US distilled spirits market.
Canandaigua produces, bottles, imports and markets a diverse line of quality
distilled spirits. Canandaigua exports distilled spirits to approximately 20
countries outside the United States. Key distilled spirits brands include
Fleischmann's, Barton, Paul Masson Grande Amber, Mr. Boston, Montezuma and
Canadian LTD.
In the year ended 28 February 1998, Canandaigua's total sales were $1.6 billion
and profit before tax was $84.9 million. Net assets as at 28 February 1998 were
$415.2 million.
Canandaigua's shares are listed on the NASDAQ National Stock Market under the
symbols CBRNA and CBRNB. Canandaigua's market capitalisation as at 30 October
1998 (the latest practicable date prior to the printing of this document) was
approximately $897.6 million.
6. Information relating to Canandaigua Limited
Canandaigua Limited, the Offeror, is a wholly-owned subsidiary of Canandaigua
specifically formed for the purpose of the Offer.
7. Information relating to Matthew Clark
Matthew Clark is a major UK drinks group which produces, distributes and
wholesales a variety of alcoholic and bottled water beverages in the United
Kingdom.
Matthew Clark operates through two divisions:
Matthew Clark Brands is the branded drinks division which comprises cider
products, wine and bottled water products. Cider products include cider sold
predominantly under the Blackthorn brand and premium packaged cider sold under
the Diamond White and K brands. Wine and bottled water products include
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Stowell's of Chelsea wine box, QC fortified British wine, light British
wine/perry and Strathmore bottled water. New products include Stone's Cream
Liqueur, Jinzu and Espri; and
Matthew Clark Wholesale is the United Kingdom's leading independent drinks
wholesaler. Matthew Clark provides a full range of wines, spirits, ciders, beers
and soft drinks to over 17,000 on-licensed outlets. Matthew Clark also
distributes the Grants of St James's wine list.
In the year ended 30 April 1998, Matthew Clark's total sales were 553.1 million
pounds sterling and profit before tax was 35.8 million pounds sterling. Net
assets as at 30 April 1998 were 95.4 million pounds sterling.
8. Background to and reasons for the Offer
A major facet of Canandaigua's growth strategy is to acquire businesses that
enable the Canandaigua Group to expand its geographic presence and provide a
base of business that has the potential to grow through brand development,
marketing and strategic initiatives. Matthew Clark provides a strong base of
business with the first position in the UK branded wine market, which excludes
private label, and the second position in the UK cider market. In addition, the
board of Canandaigua believes that Matthew Clark's position as the United
Kingdom's largest independent drinks wholesaler creates a unique opportunity to
develop further a growing and largely under-exploited sector and that Matthew
Clark's highly experienced management infrastructure creates the opportunity for
further strategic and synergistic acquisitions in Europe. The board of
Canandaigua also believes that both Matthew Clark's and Canandaigua's businesses
would benefit from being part of an international drinks group which would be
created as a result of the successful completion of the Offer through the
potential for development of Canandaigua's products in the United Kingdom and
Matthew Clark's products in the United States.
9. Financial effects of acceptance
The following tables set out, for illustrative purposes only and on the bases
and assumptions stated below, the financial effects of acceptance on capital
value and gross income for a holder of one Matthew Clark Share accepting the
Offer if the Offer becomes or is declared unconditional in all respects:
Notes Pence
A. Increase in capital value
Cash consideration 243.0
Market value of one Matthew Clark Share (i) 134.0
-----
Increase in capital value 109.0
=====
This represents an increase of 81.3%
B. Decrease in gross income
Gross income from cash consideration (ii) 12.4
Gross dividend income from one Matthew Clark Share (iii) 16.3
----
Decrease in gross income (3.8)
=====
This represents a decrease of (23.4)
Notes:
(i) Based on the closing middle-market quotation of 134.0p per Matthew Clark
Share, as derived from the Official List at the close of business on
21 October 1998, the day prior to the announcement by Matthew Clark that it
was in discussions which may or may not lead to an offer for the whole of
the issued ordinary share capital of Matthew Clark.
(ii) The gross income on the cash consideration has been calculated on the
assumption that the cash is re-invested to yield approximately 5.12 per
cent. per annum, being the gross yield shown by the FTSE Actuaries average
gross redemption yield for medium coupon British Government securities of
up to five year maturities on 30 October 1998, as published in the
Financial Times on 31 October 1998, the latest practicable date prior to
the printing of this document.
(iii)The gross dividend income from one Matthew Clark Share is based on
aggregate dividends of 13.0p (net) per Matthew Clark Share being the total
of the 5.0p (net) interim dividend for the financial year ended 30 April
1998 and the 8.0p (net) final dividend for the financial year ended 30
April 1998, together in both cases with an associated tax credit of
20/80ths of the amount paid.
(iv) Save as disclosed in note (iii) above, no account has been taken of any
liability to taxation.
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10. Management and employees
Canandaigua attaches great importance to the skills and experience of the
existing management and employees of Matthew Clark and believes that they will
have greater opportunities as a result of the proposed acquisition. It is
intended that the Matthew Clark executive management team will continue to
operate the business following the Offer becoming unconditional in all respects.
Canandaigua has given assurances to the board of Matthew Clark that the existing
employment rights, including pension rights, of all Matthew Clark employees will
be fully safeguarded.
11. Matthew Clark Share Option Schemes
Canandaigua Limited will make appropriate proposals to holders of options under
the Matthew Clark Share Option Schemes, to the extent that options are not
exercised, once the Offer becomes or is declared unconditional in all respects.
12. Procedure for acceptance of the Offer
This section should be read together with the notes on the Form of Acceptance.
(a) Completion of Form of Acceptance
You should note that if you hold Matthew Clark Shares in both certificated
and uncertificated form (that is, in CREST) you should complete a separate
Form of Acceptance for each holding. In addition, you should complete
separate Forms of Acceptance for Matthew Clark Shares held in
uncertificated form, but under different member account IDs, and separate
Forms of Acceptance for Matthew Clark Shares held in certificated form but
under different designations. Additional Forms of Acceptance are available
from IRG plc, New Issues Department, P.O. Box No. 166, Bourne House, 34
Beckenham Road, Beckenham, Kent BR3 4TH and during normal business hours
from IRG plc, 23 Ironmonger Lane, London EC2.
(i) To accept the Offer
To accept the Offer in respect of all your Matthew Clark Shares, you
must complete Boxes 1, 2 and 3 and, if your Matthew Clark Shares are
in CREST, Box 4. In all cases you must sign Box 2 of the enclosed Form
of Acceptance in accordance with the instructions printed on that
form. All holders of Matthew Clark Shares who are individuals should
sign the Form of Acceptance in the presence of a witness, who should
also sign in accordance with the instructions printed on that form.
(ii) To accept the Offer in respect of less than all your Matthew Clark
Shares
To accept the Offer in respect of less than all your Matthew Clark
Shares, you must insert in Box 1 on the enclosed Form of Acceptance
the lesser number of Matthew Clark Shares in respect of which you wish
to accept the Offer in accordance with the instructions printed on the
form. You should then follow the procedure set out in (i) above in
respect of that lesser number of Matthew Clark Shares. If you do not
insert a number in Box 1, your acceptance will be deemed to be in
respect of all of the Matthew Clark Shares held by you.
If you have any questions as to how to complete the Form of Acceptance,
please telephone IRG plc on 0181 639 2188.
(b) Return of Form of Acceptance
To accept the Offer, the completed Form of Acceptance should be returned
whether or not your Matthew Clark Shares are in CREST. The completed Form
of Acceptance should be returned by post or by hand to IRG plc, New Issues
Department, P.O. Box No. 166, Bourne House, 34 Beckenham Road, Beckenham,
Kent BR3 4TH or by hand only during normal business hours to IRG plc, 23
Ironmonger Lane, London EC2 together (subject to paragraph (d) below) with
the relevant share certificate(s) and/or other document(s) of title as soon
as possible, but in any event so as to arrive no later than 3.00 p.m. on 24
November 1998. A reply-paid envelope for use in the UK only is enclosed
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for your convenience. No acknowledgement of receipt of documents will be
given by or on behalf of Canandaigua Limited. The instructions printed on
the Form of Acceptance are deemed to form part of the terms of the Offer.
(c) Documents of title
If your Matthew Clark Shares are in certificated form, a completed and
signed Form of Acceptance should be accompanied by the relevant share
certificate(s) and/or other document(s) of title. If for any reason the
relevant share certificates(s) and/or other document(s) of title is/are
lost or not readily available, you should nevertheless complete, sign and
lodge the Form of Acceptance as stated above so as to be lodged with IRG
plc, New Issues Department, P.O. Box No. 166, Bourne House, 34 Beckenham
Road, Beckenham, Kent BR3 4TH or by hand only during normal business hours
to IRG plc, 23 Ironmonger Lane, London EC2, by no later than 3.00 p.m. on
24 November 1998. You should send with the Form of Acceptance any share
certificate(s) and/or other document(s) of title which you may have
available and a letter stating that the remaining documents will follow as
soon as possible or that you have lost one or more share certificate(s)
and/or other document(s) of title. No acknowledgement of receipt of
documents will be given. If you have lost your share certificate(s) and/or
other document(s) of title, you should contact Matthew Clark's registrars,
IRG plc, Bourne House, 34 Beckenham Road, Beckenham, Kent BR3 4TU, for a
letter of indemnity for (a) lost share certificate(s) which, when completed
in accordance with the instructions given, should be returned to IRG plc,
New Issues Department, P.O. Box No. 166, Bourne House, 34 Beckenham Road,
Beckenham, Kent BR3 4TH.
(d) Additional procedures for Matthew Clark Shares in uncertificated form (that
is, in CREST)
If your Matthew Clark Shares are in uncertificated form, you should insert
in Box 4 of the enclosed Form of Acceptance the participant ID and member
account ID under which such Matthew Clark Shares are held by you in CREST
and otherwise complete and return the Form of Acceptance as described
above. In addition, you should take (or procure to be taken) the action set
out in this paragraph (d) to transfer the Matthew Clark Shares in respect
of which you wish to accept the Offer to an escrow balance (that is, a TTE
instruction) specifying IRG plc (in its capacity as a CREST participant
under the Escrow Agent participant ID referred to below) as the Escrow
Agent, as soon as possible and in any event so that the transfer to escrow
settles no later than 3.00 p.m. on 24 November 1998.
If you are a CREST sponsored member, you should refer to your CREST sponsor
before taking any action. Your CREST sponsor will be able to confirm
details of your participant ID and the member account ID under which your
Matthew Clark Shares are held. In addition, only your CREST sponsor will be
able to send the TTE instruction to CRESTCo in relation to your Matthew
Clark Shares.
You should send (or, if you are a CREST sponsored member, procure that your
CREST sponsor sends) a TTE instruction to CRESTCo which must be properly
authenticated in accordance with CRESTCo's specifications and which must
contain, in addition to the other information that is required for a TTE
instruction to settle in CREST, the following details:
--- the number of Matthew Clark Shares to be transferred to an escrow
balance;
--- your member account ID. This must be the same member account ID as
that inserted in Box 4 of the Form of Acceptance;
--- your participant ID. This must be the same participant ID as that
inserted in Box 4 of the Form of Acceptance;
--- the participant ID of the Escrow Agent, IRG plc, in its capacity as a
CREST receiving agent. This is RA10;
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--- the member account ID of the Escrow Agent. This is MATTHEWC for the
Matthew Clark Shares;
--- the Form of Acceptance reference number. This is the reference number
that appears next to Box 4 on page 3 of the Form of Acceptance. This
reference number should be inserted in the first eight characters of
the shared note field on the TTE instruction. Such insertion will
enable IRG plc to match the transfer to escrow to your Form of
Acceptance. You should keep a separate record of this reference number
for future reference;
--- the intended settlement date. This should be as soon as possible and
in any event not later than 3.00 p.m. on 24 November 1998;
--- the Corporate Action ISIN, which is GB0002013083;
--- the Corporate Action Number for the Offer. This is allocated by
CRESTCo and can be found by viewing the relevant Corporate Action
Details in CREST; and
--- the standard TTE delivery instruction with priority of 80.
After settlement of the TTE instruction, you will not be able to access the
Matthew Clark Shares concerned in CREST for any transaction or charging
purposes. If the Offer becomes or is declared unconditional in all
respects, the escrow agent will transfer the Matthew Clark Shares concerned
to itself in accordance with paragraph (d) of Part C of Appendix I to this
document.
You are recommended to refer to the CREST manual published by CRESTCo for
further information on the CREST procedures outlined above. For ease of
processing, you are requested, wherever possible, to ensure that a Form of
Acceptance relates to only one transfer to escrow.
If no Form of Acceptance reference number, or an incorrect Form of
Acceptance reference number, is included on the TTE instruction,
Canandaigua Limited may treat any amount of Matthew Clark Shares
transferred to an escrow balance in favour of the escrow agent specified
above from the participant ID and member account ID identified in the TTE
instruction as relating to any Form(s) of Acceptance which relate(s) to the
same member account ID and participant ID (up to the amount of Matthew
Clark Shares inserted or deemed to be inserted on the Form(s) of Acceptance
concerned).
You should note that CRESTCo does not make available special procedures, in
CREST, for any particular corporate action. Normal system timings and
limitations will therefore apply in connection with a TTE instruction and
its settlement. You should therefore ensure that all necessary action is
taken by you (or by your CREST sponsor) to enable a TTE instruction
relating to your Matthew Clark Shares to settle prior to 3.00 p.m. on 24
November 1998. In this regard, you are referred in particular to those
sections of the CREST manual concerning practical limitations of the CREST
system and timings.
Canandaigua Limited will make an appropriate announcement if any of the
details contained in this paragraph (d) alter for any reason.
(e) Deposits of Matthew Clark Shares into, and withdrawals of Matthew Clark
Shares from, CREST
Normal CREST procedures (including timings) apply in relation to any
Matthew Clark Shares that are, or are to be, converted from uncertificated
to certificated form, or from certificated to uncertificated form, during
the course of the Offer (whether any such conversion arises as a result of
a transfer of Matthew Clark Shares or otherwise). Matthew Clark
Shareholders who are proposing so to convert any such Matthew Clark Shares
are recommended to ensure that the conversion procedures are implemented in
sufficient time to enable the person holding or acquiring the Matthew Clark
Shares as a result of the conversion to take all necessary steps in
connection with an acceptance of the Offer (in particular, as regards
delivery of share certificate(s) and/or other document(s) of title or
transfer(s) to an escrow balance as described above) prior to 3.00 p.m. on
24 November 1998.
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(f) Validity of acceptances
Subject to the provisions of the City Code and without prejudice to Parts B
and C of Appendix I of this document, Canandaigua Limited reserves the
right to treat as valid in whole or in part any acceptance of the Offer
which is not entirely in order or which is not accompanied by the relevant
TTE instruction or (as applicable) the relevant share certificate(s) and/or
other documents of title. In that event, no payment of cash under the Offer
will be made to Matthew Clark Shareholders until after the relevant TTE
instruction has settled or (as applicable) the relevant share
certificate(s) and/or other document(s) of title or indemnities
satisfactory to Canandaigua Limited have been received.
(g) Overseas shareholders
The attention of Matthew Clark Shareholders who are citizens or residents
of jurisdictions outside the UK is drawn to paragraph 7 of Part B and
paragraph (b) of Part C of Appendix I of this document, and to the relevant
provisions of the Form of Acceptance.
The availability of the Offer to persons not resident in the United Kingdom
may be affected by the laws of the relevant jurisdictions. Persons who are
not resident in the United Kingdom should inform themselves about and
observe any applicable requirements.
The Offer is not being made, directly or indirectly, in or into the United
States, Canada, Australia or Japan or to any North American person or
resident of Australia or Japan or by use of the mails of, or by any means
or instrumentality (including, without limitation, telephonically or
electronically) of interstate or foreign commerce of, or any facilities of
a national, state or other securities exchange of, the United States,
Canada, Australia or Japan.
Copies of this document, the Form of Acceptance and any related offering
documents are not being sent and must not be mailed or otherwise
distributed or sent in, into or from the United States, Canada, Australia
or Japan or to any person whom the Offeror or its agents believes is a
North American person or a person in, or resident of Australia or Japan.
Any accepting Matthew Clark Shareholder who is unable to give the
warranties set out in paragraph (b) of Part C of Appendix I of this
document will be deemed not to have accepted the Offer.
If you are in any doubt as to the procedure for acceptance, please
telephone IRG plc on 0181 639 2188. You are reminded that, if you are a
CREST sponsored member, you should contact your CREST sponsor before taking
any action.
13. Settlement
Subject to the Offer becoming or being declared unconditional in all respects
(except as provided in paragraph 7 of Part B of Appendix I in the case of
certain overseas Matthew Clark Shareholders), settlement of the consideration to
which any Matthew Clark Shareholder is entitled under the Offer will be effected
(i) in the case of acceptances received, complete in all respects, by the date
on which the Offer becomes or is declared unconditional in all respects, within
14 days of such date, or (ii) in the case of acceptances of the Offer received,
complete in all respects, after the date on which the Offer becomes or is
declared unconditional in all respects but while it remains open for acceptance,
within 14 days of such receipt, in the following manner:
(a) Matthew Clark Shares in uncertificated form (that is, in CREST)
Where an acceptance relates to Matthew Clark Shares in uncertificated form,
settlement of any cash consideration to which the accepting Matthew Clark
Shareholder is entitled will be effected by means of CREST by Canandaigua
Limited procuring the creation of an assured payment obligation in favour
of the accepting Matthew Clark Shareholder's payment bank in respect of the
cash consideration due, in accordance with the CREST assured payment
arrangements.
Canandaigua Limited reserves the right to settle all or any part of the
consideration referred to in this paragraph (a), for all or any accepting
Matthew Clark Shareholder(s), in the manner referred to in paragraph (b)
below, if, for any reason, it wishes to do so.
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(b) Matthew Clark Shares in certificated form
Where an acceptance relates to Matthew Clark Shares in certificated form,
settlement of any cash due will be despatched (but not in or into the
United States, Canada, Australia or Japan) by first class post (or by such
other method as the Panel may approve). All such cash payments will be made
in pounds sterling by cheque drawn on a branch of a UK clearing bank.
(c) General
If the Offer does not become or is not declared unconditional in all
respects (i) share certificate(s) and/or other document(s) of title will be
returned by post (or such other method as may be approved by the Panel),
within 14 days of the Offer lapsing, to the person or agent whose name and
address (outside the United States, Canada, Australia and Japan) is set out
in Box 6 of the Form of Acceptance or, if none is set out, to the first
named holder at his or her registered address (outside the United States,
Canada, Australia and Japan) and (ii) the escrow agent will, immediately
after the lapsing of the Offer (or within such longer period, not exceeding
14 days after the Offer lapsing, as the Panel may approve), give TFE
instructions to CRESTCo to transfer all Matthew Clark Shares held in escrow
balances to the original available balances of the Matthew Clark
Shareholders concerned.
All communications, notices, certificates, documents of title and
remittances to be delivered by or sent to or from Matthew Clark
Shareholders (or their appointed agent(s)) will be delivered by or sent to
or from them (or their appointed agent(s)) at their own risk.
14. United Kingdom taxation
The following paragraphs, which are intended as a general guide only, are based
on current legislation and Inland Revenue practice. They summarise certain
limited aspects of the UK taxation treatment of the acceptance of the Offer, and
they relate only to the position of Matthew Clark Shareholders who hold their
Matthew Clark Shares beneficially as an investment and who are resident in the
UK for taxation purposes. If you are in any doubt as to your taxation position
or if you may be subject to taxation in any jurisdiction other than the UK, you
should consult an appropriate professional adviser immediately.
(a) UK taxation on chargeable gains
Liability to UK taxation on chargeable gains will depend on the individual
circumstances of Matthew Clark Shareholders.
To the extent that a Matthew Clark Shareholder receives cash under the
Offer, this will constitute a disposal, or part disposal, of his Matthew
Clark Shares for the purposes of UK taxation on chargeable gains which may,
depending on the shareholder's individual circumstances (including the
availability of exemptions and allowable losses), give rise to a liability
to UK taxation on chargeable gains.
(b) Stamp duty and stamp duty reserve tax ("SDRT")
No stamp duty or SDRT will be payable by Matthew Clark Shareholders as a
result of accepting the Offer.
(c) Other direct tax matters
Special tax provisions may apply to Matthew Clark Shareholders who have
acquired or acquire their Matthew Clark Shares by exercising options under
the Matthew Clark Share Option Schemes, including provisions imposing a
charge to income tax when such options are exercised.
15. Further information
Your attention is drawn to the further information contained in the Appendices
to this document.
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16. Action to be taken
To accept the Offer, the Form of Acceptance must be completed and returned
whether or not your Matthew Clark Shares are in CREST. Forms of Acceptance
should be returned as soon as possible and, in any event, so as to be received
by post or by hand by IRG plc, New Issues Department, P.O. Box No. 166, Bourne
House, 34 Beckenham Road, Beckenham, Kent BR3 4TH or by hand only during normal
business hours to IRG plc, 23 Ironmonger Lane, London EC2 no later than 3.00
p.m. on 24 November 1998.
Yours sincerely,
for J. Henry Schroder Co. Limited
Rory Maw
Director
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PART A -- CONDITIONS OF THE OFFER
The Offer, made by Schroders on behalf of the Offeror, complies with the
applicable rules and regulations of the London Stock Exchange and the City Code
and is governed by English law. The Offer is subject to the jurisdiction of the
courts of England and to the terms and conditions set out in this Offer Document
and the related Form of Acceptance.
1. Conditions of the Offer
The Offer is subject to the following conditions:
(a) valid acceptances being received (and not, where permitted, withdrawn) by
not later than 3.00 p.m. on 24 November 1998, (or such later time(s) and/or
date(s) as the Offeror may, subject to the rules of the City Code, decide)
in respect of not less than 90 per cent. (or such lesser percentage as the
Offeror may decide) in nominal value of the Matthew Clark Shares to which
the Offer relates, provided that this condition will not be satisfied
unless the Offeror (together with its wholly-owned subsidiaries) shall have
acquired or agreed to acquire (pursuant to the Offer or otherwise) Matthew
Clark Shares carrying in aggregate more than 50 per cent. of the voting
rights then exercisable at general meetings of holders of Matthew Clark
Shares. For the purposes of this condition Matthew Clark Shares which have
been unconditionally allotted shall be deemed to carry the voting rights
they will carry upon being entered in the register of members of Matthew
Clark;
(b) the Office of Fair Trading indicating, in terms satisfactory to the
Offeror, that it is not the intention of the Secretary of State for Trade
and Industry to refer the proposed acquisition of Matthew Clark by the
Offeror, or any matters arising therefrom, to the Monopolies and Mergers
Commission;
(c) all necessary filings having been made, all applicable waiting and other
time periods having expired, lapsed or been terminated and all statutory
and regulatory obligations in any jurisdiction having been complied with,
in each case in connection with the Offer and all Authorisations necessary
or appropriate in any jurisdiction for or in respect of the Offer and the
acquisition or the proposed acquisition of any shares or other securities
in or control of Matthew Clark by any member of the Canandaigua Group
having been obtained in terms and in a form reasonably satisfactory to the
Offeror from all appropriate Third Parties and all such Authorisations
necessary to carry on the business of any member of the Wider Matthew Clark
Group in any jurisdiction having been obtained and all such Authorisations
remaining in full force and effect at the time at which the Offer becomes
otherwise unconditional and there being no notice or intimation of an
intention to revoke, suspend, restrict, modify or not to renew such
Authorisations;
(d) no Third Party having decided to take, institute or threaten any action,
proceeding, suit, investigation, enquiry or reference or having required
any action to be taken or otherwise having done anything or having enacted,
made or proposed any statute, regulation, decision or order and there not
continuing to be outstanding any statute, regulation, decision or order
which would or might:
(i) make the Offer, its implementation or the acquisition by any
member of the Canandaigua Group of any or all Matthew Clark Shares
or control of Matthew Clark void, unenforceable or illegal or
restrict, prohibit, delay or otherwise to a material extent
interfere with the implementation of, or impose additional adverse
conditions or obligations with respect to, or otherwise challenge
or require amendment of the Offer or the acquisition by any member
of the Canandaigua Group of any or all Matthew Clark Shares or
control of Matthew Clark;
(ii) require, prevent or delay the divestiture or alter the terms
envisaged for such divestiture by any member of the Wider
Canandaigua Group or by any member of the Wider Matthew Clark
Group of all or any material part of their respective businesses,
assets or properties or impose any material limitation on their
ability to conduct their respective businesses or to own any of
their respective assets or properties;
(iii) impose any material limitation on, or result in a material delay
in, the ability of any member of the Canandaigua Group to acquire
or to hold or to exercise effectively, directly or indirectly, all
or any rights of ownership of shares or other securities (or the
equivalent) in Matthew Clark or on the ability of any member of
the Matthew Clark Group or any member of the Canandaigua Group to
hold or exercise effectively any rights of ownership of shares or
other securities in or to exercise management control over any
member of the Wider Matthew Clark Group;
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(iv) require any member of the Wider Canandaigua Group or the Wider
Matthew Clark Group to acquire or offer to acquire any shares or
other securities (or the equivalent) in any member of the Wider
Matthew Clark Group or of the Wider Canandaigua Group owned by any
third party or to sell or offer to sell any shares or other
securities (or the equivalent) in or any asset of any member of
the Wider Matthew Clark Group or of the Wider Canandaigua Group
(in each case, other than in the implementation of the Offer);
(v) require, prevent or delay a divestiture or alter the terms
envisaged for any proposed divestiture, by any member of the Wider
Canandaigua Group of any shares or other securities (or the
equivalent) in Matthew Clark;
(vi) result in any member of the Wider Matthew Clark Group or of the
Wider Canandaigua Group ceasing to be able to carry on business
under any name which it presently does so to an extent which is
material in the context of the wider group concerned taken as a
whole;
(vii) impose any material limitation on, or result in a material delay
in, the ability of any member of the Wider Canandaigua Group or
any member of the Wider Matthew Clark Group to integrate or
co-ordinate all or any part of its business with all or any part
of the business of any other member of the Wider Canandaigua Group
and/or the Wider Matthew Clark Group; or
(viii) otherwise affect the business, assets, profits or prospects of any
member of the Wider Canandaigua Group or any member of the Wider
Matthew Clark Group in a manner which is adverse to and material
in the context of the wider group concerned taken as a whole,
and all applicable waiting and other time periods during which any such
Third Party could decide to take, institute or threaten any such action,
proceeding, suit, investigation, enquiry or reference or otherwise
intervene having expired, lapsed or been terminated;
(e) (save as disclosed in writing to Canandaigua and/or the Offeror prior to 3
November 1998) there being no provision of any arrangement, agreement,
licence, permit, lease or other instrument to which any member of the Wider
Matthew Clark Group is a party or by or to which any such member or any of
their respective assets is or may be bound or be subject or any
circumstance which could, as a consequence of the Offer or the acquisition
or the proposed acquisition by any member of the Wider Canandaigua Group of
any shares or other securities (or the equivalent) in Matthew Clark or
because of a change in the control or management of any member of the Wider
Matthew Clark Group or otherwise, could or might reasonably be expected to
result in, to an extent which is material in the context of the Wider
Matthew Clark Group taken as a whole:
(i) any monies borrowed by, or any other indebtedness or liabilities,
actual or contingent, of any member of the Wider Matthew Clark Group
being or becoming repayable, or capable of being declared repayable,
immediately or prior to its or their stated maturity, or the ability
of any such member or associate to borrow monies or incur any
indebtedness being withdrawn or inhibited;
(ii) the rights, liabilities, obligations, interests or business of any
member of the Wider Matthew Clark Group under any such arrangement,
agreement, licence, permit, lease or instrument or the interests or
business of any member of the Wider Matthew Clark Group or any member
of the Wider Canandaigua Group in or with any other firm or company or
body or person (or any agreement or arrangements relating to any such
business or interests) being, or becoming capable of being, terminated
or adversely modified or affected or any onerous obligation or
liability arising or any adverse action being taken thereunder;
(iii)any member of the Wider Matthew Clark Group ceasing to be able to
carry on business under any name under which it presently does so;
(iv) any assets or interests of, or any asset the use of which is enjoyed
by any member of the Wider Matthew Clark Group being or falling to be
disposed of or charged or any right arising under which any such asset
or interest could be required to be disposed of or charged or could
cease to be available to any member of the Wider Matthew Clark Group
or associate otherwise than in the ordinary course of business;
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(v) the creation or enforcement of any mortgage, charge or other security
interest over the whole or any part of the business, property or
assets of any member of the Wider Matthew Clark Group or any such
security interest becoming enforceable or being enforced;
(vi) the value or the financial or trading position or prospects, of any
member of the Wider Matthew Clark Group being prejudiced or adversely
affected;
(vii)the creation of any liability (actual or contingent) by any member of
the Wider Matthew Clark Group; or
(viii) any interest or business of any member of the Wider Matthew Clark
Group or of the Wider Canandaigua Group in or with any other person,
firm or body (or any arrangement relating to any such interest or
business) being, or becoming capable of being, terminated, modified or
otherwise affected;
(f) no member of the Wider Matthew Clark Group having since 30 April 1998 (save
as disclosed in the 1998 Report and Accounts of Matthew Clark or as
publicly announced by Matthew Clark through the Company Announcements
Office of the London Stock Exchange prior to 3 November 1998 or as
disclosed in writing to Canandaigua and/or the Offeror prior to 3 November
1998):
(i) issued or agreed to issue or authorised or proposed the issue of
additional shares or securities of any class, or securities
convertible into, or exchangeable for, or rights, warrants or options
to subscribe for or acquire, any such shares, securities or
convertible securities (save as between Matthew Clark and wholly-owned
subsidiaries of Matthew Clark and save for the issue of Matthew Clark
Shares on the exercise of options granted before 1 February 1998);
(ii) recommended, declared, paid or made or proposed to recommend, declare,
pay or make any bonus, dividend or other distribution other than to
Matthew Clark or one of its wholly-owned subsidiaries;
(iii)save for transactions between Matthew Clark and its wholly-owned
subsidiaries, merged with or demerged or acquired any body corporate,
partnership or business or acquired or disposed of, or, other than in
the ordinary course of business, transferred, mortgaged or charged or
created any security interest over, any assets or any right, title or
interest in any asset (including shares and trade investments) or
authorised, proposed or announced any intention to do so;
(iv) save as between Matthew Clark and its wholly-owned subsidiaries, made,
authorised, proposed or announced an intention to propose any change
in its share or loan capital;
(v) issued, authorised or proposed the issue or authorisation of any
debentures or (save as between Matthew Clark and its wholly-owned
subsidiaries) incurred or increased any indebtedness or contingent
liability to an extent which is material in the context of the Matthew
Clark Group taken as a whole;
(vi) entered into or varied or announced its intention to enter into or
vary any contract, transaction, arrangement or commitment (whether in
respect of capital expenditure or otherwise) which is of a long term,
unusual or onerous nature, or which involves or could involve an
obligation of a nature or magnitude which is, in any such case,
material in the context of the Matthew Clark Group or which is or is
likely to be restrictive on the business of any member of the Wider
Matthew Clark Group or the Wider Canandaigua Group;
(vii)entered into or varied or made any offer (which remains open for
acceptance) to enter into or vary the terms of any service agreement,
contract or arrangement with any director of any member of the Wider
Matthew Clark Group;
(viii) implemented, effected or authorised, or proposed or announced its
intention to implement, effect, authorise or propose any
reconstruction, amalgamation, commitment, scheme or other transaction
or arrangement otherwise than in the ordinary course of business;
(ix) purchased, redeemed or repaid or proposed the purchase, redemption or
repayment of any of its own shares or other securities or reduced or
made any other change to any part of its share capital to an extent
which (other than in the case of Matthew Clark) is material in the
context of the Matthew Clark Group;
16
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(x) waived or compromised any claim which is material in the context of
the Matthew Clark Group;
(xi) made any material alteration to its memorandum or articles of
association or other incorporation or constitutional documents;
(xii)taken or proposed any corporate action or had any legal proceedings
instituted or threatened against it for its winding-up (voluntary or
otherwise), dissolution, reorganisation or for the appointment of any
administrator, administrative receiver, trustee or similar officer of
all or any of its assets or revenues or any analogous proceedings in
any jurisdiction or appointed any analogous person in any
jurisdiction;
(xiii) been unable, or admitted in writing that it is unable, to pay its
debts or having stopped or suspended (or threatened to stop or
suspend) payment of its debts generally or ceased or threatened to
cease carrying on all or a substantial part of its business; or
(xiv)entered into any contract, commitment, agreement or arrangement or
passed any resolution with respect to or announced an intention to
effect or propose any of the transactions, matters or events referred
to in this paragraph 1(f);
(g) since 30 April 1998 (save as disclosed in the 1998 Report and Accounts of
Matthew Clark or as publicly announced by Matthew Clark through the Company
Announcements Office of the London Stock Exchange prior to 3 November 1998
or as disclosed in writing to Canandaigua and/or the Offeror prior to 3
November 1998):
(i) there having been no adverse change in the business, assets, financial
or trading position or profits or prospects of any member of the Wider
Matthew Clark Group to an extent which is material in the context of
the Wider Matthew Clark Group taken as a whole;
(ii) no litigation, arbitration proceedings, prosecution or other legal
proceedings having been threatened, announced or instituted by or
against or remaining outstanding against any member of the Wider
Matthew Clark Group or to which any member of the Wider Matthew Clark
Group is or may become a party (whether as plaintiff or defendant or
otherwise) and no enquiry or investigation by or complaint or
reference to any Third Party against or in respect of any member of
the Wider Matthew Clark Group having been threatened, announced or
instituted or remaining outstanding, against or in respect of any
member of the Wider Matthew Clark Group which, in any such case, might
be likely adversely to affect any member of the Wider Matthew Clark
Group to an extent which is material in the context of the Wider
Matthew Clark Group taken as a whole; and
(iii)no contingent or other liability having arisen or become apparent to
the Offeror which might be likely adversely to affect the business,
assets, financial or trading position or profits or prospects of any
member of the Wider Matthew Clark Group to an extent which is material
in the context of the Matthew Clark Group taken as a whole;
(h) (save as publicly announced by Matthew Clark through the Company
Announcements Office of the London Stock Exchange prior to 3 November 1998
and save as disclosed in writing to Canandaigua and/or the Offeror prior to
3 November 1998) the Offeror not having discovered:
(i) that any financial, business or other information concerning Matthew
Clark or the Wider Matthew Clark Group publicly disclosed or disclosed
at any time by or on behalf of any member of the Wider Matthew Clark
Group which is material in the context of the acquisition of Matthew
Clark by any member of the Canandaigua Group is misleading,
incomplete, contains a misrepresentation of fact or omits to state a
fact necessary to make the information contained therein not
misleading;
(ii) that any member of the Wider Matthew Clark Group or any partnership,
company or other entity in which any member of the Wider Matthew Clark
Group has a significant economic interest and which is not a
subsidiary undertaking of Matthew Clark is subject to any liability,
contingent or otherwise, which is not disclosed in the 1998 Report and
Accounts of Matthew Clark or in an announcement made by Matthew Clark
through the Company Announcements Office of the London Stock Exchange
prior to 3 November 1998 and which is material in the context of the
Matthew Clark Group taken as a whole;
(iii)that there is or is likely to be any liability (whether actual or
contingent) or requirement to make good, repair, re-instate or
clean-up any property now or previously owned, occupied or made use of
by any
17
<PAGE>
past or present member of the Wider Matthew Clark Group which is
material in the context of the Wider Matthew Clark Group;
(iv) that circumstances exist whereby a person or class of persons would be
likely to have any claim or claims in respect of any product or
process of manufacture or materials used therein now or previously
manufactured, sold or carried out by any past or present member of the
Wider Matthew Clark Group which claim or claims would be likely
materially and adversely to affect any member of the Wider Matthew
Clark Group; or
(v) any information which renders misleading in the context of the Offer
any information publicly disclosed at any time by or on behalf of any
member of the Wider Matthew Clark Group to an extent that is material
in the context of the Wider Matthew Clark Group; and
(i) in relation to any release, emission, discharge, disposal or other fact or
circumstance which has caused or might impair the environment or harm human
health, (save as disclosed in writing to Canandaigua and/or the Offeror
prior to 3 November 1998) no past or present member of the Wider Matthew
Clark Group having in a manner or to an extent which is material in the
context of the Matthew Clark Group, (a) committed any violation of or not
complied with any laws, statutes, regulations, notices or other
requirements of any Third Party and/or (b) incurred any liability (whether
actual or contingent) to any Third Party.
The Offeror reserves the right to waive all or any of conditions (b) to (i)
inclusive, in whole or in part. Conditions (b) to (i) inclusive must be
satisfied as at, or waived (where possible) on or before, the 21st day after the
later of 24 November 1998 and the date on which condition (a) is fulfilled (or,
in each case, such later date as the Panel may agree). The Offeror shall be
under no obligation to waive, to determine to be or treat as fulfilled any of
conditions (b) to (i) inclusive by a date earlier than the latest date specified
above for the fulfilment thereof notwithstanding that the other conditions of
the Offer may at such earlier date have been waived or fulfilled and that there
are, at such earlier date, no circumstances indicating that any of such
conditions may not be capable of fulfilment.
If the Offeror is required by the Panel to make an offer for any Matthew Clark
Shares under the provisions of Rule 9 of the City Code, the Offeror may make
such alterations to the conditions set out in this Appendix I as are necessary
to comply with the provisions of that Rule.
The Offer will lapse if the proposed acquisition of Matthew Clark or any matter
relating to it is referred to the Monopolies and Mergers Commission before the
later of 3.00 p.m. on 24 November 1998 and the date on which the Offer becomes
or is declared unconditional as to acceptances. If the Offer so lapses, the
Offer will cease to be capable of further acceptance and persons accepting the
Offer and the Offeror will cease to be bound by Forms of Acceptance submitted on
or before the time when the Offer lapses.
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<PAGE>
PART B -- FURTHER TERMS OF THE OFFER
The conditions in Part A of this Appendix I and the following further terms
apply, where relevant, to the Offer.
Unless the context otherwise requires, any reference in this document and in the
Form of Acceptance to acceptances of the Offer shall include deemed acceptances
of the Offer.
Unless the context otherwise requires, any reference in Parts B and C of this
Appendix I and in the Form of Acceptance:
(i) to the "Offer" shall include any revision, variation, renewal or extension
thereof and shall also (where the context requires) include any election or
alternative available in connection with the Offer or any revision,
variation, renewal or extension thereof;
(ii) to the Offer becoming "unconditional" includes the Offer being or becoming
or being declared unconditional;
(iii)to the Offer being or becoming "unconditional" is to be construed as the
Offer becoming or being declared unconditional as to acceptances whether or
not any other condition of the Offer remains to be fulfilled;
(iv) to the "acceptance condition" is to the condition as to acceptances in
paragraph 1(a) of Part A of this Appendix I and any reference to the Offer
becoming unconditional as to acceptances is to be construed accordingly;
(v) to the "Offer Document" is to this document and any other document
containing the Offer; and
(vi) to an extension of the Offer shall include an extension of the date by
which the acceptance condition was to be satisfied.
1. Acceptance period
(a) The Offer is initially open for acceptance until 3.00 p.m. on 24 November
1998.
(b) Although no revision is envisaged, if the Offer is revised it will remain
open for acceptance for a period of at least 14 days (or such other period
as may be permitted by the Panel) after the date on which the revised Offer
Document is posted to Matthew Clark Shareholders. Except with the consent
of the Panel, no revision of the Offer may be made and no revised Offer
Document may be posted after 19 December 1998 or, if later, the date which
is 14 days before the last date on which the Offer can become
unconditional.
(c) The Offer, whether revised or not, is not (except with the consent of the
Panel) capable of becoming unconditional after midnight on 2 January 1999
(or any other time or date beyond which the Offeror has stated that the
Offer will not be extended and has not withdrawn that statement) nor of
being kept open for acceptance after that time or date unless it has
previously become unconditional. The Offeror reserves the right, with the
permission of the Panel, to extend the time for the Offer to become
unconditional to a later time(s) or date(s).
(d) If the Offer becomes unconditional, the Offer will remain open for
acceptance for not less than 14 days from the date on which it would
otherwise have expired. If the Offer becomes unconditional and the Offeror
states it will remain open until further notice, the Offeror will give not
less than 14 days' notice in writing to Matthew Clark Shareholders who have
not accepted the Offer before closing it.
(e) If a competitive situation arises after the Offeror makes a "no increase"
and/or "no extension" statement in relation to the Offer, the Offeror may,
if it has specifically reserved the right to do so at the time the
statement was made or otherwise with the consent of the Panel, withdraw the
statement provided it complies with the requirements of the City Code and
in particular that:
(i) it announces the withdrawal as soon as possible and in any event
within four business days after the date of the announcement of the
competing offer or other competitive situation;
(ii) it notifies Matthew Clark Shareholders in writing of the withdrawal
(or in the case of Matthew Clark Shareholders with registered
addresses outside the United Kingdom by announcement in the United
Kingdom) at the earliest opportunity; and
(iii)any Matthew Clark Shareholders who accept the Offer after the "no
increase" and/or "no extension" statement are given a right of
withdrawal as described in paragraph 4 of Part B of this Appendix I.
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<PAGE>
The Offeror may, if it specifically reserves the right to do so at the time
the statement is made, choose not to be bound by the terms of a "no
increase" or "no extension" statement and may post an increased or improved
offer if it is recommended for acceptance by the board of directors of
Matthew Clark, or in other circumstances permitted by the Panel.
2. Acceptance condition
(a) Except with the consent of the Panel, for the purpose of determining
whether the acceptance condition is satisfied, the Offeror may only take
into account acceptances received or purchases of shares made in respect of
which all relevant documents are received by IRG plc, New Issues
Department, P.O. Box No. 166, Bourne House, 34 Beckenham Road, Beckenham,
Kent BR3 4TH or IRG plc, 23 Ironmonger Lane, London EC2:
(i) by 1.00 p.m. on 2 January 1999 (or any other date beyond which the
Offeror has stated that the Offer will not be extended and has not
withdrawn that statement); or
(ii) if the Offer is extended with the consent of the Panel, such later
time(s) or date(s) as the Panel may agree.
If the latest time at which the Offer may become unconditional is extended
beyond midnight on 2 January 1999, acceptances received and purchases made
in respect of which the relevant documents are received by IRG plc, New
Issues Department, P.O. Box No. 166, Bourne House, 34 Beckenham Road,
Beckenham, Kent BR3 4TH or IRG plc, 23 Ironmonger Lane, London EC2 after
1.00 p.m. on that date may only be taken into account with the agreement of
the Panel except where the City Code permits otherwise.
(b) Except as otherwise agreed by the Panel:
(i) an acceptance of the Offer will only be treated as valid for the
purposes of the acceptance condition if the requirements of Note 4
and, if applicable, Note 6 on Rule 10 of the City Code are satisfied
in respect of it;
(ii) a purchase of Matthew Clark Shares by the Offeror or its nominee or
(if the Offeror is required by the Panel to make an offer for Matthew
Clark Shares under Rule 9 of the City Code) by a person acting in
concert with Canandaigua Limited or its nominee, will only be treated
as valid for the purposes of the acceptance condition if the
requirements of Note 5 and, if applicable, Note 6 on Rule 10 of the
City Code are satisfied in respect of it; and
(iii)before the Offer may become or be declared unconditional IRG plc must
issue a certificate to the Offeror or Schroders (or their respective
agents) which states the number of Matthew Clark Shares in respect of
which acceptances have been received and the number of Matthew Clark
Shares otherwise acquired, whether before or during the Offer period,
which comply with the provisions of this paragraph 2(b).
(c) For the purpose of determining whether the acceptance condition is
satisfied the Offeror is not bound (unless required by the Panel) to take
into account any Matthew Clark Shares which have been unconditionally
allotted or issued or which arise as a result of the exercise of conversion
rights before the determination takes place unless Matthew Clark or its
agent has given written notice to IRG plc, containing relevant details of
the allotment, issue or conversion. Notification by telex or facsimile
transmission or copies does not constitute written notice.
3. Announcements
(a) By 8.30 a.m. on the business day (the "relevant day") after the day on
which the Offer expires, becomes unconditional, is revised or is extended
(or such later time or date as the Panel may agree), the Offeror will make
an appropriate announcement and simultaneously inform the London Stock
Exchange. In the announcement the Offeror will state (unless otherwise
permitted by the Panel) the total number of Matthew Clark Shares and rights
over Matthew Clark Shares (as nearly as practicable):
(i) for which acceptances of the Offer have been received;
(ii) held by or on behalf of the Offeror or any person deemed to be acting
in concert with the Offeror before the Offer period;
(iii)acquired or agreed to be acquired by or on behalf of the Offeror or
any person deemed to be acting in concert with the Offeror for the
purposes of the Offer during the Offer period;
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<PAGE>
(iv) for which acceptances of the Offer have been received from any person
deemed to be acting in concert with the Offeror for the purposes of
the Offer, and the announcement will specify the percentages of the
relevant class of issued share capital of Matthew Clark represented by
each of these figures.
(b) Any decision to extend the time or date by which the acceptance condition
has to be fulfilled may be made at any time up to, and will be announced by
8.30 a.m. on the relevant day or such later time or date as the Panel may
agree. The announcement will state the next expiry time and date unless the
Offer is then unconditional.
(c) In calculating the number of Matthew Clark Shares represented by
acceptances and purchases, the Offeror may only include acceptances and
purchases if they could be counted towards fulfilling the acceptance
condition under Notes 4 and 5 on Rule 10 of the City Code unless the Panel
agrees otherwise. Subject to this, the Offeror may include or exclude, for
announcement purposes, acceptances and purchases not in all respects in
order or which are subject to verification.
(d) In this Appendix I, a reference to the making of an announcement or the
giving of notice by the Offeror includes the release of an announcement by
the Offeror's public relations consultants or Schroders, in each case on
behalf of Canandaigua Limited, to the press and the delivery or telephone,
telex or facsimile or other electronic transmission of an announcement to
the London Stock Exchange. An announcement made otherwise than to the
London Stock Exchange will be notified simultaneously to the London Stock
Exchange.
4. Rights of withdrawal
(a) Except as provided by this paragraph 4, acceptances and elections are
irrevocable.
(b) If the Offeror announces the Offer to be unconditional and then fails to
comply by 3.30 p.m. on the relevant day (or such later time and/or date as
the Panel may agree) with any of the other requirements specified in
paragraph 3(a) of Part B of this Appendix I, a person may withdraw his
acceptance by written notice given by post or by hand to IRG plc, New
Issues Department, P.O. Box No. 166, Bourne House, 34 Beckenham Road,
Beckenham, Kent BR3 4TH or by hand only during normal business hours to IRG
plc, 23 Ironmonger Lane, London EC2. Subject to paragraph 1(e) of Part B of
this Appendix I, this right of withdrawal may be terminated not less than
eight days after the relevant day by the Offeror confirming, if such is the
case, that the Offer is still unconditional as to acceptances, and
complying with the other requirements specified in paragraph 3(a) of Part B
of this Appendix I. If that confirmation is given, the first period of 14
days referred to in paragraph 1(d) of Part B of this Appendix I will start
on the date of that confirmation.
(c) If by 3.00 p.m. on 15 December 1998 (or such later time and/or date as the
Panel may agree) the Offer has not become unconditional, a person may
withdraw his acceptance by written notice given by post or by hand to
IRGplc, New Issues Department, P.O. Box No. 166, Bourne House, 34 Beckenham
Road, Beckenham, Kent BR3 4TH or by hand only during normal business hours
to IRG plc, 23 Ironmonger Lane, London EC2 at any time before the earlier
of (i) the time that the Offer becomes unconditional; and (ii) the final
time for the lodging of acceptances which can be taken into account in
accordance with paragraph 2(a) of Part B of this Appendix I.
(d) If a "no increase" and/or "no extension" statement is withdrawn in
accordance with paragraph 1(e) of Part B of this Appendix I, a person who
accepts the Offer after the date of the statement may withdraw his
acceptance by written notice given by post or by hand to IRG plc, New
Issues Department, P.O. Box No. 166, Bourne House, 34 Beckenham Road,
Beckenham, Kent BR3 4TH or by hand only during normal business hours to IRG
plc, 23 Ironmonger Lane, London EC2 for a period of eight days after the
date the Offeror posts the notice of the withdrawal of that statement to
Matthew Clark Shareholders.
(e) In this paragraph 4, "written notice" (including any letter of appointment,
direction or authority) means notice in writing signed by the relevant
person(s) accepting the Offer (or his/their agent(s) duly appointed in
writing and evidence of whose appointment satisfactory to the Offeror is
produced with the notice). Telex or facsimile transmission or copies will
not be sufficient. A notice which is postmarked in, or otherwise appears to
the Offeror or its agents to have been sent from, the United States,
Canada, Australia or Japan (or by a North American person) will not be
valid.
5. Revised or new offer
(a) Although no revision or new offer is envisaged, if the Offer is revised or
if a new offer is made for the purpose of section 429(3) of the Act, the
benefit of the revised or new offer will be made available to a Matthew
Clark Shareholder who has accepted the Offer (in its original or any
revised form(s)) (a "Previous Acceptor") if the revised or new offer
represents, on the date on which it is announced (on such basis as
Schroders may consider
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<PAGE>
appropriate), an improvement or no diminution in the value of the
consideration offered compared with the consideration previously offered.
The acceptance by a Previous Acceptor of the Offer (in its original or any
revised form(s)) will, subject as provided in paragraphs 5(b), (c) and 6 of
Part B of this Appendix I, be deemed an acceptance of the revised or new
offer and will constitute the appointment of any director of the Offeror
and/or Schroders as his attorney and/or agent with authority:
(i) to accept the revised or new offer on his behalf;
(ii) if the revised or new offer includes alternative forms of
consideration, to make elections or accept the alternative forms of
consideration on his behalf in the proportions the attorney and/or
agent in his absolute discretion thinks fit; and
(iii)to execute on his behalf in his name any further documents required
to give effect to those elections or acceptances.
In making any election or acceptance, the attorney and/or agent will take
into account the nature of any previous acceptance or election made by the
Previous Acceptor and other facts or matters he may reasonably consider
relevant.
(b) The deemed acceptance referred to in paragraph 5(a) of Part B of this
Appendix I will not apply and the power of attorney and authorities
conferred by that paragraph will not be exercised if the Previous Acceptor
would (on such basis as Schroders may consider appropriate) receive less in
aggregate in consideration under the revised or new offer than he would
have received in aggregate in consideration as a result of his acceptance
of the Offer in the form originally accepted by him or on his behalf.
(c) The deemed acceptance referred to in paragraph 5(a) of Part B of this
Appendix I will not apply and the power of attorney and the authorities
conferred by that paragraph will be ineffective in the case of a Previous
Acceptor who lodges, within 14 days of the posting of the document
containing the revised or new offer, a Form of Acceptance (or any other
form issued on behalf of Canandaigua Limited) in which he validly elects to
receive consideration under the revised or new offer in some other manner.
(d) The authorities and powers of attorney conferred by this paragraph 5 and
any acceptance of a revised or new offer and any election in relation to it
will be irrevocable unless and until the Previous Acceptor withdraws his
acceptance having become entitled to do so under paragraph 4 of Part B of
this Appendix I.
(e) The Offeror and Schroders reserve the right to treat an executed Form of
Acceptance relating to the Offer which is received after the announcement
of any revised or new offer as a valid acceptance of the revised or new
offer (and where applicable a valid election for the alternative forms of
consideration). That acceptance will constitute an authority in the terms
of paragraph 5(a) of Part B of this Appendix I on behalf of the relevant
Matthew Clark Shareholder.
6. General
(a) Except with the consent of the Panel, the Offer will lapse unless all the
conditions relating to the Offer have been fulfilled or, where appropriate,
have been determined by the Offeror in its reasonable opinion to be and
continue to be satisfied or have been waived by midnight on 19 December
1998 or within 21 days after the date on which the Offer becomes
unconditional, or such later date as the Offeror, with the consent of the
Panel, may decide, whichever is the later. If the Offer lapses for any
reason:
(i) it will not be capable of further acceptance;
(ii) accepting Matthew Clark Shareholders and the Offeror will not be bound
by Forms of Acceptance submitted before the time the Offer lapses;
(iii)Forms of Acceptance and documents of title will be returned by post
(or by such other method as the Panel may approve) within 14 days of
the Offer lapsing to the person or agent whose name is set out in the
relevant box on the Form of Acceptance or otherwise to the first-named
holder at his registered address; and
(iv) IRG plc will, immediately after the Offer lapses (or within such
longer period as the Panel may permit, not exceeding 14 days of the
Offer lapsing) instruct CRESTCo to transfer all Matthew Clark Shares
held
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in escrow balances and in relation to which it is the escrow agent for
the purposes of the Offer to the original available balances of the
relevant Matthew Clark Shareholders.
(b) The expression "Offer period" when used in this document means the period
beginning on 22 October 1998 and ending on the latest of:
(i) 3.00 p.m. on 24 November 1998; and
(ii) the earlier of the time the Offer becomes unconditional and the time
the Offer lapses.
(c) Except with the consent of the Panel:
(i) settlement of the consideration to which any Matthew Clark Shareholder
is entitled under the Offer will be fully implemented in accordance
with the terms of the Offer without regard to any lien, right of
set-off, counterclaim or other analogous right to which the Offeror or
Schroders may otherwise be, or claim to be, entitled against that
Matthew Clark Shareholder; and
(ii) settlement of the consideration will be effected in the manner
prescribed in paragraph 13 of Schroders letter contained in this
document not later than 14 days after the date on which the Offer
becomes or is declared unconditional in all respects or within 14 days
after receipt of a valid and complete acceptance, whichever is the
later.
No consideration will be posted to an address in the United States, Canada,
Australia or Japan.
(d) The terms, provisions, instructions and authorities contained in the Form
of Acceptance also constitute part of the terms of the Offer. A word or
expression defined in this document has the same meaning when used in the
Form of Acceptance unless the context requires otherwise. The provisions of
this Appendix I shall be deemed to be incorporated in and form part of the
Form of Acceptance.
(e) If the expiry date of the Offer is extended, a reference in this document
and in the Form of Acceptance to 24 November 1998 will (except in paragraph
6(b) of Part B of this Appendix I and except where the context requires
otherwise) be deemed to refer to the expiry date of the Offer as so
extended.
(f) Any accidental omission to despatch this document, the Form of Acceptance
or any notice required to be despatched under the terms of the Offer to, or
any failure to receive the same by, any person to whom the Offer is, or
should be, made will not invalidate the Offer. Subject to the provisions of
paragraph 7 of Part B of this Appendix I, the Offer is made to any Matthew
Clark Shareholder to whom this document and the Form of Acceptance or any
related document may not have been despatched, and these persons may
collect the relevant documents from IRG plc and/or Schroders at their
respective addresses set out in sub-paragraph (l) below.
(g) The Offeror and Schroders reserve the right to treat acceptances of the
Offer as valid if received by IRG plc or otherwise on behalf of the Offeror
at any place or in any manner determined by them otherwise than as set out
in this document or in the Form of Acceptance.
(h) If sufficient acceptances are received, the Offeror intends to apply the
provisions of sections 428-430F of the Act to acquire compulsorily any
outstanding Matthew Clark Shares to which the Offer relates and to apply
for cancellation of Matthew Clark's listing on the London Stock Exchange.
(i) All powers of attorney, appointments of agents and authorities on the terms
conferred by or referred to in this Appendix I or in the Form of Acceptance
are given by way of security for the performance of the obligations of the
Matthew Clark Shareholder and are irrevocable in accordance with section 4
of the Powers of Attorney Act 1971 except in the circumstances where the
donor of the power of attorney or authority validly withdraws his
acceptance in accordance with paragraph 4 of Part B of this Appendix I.
(j) No acknowledgement of receipt of any Form of Acceptance, transfer by means
of CREST, share certificate or document of title will be given. All
communications, notices, certificates, documents of title and remittances
to be delivered by, or sent to or from, Matthew Clark Shareholders (or
their designated agents) will be delivered or sent at their own risk.
(k) The Offeror and Schroders reserve the right to notify any matter, including
the making of the Offer, to a Matthew Clark Shareholder:
(i) with a registered address outside the United Kingdom; or
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(ii) whom the Offeror knows to be a custodian, trustee or nominee holding
Matthew Clark Shares for persons who are citizens, residents or
nationals of jurisdictions outside the United Kingdom,
by announcement or by paid advertisement in a newspaper published and
circulated in the United Kingdom. The notice will be deemed to have been
sufficiently given, despite any failure by a Matthew Clark Shareholder to
receive or see that notice. A reference in this document to a notice or the
provision of information in writing by or on behalf of Canandaigua Limited
is to be construed accordingly.
(l) The Offer is made on 3 November 1998 and is capable of acceptance from and
after that time. The Form of Acceptance and copies of this document may be
collected from IRG plc, New Issues Department, P.O. Box No. 166, Bourne
House, 34 Beckenham Road, Beckenham, Kent BR3 4TH or Schroders, 120
Cheapside, London EC2V 6DS or during normal business hours from IRG plc, 23
Ironmonger Lane, London EC2. The Offer is made by means of this document.
(m) The Offer, all acceptances of the Offer and all elections in respect of it
are governed by and will be construed in accordance with English law.
Execution by or on behalf of an Matthew Clark Shareholder of a Form of
Acceptance constitutes his irrevocable submission to the jurisdiction of
the courts of England in relation to all matters arising in connection with
the Offer.
(n) Matthew Clark Shares will be acquired by the Offeror fully paid and free
from all liens, equities, charges, encumbrances and other interests and
together with all rights now or hereafter attaching thereto, including the
right to receive and retain all dividends and other distributions declared,
made or paid on or after 3 November 1998.
(o) All references in this Appendix I to any statute or statutory provision
shall include a statute or statutory provision which amends, consolidates
or replaces the same (whether before or after the date hereof).
7. Overseas Shareholders
(a) The making of the Offer in, or to certain persons resident in, or nationals
or citizens of, jurisdictions outside the United Kingdom ("overseas
shareholders") or to nominees of or trustees for overseas shareholders may
be affected by the laws of the relevant jurisdiction. Overseas shareholders
should inform themselves about and observe any applicable legal
requirements. It is the responsibility of overseas shareholders wishing to
accept the Offer to satisfy themselves as to the full observance of the
laws of the relevant jurisdiction in connection with the Offer. This
includes the obtaining of any governmental, exchange control or other
consents which may be required, compliance with other necessary formalities
needing to be observed and the payment of any issue, transfer or other
taxes due in that jurisdiction. The Offeror and Schroders (and any person
acting on behalf of them) will be fully indemnified by overseas
shareholders for any such issue, transfer or other taxes which the Offeror
or Schroders (or any person acting on behalf of them) may be required to
pay. If you are an overseas shareholder and you are in doubt about your
position you should consult your professional adviser in the relevant
jurisdiction.
(b) The Offer is not being made, directly or indirectly, in or into the United
States, Canada, Australia or Japan or to any North American person or
resident of Australia or Japan by use of the mails of, or by any means or
instrumentality of interstate or foreign commerce of, or of any facility of
a national, state or other securities exchange of, the United States,
Canada, Australia or Japan. This includes, but is not limited to, facsimile
transmission, telex and telephone.
Accordingly, copies of this document, the Form of Acceptance, and any
related offer documents are not being, and must not be, mailed or otherwise
distributed or sent in, into or from the United States, Canada, Australia
or Japan including to Matthew Clark Shareholders or participants in the
Matthew Clark Share Option Schemes with registered addresses in the United
States, Canada, Australia or Japan or to persons whom the Offeror knows to
be custodians, trustees or nominees holding Matthew Clark Shares for
persons with addresses in the United States, Canada, Australia or Japan.
Persons receiving those documents (including, without limitation,
custodians, nominees and trustees) must not distribute, mail or send them
in, into or from the United States, Canada, Australia or Japan or to any
North American Person or resident of Australia or Japan, or use the United
States, Canadian, Australian or Japanese mails or any such means,
instrumentality or facility in connection with the Offer, and so doing will
invalidate any related purported acceptance of the Offer. Persons wishing
to accept the Offer must not use the United States, Canadian, Australian or
Japanese mails or any such means, instrumentality or facility for any
purpose directly or indirectly relating to acceptance of the Offer.
Envelopes
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<PAGE>
containing a Form of Acceptance in respect of the Offer must not be
postmarked in the United States, Canada, Australia or Japan or otherwise
despatched from those jurisdictions and all acceptors must provide
addresses outside the United States, Canada, Australia or Japan for the
receipt of the consideration to which they are entitled under the Offer or
for the return of the Form of Acceptance or documents of title.
(c) Subject as provided below, a Matthew Clark Shareholder will be deemed not
to have accepted the Offer if:
(i) he cannot give the representations and warranties set out in paragraph
(b) of Part C of this Appendix I;
(ii) he completes Box 3 of the Form of Acceptance with an address in the
United States, Canada, Australia or Japan or has a registered address
in the United States, Canada, Australia or Japan and in either case he
does not insert in Box 6 of the Form of Acceptance the name and
address of a person or agent outside the United States, Canada,
Australia or Japan to whom he wishes the consideration to which he is
entitled under the Offer to be sent;
(iii)he inserts in Box 6 of the Form of Acceptance the name and address of
a person or agent in the United States, Canada, Australia or Japan to
whom he wishes the consideration to which he is entitled under the
Offer to be sent; or
(iv) the Form of Acceptance received from him is in an envelope postmarked
in, or which otherwise appears to the Offeror or its agents to have
been sent from, the United States, Canada, Australia or Japan.
The Offeror reserves the right, in its sole discretion, to investigate, in
relation to any acceptance, whether the representations and warranties set
out in paragraph (b) of Part C of this Appendix I have been truthfully
given by the relevant Matthew Clark Shareholders and, if such investigation
is made and, as a result, the Offeror cannot satisfy itself that such
representations and warranties are true and correct, such acceptance shall
not be valid.
(d) If any person, despite the restrictions referred to in paragraph 7(b) of
Part B of this Appendix I and whether pursuant to a contractual or legal
obligation or otherwise, forwards this document, the Form of Acceptance or
any related offering document in, into or from the United States, Canada,
Australia or Japan or uses the mails or any means or instrumentality
(including, without limitation, facsimile transmission, telex and
telephones) of interstate or foreign commerce of, or any facilities of a
national securities exchange of, the United States, Canada, Australia or
Japan in connection with that forwarding, that person should:
(i) inform the recipient of that fact;
(ii) explain to the recipient that that action may invalidate any purported
acceptance by the recipient; and
(iii)draw the attention of the recipient to this paragraph 7.
Notwithstanding the above, the Offeror may in its sole and absolute
discretion provide cash consideration to a North American Person or a
person in or resident of Australia or Japan if requested to do so by or on
behalf of that person if the Offeror is satisfied, in that particular case,
that to do so would not constitute a breach of any securities or other
relevant legislation of the United States, Canada, Australia or Japan, as
appropriate.
(e) If any written notice from a Matthew Clark Shareholder withdrawing his
acceptance in accordance with paragraph 4 of Part B of this Appendix I is
received in an envelope postmarked in, or which otherwise appears to the
Offeror or its agents to have been sent from, the United States, Canada,
Australia or Japan, the Offeror reserves the right, in its absolute
discretion, to treat that notice as invalid.
(f) The provisions of this paragraph 7 and any other terms of the Offer
relating to overseas shareholders may be waived, varied or modified as
regards specific Matthew Clark Shareholders or on a general basis by the
Offeror in its sole discretion. Subject to this discretion, the provisions
of this paragraph 7 supersede any terms of the Offer inconsistent with
them. A reference in this paragraph 7 to a Matthew Clark Shareholder
includes the person or persons executing a Form of Acceptance and, in the
event of more than one person executing the Form of Acceptance, the
provisions of this paragraph 7 apply to them jointly and severally.
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<PAGE>
(g) As used in this document and in the Form of Acceptance, the "United States"
means the United States of America, its territories and possessions, any
state of the United States of America, the District of Columbia and all
other areas subject to the jurisdiction of the United States of America;
"Australia" means the Commonwealth of Australia, its states, territories
and possessions; "Canada" means Canada, its provinces and territories; and
"restricted overseas person" means either a person (including an
individual, partnership, unincorporated syndicate, unincorporated
organisation, trust, trustee, executor, administrator, or other legal
representatives) in, or resident in Australia, Japan, Canada or the United
States, or a North American Person.
(h) "US person" means:
(i) any natural person resident in the United States;
(ii) any partnership or corporation organised or incorporated under the
laws of the United States or any state thereof;
(iii) any estate of which any executor or administrator is a US person;
(iv) any trust of which any trustee is a US person;
(v) any agency or branch of a non-United States entity located in the
United States;
(vi) any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the
benefit or account of a US dealer;
(vii) any discretionary account or similar (other than an estate or
trust) held by a dealer or other fiduciary organised, incorporated
or (if an individual) resident in the United States; and
(viii) any partnership or corporation, if:
(1) organised or incorporated under the laws of any non-United
States jurisdiction;
(2) formed by a US person principally for the purpose of
investing in securities not registered under the US Act,
unless it is organised or incorporated and owned by
accredited investors (as defined in Rule 501(a) under the
US Act) who are not natural persons, estates or trusts.
"North American person" means a person whose last address as shown on the
register of members of Matthew Clark is in Canada and/or a US person.
(i) Notwithstanding paragraph 7(h) of this Part B, any discretionary account or
similar account (other than an estate or trust) held for the benefit of a
non-US person by a dealer or other professional fiduciary organised,
incorporated, or (if an individual) resident in the United States shall not
be deemed a US Person.
(j) Notwithstanding paragraph 7(h) of this Part B, any estate of which any
professional fiduciary acting as executor or administrator is a US person
shall not be deemed a US person if:
(i) an executor or administrator of the estate who is not a person has
whole or shared investment discretion with respect to the assets of
the estate; and
(ii) the estate is governed by non-United States law.
(k) Notwithstanding paragraph 7(h) of this Part B, any trust of which any
professional fiduciary acting as trustee is a US person shall not be deemed
a US person if a trustee who is not a US person has sole or shared
investment discretion with respect to the trust assets, and no beneficiary
of the trust (and no settler if the trust is revocable) is a US person.
(l) Notwithstanding paragraph 7(h) of this Part B, an employee benefit plan
established and administered in accordance with the law of a country other
than the United States and customary practices and documentation of any
such country shall not be deemed a US person.
(m) Notwithstanding paragraph 7(h) of this Part B, any agency or branch of a US
person located outside the United States shall not be deemed a US person
if:
(i) the agency or branch operates for valid business reasons; and
26
<PAGE>
(ii) the agency or branch is engaged in the business of insuring or banking
and is subject to substantive insurance or banking regulation,
respectively, in the jurisdiction where located.
(n) The International Monetary Fund, the International Bank for Reconstruction
and Development, the Inter-American Development Bank, the Asian Development
Bank, the African Development Bank, the United Nations, and their agencies,
affiliates and pension plans, and any other similar international
organisations, their agencies, affiliates and pension plans shall not be
deemed US persons.
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<PAGE>
PART C -- FORM OF ACCEPTANCE
Without prejudice to the terms of the Form of Acceptance, and the provisions of
Parts A and B of this Appendix I, each Matthew Clark Shareholder by whom, or on
whose behalf, a Form of Acceptance is executed irrevocably undertakes,
represents, warrants and agrees to and with the Offeror and Schroders (so as to
bind him, his personal representatives, heirs, successors and assigns):
(a) that the execution of a Form of Acceptance shall constitute:
(i) an acceptance of the Offer in respect of such number of Matthew Clark
Ordinary Shares as is inserted or deemed to be inserted in Box 1 of
the Form of Acceptance; and
(ii) an undertaking to execute any further documents and give any further
assurances which may be required to enable Canandaigua Limited to
obtain the full benefit of this Part C and/or to perfect any of the
authorities expressed to be given hereunder, in each case on and
subject to the terms and conditions set out or referred to in this
document and the Form of Acceptance and that, subject only to the
rights of withdrawal set out in paragraph 4 of Part B of this Appendix
I, each such acceptance shall be irrevocable;
(b) that unless such Matthew Clark Shareholder has written "No" in Box 5 of the
Form of Acceptance that:
(i) he has not received or sent copies or originals of this document, the
Form of Acceptance or any related offering document in, into or from
the United States, Canada, Australia or Japan;
(ii) he has not used in connection with the Offer or the execution or
delivery of the Form of Acceptance, directly or indirectly, the mails
of, or any means or instrumentality (including, without limitation,
facsimile transmission, telex and/or telephone) of interstate or
foreign commerce of, or of any facility of a national, state or other
securities exchange of, the United States, Canada, Australia or Japan;
(iii)he is not a restricted overseas person (as described in paragraph 7(h)
of Part B of this Appendix I);
(iv) the Form of Acceptance has not been mailed or otherwise sent in, into
or from the United States, Canada, Australia or Japan and he is
accepting the Offer from outside the United States, Canada, Australia
and Japan;
(v) if he is, or is acting on behalf of, a US person, he or that US
person, as the case may be, is outside the United States within the
meaning of Regulation S of the US Act; and
(vi) he is not delivering the Form of Acceptance from, or as agent of or on
behalf of, any person in the United States, Canada, Australia or Japan
(unless such person has given all instructions with respect to the
Offer from outside the United States, Canada, Australia and Japan) or
a North American person or a resident of Australia or Japan;
(c) that the execution of the Form of Acceptance constitutes the appointment of
any director of, or any person authorised by, the Offeror or Schroders as
his agent and/or attorney (subject to the Offer becoming unconditional in
all respects and him not having validly withdrawn his acceptance) with an
irrevocable instruction and authorisation to:
(i) complete and execute any form of transfer, renunciation or other
document in relation to the Matthew Clark Shares comprised or deemed
to be comprised in such acceptance in favour of the Offeror or as it
may direct;
(ii) deliver any form of transfer, renunciation or other document with any
certificate or other document of title for registration within six
months of the Offer becoming unconditional in all respects; and
(iii)take any other action as the agent and/or attorney may think necessary
or expedient in connection with his acceptance of the Offer and to
vest in the Offeror (or as it may direct) the Matthew Clark Shares
comprised or deemed to be comprised in such acceptance;
(d) that the execution of the relevant Form of Acceptance constitutes the
appointment of IRG plc as his agent and/or attorney with an irrevocable
instruction and authorisation to:
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<PAGE>
(i) subject to the Offer becoming unconditional in all respects in
accordance with its terms and him not having validly withdrawn his
acceptance, transfer to itself (or to such other person or persons as
the Offeror or its agent may direct) by means of CREST all or any of
the Relevant Matthew Clark Shares (but not exceeding the number of
Matthew Clark Shares in respect of which the Offer is accepted or
deemed to be accepted); and
(ii) if the Offer does not become unconditional in all respects, to give
instructions to CRESTCo immediately after the Offer lapses (or within
such longer period as the Panel may permit, not exceeding 14 days of
the Offer lapsing) to transfer all Relevant Matthew Clark Shares to
the original available balance of the accepting Matthew Clark
shareholder.
In this paragraph, "Relevant Matthew Clark Shares" means Matthew Clark
Shares in uncertificated form in respect of which a transfer or transfers
to escrow has or have been effected in accordance with the procedures
described in paragraph 12(d) of the Schroders' letter contained in this
document and where the transfer or transfers to escrow was or were made in
respect of Matthew Clark Shares held under the same member account ID and
participant ID as the member account ID and participant ID relating to the
relevant Form of Acceptance (but irrespective of whether or not any Form of
Acceptance Reference Number, or a Form of Acceptance Reference Number
corresponding to that appearing on the relevant Form of Acceptance, was
included in the relevant TTE Instruction);
(e) that such Matthew Clark Shareholder authorises and requests (subject to the
Offer becoming unconditional in all respects in accordance with its terms
and him not having validly withdrawn his acceptance):
(i) Matthew Clark or its agents to procure the registration of the
transfer of the Matthew Clark Shares comprised or deemed to be
comprised in such acceptance that are in certificated form and the
delivery of the share certificate(s) and other document(s) of title in
respect of the Matthew Clark Shares to the Offeror or as it may
direct;
(ii) if the Matthew Clark Shares comprised or deemed to be comprised in
such acceptance are in certificated form or paragraph (f)(i) of Part C
of this Appendix I applies, the Offeror or its agents to procure the
despatch by post (or by such other method as may be approved by the
Panel) of the consideration to which he is entitled under the Offer at
his risk to the person or agent whose name and address is set out in
Box 6 of the Form of Acceptance or, if no person or agent's name and
address is set out, to the first-named holder at his registered
address;
(iii)if the Matthew Clark Shares comprised or deemed to be comprised in
such acceptance are in uncertificated form, the Offeror, Schroders or
their respective agents to ensure that an assured payment obligation
is created in favour of the Matthew Clark Shareholder's payment bank
in accordance with the CREST assured payment arrangements in respect
of any cash consideration to which such shareholder is entitled
provided that the Offeror may (if, for any reason, it wishes to do so)
determine that all or any part of such cash consideration shall be
paid by cheque despatched by post (or by such other method as may be
approved by the Panel); and
(iv) the Offeror, Matthew Clark or their respective agents, to record and
act on any instructions with regard to payments or notices which have
been entered in the records of Matthew Clark in respect of his holding
of Matthew Clark Shares;
(f) that the execution of the Form of Acceptance constitutes agreement that:
(i) the Offeror may decide to despatch all or part of the consideration
payable to a shareholder whose Matthew Clark Shares are in
uncertificated form in accordance with paragraph (e)(ii) of Part C of
this Appendix I; and
(ii) the consideration payable to a shareholder whose Matthew Clark Shares
are in uncertificated form will be despatched in accordance with
paragraph (e)(ii) of Part C of this Appendix I if the shareholder is a
CREST member whose registered address is in the United States, Canada,
Australia or Japan;
(g) that the execution of the Form of Acceptance constitutes a giving of
authority to any director of, or person authorised by, Canandaigua Limited
or Schroders within the terms of paragraph 5 of Part B of this Appendix I
in respect of those Matthew Clark Shares in respect of which the Offer has
been accepted or has been deemed to have been accepted and such acceptance
not validly withdrawn;
29
<PAGE>
(h) that such Matthew Clark Shareholder, subject to the Offer becoming
unconditional in all respects and him not having validly withdrawn his
acceptance (or if the Offer will become unconditional in all respects or
lapse on the outcome of the resolution in question or if the Panel gives
its consent):
(i) authorises the Offeror or its agent to direct the exercise of any
votes and any other rights and privileges (including the right to
requisition the convening of a general or separate class meeting of
Matthew Clark) attaching to the Matthew Clark Shares comprised or
deemed to be comprised in such acceptance;
(ii) authorises Matthew Clark to send any notice, circular, warrant or
other document or communication which may be required to be sent to
him as a member of Matthew Clark (including without limitation any
share certificate(s) or other document(s) of title issued as a result
of a conversion of such Matthew Clark Shares into certificated form)
to the Offeror at its registered office;
(iii)authorises any director of, or person authorised by, the Offeror or
Schroders to sign any document and do such things as may in the
opinion of that agent and/or attorney seem necessary or desirable in
connection with the exercise of any votes or other rights or
privileges attaching to the Matthew Clark Shares held by him
(including, without limitation, signing any consent to short notice of
a general or separate class meeting as his agent and/or attorney and
on his behalf and executing a form of proxy appointing any person
nominated by the Offeror to attend general and separate class meetings
of Matthew Clark and attending any such meeting and exercising the
votes attaching to the Matthew Clark Shares comprised or deemed to be
comprised in such acceptance on his behalf, where relevant, such votes
to be cast so far as possible to satisfy any outstanding condition of
the Offer); and
(iv) agrees not to exercise any such rights without the consent of the
Offeror and irrevocably undertakes not to appoint a proxy for or to
attend such general or separate class meetings of Matthew Clark.
This authority will cease to be valid if the acceptance is withdrawn in
accordance with paragraph 4 of Part B of this Appendix I;
(i) that he will deliver to IRG plc or procure the delivery to IRG plc of, his
certificate or other document(s) of title in respect of those Matthew Clark
Shares comprised or deemed to be comprised in such acceptance that are in
certificated form, or an indemnity acceptable to Matthew Clark, as soon as
possible and in any event within six months of the Offer becoming
unconditional in all respects;
(j) that he will take (or ensure to be taken) the action set out in paragraph
12(d) of the Schroders' letter contained in this document to transfer all
those Matthew Clark Shares comprised or deemed to be comprised in such
acceptance and not validly withdrawn by him that are in uncertificated form
to an escrow balance as soon as possible and in any event so that the
transfer to escrow settles within six months of the Offer becoming
unconditional in all respects;
(k) that if for any reason any Matthew Clark Shares in respect of which a
transfer to an escrow balance has been effected in accordance with
paragraph 12(d) of Schroders' letter contained in this document are
converted to certificated form, he will (without prejudice to paragraph
h(ii) of Part C of this Appendix) immediately deliver or ensure the
immediate delivery of the share certificate(s) or other documents of title
in respect of all those Matthew Clark Shares that are converted to IRG plc
or to the Offeror at its registered office or as the Offeror or its agents
may direct;
(l) that the creation of an assured payment obligation in favour of his payment
bank in accordance with the CREST assured payment arrangements as referred
to in paragraph (e)(iii) of Part C of this Appendix I will, to the extent
of the obligation so created, discharge fully any obligation of the Offeror
or Schroders to pay to him the cash consideration to which he is entitled
under the Offer;
(m) that he will do everything necessary or expedient to vest in the Offeror or
its nominees the Matthew Clark Shares comprised or deemed to be comprised
in such acceptance and to enable IRG plc to perform its functions as escrow
agent for the purposes of the Offer;
(n) that he agrees to ratify everything which may be done or effected by any
director of, or person authorised by, the Offeror, Schroders or IRG plc in
exercise of any of the powers and/or authorities under Part C of this
Appendix I;
(o) that, if any provision of Part C of this Appendix I will be unenforceable
or invalid or will not operate so as to afford the Offeror, Schroders or
IRG plc or any of their respective directors or persons authorised by them,
the
30
<PAGE>
benefit of the authority expressed to be given in Part C of this Appendix
I, he will, with all practicable speed, do everything that may be required
or desirable to enable the Offeror, Schroders and IRG plc and any of their
respective directors or persons authorised by them to secure the full
benefit of Part C of this Appendix I;
(p) that he is irrevocably and unconditionally entitled to transfer the Matthew
Clark Shares comprised or deemed to be comprised in such acceptance and
that such shares are sold free from all liens, equities, charges,
encumbrances and other interests and together with all rights attaching to
them on or after 3 November 1998 including, without limitation, the right
to receive and retain all dividends and other distributions declared, paid
or made on or after that date;
(q) that the terms and conditions of the Offer are deemed to be incorporated
in, and form part of, the Form of Acceptance;
(r) that on execution the Form of Acceptance takes effect as a deed; and
(s) that the execution of the Form of Acceptance constitutes his submission to
the jurisdiction of the courts of England in relation to all matters
arising in connection with the Offer and the Form of Acceptance.
A reference in Part C of this Appendix I to a holder of Matthew Clark Shares
includes a reference to the person or persons executing the Form of Acceptance
and in the event of more than one person executing a Form of Acceptance the
provisions of Part C of this Appendix I will apply to them jointly and to each
of them.
31
<PAGE>
PART A: AUDITED FINANCIAL INFORMATION
1. Financial information
The financial information set out in Part A of this Appendix II summarises the
consolidated financial statements of Canandaigua for the years ended 28 February
1998 and 28 February 1997, the six months ended 29 February 1996 and 28 February
1995 and the year ended 31 August 1995. All financial data in Part A of this
Appendix II is extracted from the published audited accounts for those periods,
except for the six months ended 28 February 1995, which is unaudited.
Canandaigua's auditors for these periods were Arthur Andersen LLP.
2. Consolidated statements of income
The following table sets out the consolidated statements of income of
Canandaigua for the years ended 28 February 1998 and 28 February 1997, the six
months ended 29 February 1996 and 28 February 1995 and the year ended 31 August
1995 as derived from the published audited accounts for those periods, except
for the six months ended 28 February 1995 which is unaudited:
<TABLE>
<CAPTION>
For the Years Ended For the Six Months Ended For the Year Ended
-------------------- ------------------------- ------------------
Consolidated Statements of Income 28 Feb 28 Feb 29 Feb 28 Feb 31 Aug
(in US$ thousands, except share data) 1998 1997 1996 1995 1995
- ------------------------------------------------------------------------------------------------------------------------------
(unaudited)
<S> <C> <C> <C> <C> <C>
Gross sales $ 1,632,357 $ 1,534,452 $ 738,415 $ 592,305 $ 1,185,074
Less -- Excise taxes (419,569) (399,439) (203,391) (137,820) (278,530)
----------- ----------- --------- --------- -----------
Net sales 1,212,788 1,135,013 535,024 454,485 906,544
Cost of product sold (864,053) (844,181) (396,208) (327,694) (653,811)
----------- ----------- --------- --------- -----------
Gross profit 348,735 290,832 138,816 126,791 252,733
Selling, general and
administrative expenses (231,680) (208,991) (112,411) (79,925) (159,196)
Nonrecurring restructuring expenses -- -- (2,404) (685) (2,238)
----------- ----------- --------- --------- -----------
Operating income 117,055 81,841 24,001 46,181 91,299
Interest expense, net (32,189) (34,050) (17,298) (13,141) (24,601)
----------- ----------- --------- --------- -----------
Income before provision for
Federal and state income taxes 84,866 47,791 6,703 33,040 66,698
Provision for Federal and
state income taxes (34,795) (20,116) (3,381) (12,720) (25,678)
----------- ----------- --------- --------- -----------
Net income $ 50,071 $ 27,675 $ 3,322 $ 20,320 $ 41,020
=========== =========== ========= ========= ===========
Earnings per common share:
Basic $ 2.68 $ 1.43 $ 0.17 $ 1.13 $ 2.18
=========== =========== ========= ========= ===========
Diluted $ 2.62 $ 1.42 $ 0.17 $ 1.12 $ 2.16
=========== =========== ========= ========= ===========
Weighted average common shares outstanding:
Basic 18,672 19,333 19,611 17,989 18,776
Diluted 19,105 19,521 19,807 18,179 19,005
</TABLE>
See notes to the consolidated financial statements in section 5 of Part A
of this Appendix II.
32
<PAGE>
3. Consolidated balance sheets
The following table sets out the consolidated balance sheets of Canandaigua as
at 28 February 1998 and 28 February 1997, as derived from the published audited
accounts for those years.
28 Feb
Consolidated Balance Sheets ------------------------
(in US$ thousands, except share data) 1998 1997
- --------------------------------------------------------------------------------
ASSETS:
Current assets:
Cash and cash investments $ 1,232 $ 10,010
Accounts receivable, net 142,615 142,592
Inventories, net 394,028 326,626
Prepaid expenses and other current assets 26,463 21,787
--------- --------
Total current assets 564,338 501,015
Property, plant and equipment, net 244,035 249,552
Other assets 264,786 270,334
--------- --------
Total assets $ 1,073,159 $ 1,020,901
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY:
Current liabilities:
Notes payable $ 91,900 $ 57,000
Current maturities of long-term debt 24,118 40,467
Accounts payable 52,055 55,892
Accrued Federal and state excise taxes 17,498 17,058
Other accrued expenses and liabilities 97,763 76,156
--------- --------
Total current liabilities 283,334 246,573
Long-term debt, less current maturities 309,218 338,884
Deferred income taxes 59,237 61,395
Other liabilities 6,206 9,316
--------- --------
Total liabilities 657,995 656,168
--------- --------
Commitments and contingencies
Stockholders' equity:
Preferred Stock, $0.01 par value -- Authorised,
1,000,000 shares; Issued, none at 28 February 1998,
and 28 February 1997 --- ---
Class A Common Stock, $0.01 par value -- Authorised,
60,000,000 shares; Issued, 17,604,784 shares
at 28 February 1998, and 17,462,332 shares at 28
February 1997 176 174
Class B Convertible Common Stock, $0.01 par
value -- Authorised, 20,000,000 shares;
Issued, 3,956,183 shares at 28 February 1998,
and 28 February 1997 40 40
Additional paid-in capital 231,687 222,336
Retained earnings 220,346 170,275
--------- --------
452,249 392,825
--------- --------
Less: Treasury stock --
Class A Common Stock, 2,199,320 shares at
28 February 1998, and 1,915,468 shares
at 28 February 1997, at cost (34,878) (25,885)
Class B Convertible Common Stock, 625,725
shares at 28 February 1998, and
28 February 1997, at cost (2,207) (2,207)
---------- --------
(37,085) (28,092)
---------- --------
Total stockholders' equity 415,164 364,733
---------- --------
Total liabilities and stockholders' equity $ 1,073,159 $ 1,020,901
============ ===========
See notes to the consolidated financial statements in section 5 of Part A of
this Appendix II.
33
<PAGE>
4. Consolidated statements of cash flows
The following table sets out the consolidated statements of cash flows of
Canandaigua for the years ended 28 February 1998 and 28 February 1997, as
derived from the published audited accounts for those years:
For the Years Ended
28 Feb
Consolidated Statements of Cash Flows ------------------------
(in US$ thousands) 1998 1997
- --------------------------------------------------------------------------------
Cash flows from operating activities:
Net income $ 50,071 $ 27,675
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation of property, plant and equipment 23,847 22,359
Amortisation of intangible assets 9,314 9,480
Deferred tax provision 6,319 5,769
Stock-based compensation expense 1,747 275
Amortisation of discount on long-term debt 352 112
Gain on sale of property, plant and equipment (3,001) (3,371)
Change in operating assets and liabilities:
Accounts receivable, net 749 3,523
Inventories, net (65,644) 16,232
Prepaid expenses and other current assets (4,354) 3,271
Accounts payable (3,288) (431)
Accrued Federal and state excise taxes 440 (2,641)
Other accrued expenses and liabilities 14,655 24,617
Other assets and liabilities, net (2,452) 898
--------- --------
Total adjustments (21,316) 80,093
--------- --------
Net cash provided by operating activities 28,755 107,768
--------- --------
Cash flows from investing activities:
Purchases of property, plant and equipment,
net of minor disposals (31,203) (31,649)
Proceeds from sale of property, plant
and equipment 12,552 9,174
Payment of accrued earn-out amounts --- (13,848)
--------- --------
Net cash used in investing activities (18,651) (36,323)
--------- --------
Cash flows from financing activities:
Principal payments of long-term debt (186,367) (50,842)
Purchases of treasury stock (9,233) (20,765)
Payment of issuance costs of long-term debt (1,214) (1,550)
Proceeds from issuance of long-term debt,
net of discount 140,000 61,668
Net proceeds from (repayment of) notes payable 34,900 (54,300)
Exercise of employee stock options 1,776 17
Proceeds from employee stock purchases 1,256 998
--------- --------
Net cash used in financing activities (18,882) (64,774)
---------- --------
Net (decrease) increase in cash and cash investments (8,778) 6,671
Cash and cash investments, beginning of period 10,010 3,339
--------- --------
Cash and cash investments, end of period $ 1,232 $ 10,010
=========== ==========
See notes to the consolidated financial statements in section 5 of Part A of
this Appendix II.
34
<PAGE>
5. Notes to the consolidated financial statements
The notes to the consolidated financial statements of Canandaigua which include
a summary of significant accounting policies, set out below, are extracted from
its audited consolidated accounts for the year ended 28 February 1998.
References to "the Company" are to Canandaigua.
Note 1. Summary of Significant Accounting Policies
Year-end Change: The Company changed its fiscal year end from 31 August to the
last day of February. The period from 1 September 1995, through 29 February
1996, is hereinafter referred to as the "Transition Period."
Principles of Consolidation: The consolidated financial statements of the
Company include the accounts of the Canandaigua Group. All intercompany accounts
and transactions have been eliminated.
Unaudited Financial Statements: The consolidated statements of income and cash
flows for the six month period ended 28 February 1995, have been prepared by the
Company, without audit, pursuant to the rules and regulations of the Securities
and Exchange Commission applicable to interim reporting and reflect, in the
opinion of the Company, all adjustments necessary to present fairly the
financial information for the Canandaigua Group. All such adjustments are of a
normal recurring nature.
Management's Use of Estimates and Judgement: The preparation of financial
statements in conformity with generally accepted accounting principles requires
management to make estimates and assumptions that affect the reported amounts of
assets and liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from those
estimates.
Cash Investments: Cash investments consist of highly liquid investments with an
original maturity when purchased of three months or less and are stated at cost,
which approximates market value. The amounts at 28 February 1998 and 1997, are
not significant.
Fair Value of Financial Instruments: To meet the reporting requirements of
Statement of Financial Accounting Standards No. 107, "Disclosures about Fair
Value of Financial Instruments," the Company calculates the fair value of
financial instruments using quoted market prices whenever available. When quoted
market prices are not available, the Company uses standard pricing models for
various types of financial instruments (such as forwards, options, swaps, etc.)
which take into account the present value of estimated future cash flows. The
methods and assumptions used to estimate the fair value of financial instruments
are summarised as follows:
Accounts receivable: The carrying amount approximates fair value due to the
short maturity of these instruments, the creditworthiness of the customers
and the large number of customers constituting the accounts receivable
balance.
Notes payable: These instruments are variable interest rate bearing notes
for which the carrying value approximates the fair value.
Long-term debt: The carrying value of the debt facilities with short-term
variable interest rates approximates the fair value. The fair value of the
fixed rate debt was estimated by discounting cash flows using interest
rates currently available for debt with similar terms and maturities.
Foreign exchange hedging agreements: The fair value of currency forward
contracts is estimated based on quoted market prices.
Interest rate hedging agreements: The fair value of interest rate hedging
instruments is the estimated amount that the Company would receive or be
required to pay to terminate the derivative agreements at year end. The
fair value includes consideration of current interest rates and the
creditworthiness of the counterparties to the agreements.
Letters of credit: At 28 February 1998 and 1997, the Company had letters of
credit outstanding totalling approximately $3,865,000 and $8,622,000,
respectively, which guarantee payment for certain obligations. The Company
recognises expense on these obligations as incurred and no material losses
are anticipated.
35
<PAGE>
The carrying amount and estimated fair value of the Company's financial
instruments are summarised as follows:
<TABLE>
<CAPTION>
28 Feb 1998 28 Feb 1997
------------------------------ ---------------------
(in US$ thousands) Carrying Carrying
Amount Fair Value Amount Fair Value
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Liabilities:
Notes payable $ 91,900 $ 91,900 $ 57,000 $ 57,000
Long-term debt, including current portion $ 333,336 $ 340,934 $ 379,351 $ 374,628
Derivative instruments:
Foreign exchange hedging agreements:
Currency forward contracts $ --- $ --- $ 374 $ 407
Interest rate hedging agreements:
Interest rate cap agreement $ --- $ --- $ --- $ ---
Interest rate collar agreement $ --- $ --- $ --- $ ---
</TABLE>
Interest Rate Futures and Currency Forward Contracts: From time to time, the
Company enters into interest rate futures and a variety of currency forward
contracts in the management of interest rate risk and foreign currency
transaction exposure. Unrealised gains and losses on interest rate futures are
deferred and recognised as a component of interest expense over the borrowing
period. Unrealised gains and losses on currency forward contracts are deferred
and recognised as a component of the related transactions in the accompanying
financial statements. Discounts or premiums on currency forward contracts are
recognised over the life of the contract.
Inventories: Inventories are valued at the lower of cost (computed in accordance
with the last-in, first-out (LIFO) or first-in, first-out (FIFO) methods) or
market. The percentage of inventories valued using the LIFO method is 92% and
94% at 28 February 1998 and 1997, respectively. Replacement cost of the
inventories determined on a FIFO basis is approximately $411,424,000 at 28
February 1998, and $349,006,000 at 28 February 1997.
A substantial portion of barreled whiskey and brandy will not be sold within one
year because of the duration of the aging process. All barreled whiskey and
brandy are classified as in-process inventories and are included in current
assets, in accordance with industry practice. Bulk wine inventories are also
included as work in process within current assets, in accordance with the
general practices of the wine industry, although a portion of such inventories
may be aged for periods greater than one year. Warehousing, insurance, ad
valorem taxes and other carrying charges applicable to barreled whiskey and
brandy held for aging are included in inventory costs.
Elements of cost include materials, labour and overhead and consist of the
following:
(in US$ thousands) 28 Feb 1998 28 Feb 1997
- --------------------------------------------------------------------------------
Raw materials and supplies $ 14,439 $ 14,191
Wine and distilled spirits in process 304,037 262,289
Finished case goods 92,948 72,526
-------- --------
411,424 349,006
Less -- LIFO reserve (17,396) (22,380)
-------- --------
$ 394,028 $ 326,626
======== ========
If the FIFO method of inventory valuation had been used, reported net income
would have been approximately $2,941,000, or $0.15 per share on a diluted basis,
lower for the year ended 28 February 1998, and reported net income would have
been approximately $18,163,000, or $0.93 per share on a diluted basis, higher
for the year ended 28 February 1997.
Property, Plant and Equipment: Property, plant and equipment is stated at cost.
Major additions and betterments are charged to property accounts, while
maintenance and repairs are charged to operations as incurred. The cost of
properties sold or otherwise disposed of and the related accumulated
depreciation are eliminated from the accounts at the time of disposal and
resulting gains and losses are included as a component of operating income.
36
<PAGE>
Depreciation: Depreciation is computed primarily using the straight-line method
over the following estimated useful lives:
Depreciable Life in Years
- --------------------------------------------------------------------------------
Buildings and improvements 10 to 33 1/3
Machinery and equipment 3 to 15
Motor vehicles 3 to 7
Amortisation of assets capitalised under capital leases is included with
depreciation expense. Amortisation is calculated using the straight-line method
over the shorter of the estimated useful life of the asset or the lease term.
Other Assets: Other assets, which consist of goodwill, distribution rights,
trademarks, agency license agreements, deferred financing costs, cash surrender
value of officers' life insurance and other amounts, are stated at cost, net of
accumulated amortisation. Amortisation is calculated on a straight-line or
effective interest basis over the following estimated useful lives:
Useful Life in Years
- --------------------------------------------------------------------------------
Goodwill 40
Distribution rights 40
Trademarks 40
Agency license agreements 6 to 40
Deferred financing costs 5 to 10
At 28 February 1998, the weighted average remaining useful life of these assets
is approximately 36 years. The face value of the officers' life insurance
policies totalled $2,852,000 at both 28 February 1998 and 1997.
Long-lived Assets and Intangibles: In accordance with Statement of Financial
Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived
Assets and for Long-Lived Assets to be Disposed of," the Company reviews its
long-lived assets and certain identifiable intangibles for impairment whenever
events or changes in circumstances indicate that the carrying amount of an asset
may not be recoverable on an undiscounted cash flow basis. The statement also
requires that long-lived assets and certain identifiable intangibles to be
disposed of be reported at the lower of carrying amount or fair value less cost
to sell. The Company did not record any asset impairment in fiscal 1998.
Advertising and Promotion Costs: The Company generally expenses advertising and
promotion costs as incurred, shown or distributed. Prepaid advertising costs at
28 February 1998 and 1997, are not material. Advertising and promotion expense
for the years ended 28 February 1998 and 1997, the Transition Period, the six
months ended 28 February 1995 (unaudited), and the year ended 31 August 1995,
were approximately $111,685,000, $101,319,000, $60,187,000, $41,658,000
(unaudited) and $84,246,000, respectively.
Income Taxes: The Company uses the liability method of accounting for income
taxes. The liability method accounts for deferred income taxes by applying
statutory rates in effect at the balance sheet date to the difference between
the financial reporting and tax basis of assets and liabilities.
Environmental: Environmental expenditures that relate to current operations are
expensed as appropriate. Expenditures that relate to an existing condition
caused by past operations, and which do not contribute to current or future
revenue generation, are expensed. Liabilities are recorded when environmental
assessments and/or remedial efforts are probable, and the cost can be reasonably
estimated. Generally, the timing of these accruals coincides with the completion
of a feasibility study or the Company's commitment to a formal plan of action.
Liabilities for environmental costs were not material at 28 February 1998 and
1997.
Earnings Per Common Share: The Company adopted the provisions of Statement of
Financial Accounting Standards No. 128, "Earnings Per Share," (SFAS No. 128)
effective 28 February 1998. Basic earnings per common share excludes the effect
of common stock equivalents and is computed by dividing income available to
common stockholders by the weighted average number of common shares outstanding
during the period for Class A Common Stock and Class B Convertible Common Stock.
Diluted earnings per common share reflects the potential dilution that could
result if securities or other contracts to issue common stock were exercised or
converted into common stock. Diluted earnings per common share assumes the
exercise of stock options using the treasury stock method and assumes the
conversion of convertible securities, if any, using the "if converted" method.
Historical earnings per common share have been restated to conform with the
provisions of SFAS No. 128.
37
<PAGE>
Other: Certain fiscal 1997, Transition Period and fiscal 1995 balances have been
reclassified to conform with current year presentation.
Note 2. Acquisitions
UDG Acquisition: On 1 September 1995, the Company through its wholly-owned
subsidiary, Barton Incorporated (Barton), acquired certain of the assets of
United Distillers Glenmore, Inc., and certain of its North American affiliates
(collectively, UDG) (the UDG Acquisition). The acquisition was made pursuant to
an Asset Purchase Agreement dated 29 August 1995 (the Purchase Agreement),
entered into between Barton and UDG. The acquisition included all of UDG's
rights to the Fleischmann's, Skol, Mr. Boston, Canadian LTD, Old Thompson,
Kentucky Tavern, Chi-Chi's, Glenmore and di Amore distilled spirits brands; the
U.S. rights to Inver House, Schenley and El Toro distilled spirits brands; and
related inventories and other assets. The acquisition also included two of UDG's
production facilities; one located in Owensboro, Kentucky, and the other located
in Albany, Georgia. In addition, pursuant to the Purchase Agreement, the parties
entered into multiyear agreements under which Barton (i) purchases various bulk
distilled spirits brands from UDG and (ii) provides packaging services for
certain of UDG's distilled spirits brands as well as warehousing services.
The aggregate consideration for the acquired brands and other assets consisted
of $141,780,000 in cash and assumption of certain current liabilities. The
source of the cash payment made at closing, together with payment of other costs
and expenses required by the UDG Acquisition, was financing provided by the
Company pursuant to a term loan under the Company's then existing bank credit
agreement.
The UDG Acquisition was accounted for using the purchase method; accordingly,
the UDG assets were recorded at fair market value at the date of acquisition.
The excess of the purchase price over the estimated fair market value of the net
assets acquired (goodwill), $86,348,000, is being amortised on a straight-line
basis over 40 years. The results of operations of the UDG Acquisition have been
included in the Consolidated Statements of Income since the date of acquisition.
Note 3. Property, Plant and Equipment
The major components of property, plant and equipment are as follows:
(in US$ thousands) 28 Feb 1998 28 Feb 1997
- --------------------------------------------------------------------------------
Land $ 15,103 $ 16,961
Buildings and improvements 74,706 76,379
Machinery and equipment 244,204 243,274
Motor vehicles 5,316 5,355
Construction in progress 17,485 13,999
------- -------
356,814 355,968
Less -- Accumulated depreciation (112,779) (106,416)
------- -------
$ 244,035 $ 249,552
=========== ===========
Note 4. Other Assets
The major components of other assets are as follows:
(in US$ thousands) 28 Feb 1998 28 Feb 1997
- --------------------------------------------------------------------------------
Goodwill $ 150,595 $ 150,595
Distribution rights, agency license
agreements and trademarks 119,346 119,316
Other 23,686 22,936
------- -------
293,627 292,847
Less -- Accumulated amortisation (28,841) (22,513)
------- -------
$ 264,786 $ 270,334
=========== ===========
38
<PAGE>
Note 5. Other Accrued Expenses and Liabilities
The major components of other accrued expenses and liabilities are as follows:
(in US$ thousands) 28 Feb 1998 28 Feb 1997
- --------------------------------------------------------------------------------
Accrued salaries and commissions $ 23,704 $ 12,109
Other 74,059 64,047
------- -------
$ 97,763 $ 76,156
=========== ===========
Note 6. Borrowings
Borrowings consist of the following:
<TABLE>
<CAPTION>
28 Feb 1998 28 Feb 1997
------------------------------------ ------------
(in US$ thousands) Current Long-term Total Total
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Notes payable:
Senior Credit Facility:
Revolving Credit Loans $ 91,900 $ --- $ 91,900 $ 57,000
========= ======== ========= =========
Long-term debt:
Senior Credit Facility:
Term loan, variable rate, aggregate proceeds
of $140,000, due in instalments through
June 2003 $ 24,000 $ 116,000 $ 140,000 $ 185,900
Senior Subordinated Notes:
8.75% redeemable after 15 December 1998,
due 2003 --- 130,000 130,000 130,000
8.75% Series C redeemable after 15 December
1998, due 2003 (less unamortised discount
of $2,868 -- effective rate 9.76%) --- 62,132 62,132 61,780
Capitalised Lease Agreements:
Capitalised facility lease bearing
interest at 9%, due in monthly
instalments through fiscal 1998 --- --- --- 348
Industrial Development Agencies:
7.50% 1980 issue, original proceeds $2,370,
due in annual instalments of $119
through fiscal 2000 118 119 237 356
Other Long-term Debt:
Loans payable bearing interest at 5%,
secured by cash surrender value of officers'
life insurance policies --- 967 967 967
--------- -------- -------- --------
$ 24,118 $ 309,218 $ 333,336 $ 379,351
========= ========= ========= =========
</TABLE>
Senior Credit Facility: On 19 December 1997, the Company and a syndicate of
banks (the Syndicate Banks) entered into a new $325,000,000 senior Credit
Agreement (the Credit Agreement). The proceeds of the Credit Agreement were used
to repay all outstanding principal and accrued interest on all loans under the
Company's Third Amended and Restated Credit Agreement, as amended. As compared
to the previous bank credit agreement, the Credit Agreement includes, among
other things, lower interest rates, lower quarterly loan amortisation and
greater flexibility with respect to effecting acquisitions, incurring
indebtedness and repurchasing the Company's capital stock.
The Credit Agreement provides for a $140,000,000 term loan facility due in June
2003 and a $185,000,000 revolving loan facility, including letters of credit up
to a maximum of $20,000,000, which expires in June 2003. The rate of interest
payable, at the Company's option, is a function of the London interbank offered
rate (LIBOR) plus a margin, federal funds rate plus a margin, or the prime rate.
The margin is adjustable based upon the Company's Debt Ratio (as defined in the
Credit Agreement). The Credit Agreement also provides for certain mandatory term
loan prepayments.
The term loan facility requires quarterly repayments of $6,000,000 beginning
March 1998 through December 2002, and payments of $10,000,000 in March 2003 and
June 2003. At 28 February 1998, the margin on the term loan facility borrowings
was 0.75% and may be decreased by up to 0.35% and increased by up to 0.5%
depending on the Company's Debt Ratio.
The revolving loan facility is utilised to finance working capital requirements.
The Credit Agreement requires that the Company reduce the outstanding balance of
the revolving loan facility to less than $60,000,000 for thirty consecutive days
during the six months ending each 31 August. The margin on the revolving loan
facility was 0.5% at 28 February 1998, and may be decreased by up to 0.25% and
increased by up to 0.4% depending on the Company's Debt Ratio. In addition, the
Company pays a facility fee on the total revolving loan facility. At 28 February
1998, the facility fee was 0.25% and may be reduced or increased by 0.1% subject
to the Company's Debt Ratio.
39
<PAGE>
Each of the Company's principal operating subsidiaries has guaranteed, jointly
and severally, the Company's obligations under the Credit Agreement. The
Syndicate Banks have been given security interests in substantially all of the
assets of the Company including mortgage liens on certain real property. The
Company is subject to customary secured lending covenants including those
restricting additional liens, the incurrence of additional indebtedness, the
sale of assets, the payment of dividends, transactions with affiliates and the
making of certain investments. The primary financial covenants require the
maintenance of a Debt Ratio, a senior debt coverage ratio, a fixed charge ratio
and an interest coverage ratio. Among the most restrictive covenants contained
in the Credit Agreement is the requirement to maintain a fixed charge ratio of
not less than 1.0 at the last day of each fiscal quarter for the most recent
four quarters.
The Company had average outstanding Revolving Credit Loans of approximately
$59,892,000 and $88,825,000 for the years ended 28 February 1998 and 1997,
respectively. Amounts available to be drawn down under the Revolving Credit
Loans were $89,235,000 and $119,378,000 at 28 February 1998 and 1997,
respectively. The average interest rate on the Revolving Credit Loans was 6.57%,
6.58%, 6.76% and 7.16%, for fiscal 1998 and 1997, the Transition Period and for
fiscal 1995, respectively. Facility fees on the new Credit Agreement are due
based upon the total revolving loan facility, whereas commitment fees under the
prior agreement were based upon the unused portion of the revolving loan
facility. These fees are based upon the Company's Debt Ratio and can range from
0.15% to 0.35%. At 28 February 1998, the facility fee percentage was 0.25%. The
commitment fee percentage at 28 February 1997 was 0.325%.
Senior Subordinated Notes: On 27 December 1993, the Company issued $130,000,000
aggregate principal amount of 8.75% Senior Subordinated Notes due in December
2003 (the Notes). Interest on the Notes is payable semiannually on 15 June and
15 December of each year. The Notes are unsecured and subordinated to the prior
payment in full of all senior indebtedness of the Company, which includes the
Credit Agreement. The Notes are guaranteed, on a senior subordinated basis, by
all of the Company's significant operating subsidiaries.
The Trust Indenture relating to the Notes contains certain covenants, including,
but not limited to, (i) limitation on indebtedness; (ii) limitation on
restricted payments; (iii) limitation on transactions with affiliates; (iv)
limitation on senior subordinated indebtedness; (v) limitation on liens; (vi)
limitation on sale of assets; (vii) limitation on issuance of guarantees of and
pledges for indebtedness; (viii) restriction on transfer of assets; (ix)
limitation on subsidiary capital stock; (x) limitation on the creation of any
restriction on the ability of the Company's subsidiaries to make distributions
and other payments; and (xi) restrictions on mergers, consolidations and the
transfer of all or substantially all of the assets of the Company to another
person. The limitation on indebtedness covenant is governed by a rolling four
quarter fixed charge ratio requiring a specified minimum.
On 29 October 1996, the Company issued $65,000,000 aggregate principal amount of
8.75% Series B Senior Subordinated Notes due in December 2003 (the Series B
Notes). The Company used the net proceeds of approximately $61,700,000 to repay
$50,000,000 of Revolving Credit Loans and to prepay and permanently reduce
$9,600,000 of the Term Loan. The remaining proceeds were used to pay various
fees and expenses associated with the offering. The terms of the Series B Notes
were substantially identical to those of the Notes. In February 1997, the
Company exchanged $65,000,000 aggregate principal amount of 8.75% Series C
Senior Subordinated Notes due in December 2003 (the Series C Notes) for the
Series B Notes. The terms of the Series C Notes are identical in all material
respects to the Series B Notes.
Loans Payable: Loans payable, secured by officers' life insurance policies,
carry an interest rate of 5%. The notes carry no due dates and it is
management's intention not to repay the notes during the next fiscal year.
Capitalised Lease Agreements -- Industrial Development Agencies: Certain
capitalised lease agreements require the Company to make lease payments equal to
the principal and interest on certain bonds issued by Industrial Development
Agencies. The bonds are secured by the leases and the related facilities. These
transactions have been treated as capital leases with the related assets
included in property, plant and equipment and the lease commitments included in
long-term debt. Among the provisions under the debenture and lease agreements
are covenants that define minimum levels of working capital and tangible net
worth and the maintenance of certain financial ratios as defined in the
agreements.
40
<PAGE>
Debt Payments: Principal payments required under long-term debt obligations
during the next five fiscal years are as follows:
(in thousands)
- --------------------------------------------------------------------------------
1999 $ 24,118
2000 24,119
2001 24,000
2002 24,000
2003 24,000
Thereafter 215,967
-------
$ 336,204
=========
Note 7. Income Taxes
The provision for Federal and state income taxes consists of the following:
<TABLE>
<CAPTION>
For the Six
For the Months For the
For the Year Ended 28 Feb 1998 Year Ended Ended Year Ended
---------------------------------- ---------- ----------- ----------
State and 28 Feb 29 Feb 31 August
(in US$ thousands) Federal Local Total 1997 1996 1995
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Current income tax provision $ 21,032 $ 7,444 $ 28,476 $ 14,347 $ 1,390 $ 6,446
Deferred income tax provision 5,935 384 6,319 5,769 1,991 19,232
--------- ---------- ---------- ---------- ----------- ----------
$ 26,967 $ 7,828 $ 34,795 $ 20,116 $ 3,381 $ 25,678
========= ========== ========== ========== =========== ==========
</TABLE>
A reconciliation of the total tax provision to the amount computed by applying
the expected U.S. Federal income tax rate to income before provision for Federal
and state income taxes is as follows:
<TABLE>
<CAPTION>
For the Year For the Year For the Six For the Year
Ended 28 Feb Ended 28 Feb Months Ended 29 Ended 31 August
1998 1997 Feb 1996 1995
--------------- ----------------- ------------------ ----------------
% of % of % of % of
Pretax Pretax Pretax Pretax
(in US$ thousands) Amount Income Amount Income Amount Income Amount Income
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Computed "expected" tax provision $ 29,703 35.0 $ 16,727 35.0 $ 2,346 35.0 $ 23,344 35.0
State and local income taxes,
net of Federal income tax benefit 5,089 6.0 3,304 6.9 827 12.3 2,395 3.6
Nondeductible meals and
entertainment expenses 294 0.3 310 0.6 205 3.1 290 0.4
Miscellaneous items, net (291) (0.3) (225) (0.4) 3 --- (351) (0.5)
---- ---- ---- ---- ---- ---- ---- ----
$ 34,795 41.0 $ 20,116 42.1 $ 3,381 50.4 $ 25,678 38.5
======= ==== ======= ==== ====== ==== ======= ====
</TABLE>
Deferred tax liabilities (assets) are comprised of the following:
(in US$ thousands) 28 Feb 1998 28 Feb 1997
- --------------------------------------------------------------------------------
Depreciation and amortisation $ 70,303 $ 68,155
LIFO reserve 13,601 2,019
Inventory reserves 6,974 9,418
Other accruals (18,193) (13,191)
------- -------
$ 72,685 $ 66,991
========== ==========
At 28 February 1998, the Company has state and U.S. Federal net operating loss
(NOL) carryforwards of $16,213,000 and $3,654,000, respectively, to offset
future taxable income that, if not otherwise utilised, will expire as follows:
state NOLs of $6,945,000, $6,828,000 and $2,440,000 at 28 February 2001, 2002
and 2003, respectively, and Federal NOL of $3,654,000 at 28 February 2011.
Note 8. Profit Sharing Retirement Plans and Retirement Savings Plan
The Company's profit sharing retirement plans, which cover substantially all
employees, provide for contributions by the Company in such amounts as the Board
of Directors may annually determine and for voluntary contributions by
employees. The plans are qualified as tax-exempt under the Internal Revenue Code
and conform with the Employee
41
<PAGE>
Retirement Income Security Act of 1974. The Company's provisions for the plans,
including the Barton plan described below, were $5,571,000 and $4,999,000 for
the years ended 28 February 1998 and 1997, respectively, $2,579,000 in the
Transition Period and $3,830,000 for fiscal 1995.
The Company's retirement savings plan, established pursuant to Section 401(k) of
the Internal Revenue Code, permits substantially all full-time employees of the
Company (excluding Barton employees, who are covered by a separate plan
described below) to defer a portion of their compensation on a pretax basis.
Participants may defer, subject to a maximum contribution limitation, up to 10%
of their compensation for the year. The Company makes a matching contribution of
25% of the first 4% of compensation an employee defers. Company contributions to
this plan were $367,000 and $700,000 for the years ended 28 February 1998 and
1997, respectively, $325,000 in the Transition Period and $281,000 in fiscal
1995.
The Barton profit sharing and 401(k) plan covers all salaried employees of
Barton. The amount of Barton's contribution under the profit sharing portion of
the plan is at the discretion of its Board of Directors, subject to limitations
of the plan. Contribution expense was $2,799,000 and $2,504,000 for the years
ended 28 February 1998 and 1997, respectively, $1,095,000 in the Transition
Period and $1,430,000 in fiscal 1995. Pursuant to the 401(k) portion of the
plan, participants may defer up to 8% of their compensation for the year,
subject to limitations of the plan, and receive no matching contribution from
Barton.
Note 9. Stockholders' Equity
Common Stock: The Company has two classes of common stock: Class A Common Stock
and Class B Convertible Common Stock. Class B Convertible Common Stock shares
are convertible into shares of Class A Common Stock on a one-to-one basis at any
time at the option of the holder. Holders of Class B Convertible Common Stock
are entitled to ten votes per share. Holders of Class A Common Stock are
entitled to only one vote per share but are entitled to a cash dividend premium.
If the Company pays a cash dividend on Class B Convertible Common Stock, each
share of Class A Common Stock will receive an amount at least ten percent
greater than the amount of the cash dividend per share paid on Class B
Convertible Common Stock. In addition, the Board of Directors may declare and
pay a dividend on Class A Common Stock without paying any dividend on Class B
Convertible Common Stock.
At 28 February 1998, there were 15,405,464 shares of Class A Common Stock and
3,330,458 shares of Class B Convertible Common Stock outstanding, net of
treasury stock.
Stock Repurchase Authorisation: On 11 January 1996, the Company's Board of
Directors authorised the repurchase of up to $30,000,000 of its Class A and
Class B Common stock. The Company was permitted to finance such purchases, which
became treasury shares, through cash generated from operations or through the
Credit Agreement. The Company completed its repurchase program during fiscal
1998, repurchasing 362,100 shares of Class A Common Stock for $9,233,000.
Throughout the year ended 28 February 1997, the Company repurchased 787,450
shares of Class A Common Stock totalling $20,765,000.
Long-Term Stock Incentive Plan: In July 1997, the stockholders approved the
amendment and restatement of the Company's Stock Option and Stock Appreciation
Right Plan (the Original Stock Plan) as the Long-Term Stock Incentive Plan (the
Long-Term Stock Plan). Options granted under the Original Stock Plan remain
outstanding and in full force in accordance with their terms.
Under the Long-Term Stock Plan, nonqualified stock options, stock appreciation
rights, restricted stock and other stock-based awards may be granted to
employees, officers and directors of the Company. Grants, in the aggregate, may
not exceed 4,000,000 shares of the Company's Class A Common Stock. The exercise
price, vesting period and term of nonqualified stock options granted are
established by the committee administering the plan (the Committee). Grants of
stock appreciation rights, restricted stock and other stock-based awards may
contain such vesting, terms, conditions and other requirements as the Committee
may establish. During fiscal 1998, no stock appreciation rights and 25,000
shares of restricted Class A Common Stock were granted. At 28 February 1998,
there were 1,840,258 shares available for future grant.
42
<PAGE>
A summary of nonqualified stock option activity is as follows:
<TABLE>
<CAPTION>
Shares Weighted Weighted
Under Avg. Exercise Options Avg. Exercise
Option Price Exercisable Price
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Balance, 31 August 1994 563,500 $ 15.65
Options granted 289,000 $ 40.29
Options exercised (114,075) $ 7.02
Options forfeited/cancelled (4,500) $ 19.22
--------
Balance, 31 August 1995 733,925 $ 26.68 39,675 $ 4.44
Options granted 571,050 $ 36.01
Options exercised (18,000) $ 13.23
Options forfeited/cancelled (193,250) $ 44.06
--------
Balance, 29 February 1996 1,093,725 $ 28.70 28,675 $ 4.44
Options granted 1,647,700 $ 22.77
Options exercised (3,750) $ 4.44
Options forfeited/cancelled (1,304,700) $ 32.09
--------
Balance, 28 February 1997 1,432,975 $ 18.85 51,425 $ 10.67
Options granted 569,400 $ 38.72
Options exercised (117,452) $ 15.33
Options forfeited/cancelled (38,108) $ 17.66
--------
Balance, 28 February 1998 1,846,815 $ 25.23 360,630 $ 25.46
==========
</TABLE>
The following table summarises information about stock options outstanding at 28
February 1998:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
------------------------------------------------- -----------------------------
Weighted Avg. Weighted Weighted
Number Remaining Avg. Exercise Number Avg. Exercise
Range of Exercise Prices Outstanding Contractual Life Price Exercisable Price
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$ 4.44 -- $11.50 38,675 3.5 years $ 9.15 38,675 $ 9.15
$17.00 -- $25.63 998,540 7.3 years $ 17.37 134,280 $ 17.00
$26.75 -- $31.25 351,800 8.5 years $ 28.46 80,200 $ 27.30
$35.38 -- $56.75 457,800 9.6 years $ 41.25 107,475 $ 40.53
------- --------
1,846,815 8.0 years $ 25.23 360,630 $ 25.46
========= =========
</TABLE>
The weighted average fair value of options granted during fiscal 1998, fiscal
1997 and the Transition Period was $20.81, $10.27 and $15.90, respectively. The
fair value of options is estimated on the date of grant using the Black-Scholes
option-pricing model with the following weighted average assumptions: risk-free
interest rate of 6.4% for fiscal 1998, 6.6% for fiscal 1997 and 5.5% for the
Transition Period; volatility of 41.3% for fiscal 1998, 42.7% for fiscal 1997
and 39.6% for the Transition Period; expected option life of 6.9 years for
fiscal 1998, 4.7 years for fiscal 1997 and 5.4 years for the Transition Period.
The dividend yield was 0% for fiscal 1998, fiscal 1997 and the Transition
Period. Forfeitures are recognised as they occur.
Incentive Stock Option Plan: The ability to grant incentive stock options under
the Original Stock Plan was eliminated when it was amended and restated as the
Long-Term Stock Plan. In July 1997, stockholders approved the adoption of the
Company's Incentive Stock Option Plan. Under the Incentive Stock Option Plan,
incentive stock options may be granted to employees, including officers, of the
Company. Grants, in the aggregate, may not exceed 1,000,000 shares of the
Company's Class A Common Stock. The exercise price of any incentive stock option
may not be less than the fair market value of the Company's Class A Common Stock
on the date of grant. The vesting period and term of incentive stock options
granted are established by the Committee. The maximum term of incentive stock
options is ten years. During fiscal 1998, no incentive stock options were
granted.
Employee Stock Purchase Plan: In fiscal 1989, the Company approved a stock
purchase plan under which 1,125,000 shares of Class A Common Stock can be
issued. Under the terms of the plan, eligible employees may purchase shares of
the Company's Class A Common Stock through payroll deductions. The purchase
price is the lower of 85% of the fair market value of the stock on the first or
last day of the purchase period. During fiscal 1998 and fiscal 1997, the
Transition Period and fiscal 1995, employees purchased 78,248, 37,768, 20,869
and 28,641 shares, respectively.
The weighted average fair value of purchase rights granted during fiscal 1998
and fiscal 1997 was $11.90 and $8.41, respectively. The fair value of purchase
rights is estimated on the date of grant using the Black-Scholes option-pricing
43
<PAGE>
model with the following weighted average assumptions: risk-free interest rate
of 5.3% for fiscal 1998 and 5.6% for fiscal 1997; volatility of 35.1% for fiscal
1998 and 65.4% for fiscal 1997; expected purchase right life of 0.5 years for
fiscal 1998 and 0.8 years for fiscal 1997. The dividend yield was 0% for both
fiscal 1998 and fiscal 1997. No purchase rights were granted in the Transition
Period.
Pro Forma Disclosure: The Company applies Accounting Principles Board Opinion
No. 25, "Accounting for Stock Issued to Employees," and related interpretations
in accounting for its plans. In fiscal 1997, the Company elected to adopt the
disclosure-only provisions of Statement of Financial Accounting Standards No.
123, "Accounting for Stock-Based Compensation," (SFAS No. 123). Accordingly, no
compensation expense has been recognised for its stock-based compensation plans.
Had the Company recognised the compensation cost based upon the fair value at
the date of grant for awards under its plans consistent with the methodology
prescribed by SFAS No. 123, net income and earnings per common share would have
been reduced to the pro forma amounts as follows:
<TABLE>
<CAPTION>
For the Year Ended For the Year Ended For the Six Months Ended
28 Feb 1998 28 Feb 1997 29 Feb 1996
---------------------- --------------------- ----------------------------
(in US$ thousands, As As As
except share data) Reported Pro Forma Reported Pro Forma Reprted Pro Forma
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Net income $ 50,071 $ 46,171 $ 27,675 $ 25,038 $ 3,322 $ 3,178
Earnings per
common share:
Basic $ 2.68 $ 2.47 $ 1.43 $ 1.30 $ 0.17 $ 0.16
Diluted $ 2.62 $ 2.42 $ 1.42 $ 1.28 $ 0.17 $ 0.16
</TABLE>
The provisions of SFAS No. 123 have not been applied to options or purchase
rights granted prior to 1 September 1995. Therefore, the resulting pro forma
effect on net income may not be representative of that to be expected in future
years.
Stock Offering: During November 1994, the Company completed a public offering
and sold 3,000,000 shares of its Class A Common Stock, resulting in net proceeds
to the Company of approximately $95,515,000 after underwriters' discounts and
commissions and expenses. In connection with the offering, 432,067 of the
Vintners option shares were exercised and the Company received proceeds of
$7,885,000. Under the terms of the then existing bank credit agreement,
approximately $82,000,000 was used to repay a portion of the Term Loan under the
bank credit agreement. The balance of net proceeds was used to repay Revolving
Credit Loans under the bank credit agreement.
Note 10. Earnings Per Common Share
The following table presents historical earnings per common share restated to
conform with the provisions of SFAS No.128.
<TABLE>
<CAPTION>
For the
For the Years Ended For the Six Months Ended Year Ended
------------------------ ----------------------------- ------------
28 Feb 28 Feb 29 Feb 28 Feb 31 Aug
(in thousands, except per share data) 1998 1997 1996 1995 1995
- ---------------------------------------------------------------------------------------------------------------------------
(unaudited)
<S> <C> <C> <C> <C> <C>
Basic earnings per common share:
Income applicable to common shares $ 50,071 $ 27,675 $ 3,322 $ 20,320 $ 41,020
---------- ---------- ---------- ----------- ----------
Weighted average common shares outstanding 18,672 19,333 19,611 17,989 18,776
Basic earnings per common share $ 2.68 $ 1.43 $ 0.17 $ 1.13 $ 2.18
========== ========== ========== =========== ==========
Diluted earnings per common share:
Income applicable to common shares $ 50,071 $ 27,675 $ 3,322 $ 20,320 $ 41,020
---------- ---------- ---------- ----------- ----------
Weighted average common shares outstanding 18,672 19,333 19,611 17,989 18,776
Incentive stock options 423 179 129 152 155
Options/employee stock purchases 10 9 67 38 74
------ ------ ------ ------ ------
Adjusted weighted average common
shares outstanding 19,105 19,521 19,807 18,179 19,005
------ ------ ------ ------ ------
Diluted earnings per common share $ 2.62 $ 1.42 $ 0.17 $ 1.12 $ 2.16
========= ========= ========= ========== ========
</TABLE>
44
<PAGE>
Note 11. Commitments and Contingencies
Operating Leases: Future payments under noncancelable operating leases having
initial or remaining terms of one year or more are as follows:
(in thousands)
- --------------------------------------------------------------------------------
1999 $ 3,506
2000 2,627
2001 1,947
2002 1,513
2003 1,291
Thereafter 8,590
------
$ 19,474
=======
Rental expense was approximately $5,554,000 and $4,716,000 for fiscal 1998 and
fiscal 1997, respectively, $2,382,000 in the Transition Period and $4,193,000
for fiscal 1995.
Purchase Commitments and Contingencies: The Company has agreements with three
suppliers to purchase blended Scotch whisky through December 2001. The purchase
prices under the agreements are denominated in British pounds sterling. Based
upon exchange rates at 28 February 1998, the Company's aggregate future
obligation ranges from approximately $10,758,000 to $22,835,000 for the
contracts expiring through December 2001.
The Company has an agreement to purchase Canadian blended whisky through 1
September 1999, with a maximum obligation of approximately $4,453,000. The
Company also has two agreements to purchase Canadian new distillation whisky
(including dumping charges) through December 2005 at purchase prices of
approximately $12,521,000 to $13,536,000. In addition, the Company has an
agreement to purchase corn whiskey through April 1999 at a purchase price of
approximately $90,000.
All of the Company's imported beer products are marketed and sold pursuant to
exclusive distribution agreements from the suppliers of these products. The
Company's agreement to distribute Corona and its other Mexican beer brands
exclusively throughout 25 states was renewed effective 22 November 1996, and
expires December 2006, with automatic five year renewals thereafter, subject to
compliance with certain performance criteria and other terms under the
agreement. The remaining agreements expire through June 2003. Prior to their
expiration, these agreements may be terminated if the Company fails to meet
certain performance criteria. At 28 February 1998, the Company believes it is in
compliance with all of its material distribution agreements and, given the
Company's long-term relationships with its suppliers, the Company does not
believe that these agreements will be terminated.
In connection with the Vintners Acquisition and the Almaden/Inglenook
Acquisition, the Company assumed purchase contracts with certain growers and
suppliers. In addition, the Company has entered into other purchase contracts
with various growers and suppliers in the normal course of business. Under the
grape purchase contracts, the Company is committed to purchase all grape
production yielded from a specified number of acres for a period of time ranging
up to 20 years. The actual tonnage and price of grapes that must be purchased by
the Company will vary each year depending on certain factors, including weather,
time of harvest, overall market conditions and the agricultural practices and
location of the growers and suppliers under contract.
The Company purchased $154,909,000 of grapes under these contracts during fiscal
1998. Based on current production yields and published grape prices, the Company
estimates that the aggregate purchases under these contracts over the remaining
term of the contracts will be approximately $915,651,000. During fiscal 1994, in
connection with the Vintners Acquisition and the Almaden/Inglenook Acquisition,
the Company established a reserve for the estimated loss on these firm purchase
commitments of approximately $62,664,000, which was subsequently reduced during
fiscal 1995 to reflect the effects of the termination payments to cancel
contracts with certain growers. The remaining reserve for the estimated loss on
the remaining contracts is approximately $771,000 at 28 February 1998.
The Company's aggregate obligations under bulk wine purchase contracts will be
approximately $32,502,000 over the remaining term of the contracts which expire
through fiscal 2001.
Employment Contracts: The Company has employment contracts with certain of its
executive officers and certain other management personnel with remaining terms
ranging up to three years. These agreements provide for minimum salaries, as
adjusted for annual increases, and may include incentive bonuses based upon
attainment of specified management goals. In addition, these agreements provide
for severance payments in the event of specified termination of employment. The
aggregate commitment for future compensation and severance, excluding incentive
bonuses, was
45
<PAGE>
approximately $7,903,000 as of 28 February 1998, of which approximately
$1,436,000 is accrued in other liabilities as of 28 February 1998.
Employees Covered by Collective Bargaining Agreements: Approximately 42% of the
Company's full-time employees are covered by collective bargaining agreements at
28 February 1998. Agreements expiring within one year cover approximately 7% of
the Company's full-time employees.
Legal Matters: The Company is subject to litigation from time to time in the
ordinary course of business. Although the amount of any liability with respect
to such litigation cannot be determined, in the opinion of management, such
liability will not have a material adverse effect on the Company's financial
condition or results of operations.
Note 12. Significant Customers and Concentration of Credit Risk
The Company sells its products principally to wholesalers for resale to retail
outlets including grocery stores, package liquor stores, club and discount
stores and restaurants. Gross sales to the five largest wholesalers of the
Company represented 26.4%, 22.9%, 16.9% and 21.6% of the Company's gross sales
for the fiscal years ending 28 February 1998 and 1997, the Transition Period and
for the fiscal year ended 31 August 1995, respectively. Gross sales to the
Company's largest wholesaler, Southern Wine and Spirits, represented 12.1%,
10.5% and 10.6% of the Company's gross sales for the fiscal years ended 28
February 1998 and 1997, and for the fiscal year ended 31 August 1995,
respectively. Accounts receivable from the Company's largest wholesaler
represented 14.1% and 11.3% of the Company's total accounts receivable as of 28
February 1998 and 1997, respectively. No single wholesaler was responsible for
greater than 10% of gross sales during the Transition Period. Gross sales to the
Company's five largest wholesalers are expected to continue to represent a
significant portion of the Company's revenues. The Company's arrangements with
certain of its wholesalers may, generally, be terminated by either party with
prior notice. The Company performs ongoing credit evaluations of its customers'
financial position, and management of the Company is of the opinion that any
risk of significant loss is reduced due to the diversity of customers and
geographic sales area.
Note 13. Restructuring Plan
The Company provided for costs to restructure the operations of its California
wineries (the Restructuring Plan) in the fourth quarter of fiscal 1994. Under
the Restructuring Plan, all bottling operations at the Central Cellars winery in
Lodi, California, and the branded wine bottling operations at the Monterey
Cellars winery in Gonzales, California, were moved to the Mission Bell winery
located in Madera, California. The Monterey Cellars winery will continue to be
used as a crushing, winemaking and contract bottling facility. The Central
Cellars winery was closed in the fourth quarter of fiscal 1995 and was sold for
its approximate net book value during fiscal 1997. In fiscal 1994, the
Restructuring Plan reduced income before taxes and net income by approximately
$24,005,000 and $14,883,000, respectively, or $0.92 per share on a diluted
basis. Of the total pretax charge in fiscal 1994, approximately $16,481,000 was
to recognise estimated losses associated with the revaluation of land, buildings
and equipment related to facilities described above to their estimated net
realisable value; and approximately $7,524,000 related to severance and other
benefits associated with the elimination of 260 jobs. In fiscal 1995, the
Restructuring Plan reduced income before income taxes and net income by
approximately $2,238,000 and $1,376,000, respectively, or $0.07 per share on a
diluted basis. Of the total pretax charge in fiscal 1995, $4,288,000 relates to
equipment relocation and employee hiring and relocation costs, offset by a
decrease of $2,050,000 in the valuation reserve as compared to fiscal 1994,
primarily related to the land, buildings and equipment at the Central Cellars
winery. The Company also expended approximately $19,071,000 in fiscal 1995 for
capital expenditures to expand storage capacity and install certain relocated
equipment. In the Transition Period, the expense incurred in connection with the
Restructuring Plan reduced income before taxes and net income by approximately
$2,404,000 and $1,192,000, respectively, or $0.06 per share on a diluted basis.
These charges represented incremental, nonrecurring expenses of $3,982,000
primarily incurred for overtime and freight expenses resulting from
inefficiencies related to the Restructuring Plan, offset by a reduction in the
accrual for restructuring expenses of $1,578,000, primarily for severance and
facility holding and closure costs. The Company completed the Restructuring Plan
at 29 February 1996, with a total employment reduction of 177 jobs. The Company
expended approximately $2,125,000 in fiscal 1997 and $6,644,000 during the
Transition Period for capital expenditures to expand storage capacity. As of 28
February 1997, the Company had accrued liabilities of approximately $402,000
relating to the Restructuring Plan. As of 28 February 1998, the Company had no
accrued liabilities relating to the Restructuring Plan.
Note 14. Summarised Financial Information -- Subsidiary Guarantors
The subsidiary guarantors are wholly owned and the guarantees are full,
unconditional, joint and several obligations of each of the subsidiary
guarantors. Summarised financial information for the subsidiary guarantors is
set forth below. Separate financial statements for the subsidiary guarantors of
the Company are not presented because the Company has
46
<PAGE>
determined that such financial statements would not be material to investors.
The subsidiary guarantors comprise all of the direct and indirect subsidiaries
of the Company, other than the nonguarantor subsidiaries which individually, and
in the aggregate, are inconsequential. There are no restrictions on the ability
of the subsidiary guarantors to transfer funds to the Company in the form of
cash dividends or loan repayments; however, except for limited amounts, the
subsidiary guarantors may not loan funds to the Company.
The following table presents summarised financial information for subsidiary
guarantors in connection with all of the Company's 8.75% Senior Subordinated
Notes:
(in US$ thousands) 28 Feb 1998 28 Feb 1997
- --------------------------------------------------------------------------------
Balance Sheet Data:
Current assets $ 460,618 $ 401,870
Noncurrent assets $ 395,225 $ 403,068
Current liabilities $ 102,207 $ 100,009
Noncurrent liabilities $ 61,784 $ 65,300
<TABLE>
<CAPTION>
For the
For the Years Ended For the Six Months Ended Year Ended
-------------------------- ------------------------- -----------
(in US$ thousands) 28 Feb 1998 28 Feb 1997 29 Feb 1996 28 Feb 1995 31 Aug 1995
- ----------------------------------------------------------------------------------------------
Income Statement Data:
<S> <C> <C> <C> <C> <C>
Net sales $ 985,757 $ 907,387 $ 416,839 $ 334,885 $ 716,969
Gross profit $ 196,642 $ 164,471 $ 73,843 $ 62,883 $ 131,489
Income before
provision for
Federal and
state income taxes $ 64,270 $ 47,303 $ 17,083 $ 22,690 $ 52,756
Net income $ 38,094 $ 27,392 $ 8,466 $ 13,954 $ 32,445
</TABLE>
Note 15. Accounting Pronouncements
In June 1997, Statement of Financial Accounting Standards No. 130, "Reporting
Comprehensive Income," (SFAS No. 130) and Statement of Financial Accounting
Standards No. 131, "Disclosures about Segments of an Enterprise and Related
Information," (SFAS No. 131) were issued. SFAS No. 130 establishes standards for
reporting and display of comprehensive income and its components in a full set
of financial statements. The Company is required to adopt SFAS No. 130 for
interim periods and fiscal years beginning 1 March 1998. Reclassification of
financial statements for earlier periods provided for comparative purposes is
required. The Company believes the effect of adoption will not be significant.
SFAS No. 131 establishes standards for reporting information about operating
segments in annual financial statements and requires reporting of selected
information in interim financial statements. The Company is required to adopt
SFAS No. 131 for fiscal years beginning 1 March 1998, and for interim periods
beginning 1 March 1999. Restatement of comparative information for earlier years
is required in the initial year of adoption and comparative information for
interim periods in the initial year of adoption is to be reported for interim
periods in the second year of application. The Company has not yet determined
the impact of SFAS No. 131 on its financial statements.
47
<PAGE>
Note 16. Selected Quarterly Financial Information (Unaudited)
A summary of selected quarterly financial information is as follows:
<TABLE>
<CAPTION>
Quarter Ended
---------------------------------------------------
31 May 31 Aug 30 Nov 28 Feb
(in US$ thousands, except share data) 1997 1997 1997 1998 Fiscal 1998
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales $ 306,011 $ 301,524 $ 322,703 $ 282,550 $ 1,212,788
Gross profit $ 80,732 $ 84,759 $ 98,000 $ 85,244 $ 348,735
Net income $ 10,046 $ 12,365 $ 17,611 $ 10,049 $ 50,071
Earnings per common share:
Basic $ 0.54 $ 0.67 $ 0.94 $ 0.54 $ 2.68
Diluted $ 0.53 $ 0.65 $ 0.92 $ 0.53 $ 2.62
Market price per share:
Class A High $ 32.25 $ 42.75 $ 53.50 $ 58.50
Class A Low $ 21 7/8 $ 29 3/8 $ 39.50 $ 43.75
Class B High $ 37 $ 43 $ 54 5/8 $ 57.75
Class B Low $ 27 $ 35.50 $ 40.75 $ 45
</TABLE>
<TABLE>
<CAPTION>
Quarter Ended
---------------------------------------------------
31 May 31 Aug 30 Nov 28 Feb
(in US$ thousands, except share data) 1996 1996 1996 1997 Fiscal 1997
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales $ 276,493 $ 279,218 $ 317,733 $ 261,569 $ 1,135,013
Gross profit $ 72,907 $ 69,835 $ 81,683 $ 66,407 $ 290,832
Net income $ 8,501 $ 4,941 $ 8,311 $ 5,922 $ 27,675
Earnings per common share:
Basic $ 0.43 $ 0.25 $ 0.43 $ 0.31 $ 1.43
Diluted $ 0.43 $ 0.25 $ 0.43 $ 0.31 $ 1.42
Market price per share:
Class A High $ 39.50 $ 32.25 $ 27.50 $ 31.75
Class A Low $ 27 $ 22 7/8 $ 15.75 $ 25.50
Class B High $ 39.50 $ 32.50 $ 29.75 $ 34
Class B Low $ 27.75 $ 25 3/8 $ 19 $ 28.75
</TABLE>
Note 17. Dividends
The Company's policy is to retain all of its earnings to finance the development
and expansion of its business, and the Company has not paid any cash dividends
since its initial public offering in 1973.
48
<PAGE>
PART B: UNAUDITED FINANCIAL INFORMATION
1. Financial information
The financial information relating to Canandaigua for the six and three months
ended 31 August 1998 and 31 August 1997 has been extracted from the Form 10-Q
which was filed with the United States Securities and Exchange Commission on
29 September 1998. All information presented in Part B of this Appendix II is
unaudited.
2. Consolidated statements of income
<TABLE>
<CAPTION>
For the Six Months For the Three Months
Ended 31 August Ended 31 August
Consolidated Statements of Income --------------------- ---------------------
(in US$ thousands, except share data) 1998 1997 1998 1997
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Gross sales $ 880,150 $ 820,326 $ 457,281 $ 409,288
Less -- Excise taxes (217,836) (212,791) (107,895) (107,764)
-------- -------- -------- --------
Net sales 662,314 607,535 349,386 301,524
Cost of product sold (467,767) (442,044) (247,775) (216,765)
-------- -------- -------- --------
Gross profit 194,547 165,491 101,611 84,759
Selling, general and
administrative expenses (128,786) (111,483) (67,454) (56,258)
-------- -------- ------- -------
Operating income 65,761 54,008 34,157 28,501
Interest expense, net (15,952) (16,024) (7,425) (7,545)
------- ------- ------ ------
Income before provision for Federal
and state income taxes 49,809 37,984 26,732 20,956
Provision for Federal and state
income taxes (20,422) (15,573) (10,960) (8,591)
------- ------- ------- ------
Net income $ 29,387 $ 22,411 $ 15,772 $ 12,365
========= ========= ========= =========
Earnings per common share:
Basic $ 1.57 $ 1.20 $ 0.85 $ 0.67
========= ========= ========= =========
Diluted $ 1.53 $ 1.18 $ 0.83 $ 0.65
========= ========= ========= =========
Weighted average common shares
outstanding:
Basic 18,669 18,665 18,589 18,559
Diluted 19,168 19,002 19,051 18,962
</TABLE>
See notes to the consolidated financial statements in section 5 of Part B of
this Appendix II.
49
<PAGE>
3. Consolidated balance sheets
<TABLE>
<CAPTION>
Consolidated Balance Sheets 31 August 28 February
(in US$ thousands, except share data) 1998 1998
- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS:
Current assets:
Cash and cash investments $ 1,473 $ 1,232
Accounts receivable, net 154,550 142,615
Inventories, net 345,972 394,028
Prepaid expenses and other current assets 37,550 26,463
--------- -----------
Total current assets 539,545 564,338
Property, plant and equipment, net 246,157 244,035
Other assets 262,004 264,786
--------- -----------
Total assets 1,047,706 $ 1,073,159
========= ===========
LIABILITIES AND STOCKHOLDERS' EQUITY:
Current liabilities:
Notes payable $ 63,000 $ 91,900
Current maturities of long-term debt 24,118 24,118
Accounts payable 65,624 52,055
Accrued Federal and state excise taxes 21,561 17,498
Other accrued expenses and liabilities 101,569 97,763
--------- -----------
Total current liabilities 275,872 283,334
Long-term debt, less current maturities 297,407 309,218
Deferred income taxes 59,237 59,237
Other liabilities 5,445 6,206
--------- -----------
Total liabilities 637,961 657,995
--------- -----------
Commitments and contingencies
Stockholders' equity:
Preferred Stock, $0.01 par value -- Authorised, 1,000,000 shares;
Issued, none at 31 August 1998, and 28 February 1998 --- ---
Class A Common Stock, $0.01 par value -- Authorised, 120,000,000
shares; Issued, 17,802,475 shares at 31 August 1998, and
17,604,784 shares at 28 February 1998 178 176
Class B Convertible Common Stock, $0.01 par value -- Authorised,
20,000,000 shares; Issued, 3,873,912 shares at 31 August 1998,
and 3,956,183 shares at 28 February 1998 39 40
Additional paid-in capital 234,992 231,687
Retained earnings 249,733 220,346
--------- -----------
484,942 452,249
--------- -----------
Less: Treasury stock --
Class A Common Stock, 3,029,505 shares at 31 August 1998,
and 2,199,320 shares at 28 February 1998, at cost (72,990) (34,878)
Class B Convertible Common Stock, 625,725 shares at
31 August 1998, and 28 February 1998, at cost (2,207) (2,207)
--------- -----------
(75,197) (37,085)
--------- -----------
Total stockholders' equity 409,745 415,164
------- -------
Total liabilities and stockholders' equity $ 1,047,706 $ 1,073,159
========= ===========
</TABLE>
See notes to the consolidated financial statements in section 5 of Part B of
this Appendix II.
50
<PAGE>
4. Consolidated statements of cash flows
<TABLE>
<CAPTION>
For the Six Months Ended
Consolidated Statements of Cash Flows 31 August
-------------------------
(in US$ thousands) 1998 1997
- --------------------------------------------------------------------------------------------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 29,387 $ 22,411
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation of property, plant and equipment 11,952 12,625
Amortisation of intangible assets 5,015 4,699
Deferred tax provision 900 4,900
Amortisation of discount on long-term debt 189 172
Stock-based compensation expense 51 350
Gain on sale of property, plant and equipment (3) (883)
Change in operating assets and liabilities:
Accounts receivable, net (11,935) (17,518)
Inventories, net 48,056 (8,131)
Prepaid expenses and other current assets (10,867) 1,285
Accounts payable 11,339 57,408
Accrued Federal and state excise taxes 4,063 2,669
Other accrued expenses and liabilities 2,906 1,584
Other assets and liabilities, net (2,549) (717)
------ ----
Total adjustments 59,117 58,443
------ ------
Net cash provided by operating activities 88,504 80,854
------ ------
Cash flows from investing activities:
Purchases of property, plant and equipment (14,098) (18,213)
Purchase of joint venture minority interest (716) --
Proceeds from sale of property, plant and equipment 27 8,512
----- ------
Net cash used in investing activities (14,787) (9,701)
------- ------
Cash flows from financing activities:
Purchases of treasury stock (36,014) (9,233)
Net repayments of notes payable (28,900) (27,800)
Principal payments of long-term debt (12,000) (40,409)
Exercise of employee stock options 2,154 741
Proceeds from employee stock purchases 1,284 204
Payment of issuance costs of long-term debt -- (388)
------- ------
Net cash used in financing activities (73,476) (76,885)
------- -------
Net increase (decrease) in cash and cash investments 241 (5,732)
Cash and cash investments, beginning of period 1,232 10,010
------- ------
Cash and cash investments, end of period $ 1,473 $ 4,278
======== ========
</TABLE>
See notes to the consolidated financial statements in section 5 of Part B of
this Appendix II.
51
<PAGE>
5. Notes to the consolidated financial statements
Note 1. Management's Representations
The condensed consolidated financial statements included herein have been
prepared by the Company, without audit, pursuant to the rules and regulations of
the Securities and Exchange Commission applicable to quarterly reporting on Form
10-Q and reflect, in the opinion of the Company, all adjustments necessary to
present fairly the financial information for the Canandaigua Group. All such
adjustments are of a normal recurring nature. Certain information and footnote
disclosures normally included in financial statements, prepared in accordance
with generally accepted accounting principles, have been condensed or omitted as
permitted by such rules and regulations. These consolidated financial statements
and related notes should be read in conjunction with the consolidated financial
statements and related notes included in the Company's Annual Report on Form
10-K for the fiscal year ended 28 February 1998.
Note 2. Inventories
Inventories are valued at the lower of cost (computed in accordance with the
last-in, first-out (LIFO) or first-in, first-out (FIFO) methods) or market.
Substantially all of the inventories are valued using the LIFO method. Elements
of cost include materials, labour and overhead and consist of the following:
31 August 28 February
(in US$ thousands) 1998 1998
- --------------------------------------------------------------
Raw materials and supplies $ 14,395 $ 14,439
Wine and distilled spirits in process 231,442 304,037
Finished case goods 118,280 92,948
------- ------
364,117 411,424
Less -- LIFO reserve (18,145) (17,396)
------- -------
$ 345,972 $ 394,028
========= =========
Information related to the FIFO method of inventory valuation may be useful in
comparing operating results to those companies not using the LIFO method of
inventory valuation. If the FIFO method had been used, reported net income would
have been $0.4 million, or $0.02 per share on a diluted basis, higher for the
six months ended 31 August 1998, and reported net income would have been $1.7
million, or $0.09 per share on a diluted basis, higher for the six months ended
31 August 1997.
Note 3. Borrowings
Bank credit agreement: In June 1998, the bank credit agreement was amended to,
among other things, eliminate the requirement that the Company reduce the
outstanding balance of the revolving loan facility to less than $60,000,000 for
thirty consecutive days during the six months ending each 31 August. In July
1998, the revolving loan facility under the bank credit agreement was increased
by $100.0 million to $285.0 million.
Note 4. Retirement Savings and Profit Sharing Retirement Plan
Effective 1 March 1998, the Company's existing retirement savings and profit
sharing retirement plans and the Barton profit sharing and 401(k) plan were
merged into the Canandaigua 401(k) and Profit Sharing Plan (the Plan). The Plan
covers substantially all employees, excluding those employees covered by
collective bargaining agreements. The 401(k) portion of the Plan permits
eligible employees to defer a portion of their compensation (as defined in the
Plan) on a pretax basis. Participants may defer up to 10% of their compensation
for the year, subject to limitations of the Plan. The Company makes a matching
contribution of 50% of the first 6% of compensation a participant defers. The
amount of the Company's contribution under the profit sharing portion of the
Plan is in such discretionary amount as the Board of Directors may annually
determine, subject to limitations of the Plan.
Note 5. Stockholders' Equity
Stock repurchase authorisation: In June 1998, the Company's Board of Directors
authorised the repurchase of up to $100,000,000 of its Class A Common Stock and
Class B Convertible Common Stock. The Company may finance such purchases, which
will become treasury shares, through cash generated from operations or through
the bank credit agreement.
Increase in number of authorised shares of Class A Common Stock: In July 1998,
the stockholders of the Company approved an increase in the number of authorised
shares of Class A Common Stock from 60,000,000 shares to 120,000,000 shares,
thereby increasing the aggregate number of authorised shares of the Company to
141,000,000 shares.
52
<PAGE>
Note 6. Earnings Per Common Share
The Company adopted the provisions of Statement of Financial Accounting
Standards No. 128, "Earnings Per Share," (SFAS No. 128) effective 28 February
1998. Basic earnings per common share excludes the effect of common stock
equivalents and is computed by dividing income available to common stockholders
by the weighted average number of common shares outstanding during the period
for Class A Common Stock and Class B Convertible Common Stock. Diluted earnings
per common share reflects the potential dilution that could result if securities
or other contracts to issue common stock were exercised or converted into common
stock. Diluted earnings per common share assumes the exercise of stock options
using the treasury stock method and assumes the conversion of convertible
securities, if any, using the "if converted" method. Historical earnings per
common share have been restated to conform with the provisions of SFAS No. 128.
The computation of basic and diluted earnings per common share is as follows:
For the Six Months For the Three Months
Ended 31 August Ended 31 August
------------------- --------------------
(in thousands, except per share data) 1998 1997 1998 1997
- --------------------------------------------------------------------------------
Income applicable to common shares $29,387 $22,411 $15,772 $12,365
======= ======= ======= =======
Weighted average common shares
outstanding -- basic 18,669 18,665 18,589 18,559
Stock options 499 337 462 403
------ ------ ------ ------
Weighted average common shares
outstanding -- diluted 19,168 19,002 19,051 18,962
====== ====== ====== ======
Earnings per common share -- Basic $ 1.57 $ 1.20 $ 0.85 $ 0.67
======= ======= ======= =======
Earnings per common share -- Diluted $ 1.53 $ 1.18 $ 0.83 $ 0.65
======= ======= ======= =======
Note 7. Summarised Financial Information -- Subsidiary Guarantors
The subsidiary guarantors are wholly owned and the guarantees are full,
unconditional, joint and several obligations of each of the subsidiary
guarantors. Summarised financial information for the subsidiary guarantors is
set forth below. Separate financial statements for the subsidiary guarantors of
the Company are not presented because the Company has determined that such
financial statements would not be material to investors. The subsidiary
guarantors comprise all of the direct and indirect subsidiaries of the Company,
other than the nonguarantor subsidiaries which individually, and in the
aggregate, are inconsequential. There are no restrictions on the ability of the
subsidiary guarantors to transfer funds to the Company in the form of cash
dividends or loan repayments; however, except for limited amounts, the
subsidiary guarantors may not loan funds to the Company.
The following table presents summarised financial information for subsidiary
guarantors in connection with all of the Company's 8.75% Senior Subordinated
Notes:
31 August 28 February
(in US$ thousands) 1998 1998
- --------------------------------------------------------------------------------
Balance Sheet Data:
Current assets $ 440,223 $ 460,618
Noncurrent assets $ 394,917 $ 395,225
Current liabilities $ 121,729 $ 102,207
Noncurrent liabilities $ 62,010 $ 61,784
For the Six Months For the Three Months
Ended 31 August Ended 31 August
---------------------- ---------------------
(in US$ thousands) 1998 1997 1998 1997
- --------------------------------------------------------------------------------
Income Statement Data:
Net sales $552,352 $514,338 $289,774 $253,064
Gross profit $122,885 $106,425 $ 64,673 $ 53,093
Income before provision for
Federal and state income taxes $ 50,451 $ 41,448 $ 27,406 $ 20,233
Net income $ 29,766 $ 24,768 $ 16,221 $ 12,103
Note 8. Accounting Pronouncement
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133 (SFAS No. 133), "Accounting for
Derivative Instruments and Hedging Activities." SFAS No. 133 establishes
53
<PAGE>
accounting and reporting standards for derivative instruments, including certain
derivative instruments embedded in other contracts, (collectively referred to as
derivatives) and for hedging activities. SFAS No. 133 requires that every
derivative be recorded as either an asset or liability in the balance sheet
measured at its fair value. SFAS No. 133 requires that changes in the
derivative's fair value be recognised currently in earnings unless specific
hedge accounting criteria are met. Special accounting for qualifying hedges
allows a derivative's gains and losses to offset related results on the hedged
item in the income statement, and requires that a company formally document,
designate and assess the effectiveness of transactions that receive hedge
accounting. The Company is required to adopt SFAS No. 133 on a prospective basis
for interim periods and fiscal years beginning 1 March 2000. The Company
believes the effect of adoption on its financial statements will not be
material.
54
<PAGE>
APENDIX III FURTHER INFORMATION ON MATTHEW CLARK
- --------------------------------------------------------------------------------
1. Financial information
The financial information contained in this Appendix III relating to Matthew
Clark does not constitute statutory accounts within the meaning of section 240
of the Act but has been summarised and extracted from the audited financial
statements of Matthew Clark for the three financial years ended 30 April 1998.
Matthew Clark's auditors for this period were KPMG for the year ended 30 April
1996 and KPMG Audit Plc thereafter. The auditors have issued unqualified audit
reports on the financial statements for each of these three years in accordance
with section 235 of the Act. Copies of each of the statutory accounts have been
delivered to the Registrar of Companies.
2. Consolidated profit and loss account
The following table sets out the consolidated profit and loss accounts of
Matthew Clark for the financial years ended 30 April 1996, 1997 and 1998, as
derived from the published, audited accounts for those years:
Consolidated Profit and Loss Account For the Years Ended 30 April
(in millions pounds sterling, -------------------------------
except per share amounts) Note 1998 1997 1996 1
- -------------------------------------------------------------------------------
Turnover 2 553.1 570.7 450.9
Operating costs 3 (516.0) (525.6) (429.4)
------ ------ ------
Operating profit 4 37.1 45.1 21.5
Profit/(loss) on fixed asset sales 7 3.7 0.4 (2.0)
------ ------ ------
Profit before interest and tax 2 40.8 45.5 19.5
Interest receivable 0.1 0.2 0.4
Interest payable and similar charges 8 (5.1) (5.1) (2.7)
------ ------ ------
Profit on ordinary activities before tax 2 35.8 40.6 17.2
Tax on profit on ordinary activities 9 (10.5) (12.4) (5.0)
------ ------ ------
Profit on ordinary activities after tax 25.3 28.2 12.2
Equity minority interests -- -- (0.1)
Dividends 10 (11.5) (21.2) (21.2)
------ ------ ------
Retained profit/(loss) for the year 21 13.8 7.0 (9.1)
====== ======= ======
Earnings per share 11 28.6p 31.9p 18.4p
====== ======= ======
1 Includes exceptional items from reorganisation as a result of integration
of acquisitions (Note 4). Pre-exceptional items, profit attributable to
ordinary shareholders was 29.3m pounds sterling and earnings per share was
44.4p.
There are no recognised gains or losses in any year other than the profit/(loss)
for the year.
See notes to the consolidated financial statements in Section 5 of this Appendix
III.
55
<PAGE>
3. Consolidated balance sheets
The following table sets out the consolidated group balance sheets of
Matthew Clark as at 30 April 1998 and 1997 as derived from the published audited
consolidated accounts at those dates:
30 April
--------------------
Consolidated Balance Sheets
(in millions sterling pound) Note 1998 1997 1
- --------------------------------------------------------------------------------
Fixed assets
Intangible assets 12 9.7 9.7
Tangible assets 13 97.1 98.6
----- -----
106.8 108.3
===== =====
Current assets
Stocks 14 44.6 49.3
Debtors 15 115.7 123.7
Cash at bank and in hand 17.3 5.8
----- -----
177.6 178.8
===== =====
Creditors: amounts falling due within one year
Trade and other creditors 16 105.2 116.3
Proposed dividend 10 7.1 13.3
Bank loans and overdrafts -- 56.4
----- -----
112.3 186.0
===== =====
Net current assets/(liabilities)
Amounts due within one year 44.4 (29.6)
Debtors due after more than one year 15 20.9 22.4
----- -----
65.3 (7.2)
===== =====
Total assets less current liabilities 172.1 101.1
Creditors: amounts falling due after
more than one year 17 61.2 1.9
Provisions for liabilities and charges 18 15.5 17.6
----- -----
Net assets 2 95.4 81.6
===== =====
Capital and reserves
Called up share capital 19 22.1 22.1
Share premium account 21 105.5 105.5
Capital redemption reserve 21 0.1 0.1
Profit and loss account 21 (32.3) (46.1)
----- -----
Equity shareholders' funds 22 95.4 81.6
===== =====
1 As restated Note 1 (Goodwill)
See notes to the consolidated financial statements in Section 5 of this Appendix
III.
56
<PAGE>
4. Consolidated cash flow statements
The following table sets out the consolidated cash flow statements of Matthew
Clark for the financial years ended 30 April 1998 and 1997, extracted from the
published audited consolidated accounts for those years:
For the Years Ended
30 April
Consolidated Statements of Cash Flow ----------------------
(in millions pounds sterling) Note 1998 1997
- --------------------------------------------------------------------------------
Cash inflow from operating activities 25 49.8 52.3
----- -----
Returns on investments and servicing of finance
Interest received 0.1 0.2
Interest paid (6.1) (5.0)
Interest element of finance lease rental payments (0.1) (0.1)
---- ----
(6.1) (4.9)
---- ----
Taxation paid (7.5) (7.0)
---- ----
Capital expenditure
Purchase of tangible fixed assets (31.6) (21.3)
Receipts from sale of fixed assets 22.2 2.6
---- ---
(9.4) (18.7)
---- -----
Acquisitions (0.8) 0.3
---- ---
Dividends paid (17.7) (21.2)
----- -----
Cash inflow before financing 8.3 0.8
---- ----
Financing
Drawdown of committed loan 25.0 10.0
Issue of ordinary share capital -- 0.6
Capital element of finance lease payment (0.4) (0.2)
----- -----
24.6 10.4
----- -----
Increase in cash in the period 32.9 11.2
===== =====
Reconciliation of net cashflow to
movement in net debt
Increase in cash in period 32.9 11.2
Cash inflow from increase in debt and
leasing financing (25.6) (9.8)
----- -----
Movement in net debt in the period 7.3 1.4
Net debt at the start of the period (51.2) (52.6)
----- -----
Net debt at the end of the period (43.9) (51.2)
===== =====
Analysis of net debt
Cash at bank and in hand 17.3 5.8
Bank loans and overdrafts (60.0) (56.4)
Finance lease obligations (1.2) (0.6
----- -----
(43.9) (51.2)
===== =====
See notes to the consolidated financial statements in section 5 of this Appendix
III.
57
<PAGE>
5. Notes to the Consolidated Financial Statements
Note 1. Accounting Policies
The accounts have been prepared under the historical cost convention, using the
following accounting policies, which have been applied consistently except as
noted below under 'Goodwill' and in compliance with applicable accounting
standards including Financial Reporting Standard 10.
Basis of consolidation: The Group accounts consist of a consolidation of the
accounts of the Company with those of its subsidiary undertakings. All accounts
are drawn up to 30 April. The acquisition method of accounting has been adopted.
Under this method, the results of acquired subsidiaries and other businesses are
included in the consolidated profit and loss account from the date when control
passes.
Goodwill: During the year Financial Reporting Standard 10 'Goodwill and
intangible assets' was issued and is mandatory for periods ending on or after 23
December 1998. The Group has chosen to adopt the requirements of this standard
early. The Group's policy for acquisitions which occurred prior to the issue of
the standard is that purchased goodwill, being the excess of the fair value of
consideration paid or payable over the fair value of the identifiable net assets
acquired, has been taken directly to reserves. On subsequent disposal, goodwill
previously taken direct to reserves is included in determining the profit or
loss on disposal. Previously, such goodwill was presented separately within
reserves as a 'goodwill write off reserve'. This is not permitted by the
Standard and, accordingly, goodwill has been taken to merger reserve to the
extent available (309.5m pounds sterling) and the balance (52.8m pounds
sterling) taken to the profit and loss account reserve. The comparatives have
been restated accordingly.
Turnover: Turnover consists of the value of goods and services supplied to
customers outside the Group, including duty and excluding VAT.
Depreciation: Depreciation of fixed assets is provided on the original cost of
the Group or its acquired businesses at rates calculated to write down the
assets to their estimated residual values on a straight line basis over the
total expected economic lives of the assets. The principal periods used are:
Freehold buildings 50 years
Leasehold buildings Length of lease
Plant and machinery 8 to 25 years
Computer equipment 3 to 5 years
Motor vehicles 4 to 7 years
Assets in the course of the construction are not depreciated. They are
transferred to the relevant fixed asset category when they become operational.
Freehold land is not depreciated.
Stocks: Stocks have been valued at the lower of cost (including Customs and
Excise Duty where incurred), determined on a first in first out basis, and net
realisable value. In the case of beverages produced by the Group, cost includes
direct materials and labour together with appropriate overheads incurred in
bringing the product to its present location and condition.
Deferred tax: Deferred tax is provided using the liability method in respect of
the tax effect of all timing differences to the extent that it is probable that
liabilities or assets will crystallise in the future.
Foreign currency: Receipts and payments of foreign currency are recorded at
actual rates obtained. Foreign currency balances at the year end are translated
at the rate ruling at that date. All exchange differences are dealt with through
the profit and loss account.
Brand valuation: The cost of acquired brands is capitalised as an intangible
asset at the time of acquisition. No annual amortisation is provided on these
assets but the directors assess the value of the brands each year and any
permanent diminution in value is written off to the profit and loss account.
Leases: Where the Group enters into a lease which entails taking substantially
all the risks and rewards of ownership of an asset, the lease is treated as a
'finance lease'. The asset is recorded in the balance sheet as a tangible fixed
asset and is depreciated over its estimated useful economic life or the term of
the lease, whichever is shorter. Future instalments under such leases, net of
finance charges, are included within creditors. Rentals payable are apportioned
between the finance element, which is charged to the profit and loss account,
and the capital element which reduces the outstanding obligation for future
instalments. All other rentals relating to assets held under operating leases
are charged to the profit and loss account on a straight line basis over the
period of the lease.
58
<PAGE>
Pension costs: Pension costs for the Group's defined benefit pension schemes are
charged against profits so as to spread the cost of pensions over the employees'
expected working lives within the Group.
Note 2. Segmental Information
All turnover and profit originates in the UK. There are no material sales to
customers outside the UK.
<TABLE>
<CAPTION>
Branded drinks Wholesale Group
---------------------- -------------------- -------------------
Turnover 1998 1997 1998 1997 1998 1997
(in millions pounds sterling)
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Total 343.5 367.0 225.2 215.1 568.7 582.1
Less intersegmental sales (15.6) (11.4) -- -- (15.6) (11.4)
----- ----- ----- ----- ----- -----
Sales to third parties 327.9 355.6 225.2 215.1 553.1 570.7
===== ===== ===== ===== ===== =====
Operating profit 28.7 38.1 8.4 7.0 37.1 45.1
Profit on fixed asset disposals 3.7 -- -- 0.4 3.7 0.4
---- ---- ---- ---- ---- ----
Profit before interest and tax 32.4 38.1 8.4 7.4 40.8 45.5
Net interest payable (5.0) (4.9)
---- ----
Profit before tax 35.8 40.6
==== ====
Net assets
Segment net assets 120.3 116.7 20.6 27.0 140.9 143.7
Unallocated net liabilities (45.5) (62.1)
----- -----
Total net assets 95.4 81.6
==== ====
Unallocated assets and liabilities consist of: 1998 1997
Cash at bank and in hand 17.3 5.8
Pension prepayment 19.0 19.1
Dividends payable (7.1) (13.3)
Finance lease liabilities and deferred consideration (2.8) (2.9)
Loans and overdrafts (60.0) (56.4)
Provisions (11.9) (14.4)
----- -----
(45.5) (62.1)
===== =====
</TABLE>
Note 3. Operating Costs
<TABLE>
<CAPTION>
(in millions pounds sterling) Note 1998 1997
- ----------------------------------------- ---------------------------------------
<S> <C> <C> <C>
Change in stocks of finished goods and
work in progress 7.5 11.7
Raw materials, consumables and other
external charges (incl. duty) 466.2 474.6
Staff costs 6 32.8 30.9
Depreciation and amounts written off
fixed asset investments 13 9.8 8.7
Royalties from overseas (0.3) (0.3)
---- ----
516.0 525.6
===== =====
</TABLE>
59
<PAGE>
Note 4. Operating Profit
(in millions pounds sterling) 1998 1997
- --------------------------------------------------------------------------------
Operating profit is stated after charging/(crediting):
Operating lease charges:
Plant and machinery 0.4 0.4
Other 1.7 1.4
Auditors' remuneration for audit services 0.2 0.3
Loss on disposal of fixed assets 3.6 2.9
Release of amounts charged as exceptional
costs in prior years no longer required (1.2) ---
Exceptional write down of wine dispense
equipment with customers 1.0 ---
Amounts payable to the auditors and their associates for non audit services were
0.1m pounds sterling (1997 -- 0.1m pounds sterling).
Exceptional items in the year ended 30 April 1996 were as follows:
<TABLE>
<CAPTION>
Branded
Drinks Wholesale
(in millions pounds sterling Division Division Total 1996
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
a) Reorganisation
Employee severance and relocation costs 3.7 3.6 7.3
Stock write downs 1.5 0.7 2.2
Property, plant relocation and other costs 7.5 5.4 12.9
---- --- ----
12.7 9.7 22.4
Provision for loss on disposal of fixed assets 2.5 0.2 2.7
---- --- ----
15.2 9.9 25.1
==== === ====
</TABLE>
The reorganisation costs arose as a result of integration programmes within the
divisions following acquisition of businesses. The costs charged in 1996 were
net of a release of provisions of 2,249,000 pounds sterling established in 1995
and which were no longer required.
The tax effect of exceptional items was a credit of 7.9m pounds sterling.
Note 5. Directors' Interests
Directors'emoluments:
<TABLE>
<CAPTION>
Total Emoluments
Cash Value of (excluding pension
Basic Salary Benefits in Kind contributions)
----------------------- ------------------------- ---------------------
(in thousands pounds sterling) 1997/98 1996/97 1997/98 1996/97 1997/98 1996/97
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Peter Aikens 230 230 14 14 244 244
Hugh Etheridge 130 130 13 13 143 143
Peter Huntley 119 130 10 11 129 141
Robert MacNevin 128 -- 18 -- 146 --
Kevin Philp 100 -- 6 -- 106 --
Martin Boase 21 21 -- -- 21 21
Michael Garner 21 40 -- -- 21 40
Graham Wilson 60 -- -- -- 60 --
Andrew Nash -- 130 -- 12 -- 142
Former directors -- 67 -- 6 -- 73
--- --- -- -- --- ---
809 748 61 56 870 804
==== ==== ==== ==== ==== ====
</TABLE>
On 19 March 1998 the sum of 110,000 pounds sterling was paid to Peter Huntley by
way of compensation for the termination of his employment with the Company. On
12 May 1997 the sum of 177,630 pounds sterling was paid to Andrew Nash (a former
director) by way of compensation for the termination of his employment with the
Company.
60
<PAGE>
Directors' pension contributions: Directors who were members of the Matthew
Clark Executive Pension Plan had benefits as follows:
<TABLE>
<CAPTION>
Increase in Transfer Contributions Increase Accumulated
Accrued Pension Value of by Individual Attributable Accrued Pension
During the Year the Increase Director to Company at Year End
pounds sterling p.a. pounds sterling pounds sterling pounds sterling pounds sterling p.a.
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Hugh Etheridge 3,036 35,000 4,200 30,800 20,672
Robert MacNevin 2,920 24,056 4,200 19,856 2,920
Kevin Philp 1,585 13,618 4,908 8,710 32,463
</TABLE>
Contributions to Personal Pension schemes:
Contributions to Personal
Pension Plans
(in thousands pounds sterling) 1997/98 1996/97
- --------------------------------------------------------------------------
Peter Aikens 83 83
Peter Huntley 35 37
Andrew Nash -- 39
Hugh Etheridge 13 14
Robert MacNevin 10 --
Contributions in respect of Peter Aikens and Peter Huntley were to their
respective personal pension plans up to the maximum permitted under Inland
Revenue rules. The element of contributions in excess of Inland Revenue rules is
paid into a Funded Unapproved Retirement Benefit Scheme for the benefit of each
individual.
Directors' beneficial interest in shares:
30 April 1998 1 May 1997
- --------------------------------------------------------------------------------
Peter Aikens *79,467 71,267
Hugh Etheridge *31,591 28,891
Peter Huntley -- 29,391
Robert MacNevin -- --
Kevin Philp 5,000 5,000
Martin Boase 10,000 10,000
Michael Garner 10,000 10,000
Graham Wilson 10,000 10,000
*Note: A number of these shares were purchased from bonus paid under the Capital
Incentive Scheme which imposes a minimum period before such shares may be sold.
Details are provided below:
Shares to be Shares to be
Held Until Held Until
1998 1999
- --------------------------------------------------------------------------------
Peter Aikens 8,227 9,715
Hugh Etheridge 4,775 5,675
There were no changes between 30 April 1998 and 6 July 1998.
61
<PAGE>
Directors' share options:
<TABLE>
<CAPTION>
Date from which
1 May 1997 30 April 1998 Exercise Price Exercisable Expiry Date
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Peter Aikens 52,652 52,652 331p 1996 2003
24,723 24,723 566p 1997 2004
56,811 56,811 561p 1997 2004
59,000 59,000 662p 1998 2005
------ ------
193,186 193,186
======= =======
Hugh Etheridge 24,723 24,723 566p 1997 2004
18,937 18,937 561p 1997 2004
33,000 33,000 662p 1998 2005
------ ------
76,660 76,660
======= =======
Robert MacNevin --- 40,000 247.5p 2000 2007
======= =======
Kevin Philp 21,041 21,041 566p 1997 2004
10,521 10,521 523p 1997 2004
10,000 10,000 555p 1998 2005
2,000 2,000 662p 1998 2005
2,000 2,000 680p 1999 2006
--- 60,000 247.5p 2000 2007
------ ------
45,562 105,562
======= =======
</TABLE>
At 30 April 1998, the Company's share price was 201.5p. The highest and lowest
share prices during the year were 277.5p and 162.5p respectively. Exercise of
the above options was not conditional upon any performance criteria.
All options were granted for nil consideration.
Note 6. Staff Numbers and Costs
The average number of people employed by the Group, including directors, within
each category of activity was:
(number of people) 1998 1997
- -------------------------------------------------------------------------------
Production staff 471 516
Sales, marketing and distribution staff 883 792
Administration staff 268 270
--- ---
1,622 1,578
===== =====
The aggregate payroll costs of these persons were as follows:
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Wages and salaries 30.2 28.6
Social security costs 2.4 2.4
Other pension costs 0.2 (0.1)
---- ----
32.8 30.9
====== ======
Note 7. Profit/(loss) on Fixed Asset Sales
The profit on fixed asset sales comprises:
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Profit on property sales 4.2 0.4
Provision for loss on plant and machinery sales (0.5) ---
---- ----
3.7 0.4
====== ======
The tax charge for the year includes 1.2m pounds sterling in respect of property
sales.
62
<PAGE>
Note 8. Interest Payable and Similar Charges
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Bank interest and interest on loans repayable
within 5 years 5.0 4.9
Finance charges on finance leases 0.1 0.1
Other --- 0.1
---- ----
5.1 5.1
==== ====
In addition interest capitalised into tangible fixed assets during the year was
0.6m pounds sterling (1997 Nil pounds sterling).
Note 9. Tax on Profit on Ordinary Activities
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
The charge in the profit and loss account consists of:
Corporation tax at 31% (1997 -- 33%) 14.9 7.6
Deferred tax -- effect of change in rate from 33% to 30% (0.9) ---
Deferred tax -- other (3.5) 4.8
---- ----
10.5 12.4
==== ====
The deferred tax provision/(asset) represents:
Excess of capital allowances over depreciation (1.4) 6.6
Unutilised losses --- (1.3)
Pensions timing differences 5.7 6.3
Other timing differences (0.7) (3.6)
Offset of ACT recoverable --- (4.8)
---- ----
3.6 3.2
==== ====
Full provision has been made for deferred tax except for a deferred tax asset of
0.1m pounds sterling (1997 -- 0.2m pounds sterling) on the excess of capital
allowances over depreciation.
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Deferred tax
At the beginning of the year 3.2 (0.4)
ACT and losses transferred to/(from) corporation tax 4.8 (2.9)
Adjustment to fair value --- 1.7
Deferred tax (credit)/charge to profit and loss account (4.4) 4.8
---- ---
At the end of the year 3.6 3.2
==== ====
Note 10. Dividends
1998 1997 1998 1997
Pence Pence m pounds m pounds
Dividends paid or proposed: per share per share sterling sterling
- --------------------------------------------------------------------------------
Ordinary shares
Interim dividend paid of 5.0 9.0 4.4 7.9
Proposed final dividend of 8.0 15.0 7.1 13.3
---- ---- ---- ----
Total 13.0 24.0 11.5 21.2
===== ===== ===== =====
Gross equivalent per share 16.25 30.0
===== =====
Note 11 Earnings Per Share
The calculation of earnings per share is based on a profit of 25.3m pounds
sterling and 88,520,498 shares, being the weighted average number in issue (1997
- -- profit 28.2m pounds sterling and 88,469,740 shares in issued). A fully
diluted earnings per share figure based on share options outstanding is not
provided as the effect on earnings per share is not material.
63
<PAGE>
Note 12. Intangible Assets
Group m pounds sterling
- --------------------------------------------------------------------------------
Cost and net book value of Strathmore brand
As at 30 April 1998 and 30 April 1997 9.7
====
Note 13. Tangible Assets
<TABLE>
<CAPTION>
Land and Buildings Plant Fixtures,
------------------------------- Assets Machinery Fittings,
Group Long Short Under and Tools and
(in millions pounds sterling) Freehold Leasehold Leasehold Construction Vehicles Equipment Total
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Cost
At 30 April 1997 29.1 2.0 0.9 4.7 110.3 11.7 158.7
Additions 1.2 0.7 0.3 14.2 12.2 2.5 31.1
Reclassifications 16.1 (0.1) --- (18.3) 1.7 0.6 ---
Disposals (22.2) (1.3) --- --- (8.9) (2.8) (35.2)
----- ----- ----- ----- ----- ----- -----
At 30 April 1998 24.2 1.3 1.2 0.6 115.3 12.0 154.6
----- ----- ----- ----- ----- ----- -----
Depreciation
At 30 April 1997 7.6 0.7 0.2 --- 43.8 7.8 60.1
Charged in the year 0.4 --- --- --- 8.2 1.2 9.8
Disposals (5.2) (0.4) --- --- (4.2) (2.6) (12.4)
----- ----- ----- ----- ----- ----- -----
At 30 April 1998 2.8 0.3 0.2 --- 47.8 6.4 57.5
----- ----- ----- ----- ----- ----- -----
Net book amounts:
At 30 April 1997 21.5 1.3 0.7 4.7 66.5 3.9 98.6
At 30 April 1998 21.4 1.0 1.0 0.6 67.5 5.6 97.1
===== ===== ===== ===== ===== ===== =====
</TABLE>
Included within the depreciation charge for the year for plant machinery and
vehicles of 8.2m pounds sterling is an exceptional write-down of 1.0m pounds
sterling of wine dispensing equipment with customers.
The net book value of assets held under finance leases within plant machinery
and vehicles as at 30 April 1998 was 1.1m pounds sterling (1997 -- 0.9m pounds
sterling). Depreciation on assets held under finance leases during the year
ended 30 April 1998 was 0.2m pounds sterling (1997 -- 0.4m pounds sterling).
Freehold land and buildings includes 4.6m pounds sterling (1997 -- 4.6m pounds
sterling) in respect of land.
Note 14. Stocks
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Raw materials and consumables 8.7 5.9
Work in progress 7.3 9.7
Finished goods for resale 28.6 33.7
---- ----
44.6 49.3
==== ====
Note 15. Debtors
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Amounts failing due within one year:
Trade debtors 83.3 91.2
ACT recoverable --- 1.7
Other debtors 6.4 4.9
Prepayments and accrued income 5.1 3.5
---- ----
94.8 101.3
==== =====
Amounts falling due after more than one year:
ACT recoverable 1.9 3.3
Pension prepayment 19.0 19.1
20.9 22.4
---- ----
115.7 123.7
===== =====
64
<PAGE>
Note 16. Creditors: Amounts Falling Due Within One Year
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Trade and other creditors
Trade creditors 52.0 52.8
Corporation tax 4.7 2.9
Other tax, including social security and ACT payable 10.4 12.3
Finance lease obligations less than one year (note 17) 0.4 0.4
Other creditors, including deferred duty 11.0 12.5
Accruals and deferred income 26.7 35.4
---- ----
105.2 116.3
===== =====
Note 17. Creditors: Amounts Falling Due After More Than One Year
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Bank loans and overdrafts (unsecured) 60.0 ---
Obligations under finance leases 0.8 0.2
Deferred purchase consideration 0.4 1.7
---- ----
61.2 1.9
==== ===
The deferred purchase consideration of 0.4m poounds sterling in the current year
is in addition to 1.2m pounds sterling (1997 - 0.6m pounds sterling) included
within other creditors due in less than one year and relates to the acquisitions
of Dunn & Moore and Liddingtons and is related to future profits. The amount
provided represents both the current best estimate of the amount payable in due
course, and the maximum amount payable.
The maturity of net obligations under finance leases and hire purchase contracts
is as follows:
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Within one year 0.4 0.4
In the second to fifth years 0.4 0.2
Over five years 0.4 ---
---- ----
1.2 0.6
=== ===
Note 18. Provisions for Liabilities and Charges
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Deferred tax (see note 9) 3.6 3.2
Provisions 11.9 14.4
---- ----
15.5 17.6
==== ====
Provisions
At the beginning of the year 14.4 17.5
Transfer to creditors --- (0.4)
Release to profit and loss account within
exceptional item (1.0) ---
Used during the year (1.5) (2.3)
Released to goodwill --- (0.4)
---- ----
At the end of the year 11.9 14.4
==== ====
Provisions primarily relate to surplus property costs.
The Group has a number of freehold and leasehold properties which are surplus to
operational requirements. Provision has been made for future fixed costs
associated with these properties for the period up to their expected disposal.
To the extent that these properties are disposed of earlier than anticipated a
benefit will arise; conversely if the properties are not disposed of within the
anticipated period a contingent liability exists for the ongoing fixed costs.
65
<PAGE>
Note 19. Share Capital
<TABLE>
<CAPTION>
4.9 per cent Cumulative
Redeemable Preference
Shares of 1 pound sterling Ordinary Shares of 25p
each each Total
----------------------------- --------------------------- ----------------
Authorised: Number m pounds sterling Number m pounds sterling m pounds sterling
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
As at 30 April 1997 and 30 April 1998 260,000 0.3 117,920,000 29.5 29.8
Allotted, called up and fully paid
In issue as at 30 April 1997
and 30 April 1998 --- --- 88,520,498 22.1 22.1
</TABLE>
During the year no ordinary shares were issued under the share option schemes
(1997 -- 217,240 shares were issued for a total consideration of 0.6m pounds
sterling)
Note 20. Share Options
Savings related share option scheme: Employees and directors in the UK with a
minimum of two years' service were entitled to apply for options to acquire
ordinary shares at 100% (1997 -- 100%) of the average of the middle market price
on the three dealing days immediately preceding the date of the invitation.
At 30 April 1998 options granted and outstanding under employee share schemes
amounted to 458,102 ordinary shares. These options are exercisable at varying
dates up to 2002 at prices ranging from 2.92 pounds sterling to 5.26 pounds
sterling per share. During the year the Company issued no ordinary shares under
the employee share schemes.
Executive share option scheme: Under the Company's executive scheme the board
may offer options to executives, whose performance contributes significantly to
the Company's results, at the middle market price on the dealing day immediately
preceding the date of the grant of the option.
At 30 April 1998 options exercisable were as follows: Price per Number of
Options exercisable between: Share Shares
- --------------------------------------------------------------------------------
15 March 1992 and 14 March 1999 338p 1,300
22 June 1996 and 21 June 2003 331p 65,652
20 January 1997 and 19 January 2004 566p 123,089
11 July 1997 and 10 July 2004 523p 50,497
17 October 1997 and 16 October 2004 561p 93,633
16 January 1998 and 15 January 2005 555p 61,000
20 July 1998 and 19 July 2005 628p 13,000
10 November 1998 and 9 November 2005 662p 106,000
16 January 1999 and 15 January 2006 680p 43,000
28 January 2000 and 27 January 2007 296.5p 203,000
25 July 2000 and 24 July 2007 247.5p 580,000
8 January 2001 and 7 January 2008 163p 225,000
During the year the Company issued no ordinary shares under the executive share
option schemes.
Note 21. Reserves
<TABLE>
<CAPTION>
Capital Goodwill Profit and
Share Redemption Merger Write-off Loss
(in millions pounds sterling) Premium Reserve Reserve Reserve Account
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
As at 30 April 1997 and 30 April 1998 105.5 0.1 309.5 (362.3) 6.7
Prior year adjustment (note 1 ('Goodwill')) --- --- (309.5) 362.3 (52.8)
----- ---- ------ ----- ----
At 30 April 1997 as restated 105.5 0.1 --- --- (46.1)
Retained profit for the year --- --- --- --- 13.8
----- ---- ------ ----- ----
At 30 April 1998 105.5 0.1 --- --- (32.3)
===== ==== ===== ====== =====
</TABLE>
The Cumulative amount of goodwill written off to reserves is 362.3m pounds
sterling (1997 -- 362.3m pounds sterling).
66
<PAGE>
Note 22. Reconciliations of Movements in Shareholders' Funds
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Opening shareholders' funds 81.6 71.9
---- ----
Profit for the year 25.3 28.2
Dividends paid and proposed (11.5) (21.2)
----- -----
Retained profit for the year 13.8 7.0
New share capital subscribed --- 0.6
Goodwill adjustment --- 2.1
---- ----
Net addition to the shareholders' funds 13.8 9.7
---- ---
Closing shareholders' funds 95.4 81.6
==== ====
Note 23. Financial and Capital Commitments
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Contracted commitments for capital expenditure 2.2 11.8
==== ====
1998 1997
---------------------- ----------------------
(in millions pounds sterling) Land and Land and
Buildings Other Buildings Other
- --------------------------------------------------------------------------------
Annual commitments under
operating leases which expire
Within one year --- --- 0.1 0.1
In the second to fifth years inclusive 0.1 0.6 --- 0.1
Over five years 2.9 --- 2.3 0.3
---- ---- ---- ----
3.0 0.6 2.4 0.5
==== ==== ==== ====
The Group had 9.8m pounds sterling (1997 -- 5.0m pounds sterling) of commitments
under forward currency contracts 30 April 1998.
Note 24. Pensions
The Company and its subsidiaries currently operate two Pension Plans, the
Matthew Clark Group Pension Plan and the Matthew Clark Executive Pension Plan.
These Plans are of the defined benefit type with assets held in Trustee
administered funds separate from the Company's finances. In addition, a further
Plan was acquired with the acquisition of Taunton Cider. This Scheme was merged
with the Matthew Clark Group Pension Plan on 1 April 1997.
Actuarial valuations of the Matthew Clark Group Pension Plan have been carried
out by independent actuaries as at 1 January 1996. The funding level of the
combined Plans on the assumptions stated below as at 1 January 1996 was 141%.
The combined market value of the assets at 1 January 1996 was approximately 92m
pounds sterling. The pension cost is assessed in accordance with a qualified
actuary's advice. The Actuary has considered the long-term effects of the
removal of ACT relief for pension funds on the level of funding of the Plans.
The increase in the pension expense is not significant.
The assumptions adopted for the purposes of SSAP 24 were as follows:
Long-term investment return 9.00%
Salary escalation 6.00%
Pension increases were allowed for in accordance with the Rules of the Plan and
the past practice of granting discretionary increases. Assets were taken into
account at 94.6% of their market value.
On a discontinuance of either of the Plans, the market value of the assets
exceeded the cost of securing the liabilities at the appropriate valuation date,
assuming that cash equivalent transfer values were paid in respect of active or
deferred members.
67
<PAGE>
Note 25. Reconciliation of Operating Profit to Operating Cashflows
(in millions pounds sterling) 1998 1997
- -------------------------------------------------------------------------------
Operating profit 37.1 45.1
Depreciation charges 9.8 8.7
Loss on disposal and write-off of tangible fixed assets 3.6 2.9
Cashflow relating to previous year's
restructuring provisions (4.5) (11.2)
Decrease in stocks 4.7 11.7
Decrease in debtors 5.4 13.6
Decrease in creditors and provisions (6.3) (18.5)
----- -----
Net cash inflow from operating activities 49.8 52.3
===== =====
68
<PAGE>
APPENDIX IV ADDITIONAL INFORMATION
- --------------------------------------------------------------------------------
1. Directors' responsibilities
The directors of Canandaigua and Canandaigua Limited, whose names are set out in
paragraph 2(a) below, accept responsibility for the information contained in
this document other than that relating to the Matthew Clark Group, the directors
of Matthew Clark, members of their immediate families, related trusts and
persons connected with them. To the best of the knowledge and belief of the
directors of Canandaigua and Canandaigua Limited (who have taken all reasonable
care to ensure that such is the case) the information contained in this document
for which they are responsible is in accordance with the facts and does not omit
anything likely to affect the import of such information.
The directors of Matthew Clark, whose names are set out in paragraph 2(b) below,
accept responsibility for the information contained in this document relating to
the Matthew Clark Group, the directors of Matthew Clark, members of their
immediate families, related trusts and persons connected with them. To the best
of the knowledge and belief of the directors of Matthew Clark (who have taken
all reasonable care to ensure that such is the case) the information contained
in this document for which they are responsible is in accordance with the facts
and does not omit anything likely to affect the import of such information.
2. Directors of Canandaigua, Canandaigua Limited and Matthew Clark
(a) (i) The directors of Canandaigua and their functions are as follows:
Marvin Sands (Chairman)
Richard Sands (President and Chief Executive Officer)
Robert Sands (Executive Vice President, General Counsel and Secretary)
Bertram Silk (Executive Director)
George Bresler (Non-Executive Director)
James Locke (Non-Executive Director)
Thomas McDermott (Non-Executive Director)
Paul Smith (Non-Executive Director)
The principal office of Canandaigua is at 300 WillowBrook Office Park,
Fairport, NY 14450, United States.
(ii) The directors of Canandaigua Limited are as follows:
Richard Sands
Robert Sands
Thomas Summer
The registered office of Canandaigua Limited, whose registered number is
3649497, is at 200 Aldersgate Street, London EC1A 4JJ. Canandaigua Limited
is a limited liability company incorporated on 14 October 1998 under the
Act. Its authorised share capital is 100 pounds sterling comprising 100
ordinary shares of 1 pound sterling each. Its issued share capital is 1
pound sterling comprising 1 ordinary share of 1 pound sterling held by
Canandaigua. The Offeror has been specifically formed for the purpose of
making the Offer. Other than in connection with making the Offer the
Offeror has not traded or otherwise carried on any activity since its
incorporation and no accounts of the Offeror have been prepared.
(b) The directors of Matthew Clark and their functions are:
Graham Wilson (Chairman)
Peter Aikens (Chief Executive)
Martin Boase (Non-Executive Director)
Hugh Etheridge (Finance Director)
Michael Garner (Non-Executive Director)
Robert MacNevin (Marketing Director)
Richard Peters (Production and Distribution Director)
Kevin Philp (Managing Director, On-Trade Sales)
The registered office of Matthew Clark, whose registered number is 163952,
is at Whitchurch Lane, Bristol BS14 0JZ.
69
<PAGE>
3. Shareholdings and dealings
(a) Definitions and references
References in this Appendix IV to:
(i) an "associate" are to:
(1) subsidiaries and associated companies of Canandaigua Limited or,
as the case may be, Matthew Clark and companies of which any such
subsidiaries or associated companies are associated companies;
(2) banks, financial and other professional advisers (including
stockbrokers) to Canandaigua Limited or, as the case may be,
Matthew Clark or a company covered in (1) above, including
persons controlling, controlled by or under the same control as
such banks, financial or other professional advisers;
(3) the directors of Canandaigua Limited or, as the case may be,
Matthew Clark or any company covered in (1) above (together in
each case with their close relatives and related trusts);
(4) the pension funds of Canandaigua Limited or, as the case may be,
Matthew Clark or a company covered in (1) above; and
(5) an investment company, unit trust or other person whose
investments an associate (as otherwise defined in this
sub-paragraph (i)) manages on a discretionary basis, in respect
of the relevant investment accounts;
(ii) a "bank" does not apply to a bank whose sole relationship with
Canandaigua Limited or Matthew Clark or a company covered in
sub-paragraph (i)(1) above is in respect of the provision of normal
commercial banking services or such activities in connection with the
Offer as confirming that cash is available, handling acceptances and
other registration work;
(iii)ownership or control of 20 per cent. or more of the equity share
capital of a company is regarded as the test of associated company
status and "control" means a holding, or aggregate holdings, of shares
carrying 30 per cent. or more of the voting rights attributable to the
share capital of a company which are currently exercisable at a
general meeting, irrespective of whether the holding or holdings
give(s) de facto control;
(iv) an "arrangement" includes any indemnity or option arrangement and any
agreement or understanding, formal or informal, of whatever nature
relating to relevant securities which may be an inducement to deal or
refrain from dealing;
(v) "relevant securities" means Matthew Clark Shares and securities
convertible into, rights to subscribe for, options (including traded
options) in respect of and derivatives referenced to Matthew Clark
Shares;
(vi) "disclosure period" means the period commencing on 22 October 1997
(being the date 12 months prior to the commencement of the Offer
period) and ended on 30 October 1998 (the latest practicable date
prior to the printing of this document); and
(vii)"Offer period" means the period commencing on 22 October 1998 (the
date of the announcement by Matthew Clark that it was in discussions
which may or may not lead to an offer for the whole of the issued
share capital of Matthew Clark) and ending on 24 November 1998 or, if
later, the date when the Offer becomes or is declared unconditional as
to acceptances or lapses (whichever is the later).
(b) Canandaigua Limited
(i) As at 30 October 1998 (the latest practicable date prior to the
printing of this document) and save as disclosed in this paragraph 3,
neither of Canandaigua nor Canandaigua Limited owns, controls or is
interested, directly or indirectly, in or has any arrangement in
relation to any relevant securities or has dealt for value therein
during the disclosure period.
(ii) As at 30 October 1998 (the latest practicable date prior to the
printing of this document) and save as disclosed in this paragraph 3,
no member of the Canandaigua Group, nor any person acting in concert
with Canandaigua Limited for the purposes of the Offer, nor any of the
directors of Canandaigua or Canandaigua Limited, nor any member of
their immediate families or related trusts owns, controls or is
interested, directly or indirectly, in or (other than in the case of
the directors of Canandaigua Limited and members of their immediate
families and related trusts) has any arrangement in relation to any
relevant securities or has dealt for value therein during the
disclosure period.
70
<PAGE>
(iii)As at 30 October 1998 (the latest practicable date prior to the
printing of this document) and save as disclosed in this paragraph 3,
neither Schroders, financial adviser and broker to Canandaigua
Limited, nor persons controlling, controlled by or under the same
control as Schroders, owns, controls or is interested, directly or
indirectly, in any relevant securities or has dealt for value therein
during the disclosure period.
(iv) Irrevocable undertakings to accept or to procure acceptance of the
Offer have been received from the following persons in respect of the
following holdings of Matthew Clark Shares and, where relevant,
Matthew Clark Shares held under option:
<TABLE>
<CAPTION>
Name Number of issued Number of Matthew Clark
Matthew Clark Shares Shares under option
---------------------------------------------------------------------------------------------
<S> <C> <C>
Graham Wilson 10,000 ---
Peter Aikens 8,200 193,186
Mrs D B Aikens 71,267 ---
Martin Boase 10,000 ---
Hugh Etheridge 4,200 76,660
Mrs J Etheridge 27,391 ---
Michael Garner 10,000 ---
Robert MacNevin --- 40,000
Richard Peters 1,831 65,521
Kevin Philp 5,000 105,562
Phillips & Drew Fund Management Limited 18,215,680 ---
Schroder Investment Management (UK) Limited 2,741,661 ---
Edinburgh Fund Managers plc 2,382,730 ---
AMP Asset Management plc 1,026,392 ---
</TABLE>
In all cases the undertakings given are in respect of such persons'
entire holding of issued Matthew Clark Shares and entire entitlement
to Matthew Clark Shares held under option with the exception of
Phillips & Drew Fund Management Limited where the undertaking is in
respect of 18,215,680 Matthew Clark Shares of the total 19,154,024
Matthew Clark Shares in which Phillips & Drew Fund Management Limited
is interested. The terms of the irrevocable undertakings require
acceptance of the Offer even if a competing or higher offer is made by
a third party except that irrevocable undertakings from shareholders
(other than directors and certain members of their immediate families)
cease to be binding if a competing or higher offer is made by a third
party at, or in excess of, 267 pence per Matthew Clark Share.
(v) The following dealings for value in Matthew Clark Shares by persons
who have given irrevocable undertakings have taken place during the
disclosure period:
(1) The following dealings for value in Matthew Clark Shares have
been carried out by Phillips & Drew Fund Management Limited
during the disclosure period (individual transactions have been
aggregated by month):
<TABLE>
<CAPTION>
Number of Price Range per
Date/Period Transaction Matthew Clark Shares Matthew Clark Share (p)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
23 October 1997 Purchase 1,767,100 257.5
23 October 1997 Sale 1,767,100 257.5
9-17 December 1997 Purchase 306,760 181-185.5
9-16 December 1997 Sale 289,369 181-185.5
6-26 January 1998 Purchase 101,021 162.5-164
6-26 January 1998 Sale 101,021 162.5-164
9-27 February 1998 Purchase 32,400 180-194
9-27 February 1998 Sale 32,400 180-194
2 March 1998 Purchase 10,900 194
2 March 1998 Sale 10,900 194
21 April 1998 Purchase 39,300 199
21-24 April 1998 Sale 177,230 199-200.5
5 May 1998 Purchase 12,000 201.5
5-22 May 1998 Sale 27,000 201.5-212.5
2-23 June 1998 Purchase 87,042 194-199
2-23 June 1998 Sale 65,019 194-199
1-31 July 1998 Purchase 74,922 183-187.5
1-31 July 1998 Sale 416,130 183-187.5
25 August 1998 Sale 23,519 167.5
</TABLE>
71
<PAGE>
(2) The following dealings for value in Matthew Clark Shares have
been carried out by Schroder Investment Management (UK) Limited
during the disclosure period (individual transactions have been
aggregated by month):
<TABLE>
Number of Price Range per
Date/Period Transaction Matthew Clark Shares Matthew Clark Share (p)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
12 January 1998 Internal transfer 3,750 163.5
27 January 1998 Sale 3,750 160.8
13-25 February 1998 Purchase 243,000 190.6-191.5
13-23 March 1998 Sale 195,075 204.4-205.4
20 March 1998 Internal transfer 238 207.5
25 March 1998 Purchase 15,000 210.7
24 April 1998 Purchase 25,100 202.6
12 May 1998 Sale 1,100 201.6
7-23 July 1998 Purchase 440,592 196.6-201.6
17 July 1998 Internal transfer 24,000 197.5
29 July 1998 Sale 24,000 184.4
20 August 1998 Purchase 16,000 180.1
</TABLE>
(3) The following dealings for value in Matthew Clark Shares have
been carried out by Edinburgh Fund Managers plc during the
disclosure period:
<TABLE>
<CAPTION>
Number of Price Range per
Date/Period Transaction Matthew Clark Shares Matthew Clark Share (p)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
18 December 1997 Sale 8,189 278.9
</TABLE>
(4) The following dealings for value in Matthew Clark Shares have
been carried out by AMP Asset Management plc during the
disclosure period (individual transactions have been aggregated
by month):
<TABLE>
<CAPTION>
Number of Price Range per
Date/Period Transaction Matthew Clark Shares Matthew Clark Share (p)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 October 1997 Purchase 2,586 252
5 November 1997 Sale 13,720 243
17 November 1997 Purchase 7,824 228
13 March 1998 Purchase 4,772 211
18-25 March 1998 Sale 956 207
3 April 1998 Purchase 9,280 213
17 April 1998 Sale 27,646 200
2 July 1998 Purchase 5,688 185
4-6 August 1998 Sale 191,847 177-179
22 September 1998 Sale 500,000 120
</TABLE>
(vi) Save as disclosed in this paragraph 3, no dealings for value in
Matthew Clark Shares have taken place during the disclosure period by
those persons who have given irrevocable undertakings to accept the
Offer.
(c) Matthew Clark
(i) At the close of business on 30 October 1998 (the latest practicable
date prior to the printing of this document) the interests in the
share capital of Matthew Clark of the directors of Matthew Clark,
their immediate families and related trusts which have been notified
to Matthew Clark pursuant to Sections 324 or 328 of the Act or which
are required pursuant to Section 325 of the Act to have been entered
in the register referred to therein and the interests in the share
capital of Matthew Clark of those persons connected with any of the
directors of Matthew Clark (within the meaning of Section 346 of the
Act) which would, if such connected persons were directors of Matthew
Clark, be required to be disclosed or notified under the above
sections of the Act, and the existence of which is known to or could
with reasonable diligence be ascertained by the directors of Matthew
Clark are set out below:
72
<PAGE>
Matthew Clark
Director Shares
---------------------------------------------------------------
Graham Wilson 10,000
Peter Aikens 79,467
Martin Boase 10,000
Hugh Etheridge 31,591
Michael Garner 10,000
Richard Peters 1,831
Kevin Philp 5,000
(ii) As at 30 October 1998 (the latest practicable date prior to the
printing of this document), the following options over Matthew Clark
Shares had been granted to the directors of Matthew Clark pursuant to
the Matthew Clark Share Option Schemes:
<TABLE>
<CAPTION>
Number of
Matthew Clark
Shares under Date from which
Director Option Exercise Price Exercisable Expiry Date
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Peter Aikens 52,652 331p 22 June 1996 21 June 2003
24,723 566p 20 Jan 1997 19 Jan 2004
56,811 561p 17 Oct 1997 16 Oct 2004
59,000 662p 10 Nov 1998 9 Nov 2005
-------
193,186
=======
Hugh Etheridge 24,723 566p 20 Jan 1997 19 Jan 2004
18,937 561p 17 Oct 1997 16 Oct 2004
33,000 662p 10 Nov 1998 9 Nov 2005
-------
76,660
=======
Robert MacNevin 40,000 247.5p 25 July 2000 24 July 2007
=======
Kevin Philp 21,041 566p 20 Jan 1997 19 Jan 2004
10,521 523p 11 July 1997 10 July 2004
10,000 555p 16 Jan 1998 15 Jan 2005
2,000 662p 10 Nov 1998 9 Nov 2005
2,000 680p 16 Jan 1999 15 Jan 2006
60,000 247.5p 25 July 2000 24 July 2007
-------
105,562
=======
Richard Peters 10,521 561p 17 Oct 1997 16 Oct 2004
10,000 555p 16 Jan 1998 15 Jan 2005
10,000 662p 10 Nov 1998 9 Nov 2005
5,000 680p 16 Jan 1999 15 Jan 2006
30,000 247.5p 25 July 2000 24 July 2007
-------
65,521
=======
</TABLE>
Exercise of the above options was not conditional upon any performance
criteria. All options were granted for nil consideration.
(iii)As at 30 October 1998 (the latest practicable date prior to the
printing of this document) P&D UK Equity Exempt Fund held 1,619,594
Matthew Clark Shares within the Managed Exempt Fund on behalf of the
Matthew Clark Group Executive Pension Scheme.
(iv) There have been no dealings for value in Matthew Clark Shares
(including upon the exercise of options pursuant to the Matthew Clark
Share Option Schemes) by directors of Matthew Clark and members of
their immediate families and related trusts or in respect of Matthew
Clark Shares in which the directors of Matthew Clark are interested,
during the disclosure period.
(v) As at 30 October 1998 (the latest practicable date prior to the
printing of this document) and save as disclosed in this paragraph 3,
neither Matthew Clark nor any director of Matthew Clark nor their
immediate families or related trusts owns or controls or is, directly
or indirectly, interested in any relevant securities or in any shares
of Canandaigua or Canandaigua Limited or any securities convertible
into, rights to subscribe for, options in respect of or derivatives
referenced to, such shares or has dealt for value therein or in
relevant securities during the disclosure period.
73
<PAGE>
(vi) As at 30 October 1998 (the latest practicable date prior to the
printing of this document) and save as disclosed in this paragraph 3,
no bank, stockbroker, financial or other professional adviser to
Matthew Clark or to any subsidiary of Matthew Clark or to any
associated company of Matthew Clark or to companies of which such
companies are associated companies (other than an exempt
market-maker), nor any person controlling, controlled by, or under the
same control as such bank, stockbroker, financial or other
professional adviser, nor any subsidiary of Matthew Clark, nor any
pension fund of Matthew Clark or of any of its subsidiaries, nor any
person whose investments are managed on a discretionary basis by any
fund manager (other than an exempt fund manager) connected with
Matthew Clark, owns, controls or is interested, directly or
indirectly, in any relevant securities (nor has any such person dealt
for value therein during the period commencing on 22 October 1998 (the
date of the announcement by Matthew Clark that it was in discussions
which may or may not lead to an offer for the whole of the issued
share capital of Matthew Clark) and ended on 30 October 1998 (the
latest practicable date prior to the printing of this document)).
(vii)As at 30 October 1998 (the latest practicable date prior to the
printing of this document) and save in respect of the irrevocable
undertakings referred to in sub-paragraph (b)(iv) above, neither
Matthew Clark nor any associate of Matthew Clark falling within
paragraphs (1) to (4) of the definition of "associate" set out in
paragraph 3(a)(i) above has any arrangement with any other person in
relation to relevant securities.
4. Market quotations
(a) The following table shows the closing middle-market quotations for a
Matthew Clark Share as derived from the Official List in each case on
the first business day in each month from May 1998 to November 1998
inclusive, on 21 October 1998 (the day prior to the announcement by
Matthew Clark that it was in discussions which may or may not lead to
an offer for the whole of the issued share capital of Matthew Clark)
and on 2 November 1998 (the latest practicable date prior to the
printing of this document):
Matthew Clark
Share price in
Date pence
----------------------------------------------------------------------
1 May 1998 201 1/2
1 June 1998 199
1 July 1998 186
3 August 1998 177 1/2
1 September 1998 140
1 October 1998 120
21 October 1998 134
2 November 1998 191 1/2
5. Material contracts of Canandaigua and Matthew Clark
Save as disclosed below, there have been no contracts entered into by any member
of the Canandaigua Group or the Matthew Clark Group during the period commencing
on 22 October 1996 (the date two years before the announcement by Matthew Clark
that it was in discussions which may or may not lead to an offer for the whole
of the issued share capital of Matthew Clark) and ended on 2 November 1998 (the
latest practicable date prior to the printing of this document) which are
outside the ordinary course of business and which are or may be considered to be
material:
(a) A Purchase Agreement dated 24 October 1996 between Canandaigua and Chase
Securities Inc. ("Chase") and CS First Boston Corporation ("CSFB") (Chase
and CSFB together, the "Initial Purchasers") relating to the sale to the
Initial Purchasers of an issue of 8.75% Series B Senior Subordinated Notes
due 2003 having a principal value of US$65,000,000 (the "Series B Notes").
(b) An Indenture dated 29 October 1996 (as amended on 19 December 1997 and 2
October 1998) between Canandaigua as issuer, various of its subsidiaries as
guarantors (the "Guarantors") and Harris Trust and Savings Bank as trustee
relating to the issue of the Series B Notes and the Series C Senior
Subordinated Notes (the "Series C Notes") each due 2003 and having an
aggregate value of US$65,000,000.
(c) An Exchange and Registration Rights Agreement dated 29 October 1996 between
Canandaigua, Chase and CSFB concerning the obligation of Canandaigua and
the Guarantors to file a registration statement with the US Securities and
Exchange Commission for the exchange of registered Series C Notes for all
unregistered Series B Notes, so as to permit the trading of the Series C
Notes generally without restriction under US Federal and state securities
laws.
74
<PAGE>
(d) A Credit Agreement dated 19 December 1997 (as amended on 19 June 1998)
between Canandaigua, various of its subsidiaries acting as guarantors (the
"Subsidiary Guarantors"), various lenders (the "Banks") and The Chase
Manhattan Bank ("TCMB") as administrative agent relating to a credit
facility currently in the amount of US$407,000,000 and capable of increase
in certain circumstances to US$507,000,000, used to refinance certain
existing indebtedness and to finance ongoing working capital requirements
and other general corporate purposes of the Canandaigua Group (the "Credit
Agreement").
(e) A Security Agreement dated 19 December 1997 between Canandaigua, the
Subsidiary Guarantors and TCMB under which advances made by the Banks under
the Credit Agreement are secured.
(f) A Tranche II Revolving Agreement (Series A) dated 15 July 1998 between
Canandaigua, various revolving lenders named therein and TCMB as
administrative agent pursuant to which such lenders agree to provide
Canandaigua with up to US$100,000,000 in revolving credit commitments,
swingline loans and letters of credit as contemplated by the Credit
Agreement.
(g) A new Credit Agreement dated 2 November 1998 between Canandaigua, various
of its subsidiaries acting as guarantors, various lenders and TCMB as
administrative agent relating to a US$1,000,000,000 credit facility to be
used for the refinancing of certain existing indebtedness, to finance the
Offer and to finance ongoing working capital requirements and other general
corporate purposes (including certain acquisitions) of the Canandaigua
Group.
6. Service contracts and other arrangements with directors or proposed
directors of Matthew Clark
Save as disclosed below, none of the directors or proposed directors of Matthew
Clark has a service contract with any member of the Matthew Clark Group where
such contract has more than twelve months to run. Except as set out below, none
of the contracts referred to below have been entered into or amended during the
six months prior to the date of this document:
<TABLE>
<CAPTION>
Director Notice Salary
-----------------------------------------------------------------------------------------------------
<S> <C> <C>
Peter Aikens 24 months by Matthew Clark, 6 months by the director 230,000 pounds sterling
Hugh Etheridge 24 months by Matthew Clark, 6 months by the director 130,000 pounds sterling
</TABLE>
7. Other information
(a) Schroders is satisfied that sufficient financial resources are available to
Canandaigua Limited to satisfy full acceptance of the Offer. Full
acceptance of the Offer would involve a maximum cash payment of
approximately 215.7 million pounds sterling.
Financing will be made available to the Canandaigua Group pursuant to a
credit agreement dated 2 November 1998 between Canandaigua as borrower, the
Offeror and various other subsidiaries of Canandaigua as guarantors and The
Chase Manhattan Bank together with a syndicate of other banks (the "Banks")
under which the Banks agree to provide Canandaigua with a loan up to a
principal amount of US$1,000,000,000 (the "New Credit Agreement").
In addition to being used to refinance certain existing indebtedness of the
Canandaigua Group and to finance ongoing working capital requirements and
other general corporate purposes (including certain acquisitions) of the
Canandaigua Group, the funds under the New Credit Agreement will be made
available to Canandaigua to finance, through the Offeror, the acquisition
of the entire issued and to be issued share capital of Matthew Clark and
certain associated costs and expenses of the Offer. The availability of
funds under the New Credit Agreement is subject, inter alia, to the Offer
having become or being declared wholly unconditional; repayment of
principal and interest on all other amounts owing by the Canandaigua Group
having been made (or being made simultaneously with drawdown under the New
Credit Agreement) under an existing credit agreement with the Banks dated
19 December 1997; various security documentation being entered into and
there having been at drawdown no breach of certain representations and
warranties given by Canandaigua in the New Credit Agreement.
(b) As Mathew Clark will form a significant part of the Canandaigua Group,
Canandaigua Limited intends that the payment of interest on, repayment of,
or security for any liability (contingent or otherwise) relating to the
financing arrangements referred to in paragraph 7(a) above will depend on
the business of Matthew Clark.
(c) Save as disclosed in this Appendix IV, no agreement, arrangement or
understanding (including any compensation arrangement) exists between
Canandaigua Limited or any person acting in concert with
75
<PAGE>
Canandaigua Limited and any of the directors, recent directors,
shareholders or recent shareholders of Matthew Clark having any connection
with, or dependence on, or which is conditional on, the outcome of the
Offer and there is no proposal existing in connection with the Offer
whereby any payment or other benefit will be made or given to any director
of Matthew Clark as compensation for loss of office or as consideration for
or in connection with his retirement from office or otherwise in connection
with the Offer.
(d) There is no agreement, arrangement or understanding whereby the legal or
beneficial ownership of any of the Matthew Clark Shares to be acquired by
Canandaigua Limited pursuant to the Offer will be transferred to any other
person, save that Canandaigua Limited reserves the right to transfer any
such shares to any member of the Canandaigua Group.
(e) Settlement of the consideration to which any Matthew Clark Shareholder is
entitled under the Offer will be implemented in full in accordance with the
terms of the Offer without regard to any lien, right of set off,
counterclaim or other analogous right to which Canandaigua Limited may
otherwise be, or claim to be, entitled against such shareholder.
(f) Save as disclosed in Appendix II of this document, the directors of
Canandaigua are not aware of any material change in the financial or
trading position of Canandaigua since 28 February 1998 (the date to which
the latest published audited consolidated accounts of Canandaigua were
prepared).
(g) The expenses of and incidental to the preparation and implementation of the
Offer will be paid by Canandaigua Limited.
(h) Schroders, which is a member of the London Stock Exchange and is regulated
in the UK by The Securities and Futures Authority Limited, has given and
not withdrawn its consent to the issue of this document with the inclusion
of its name in the form and context in which it is included.
(i) Warburg Dillon Read, which is a member of the London Stock Exchange and is
regulated in the UK by The Security and Futures Authority Limited, has
given and not withdrawn its consent to the issue of this document with the
inclusion of its name in the form and context in which it is included.
(j) There has been no material change in the financial or trading position of
Matthew Clark since 30 April 1998 (the date to which the latest published
audited consolidated accounts of the Matthew Clark Group were prepared).
(k) The fully diluted share capital of Matthew Clark is based upon 88,520,498
Matthew Clark Shares in issue on 30 October 1998 (the latest practicable
date prior to the printing of this document), together with 1,904,822
Matthew Clark Shares falling to be issued upon the exercise of options
granted and outstanding on such date under the Matthew Clark Share Option
Schemes. It should be noted that only 225,000 options over Matthew Clark
Shares are capable of being exercised at a price below 243 pence per
Matthew Clark Share.
(l) The price of Matthew Clark Shares at the close of business on a particular
date is derived from the Official List.
(m) Unless otherwise stated:
(i) financial information relating to Canandaigua has been extracted from
the Canandaigua Annual Report for the year ended 28 February 1998; and
(ii) financial information relating to Matthew Clark has been extracted
from the annual report and published audited consolidated accounts of
Matthew Clark for the two years ended 30 April 1998 and 30 April 1997,
respectively.
(n) The market capitalisation of Canandaigua is based on the closing
middle-market quotation for Canandaigua shares of $50 1/8 per A Share and
$50 3/4 per B Share on 30 October 1998 (the latest practicable date prior
to the printing of this document), as derived from Bloomberg Financial
Markets.
8. Documents available for inspection
Copies of the following documents are available for inspection during usual
business hours on any weekday (public holidays excepted) at the offices of
Clifford Chance, 200 Aldersgate Street, London EC1A 4JJ while the Offer remains
open for acceptance:
(a) the Memorandum and Articles of Association of Canandaigua Limited;
76
<PAGE>
(b) the Memorandum and Articles of Association of Matthew Clark;
(c) the published audited consolidated accounts of Canandaigua for the two
financial years ended 28 February 1998;
(d) the published audited consolidated accounts of Matthew Clark for the two
financial years ended 30 April 1998;
(e) the service contracts referred to in paragraph 6 above;
(f) the irrevocable undertakings to accept the Offer referred to in paragraph
3(b)(iv) of this Appendix;
(g) the material contracts referred to in paragraph 5 above;
(h) the written consents referred to in paragraph 7 above;
(i) the documents in respect of the financing arrangements referred to in
paragraph 7(a) above; and
(j) this document and the Form of Acceptance.
3 November 1998
77
<PAGE>
APPENDIX V DEFINITIONS
- --------------------------------------------------------------------------------
The following definitions apply throughout this document unless the context
otherwise requires:
"Act" the Companies Act 1985
"Authorisations" authorisations, orders, grants,
recognitions, confirmations, consents,
clearances, certificates, licences,
permissions or approvals
"Canandaigua" Canandaigua Brands, Inc.
"Canandaigua Group" Canandaigua and its subsidiary
undertakings and, where the context
permits, each of them
"Canandaigua Limited" the Offeror
"certificated"
or "certificated form" in relation to a share or other
security, a share or other security
title to which is recorded in the
relevant register of the share or other
security as being held in certificated
form (that is, not in CREST)
"City Code" the City Code on Takeovers and Mergers
"CREST" the relevant system (as defined in the
Regulations)operated by CRESTCo
"CRESTCo" CRESTCo Limited
"CREST member" a person who is, in relation to CREST, a
system-member (as defined in the
Regulations)
"CREST participant" a person who is, in relation to CREST,
a system-participant (as defined in the
Regulations)
"CREST sponsor" a person who is, in relation to CREST, a
sponsoring system-participant, (as
defined in the Regulations)
"CREST sponsored member" a CREST member admitted to CREST as a
sponsored member under the sponsorship
of a CREST sponsor
"Form of Acceptance" the form of acceptance, authority and
election relating to the Offer and
accompanying this document and "Forms of
Acceptance" shall be construed
accordingly
"London Stock Exchange" London Stock Exchange Limited
"Matthew Clark" Matthew Clark plc
"Matthew Clark Group" Matthew Clark and its subsidiary
undertakings and, where the context
permits, each of them
"Matthew Clark Shareholders" holders of Matthew Clark Shares and
"Matthew Clark Shareholder" shall be
construed accordingly
"Matthew Clark Shares" ordinary shares of 25 pence each in the
capital of Matthew Clark, and "Matthew
Clark Share" shall be construed
accordingly
"Matthew Clark Shares (a) Matthew Clark Shares unconditionally
to which the Offer relates" allotted or issued on or before the date
the Offer is made; and (b) Matthew Clark
Ordinary Shares unconditionally allotted
or issued after that date but before the
date the Offer closes, or such earlier
date or dates as the Offeror may decide
(not being earlier than the date on
which the Offer becomes or is declared
unconditional as to acceptances or, if
later, the first closing date of the
Offer), but excluding any Matthew Clark
Shares which, on the date the Offer is
made, are held or contracted to be
acquired (otherwise than under such a
contract as is described in section
428(5) of the Act) by the Offeror and/or
its associates (within the meaning of
section 430E of the Act)
"Matthew Clark Share Option Schemes" the Matthew Clark Group Executive Share
Option Scheme, the Matthew Clark Group
1995 Savings Related Share Option Scheme
and the Matthew Clark Group Unapproved
Executive Share Option Scheme
"member account ID" the identification code or number
attached to any member account in CREST
"Offeror" Canandaigua Limited, a wholly-owned
subsidiary of Canandaigua
78
<PAGE>
"Offer" the recommended cash offer made
hereunder by Schroders on behalf of the
Offeror to acquire the Matthew Clark
Shares to which the Offer relates on the
terms and subject to the conditions set
out in this document and in the Form of
Acceptance including, where the context
requires, any subsequent revision,
variation, extension or renewal of such
offer
"Offer period" as defined in paragraph 6(b) of Part B
to Appendix I hereto
"Official List" the Daily Official List of the London
Stock Exchange
"Panel" the Panel on Takeovers and Mergers
"participant ID" the identification code or membership
number used in CREST to identify a CREST
member or other CREST participant
"Regulations" the Uncertificated Securities
Regulations 1995
"Schroders" J. Henry Schroder Co. Limited
"Securities Act" the United States Securities Act of
1933, as amended
"subsidiary", "subsidiary shall be construed in accordance with
undertaking","associated the Act (but for this purpose ignoring
"undertaking" and "undertaking" paragraph 20(1)(b) of Schedule 4A to the
Act)
"TTE instruction" a transfer to escrow instruction (as
defined in the CREST Manual issued by
CRESTCo)
"TFE instruction" a transfer from escrow instruction (as
defined in the CREST Manual issued by
CRESTCo)
"Third Party" government or governmental,
quasi-governmental, supranational,
statutory, regulatory or investigative
body, trade agency, court, professional
association or any other body or person
whatsoever in any jurisdiction
"uncertificated" or "uncertificated in relation to a share or other
form" security, a share or other security
title to which is recorded in the
relevant register of the share or
security as being held in uncertificated
form (that is, in CREST), and title to
which, by virtue of the Regulations, may
be transferred by means of CREST
"United Kingdom" or "UK" the United Kingdom of Great Britain and
Northern Ireland
"United States" or "US"
the United States of America, its
territories and possessions, any state
of the United States of America, the
District of Columbia and all other areas
subject to the jurisdiction of the
United States
"US$" or "$" denotes the lawful currency of the US
"US Act" the United States Securities Act of
1933, as amended
"US person" and as defined in paragraph 7(h) of Part B
"North American person" to Appendix I hereto
"Warburg Dillon Read" UBS AG, acting through its investment
banking division Warburg Dillon Read
"Wider Canandaigua Group" the Canandaigua Group and associated
undertakings and any other body
corporate, partnership, joint venture or
person in which the Canandaigua Group
and such undertakings (aggregating their
interests) have a direct or indirect
interest of 20 per cent. or more of the
voting or equity capital or the
equivalent
"Wider Matthew Clark Group" the Matthew Clark Group and associated
undertakings and any other body
corporate, partnership, joint venture or
person in which the Matthew Clark Group
and such undertakings (aggregating their
interests) have a direct or indirect
interest of 20 per cent. or more of the
voting or equity capital or the
equivalent
"1998 Report and Accounts of the annual report and audited accounts
Matthew Clark" of Matthew Clark for the year ended
30 April 1998
<PAGE>
The Registrant has omitted from this filing the Form of Acceptance distributed
with the foregoing Recommended Cash Offer. The Registrant will furnish
supplementally to the Commission, upon request, a copy of such Form of
Acceptance.
EXHIBIT 4.1
-----------
EXECUTION COPY
29455-004-00
================================================================================
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
November 2, 1998
between
CANANDAIGUA BRANDS, INC.
The SUBSIDIARY GUARANTORS Party Hereto
The LENDERS Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$1,000,000,000
THE CHASE MANHATTAN BANK,
as Book Runner
THE BANK OF NOVA SCOTIA,
as Syndication Agent
CREDIT SUISSE FIRST BOSTON
and
FLEET NATIONAL BANK,
as Co-Documentation Agents
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Classification of Loans and Borrowings.........................31
SECTION 1.03. Terms Generally................................................32
SECTION 1.04. Accounting Terms; GAAP.........................................32
SECTION 1.05. Currency Equivalents...........................................32
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments................................................33
SECTION 2.02. Loans and Borrowings...........................................35
SECTION 2.03. Requests for Syndicated Borrowings.............................36
SECTION 2.04. Competitive Bid Procedure......................................37
SECTION 2.05. Swingline Loans................................................39
SECTION 2.06. Letters of Credit..............................................41
SECTION 2.07. Funding of Borrowings..........................................46
SECTION 2.08. Interest Elections.............................................47
SECTION 2.09. Termination and Reduction of the Commitments...................48
SECTION 2.10. Repayment of Loans; Evidence of Debt...........................49
SECTION 2.11. Prepayment of Loans............................................53
SECTION 2.12. Fees...........................................................59
SECTION 2.13. Interest.......................................................61
SECTION 2.14. Alternate Rate of Interest.....................................62
SECTION 2.15. Increased Costs................................................63
SECTION 2.16. Break Funding Payments.........................................64
SECTION 2.17. Taxes..........................................................65
SECTION 2.18. Payments; Pro Rata Treatment; Sharing of Setoffs, Etc..........66
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.................68
i
<PAGE>
ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee..................................................69
SECTION 3.02. Obligations Unconditional......................................70
SECTION 3.03. Reinstatement..................................................75
SECTION 3.04. Subrogation....................................................75
SECTION 3.05. Remedies.......................................................76
SECTION 3.06. Continuing Guarantee...........................................76
SECTION 3.07. Limitation on Guarantee Obligations............................76
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Organization; Powers...........................................77
SECTION 4.02. Authorization; Enforceability..................................77
SECTION 4.03. Governmental Approvals; No Conflicts...........................77
SECTION 4.04. Financial Condition; No Material Adverse Change................78
SECTION 4.05. Properties.....................................................78
SECTION 4.06. Litigation.....................................................79
SECTION 4.07. Environmental Matters..........................................79
SECTION 4.08. Compliance with Laws and Agreements............................81
SECTION 4.09. Investment and Holding Company Status..........................81
SECTION 4.10. Taxes..........................................................81
SECTION 4.11. ERISA..........................................................81
SECTION 4.12. Disclosure.....................................................82
SECTION 4.13. Use of Credit..................................................82
SECTION 4.14. Material Agreements and Liens..................................82
SECTION 4.15. Capitalization.................................................83
SECTION 4.16. Subsidiaries and Investments...................................83
SECTION 4.17. Real Property..................................................84
SECTION 4.18. Year 2000 Issues...............................................84
SECTION 4.19. Target Credit Facilities.......................................84
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date.................................................85
SECTION 5.02. Initial Funding Date...........................................86
SECTION 5.03. Subsequent Tender Offer Loans..................................89
SECTION 5.04. Each Credit Event..............................................90
ii
<PAGE>
ARTICLE VI
AFFIRMATIVE COVENANTS
SECTION 6.01. Financial Statements and Other Information.....................90
SECTION 6.02. Notices of Material Events.....................................92
SECTION 6.03. Existence; Conduct of Business.................................92
SECTION 6.04. Payment of Obligations.........................................93
SECTION 6.05. Maintenance of Properties; Insurance...........................93
SECTION 6.06. Books and Records; Inspection Rights...........................93
SECTION 6.07. Compliance with Laws...........................................93
SECTION 6.08. Use of Proceeds and Letters of Credit..........................93
SECTION 6.09. Certain Obligations Respecting Subsidiaries;
Further Assurances ............................................94
SECTION 6.10. Hedging Agreements.............................................96
ARTICLE VII
NEGATIVE COVENANTS
SECTION 7.01. Indebtedness...................................................96
SECTION 7.02. Liens..........................................................97
SECTION 7.03. Fundamental Changes............................................98
SECTION 7.04. Investments...................................................101
SECTION 7.05. Restricted Payments...........................................102
SECTION 7.06. Transactions with Affiliates..................................104
SECTION 7.07. Certain Restrictions on Subsidiaries..........................104
SECTION 7.08. Certain Financial Covenants...................................105
SECTION 7.09. Subordinated Indebtedness.....................................106
SECTION 7.10. Modifications of Certificate of Incorporation.................107
SECTION 7.11. Inventory Located in Off-Premises Warehouses..................107
SECTION 7.12. Certain Matters Relating to the Tender Offer, Etc.............108
ARTICLE VIII
EVENTS OF DEFAULT.............................110
ARTICLE IX
THE ADMINISTRATIVE AGENT......................114
iii
<PAGE>
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices......................................................117
SECTION 10.02. Waivers; Amendments..........................................118
SECTION 10.03. Expenses; Indemnity; Damage Waiver...........................119
SECTION 10.04. Successors and Assigns.......................................121
SECTION 10.05. Survival.....................................................123
SECTION 10.06. Counterparts; Integration; Effectiveness.....................124
SECTION 10.07. Severability.................................................124
SECTION 10.08. Right of Setoff..............................................124
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process...125
SECTION 10.10. Waiver Of Jury Trial.........................................125
SECTION 10.11. Headings.....................................................126
SECTION 10.12. Treatment of Certain Information; Confidentiality............126
SECTION 10.13. "Credit Agreement" under Senior Subordinated Indentures......127
SECTION 10.14. Exceptions to Certain Covenants..............................127
SECTION 10.15. European Monetary Union......................................127
SECTION 10.16. Judgment Currency............................................130
SECTION 10.17. Cleanup Period...............................................130
iv
<PAGE>
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Disclosed Matters
SCHEDULE IV - Subsidiaries and Investments
SCHEDULE V - Stock Options
SCHEDULE VI - Real Property
SCHEDULE VII - Life Insurance Agreements
SCHEDULE VIII - Calculation of MCR Cost
SCHEDULE IX - Certain Non-Recurring Charges
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B-1 - Form of Security Agreement
EXHIBIT B-2 - Form of U.K. Pledge Agreement (Borrower)
EXHIBIT B-3 - Form of U.K. Pledge Agreement (U.K. Acquisition)
EXHIBIT C-1 - Form of Mortgage Modification (Gonzalez)
EXHIBIT C-2 - Form of Mortgage Modification (Madera/Vintners)
EXHIBIT C-3 - Form of Mortgage Modification (Madera/Canandaigua)
EXHIBIT C-4 - Form of Mortgage Modification (Bardstown)
EXHIBIT C-5 - Form of Mortgage Modification (Canandaigua)
EXHIBIT C-6 - Form of Mortgage Modification (Naples/Ontario Co.)
EXHIBIT C-7 - Form of Mortgage Modification (Naples/Yates Co.)
EXHIBIT D - Form of Guarantee Assumption Agreement
EXHIBIT E-1 - Form of Opinion of Counsel to the Obligors
(Effective Date)
EXHIBIT E-2 - Form of Opinion of Counsel to the Obligors
(Initial Funding Date)
EXHIBIT E-3 - Form of Opinion of Special California Counsel to the
Obligors
EXHIBIT E-4 - Form of Opinion of Special Kentucky Counsel to the
Obligors
EXHIBIT F - Form of Opinion of Special New York Counsel to Chase
v
<PAGE>
FIRST AMENDED AND RESTATED CREDIT AGREEMENT dated as of November 2,
1998, between CANANDAIGUA BRANDS, INC. (formerly known as Canandaigua Wine
Company, Inc.), a Delaware corporation (the "Borrower"), the SUBSIDIARY
GUARANTORS party hereto, the LENDERS party hereto, and THE CHASE MANHATTAN BANK,
a New York State banking corporation ("Chase"), as administrative agent for such
Lenders (in such capacity, together with its successors in such capacity, the
"Administrative Agent").
The Borrower, certain of the Subsidiary Guarantors party hereto, Chase
(as the sole Lender thereunder), and the Administrative Agent are party to a
Credit Agreement dated as of November 2, 1998 (said Credit Agreement, as in
effect on the date hereof immediately before giving effect to the amendment and
restatement contemplated hereby, being herein called the "Existing Credit
Agreement"). Pursuant to the Existing Credit Agreement, Chase committed to make
revolving credit and term loans to the Borrower in an original aggregate
principal amount not exceeding $1,000,000,000 at any one time outstanding
(subject to increase as therein provided to $1,200,000,000).
The parties hereto wish to amend the Existing Credit Agreement in
certain respects to provide for, among other things, for additional lenders to
become parties thereto and, as so amended, to restate the Existing Credit
Agreement in its entirety. Accordingly, the parties hereto hereby agree that the
Existing Credit Agreement shall, subject to the execution and delivery of this
Agreement by each of the intended parties hereto, but with effect as of the date
hereof, be amended and restated to read in its entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing denominated in
Dollars, 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.
"Acceleration Date" has the meaning assigned to such term in the
penultimate paragraph of Article VIII.
"Acquisition" means an acquisition by the Borrower or any of its
Subsidiaries of a business and the related assets of any Person (whether by way
of purchase of assets or stock, including any tender for outstanding shares of
stock, by merger or consolidation, by acceptance of a contribution of capital
from another Person, or otherwise). For purposes hereof, the term "Acquisition"
shall include the acquisition of the Target pursuant to the Tender Offer.
<PAGE>
-2-
"Adjusted Cash Flow" means, for any period (the "calculation period"),
the sum, for the Borrower and its Consolidated Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP), of the
following: (a) Operating Cash Flow for the calculation period minus (b) Capital
Expenditures made during the calculation period (excluding Capital Expenditures
made from the proceeds of Indebtedness other than Indebtedness hereunder).
"Adjusted LIBO Rate" means, with respect to any Eurocurrency Borrowing
for the Interest Period applicable thereto, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Adjustment Amount" means, for any period, for the Borrower and its
Consolidated Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), the amount of any income or expense
included in the determination of net operating income for such period as a
result of changes in the LIFO Reserve.
"Administrative Agent" has the meaning assigned to such term in the
recitals hereof.
"Administrative Agent's Account" shall mean, for each Currency, an
account in respect of such Currency designated by the Administrative Agent in a
notice to the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"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 (a) with respect to any Tranche I
Revolving Lender for purposes of Sections 2.05 or 2.06 or Article VIII, the
percentage of the total Tranche I Revolving Commitments represented by such
Tranche I Revolving Lender's Tranche I Revolving Commitment, (b) with respect to
any Tranche II Revolving Lender for purposes of Section 2.06 or Article VIII,
the percentage of the total Tranche II Revolving Commitments represented by such
Tranche II Revolving Lender's Tranche II Revolving Commitment, (c) with respect
to any Tranche III Revolving Lender for purposes of Section 2.06 or Article
VIII, the percentage of the total Tranche III Revolving Commitments represented
by such Tranche III Revolving Lender's Tranche III Revolving Commitment, (d)
with respect to any Revolving Lender in respect of any
<PAGE>
-3-
indemnity claim under Section 10.03(c) arising out of an action or omission of
the Administrative Agent, the Swingline Lender or the Issuing Lender under this
Agreement relating to Swingline Loans or Letters of Credit, the percentage of
the total Revolving Commitments of the applicable Class represented by such
Revolving Lender's Revolving Commitments of such Class and (e) with respect to
any Lender in respect of any indemnity claim under Section 10.03(c) arising out
of an action or omission of the Administrative Agent under this Agreement (other
than one relating to Swingline Loans or Letters of Credit), the percentage of
the total Commitments or Loans of all Classes hereunder represented by the
aggregate amount of such Lender's Commitments or Loans of all Classes hereunder.
If the Tranche I Revolving Commitments, Tranche II Revolving Commitments or
Tranche III Revolving Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Tranche I Revolving Commitments
or Tranche III Revolving Commitments, as applicable, most recently in effect
(and giving effect to any assignments).
"Applicable Rate" means, for any day, with respect to any ABR
Borrowing (including any Swingline ABR Borrowing), Syndicated Eurocurrency
Borrowing, Swingline FFBR Borrowing or Swingline Eurocurrency Borrowing, or with
respect to the facility fees or commitment fees payable hereunder, as the case
may be, the rate per annum set forth in the schedule below, as applicable, based
upon the Debt Ratio as of the most recent determination date, provided that
prior to the later of November 30, 1999 and the payment in full of the Tranche
II Term Loans, the Applicable Rate for any Borrowing shall not be lower than the
rates set forth below for Category 2:
<PAGE>
-4-
<TABLE>
- -------------- --------------- ----------------- -------------- --------------- ------------- --------------- -------------------
<CAPTION>
DEBT RATIO:
REVOLVING AND TRANCHE I TRANCHE I AND TRANCHE III TRANCHE III FACILITY/
SWINGLINE LOAN: AND II TERM II TERM TERM LOAN: TERM LOAN: COMMITMENT
REVOLVING EURODOLLAR AND LOAN: ABR LOAN: ABR RATE EURODOLLAR FEE RATE
LOAN: SWINGLINE FFBR RATE EURODOLLAR RATE
ABR RATE RATE RATE
- ----------------- --------------- ----------------- -------------- --------------- ------------- --------------- -----------------
<S> <C> <C> <C> <C> <C> <C> <C>
Category 1
>4.00x 1.000 2.000 1.500 2.500 1.750 2.750 0.500
-
- ----------------- --------------- ----------------- -------------- --------------- ------------- --------------- -----------------
Category 2
< 4.00x and 0.750 1.750 1.250 2.250 1.500 2.500 0.500
> 3.65x
-
- ----------------- --------------- ----------------- -------------- --------------- ------------- --------------- -----------------
Category 3
< 3.65x and 0.500 1.500 1.000 2.000 1.500 2.500 0.500
> 3.00x
-
- ----------------- --------------- ----------------- -------------- --------------- ------------- --------------- -----------------
Category 4
< 3.00x and 0.375 1.375 0.750 1.750 1.500 2.500 0.375
> 2.50x
-
- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ------
Category 5
< 2.50x 0.125 1.125 0.500 1.500 1.500 2.500 0.375
- ----------------- ----------------- ------------------ ----------------- ----------------- ----------------- ----------------- -----
</TABLE>
For purposes of the foregoing, (i) the Debt Ratio shall be determined
as of the end of each fiscal quarter of the Borrower's fiscal year based upon
the Borrower's consolidated financial statements delivered pursuant to Section
6.01(a) or (b) (or, prior to the first such delivery, referred to in Section
4.04(a)(iii)) and (ii) subject to the foregoing provisions of this definition,
each change in the Applicable Rate resulting from a change in the Debt Ratio
shall be effective during the period commencing on and including the date three
Business Days after delivery to the Administrative Agent of such consolidated
financial statements indicating such change and ending on the date immediately
preceding the effective date of the next such change; provided that the Debt
Ratio shall be deemed to be in Category 1 (A) at any time that an Event of
Default has occurred and is continuing and (B) if the Borrower fails to deliver
the consolidated financial statements required to be delivered by it pursuant to
Section 6.01(a) or (b), during the period from the expiration of the time for
delivery thereof until such consolidated financial statements are delivered.
"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.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
<PAGE>
-5-
"Borrower" has the meaning assigned to such term in the recitals
hereof.
"Borrowing" means (a) Syndicated Loans of the same Class, Type and
Currency, made, converted or continued on the same date and, in the case of
Eurocurrency Loans, as to which a single Interest Period is in effect, (b) a
Competitive Loan or group of Competitive Loans of the same Type and Currency
made on the same date and as to which a single Interest Period is in effect or
(c) a Swingline Loan. For all purposes of this Agreement, the date of a
Borrowing initially shall be the date on which the Borrowing is made and, in the
case of a Syndicated Eurocurrency Borrowing, thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"Borrowing Request" means a request by the Borrower for a Syndicated
Borrowing in accordance with Section 2.03.
"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, if such day relates to a borrowing or
continuation of, a payment or prepayment of principal of or interest on, or the
Interest Period for, a Eurocurrency Borrowing or a notice by the Borrower with
respect to any such borrowing, continuation, payment, prepayment or Interest
Period, that is also a day on which dealings in deposits denominated in the
Currency of such Borrowing are carried out in the London (or, as applicable,
Paris) interbank market.
"Capital Expenditures" means, for any period, expenditures (including
the aggregate amount of Capital Lease Obligations incurred during such period)
made by the Borrower or any of its Consolidated Subsidiaries to acquire or
construct fixed assets, plant and equipment (including renewals, improvements
and replacements, but excluding repairs) during such period computed in
accordance with GAAP. Notwithstanding the foregoing, no Acquisition permitted
pursuant to Section 7.03(d) or 7.03(e) shall be treated as a Capital
Expenditure.
"Capital Lease" of any Person means any lease of (or other arrangement
conveying the right to use) real or personal Property, or a combination thereof,
which obligations are required to be classified and accounted for as a capital
lease on a balance sheet of such Person under GAAP.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any Capital Lease, and the amount
of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
"Casualty Event" means, with respect to any Property of any Person,
any loss of or damage to, or any condemnation or other taking of, such Property
for which such Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
"Change in 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
<PAGE>
-6-
application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender or either Issuing Lender (or, for
purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's or such Issuing Lender's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Chase" has the meaning assigned to such term in the recitals hereof.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Tranche I
Revolving Loans, Tranche II Revolving Loans, Tranche III Revolving Loans,
Tranche I Term Loans, Tranche II Term Loans, Tranche III Term Loans, Competitive
Loans or Swingline Loans and, when used in reference to any Commitment, refers
to whether such Commitment is a Tranche I Revolving Commitment, Tranche II
Revolving Commitment, Tranche III Revolving Commitment, Tranche I Term Loan
Dollar Commitment, Tranche I Term Loan Sterling Commitment, Tranche II Term Loan
Commitment or Tranche III Term Loan Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral Account" has the meaning assigned to such term in Section
4.01 of the Security Agreement.
"Commitment" means a Tranche I Revolving Commitment, Tranche II
Revolving Commitment, Tranche I Term Loan Dollar Commitment, Tranche I Term Loan
Sterling Commitment, Tranche II Term Loan Commitment or Tranche III Term Loan
Commitment, or any combination thereof (as the context requires).
"Companies Act" means the Companies Act of 1985 of England and Wales,
as amended from time to time.
"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.
"Compulsory Acquisition" means the acquisition by U.K. Acquisition,
pursuant to Sections 428 to 430F of the Companies Act, of all of the issued and
outstanding Target Shares not then owned by U.K. Acquisition.
"Consolidated Subsidiary" means, for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be
<PAGE>
-7-
(or should have been) consolidated with the financial statements of such Person
in accordance with GAAP. For purposes hereof, upon the Initial Funding Date, the
Target and its Subsidiaries shall be deemed to be "Consolidated Subsidiaries".
"Consolidated Tangible Assets" means, as at any date, the total assets
of the Borrower and its Consolidated Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP) that would be shown as
tangible assets on a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries after eliminating all amounts properly attributable to
minority interests, if any, in the stock and surplus of Subsidiaries. For
purposes hereof, "tangible assets" means all assets of the Borrower and its
Consolidated Subsidiaries other than assets that should be classified as
intangibles including goodwill, minority interests, research and development
costs, trademarks, trade names, copyrights, patents and franchises, unamortized
debt discount and expense, all reserves and any write-up in the book value of
assets resulting from a revaluation thereof subsequent to February 28, 1998.
"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.
"Currency" means Dollars or Sterling.
"Debt Incurrence" means the incurrence by the Borrower or any of its
Subsidiaries after the Effective Date of any Subordinated Indebtedness.
"Debt Ratio" means, as at the last day of any fiscal quarter of the
Borrower (the "day of determination"), the ratio of (a) the average of the
aggregate amounts of Indebtedness of the Borrower and its Consolidated
Subsidiaries (determined on a consolidated basis, without duplication, in
accordance with GAAP) as at such day and as at the last days of each of the
three immediately preceding fiscal quarters to (b) Operating Cash Flow for the
period of four consecutive fiscal quarters ending on such day of determination.
Notwithstanding the foregoing, (i) Indebtedness as at the last day of each
fiscal quarter included in the determination of average Indebtedness pursuant to
clause (a) above shall be determined under the assumption that any prepayment of
Term Loans hereunder from the proceeds of any Equity Issuance at any time during
any such fiscal quarter included in the calculation thereof shall have been made
in the first such fiscal quarter, (ii) for the last day of any fiscal quarter
ending prior to the end of the Term Loan Availability Period, the average
Indebtedness specified in clause (a) above shall be increased by an amount equal
to the aggregate principal amount of Loans that would be required to be borrowed
under this Agreement to finance in full the acquisition by U.K. Acquisition of
all of the Target Shares pursuant to the Tender Offer and the repayment in full
of all Indebtedness outstanding under the Target Credit Facilities (but without
duplication of (x) any Loans actually outstanding under this Agreement on such
date and applied to such purpose and (y) any Indebtedness outstanding under the
Target Credit Facilities on such date) and (iii) for purposes of determining
Operating Cash Flow pursuant to clause (b) above for any period ending on or
prior to the end of the Term Loan Availability Period, the Target and its
Subsidiaries shall in any event be deemed to be Consolidated Subsidiaries of the
Borrower.
<PAGE>
-8-
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule III.
"Disposition" means any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any other Person excluding (a) any sale,
assignment, transfer or other disposition of any Property sold or disposed of in
the ordinary course of business and on ordinary business terms and (b) any Sale
and Leaseback Transaction.
"Dollar Equivalent" means, with respect to any Borrowing denominated
in Sterling, or with respect to any other amount payable or calculated hereunder
in Sterling, the amount of Dollars that would be required to purchase such
amount of Sterling on the date two Business Days prior to the date of such
Borrowing, payment or calculation (or in the case of any determination made
under Section 2.11(d) or redenomination under the last sentence of Section
2.18(a), on the date of determination or redenomination therein referred to),
based upon the spot selling rate appearing on Page 3750 of the Telerate Service
of Bridge Information Services for sales of Sterling for Dollars at
approximately 11:00 a.m. London time for delivery two Business Days later, or if
such spot selling rate is not available at such time for any reason, then the
spot selling rate at which Chase offers to sell Sterling for Dollars in the
London foreign exchange market at approximately 11:00 a.m. London time for
delivery two Business Days later.
"Dollars" or "$" refers to the lawful currency of the United States of
America.
"Dormant Subsidiary" means any Subsidiary that is a "Dormant Company"
under (and as defined in) the Companies Act.
"Dutch Acquisition" means Canandaigua B.V., a company organized under
the laws of the Netherlands for the purposes described in Section 6.08, and a
Wholly-Owned Subsidiary of the Borrower.
"Effective Date" has the meaning assigned to such term in Section
5.01.
"Employee Stock Purchase Plan" means the Canandaigua Brands, Inc. 1989
Employee Stock Purchase Plan.
"Environmental Claim" means, with respect to any Person, (a) any
written or oral notice, claim, demand or other communication (collectively, a
"claim") by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any
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Environmental Law. The term "Environmental Claim" shall include, without
limitation, any claim by any governmental authority for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Issuance" means (a) any issuance or sale by the Borrower or
any of its Subsidiaries after the Effective Date of (i) any of its capital
stock, (ii) any warrants or options exercisable in respect of its capital stock
or (iii) any other security or instrument representing an equity interest (or
the right to obtain any equity interest) in the Borrower or any of its
Subsidiaries or (b) the receipt by the Borrower or any of its Subsidiaries after
the Effective Date of any capital contribution (whether or not evidenced by any
equity security issued by the recipient of such contribution); provided that
Equity Issuance shall not include (x) any such issuance or sale by any
Subsidiary of the Borrower to the Borrower, any Wholly-Owned Subsidiary of the
Borrower or any Joint Venture Entity or (y) any capital contribution by the
Borrower, any Wholly-Owned Subsidiary of the Borrower or any Joint Venture
Entity to any Subsidiary of the Borrower.
"Equity Rights" means, with respect to any Person, any subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind for
the issuance or sale by such Person of, or securities convertible into, any
additional shares of capital stock of any class of such Person, or partnership
or other ownership interests of any type in such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
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"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurocurrency", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to (a) in the case of a Syndicated
Loan or Borrowing or Swingline Loan or Borrowing, the Adjusted LIBO Rate, or (b)
in the case of a Competitive Loan or Borrowing, the LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VIII.
"Excess Cash Flow" means, for any fiscal year, the sum of (a) Adjusted
Cash Flow for such fiscal year (determined without regard to the Adjustment
Amount) minus (b) Fixed Charges for such fiscal year plus (c) the sum (if
positive), or minus the sum (if negative), of the aggregate amount of "change in
operating assets and liabilities, net of effects from purchases of businesses"
as set forth on the consolidated statements of cash flows for the Borrower and
its Subsidiaries for such fiscal year, excluding, however, any portion of such
amount attributable to non-cash adjustments (other than any non-cash adjustments
related to Acquisitions) plus (d) the aggregate amount (if positive), or minus
the aggregate amount (if negative), of "(repayment of) proceeds from notes
payable, short-term borrowings" as set forth on the consolidated statements of
cash flows for the Borrower and its Subsidiaries for such fiscal year (excluding
borrowings the proceeds of which are applied to make Restricted Payments
permitted under Section 7.05(b) and excluding also the repayment of short-term
borrowings from the proceeds of an Equity Issuance or Debt Incurrence).
"Excluded Entities" means, collectively, Inactive Subsidiaries, Joint
Venture Entities and Foreign Subsidiaries.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, either Issuing Lender or any other recipient of any payment to be made
by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of
<PAGE>
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which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.19(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement or is attributable to such Foreign
Lender's failure or inability to comply with Section 2.17(e), except to the
extent that such Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 2.17(a).
"Existing Credit Agreement" has the meaning assigned to such term in
the recitals hereof.
"FFBR", when used in reference to any Swingline Loan, refers to
whether such Loan bears interest at a rate determined by reference to the
Federal Funds Base Rate.
"Federal Funds Base Rate" means, for any Interest Period for any
Swingline Loan, the rate per annum (rounded upwards, if necessary to the nearest
1/100 of 1%) determined by the Swingline Lender to be equal to the rate charged
to the Swingline Lender on Federal funds transactions for such Interest Period
with members of the Federal Reserve System arranged by Federal funds brokers on
such day.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on 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 or controller of the Borrower.
"First Chicago" means The First National Bank of Chicago.
"Fixed Charges" means, for any period, the sum, for the Borrower and
its Consolidated Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all payments of
principal of Indebtedness scheduled to be made during such period plus (b) all
Interest Expense for such period plus (c) the aggregate amount of federal, state
and foreign taxes paid during such period to the extent that net operating
income for such period pursuant to clause (a) of the definition of "Operating
Cash Flow" in this Section has been calculated before giving effect to such
taxes plus (d) the aggregate amount of Restricted Payments made pursuant to
Section 7.05 (other than on a non-cash basis pursuant to
<PAGE>
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clauses (a)(i), (ii) and (iii) thereof, pursuant to paragraph (b) thereof or
those referred to in paragraph (c) thereof) during such period.
"Fixed Charges Ratio" means, as at any date, the ratio of (a) Adjusted
Cash Flow for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) Fixed Charges for such period.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Competitive Eurocurrency Loan) for any Interest Period, the fixed rate of
interest per annum specified by the Lender making such Competitive Loan in its
related Competitive Bid for such Interest Period.
"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 is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiaries" means any Subsidiary organized under the laws
of any country other than the United States of America, or a State thereof,
which (if such Subsidiary were to become a Subsidiary Guarantor hereunder) the
Borrower and the Administrative Agent have determined would result in adverse
tax consequences under Section 956 of the Code. For purposes hereof, it is
agreed that as of the date hereof each of Canandaigua World Sales Limited and BB
Servicios, S.A. de C.V. are "Foreign Subsidiaries" and as of the Initial Funding
Date Target and each of its Subsidiaries (other than any thereof organized in
the United States of America or a State thereof) shall be "Foreign
Subsidiaries".
"Funding Percentage" means, as of the Acceleration Date, (a) in the
case of the Tranche I Revolving Lenders, a percentage derived by dividing (i)
the total Tranche I Revolving Exposures (excluding Competitive Loans) as of such
Acceleration Date by (ii) the total Tranche I Revolving Commitments in effect
immediately prior to such Acceleration Date and (b) in the case of the Tranche
II Revolving Lenders, a percentage derived by dividing (i) the total Tranche II
Revolving Exposures (excluding Competitive Loans) as of such Acceleration Date
by (ii) the total Tranche II Revolving Commitments in effect immediately prior
to such Acceleration Date.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
<PAGE>
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"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease Property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Assumption Agreement" means a Guarantee Assumption
Agreement substantially in the form of Exhibit D by an entity that, pursuant to
Section 6.09(a) is required to become a "Subsidiary Guarantor" hereunder in
favor of the Administrative Agent.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Inactive Subsidiary" means, as at any date, (i) any Subsidiary of the
Borrower that, as at the end of and for the fiscal quarter ending on or most
recently ended prior to such date, shall have less than $100,000 in assets and
less than $100,000 in gross revenues and (ii) any Dormant Subsidiary (other than
any such Subsidiary that has previously been designated under this definition as
no longer being an Inactive Subsidiary), provided, that if on the last day of
any fiscal quarter the aggregate total assets as at such date or gross revenues
for such quarter of all Dormant Subsidiaries that are Inactive Subsidiaries
exceeds $1,000,000, and there is on such date one or more Dormant Subsidiaries
that would not satisfy the criteria specified in clause (i) above, then the
Borrower shall (commencing with the Dormant Subsidiary having the greatest
assets or gross revenues and continuing with other Dormant Subsidiaries in
decreasing size or revenues, as applicable) designate one or more of its Dormant
Subsidiaries that would otherwise be "Inactive Subsidiaries" hereunder as no
longer being "Inactive Subsidiaries" for purposes hereof until the aggregate
total assets or gross revenues of all Dormant Subsidiaries that are Inactive
Subsidiaries does not exceed $1,000,000).
"Incentive Stock Option Plan" means the Canandaigua Brands, Inc.
Incentive Stock Option Plan dated June 23, 1997.
<PAGE>
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"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
Property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of Property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
Property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Initial Funding Date" has the meaning assigned to such term in
Section 5.02.
"Interest Coverage Ratio" means, as at any date of determination
thereof, the ratio of (a) Operating Cash Flow for the period of four fiscal
quarters ending on or most recently ended prior to such date to (b) Interest
Expense for such period.
"Interest Election Request" means a request by the Borrower to convert
or continue a Syndicated Borrowing in accordance with Section 2.08.
"Interest Expense" means, for any period, the sum, for the Borrower
and its Consolidated Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including the interest component of any payments in
respect of Capital Lease Obligations) accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amounts
payable (or minus the net amounts receivable) under Interest Rate Protection
Agreements accrued during such period (whether or not actually paid or received
during such period) minus (c) all interest income during such period.
Notwithstanding the foregoing, if during any period for which Interest
Expense is being determined the Borrower shall have consummated any Acquisition
or Disposition then, for all purposes of this Agreement (other than for purposes
of the definition of Excess Cash Flow), Interest Expense shall be determined on
a pro forma basis as if such Acquisition or Disposition (and any Indebtedness
incurred by the Borrower or any of its Subsidiaries in connection with such
Acquisition or repaid as a result of such Disposition) had been made or
consummated (and such Indebtedness incurred or repaid) on the first day of such
period (and interest on any such
<PAGE>
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Indebtedness shall be deemed to be calculated for such period at a rate per
annum equal to the actual rate of interest in effect in respect of Indebtedness
under this Agreement outstanding during such period).
"Interest Payment Date" means (a) with respect to any Syndicated ABR
Borrowing, each Quarterly Date, (b) with respect to any Eurocurrency Borrowing,
the last day of the Interest Period applicable to such Borrowing and, in the
case of a Eurocurrency Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period, (c) with respect to any Fixed Rate Borrowing, the last day of
the Interest Period applicable to such Borrowing and any other dates that are
specified in the applicable Competitive Bid Request as Interest Payment Dates
with respect to such Borrowing and (d) with respect to any Swingline Loan, the
day that such Loan is required to be repaid.
"Interest Period" means (a) with respect to any Syndicated
Eurocurrency Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the calendar month that is one,
two, three, six or (with the consent of each Lender directly affected thereby)
nine months thereafter, as the Borrower may elect, (b) with respect to any
Competitive Eurocurrency Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the calendar month
that is one, two, three, six or nine months thereafter, as specified in the
applicable Competitive Bid Request, (c) with respect to any Fixed Rate
Borrowing, the period (which shall not be more than 90 days) commencing on the
date of such Borrowing and ending on the date specified in the applicable
Competitive Bid Request, (d) with respect to any Swingline FFBR Borrowing, the
period commencing on the date of such Borrowing and ending on the date that is
not earlier than one day and not later than fifteen days after such Swingline
Loan is made, as the Borrower may elect and (e) with respect to any Swingline
Eurocurrency Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the calendar week that is two
weeks thereafter, as the Borrower may elect; provided, that
(i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurocurrency
Borrowing only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and
(ii) any Interest Period pertaining to a Eurocurrency Borrowing
(other than a Swingline Eurocurrency Borrowing) that commences on the
last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period.
"Interest Rate Protection Agreement" means any Hedging Agreement that
consists of an interest rate protection agreement or other interest rate hedging
arrangement providing for the transfer or mitigation of interest risks either
generally or under specific contingencies.
<PAGE>
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"Investment" means, for any Person: (a) the acquisition (whether for
cash, Property, services or securities or otherwise) of capital stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other Person or any agreement to make any such acquisition (including any
"short sale" or any sale of any securities at a time when such securities are
not owned by the Person entering into such sale); (b) the making of any deposit
with, or advance, loan or other extension of credit to, any other Person
(including the purchase of Property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell such Property to
such Person), but excluding any such advance, loan or extension of credit having
a term not exceeding 120 days arising in connection with the sale of inventory
or supplies by such Person in the ordinary course of business; (c) the entering
into of any Guarantee of, or other contingent obligation with respect to,
Indebtedness or other liability of any other Person and (without duplication)
any amount committed to be advanced, lent or extended to such Person; or (d) the
entering into of any Hedging Agreement.
"Issuing Lender" means (i) Chase, in its capacity as the issuer of
Letters of Credit (other then the Qingdao Letter of Credit) hereunder and (ii)
First Chicago, in its capacity as the issuer of the Qingdao Letter of Credit
hereunder, and their respective successors in such capacity as provided in
Section 2.06(j).
"Joint Venture Entity" means, collectively, (i) any Subsidiary of the
Borrower that is not a Wholly-Owned Subsidiary (other than the Target) and (ii)
any Subsidiary of any Joint Venture Entity described in the foregoing clause
(i).
"LC Disbursement" means a payment made by an Issuing Lender pursuant
to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure in respect of all Letters of
Credit that constitute utilizations of such Lender's Class of Revolving
Commitments.
"Lenders" means the Persons listed on Schedule I and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations.
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"LIBO Rate" means, with respect to any Eurocurrency Borrowing in any
Currency for the Interest Period applicable thereto, the rate appearing (a) in
the case of any such Borrowing denominated in Dollars, on Page 3750 of the
Telerate Service of Bridge Information Services and (b) in the case of any such
Borrowing denominated in Sterling, on Page 3750 of the Telerate Service of
Bridge Information Services (or, in each case, 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 or
Sterling deposits, as applicable, in the London (or, in the case of Sterling
deposits, Paris) 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 or Sterling deposits, as applicable, with a maturity comparable to such
Interest Period; provided that the LIBO Rate for any Eurocurrency Borrowing
denominated in Sterling shall be increased by the MCR Cost.
In the event that such rate is not available at such time for any
reason, then the LIBO Rate with respect to such Eurocurrency Borrowing for such
Interest Period shall be the rate (rounded upwards, if necessary, to the next
1/16 of 1%) at which (a) in the case of any such Borrowing denominated in
Dollars, Dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office of Chase 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 and (b) in the case of any such Borrowing denominated in
Sterling, pounds sterling deposits of (pound)3,000,000 and for a maturity
comparable to such Interest Period are offered by the principal Paris office of
Chase in immediately available funds in the Paris interbank market at
approximately 11:00 a.m., Paris time, two Business Days prior to the
commencement of such Interest Period .
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, Capital Lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LIFO Reserve" means, for any period, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), the reserve established as at the end of such period by
the Borrower to reflect the difference, if any, between (a) the cost of
inventory using the last-in first-out method of accounting therefor and (b) the
cost of inventory using the first-in first-out method of accounting therefor.
"Loan Documents" means, collectively, this Agreement, the Letter of
Credit Documents, the Security Documents and the Tranche III Revolving Loan
Agreements (if any).
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
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"Local Time" means, with respect to any Loan or Borrowing denominated
in or any payment to be made in either Currency, the local time in the Principal
Financial Center for the Currency in which such Loan is denominated or such
payment is to be made.
"Long-Term Stock Incentive Plan" means the Canandaigua Brands, Inc.
Long-Term Stock Incentive Plan dated June 23, 1997.
"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.
"Margin Stock" means "margin stock" within the meaning of Regulations
T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and its Subsidiaries taken as a whole, (b) the legal ability or
financial capacity of any Obligor to perform any of its obligations under this
Agreement or any of the other Loan Documents to which it is a party or (c) the
rights of or benefits available to the Lenders under this Agreement or any of
the other Loan Documents. Material Adverse Effect shall also include, for
purposes of Section 4.07, any material adverse effect upon the operation of any
of the facilities owned, operated or leased by the Borrower or any of its
Subsidiaries.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and its Subsidiaries in an aggregate
principal amount exceeding $5,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of any Person in respect
of any Hedging Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that such Person would be required to
pay if such Hedging Agreement were terminated at such time.
"MCR Cost" means, with respect to any Lender, the cost imputed to such
Lender of compliance with the Mandatory Cost Rate requirements of the Bank of
England during the relevant period, determined in accordance with Schedule VIII.
"Mortgages" means, collectively, the respective Deeds of Trust and
Mortgages executed and delivered by the Borrower and its Subsidiaries pursuant
to the 1997 Credit Agreement (or the Credit Agreement dated as of September 30,
1991 between the Borrower, the Subsidiary Guarantors named therein, the lenders
named therein and Chase, as Agent, or subsequent restatements thereof), covering
the properties of the respective Obligors identified in Parts A and B of
Schedule VI, in each case as such Deeds of Trust and Mortgages have been
heretofore modified, as such Deeds of Trust and Mortgages shall be modified
pursuant to instruments of Modification and Confirmation executed and delivered
pursuant to Section 5.02(e), and as such Deeds of Trust and Mortgages shall be
further modified and supplemented and in effect from time to time.
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"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Available Proceeds" means:
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation
received by the Borrower and its Subsidiaries in respect of such
Casualty Event net of (A) reasonable expenses incurred by the Borrower
and its Subsidiaries in connection therewith and (B) contractually
required repayments of Indebtedness (other than Indebtedness to the
Lenders hereunder) to the extent secured by a Lien on such Property
and any income and transfer taxes payable by the Borrower or any of
its Subsidiaries in respect of such Casualty Event;
(iii) in the case of any Equity Issuance, the aggregate amount of
all cash received by the Borrower and its Subsidiaries in respect of
such Equity Issuance (net of reasonable expenses incurred by the
Borrower and its Subsidiaries in connection therewith), other than
payments made by the Target or any of its Subsidiaries to the Borrower
(or to a Person nominated by the Borrower) in connection with any
stock options or other types of stock based awards (including stock
appreciation rights) that may be or may have been issued by the
Borrower to any employee of Target or its Subsidiaries; and
(iv) in the case of any Debt Incurrence, the aggregate amount of
all cash received by the Borrower and its Subsidiaries in respect of
such Debt Incurrence (net of (x) reasonable expenses incurred by the
Borrower and its Subsidiaries in connection therewith and (y) cash
proceeds so received and applied to refinance other Subordinated
Indebtedness as contemplated by Section 7.09).
"Net Cash Payments" means, with respect to any Disposition, the
aggregate amount of all cash payments received by the Borrower and its
Subsidiaries directly or indirectly in connection with such Disposition;
provided that (a) Net Cash Payments shall be net of (i) the amount of any legal,
title and recording tax expenses, commissions and other fees and expenses paid
by the Borrower and its Subsidiaries in connection with such Disposition and
(ii) any Federal, state, local and foreign income or other taxes estimated to be
payable by the Borrower and its Subsidiaries as a result of such Disposition
(but only to the extent that such estimated taxes are in fact paid to the
relevant Federal, state, local or foreign governmental authority within three
months of the date of such Disposition) and (b) Net Cash Payments shall be net
of any repayments by the Borrower or any of its Subsidiaries of Indebtedness to
the extent that (i) such Indebtedness is secured by a Lien on the Property that
is the subject of such Disposition and (ii) the transferee of (or holder of a
Lien on) such Property requires that such Indebtedness be repaid as a condition
to the purchase of such Property.
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"1997 Credit Agreement" means the Credit Agreement dated as of
December 19, 1997 between the Borrower, the lenders party thereto, and Chase, as
Administrative Agent, as in effect on the date hereof.
"Notes" means promissory notes from time to time executed and
delivered pursuant to Section 2.10(f).
"Obligor" means the Borrower and each Subsidiary Guarantor.
"Off-Premises Warehouses" means all warehouses and other bailment
facilities owned and operated by Persons other than any Obligor that are not
located on Property owned or leased by any Obligor and in which inventory is
maintained from time to time.
"Offer Documents" means, collectively, the Press Release and the
Tender Offer documentation posted on November 3, 1998 by U.K. Acquisition to the
holders of Target Shares setting out the detailed terms of the Tender Offer.
"Operating Cash Flow" means, for any period, the sum, for the Borrower
and its Consolidated Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) net operating income
(calculated before income taxes, interest income, Interest Expense,
extraordinary and unusual items and income or loss attributable to equity in
Affiliates) for such period plus (b) depreciation and amortization (to the
extent deducted in determining net operating income) for such period plus (c)
the Adjustment Amount for such period, if such Adjustment Amount is expense (or
minus the Adjustment Amount for such period, if such Adjustment Amount is
income) plus (d) unusual non-recurring charges against net operating income of
the Target and its Subsidiaries described on Schedule IX hereto (as such
Schedule may be amended from time to time with the consent of the Borrower and
the Required Lenders).
Notwithstanding the foregoing, if during any period for which
Operating Cash Flow is being determined the Borrower or any of its Subsidiaries
shall have consummated any Acquisition or Disposition then, for all purposes of
this Agreement (other than for purposes of determining Excess Cash Flow),
Operating Cash Flow shall be determined on a pro forma basis as if such
Acquisition or Disposition had been made or consummated on the first day of such
period.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"Overfunded Revolving Lenders" has the meaning assigned to such term
in the penultimate paragraph of Article VIII.
"Panel" means the Panel on Takeovers and Mergers in the City of
London.
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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 6.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
bankers' 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 6.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) 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 VIII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real Property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected Property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
and
(g) liens arising under standard custodial, bailee or depositary
arrangements (including (i) in respect of deposit accounts with banks and
other financial institutions and (ii) standard customer agreements in
respect of accounts for the purchase and sale of securities and other
property with brokerage firms or other types of financial institutions),
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness, and "Permitted Encumbrances of the type described in the
foregoing clause (g) shall not secure any obligations (including obligations
under Hedging Agreements), other than obligations incidental to the respective
custodial, bailee or depositary arrangements or customer agreements referred to
in said clause (g).
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
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(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from Standard & Poor's Ratings Services or
from Moody's Investors Services, Inc.;
(c) investments in certificates of deposit, bankers acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of (x) any commercial bank
organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of
not less than $500,000,000 or (y) any Lender hereunder; and
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) of this definition and
entered into with a financial institution satisfying the criteria described
in clause (c) of this definition.
"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.
"Press Release" means the press release referred to in Section
5.01(f).
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by Chase as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Principal Financial Center" shall mean, in the case of either
Currency, the principal financial center where such Currency is cleared and
settled, as determined by the Administrative Agent.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Qingdao Letter of Credit" means Letter of Credit No. 04021104 issued
by First Chicago to Qingdao Brewery, 56 Dengzhou Road, Qingdao, People's
Republic of China, as such Letter of Credit shall, subject to the provisions of
Sections 2.06(b) and 2.06(l), be modified, renewed and reissued from time to
time.
"Qingdao Letter of Credit Limit" means (i) as of the Effective Date,
$553,407, and (ii) as of the date of any modification or renewal or reissuance
of the Qingdao Letter of
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Credit, the amount specified by First Chicago, as an Issuing Lender, to the
Administrative Agent and the Borrower at the time of such modification, renewal
or reissuance as the new "Qingdao Letter of Credit Limit" for purposes of this
Agreement.
"Quarterly Dates" means the 1st day of March, June, September and
December in each year, the first of which shall be the first such day after the
date hereof; provided that if any such day is not a Business Day, then such
Quarterly Date shall be the next succeeding Business Day.
"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" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Hazardous Materials
through ambient air, soil, surface water, ground water, wetlands, land or
subsurface strata.
"Required Lenders" means, at any time, any two or more Lenders having
Revolving Exposures, Term Loans and unused Commitments representing at least 51%
of the sum of the total Revolving Exposures, Term Loans and unused Commitments
at such time; provided that, for purposes of declaring the Loans to be due and
payable pursuant to Article VIII, and for all purposes after the Loans become
due and payable pursuant to Article VIII or the Revolving Commitments expire or
terminate, the outstanding Competitive Loans of the Lenders shall be included in
their respective Revolving Exposures in determining the Required Lenders. The
"Required Lenders" of a particular Class of Loans means two or more Lenders
having Revolving Exposures, Term Loans and unused Commitments of such Class
representing at least 51% of the total Revolving Exposures, Term Loans and
unused Commitments of such Class at such time.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other Property) with respect to any shares of any class
of capital stock of the Borrower or any of its Subsidiaries, or any payment
(whether in cash, securities or other Property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of capital stock of
the Borrower or such Subsidiary or any option, warrant or other right to acquire
any such shares of capital stock of the Borrower or such Subsidiary.
"Revolving Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the Revolving Commitment
Termination Date and the date that all Revolving Commitments are otherwise
terminated.
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"Revolving Commitments" means, collectively, the Tranche I Revolving
Commitments, the Tranche II Revolving Commitments and the Tranche III Revolving
Commitments.
"Revolving Commitment Termination Date" means the Quarterly Date
falling on or nearest to December 1, 2004.
"Revolving Exposure" means, collectively, the Tranche I Revolving
Exposure, the Tranche II Revolving Exposure and the Tranche III Revolving
Exposure.
"Revolving Lenders" means, collectively, the Tranche I Revolving
Lenders, the Tranche II Revolving Lenders and the Tranche III Revolving Lenders.
"Revolving Loans" means, collectively, the Tranche I Revolving Loans,
the Tranche II Revolving Loans and the Tranche III Revolving Loans.
"Sale and Leaseback Transaction" means a transaction or series of
transactions pursuant to which the Borrower or any Subsidiary shall sell or
transfer to any Person (other than the Borrower or a Subsidiary) any Property,
whether now owned or hereafter acquired, and, as part of the same transaction or
series of transactions, the Borrower or any Subsidiary shall rent or lease as
lessee, or similarly acquire the right to possession or use of, such Property or
one or more Properties which it intends to use for the same purpose or purposes
as such Property, and in circumstances that give rise to a Capital Lease
Obligation of the Borrower or one or more of its Subsidiaries.
"Security Agreement" means a Security Agreement substantially in the
form of Exhibit B-1 between the Borrower, the Subsidiary Guarantors and the
Administrative Agent.
"Security Documents" means, collectively, the Security Agreement, the
Mortgages, the U.K. Pledge Agreements, the pledge agreement in respect of the
shares of Dutch Acquisition referred to in Section 6.09(a), and all Uniform
Commercial Code financing statements required by the Security Agreement or the
Mortgages to be filed with respect to the security interests in personal
Property and fixtures created pursuant to the Security Agreement or the
Mortgages.
"Senior Debt Ratio" means, as at the last day of any fiscal quarter of
the Borrower (the "day of determination"), the ratio of (a) the average of the
aggregate amounts of Indebtedness (other than any Subordinated Indebtedness) of
the Borrower and its Consolidated Subsidiaries (determined on a consolidated
basis, without duplication, in accordance with GAAP) as at such day and as at
the last days of each of the three immediately preceding fiscal quarters to (b)
Operating Cash Flow for the period of four consecutive fiscal quarters ending on
such day of determination. Notwithstanding the foregoing, (i) Indebtedness as at
the last day of each fiscal quarter included in the determination of average
Indebtedness pursuant to clause (a) above shall be determined under the
assumption that any prepayment of Term Loans hereunder from the proceeds of any
Equity Issuance or Debt Incurrence at any time during any such fiscal quarter
included in the calculation thereof shall have been made in the first such
fiscal quarter,
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(ii) for the last day of any fiscal quarter ending prior to the end of the Term
Loan Availability Period, the average Indebtedness specified in clause (a) above
shall be increased by an amount equal to the aggregate principal amount of Loans
that would be required to be borrowed under this Agreement to finance in full
the acquisition by U.K. Acquisition of all of the Target Shares pursuant to the
Tender Offer and the repayment in full of all Indebtedness outstanding under the
Target Credit Facilities (but without duplication of (x) any Loans actually
outstanding under this Agreement on such date and applied to such purpose and
(y) any Indebtedness outstanding under the Target Credit Facilities on such
date) and (iii) for purposes of determining Operating Cash Flow pursuant to
clause (b) above for any period ending on or prior to the end of the Term Loan
Availability Period, the Target and its Subsidiaries shall in any event be
deemed to be Consolidated Subsidiaries of the Borrower.
"Senior Subordinated Note Guarantees" means, collectively, the
Guarantees, pursuant to Section 1014 or Article 14 of the Senior Subordinated
Note Indentures, by each Subsidiary Guarantor of the punctual payment and
performance when due of all of the Borrower's Indenture Obligations (as defined
in the Senior Subordinated Note Indentures).
"Senior Subordinated Notes" means the Borrower's Senior Subordinated
Notes due 2003 issued pursuant to the Senior Subordinated Note Indentures.
"Senior Subordinated Note Indentures" means, collectively, (a) the
Indenture dated as of December 27, 1993 between the Borrower, the Subsidiary
Guarantors and Chase (as successor by merger to Chemical Bank), as trustee, and
(b) the Indenture dated as of October 29, 1996 between the Borrower, the
Subsidiary Guarantors and Harris Trust and Savings Bank, as trustee.
"Series" has the meaning set forth in Section 2.01(c).
"Statutory Reserve Rate" means, for the Interest Period for any
Eurocurrency Borrowing, a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the
arithmetic mean, taken over each day in such Interest Period, of the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board to
which Chase is subject for eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Sterling" or "(pound)" refers to the lawful currency of England.
"Sterling Equivalent" means, with respect to any amount in Dollars,
the amount of Sterling that could be purchased with such amount of Dollars using
the reciprocal of the foreign
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exchange rate(s) specified in the definition of the term "Dollar Equivalent", as
determined by the Administrative Agent.
"Subordinated Indebtedness" means, collectively, (a) Indebtedness of
the Borrower in respect of the Senior Subordinated Notes and (b) other
Indebtedness incurred in accordance with the provisions of Section 7.09.
"Subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent. Unless otherwise
specified, "Subsidiary" means a Subsidiary of the Borrower.
"Subsidiary Guarantor" means each of the Subsidiaries of the Borrower
identified under the caption "SUBSIDIARY GUARANTORS" on the signature pages
hereto and each Subsidiary of the Borrower that becomes a "Subsidiary Guarantor"
after the date hereof pursuant to Section 6.09(a).
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means Chase, in its capacity as lender of Swingline
Loans hereunder, or such other Lender as the Borrower may from time to time
select as the Swingline Lender hereunder pursuant to Section 2.05(e).
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Syndicated Loans" means, collectively, the Tranche I Revolving Loans,
Tranche II Revolving Loans, Tranche III Revolving Loans, Tranche I Term Loans,
Tranche II Term Loans and Tranche III Term Loans.
"Takeovers Code" means the City Code on Takeovers and Mergers, as
issued by the Panel.
"Target" means Matthew Clark plc, a company organized under the laws
of England and Wales.
"Target Credit Facilities" means, collectively, (a) the Revolving
Credit Agreement dated July 16, 1997, between the Target, the "Original
Guarantors" identified therein,
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BZW as Co-ordinator, Barclays Bank plc, as Agent, and the financial institutions
identified therein, (b) the uncommitted facility in the amount of (pound)
5,000,000 provided by Allied Irish Banks p.l.c. to the Target pursuant to a
letter dated July 24, 1998, (c) the short term facilities up to a gross limit of
(pound)20,100,000 and a net limit of (pound)5,100,000 provided by Barclays Bank
PLC to the Target and its Subsidiaries pursuant to a letter dated August 1, 1997
and (d) the facilities in the respective amounts specified provided by National
Westminster Bank Plc to the Target pursuant to an Advice of Borrowing Terms
dated September 7, 1998.
"Target Shares" means the issued and outstanding ordinary shares, 25
pence par value, of the Target.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Tender Offer" means the offer made on a recommended basis (i.e. with
the concurrence of the board of directors of the Target) and commenced on
November 3, 1998 by U.K. Acquisition for up to 100% of the Target Shares, and
options related thereto.
"Term Loan Availability Period" means the period from and including
the Effective Date to and including the earliest of (a) the date five months
after the date hereof (or, if such date is not a Business Day, the next
succeeding Business Day), (b) the date immediately following the day on which
the Tender Offer lapses or is withdrawn by U.K. Acquisition or (c) the date that
the Target becomes a Wholly-Owned Subsidiary of the Borrower (so long as U.K.
Acquisition has made payment in full of, and related Loans hereunder have been
made to fund, the purchase price of all outstanding Target Shares and related
options and the refinancing of the then-outstanding Indebtedness under the
Target Credit Facilities).
"Term Loan Commitments" means, collectively, the Tranche I Term Loan
Dollar Commitments, the Tranche I Term Loan Sterling Commitments, the Tranche II
Term Loan Commitments and the Tranche III Term Loan Commitments.
"Term Loan Lenders" means, collectively, the Tranche I Term Loan
Lenders, the Tranche II Term Loan Lenders and the Tranche III Term Loan Lenders.
"Term Loan Principal Payment Dates" means the Quarterly Dates falling
on or nearest to March 1, June 1, September 1 and December 1 of each year,
commencing with December 1, 1999, through and including December 1, 2005.
"Term Loans" means, collectively, the Tranche I Term Loans, the
Tranche II Term Loans and the Tranche III Term Loans.
"Tranche I Revolving Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make Tranche I Revolving Loans and to
acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such
Lender's Tranche I Revolving Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.09
<PAGE>
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or 2.11 and (b) reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 10.04. The initial amount of each
Lender's Tranche I Revolving Commitment is set forth on Schedule I, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Tranche I Revolving Commitment, as applicable. The initial aggregate amount of
the Lenders' Tranche I Revolving Commitments is $209,400,000.
"Tranche I Revolving Exposure" means, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's Tranche I
Revolving Loans and its LC Exposure and Swingline Exposure at such time.
"Tranche I Revolving Lenders" means a Lender with a Tranche I
Revolving Commitment or, if the Tranche I Revolving Commitments have terminated
or expired, a Lender with Tranche I Revolving Exposure.
"Tranche I Revolving Loan" means a Loan made pursuant to Section
2.01(a), which may be ABR Loans and/or Eurocurrency Loans.
"Tranche I Term Loan" means a Loan made pursuant to Section 2.01(d)(i)
or (ii), which may be ABR Loans and/or Eurocurrency Loans and may be denominated
in Dollars or in Sterling.
"Tranche I Term Loan Dollar Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make one or more Tranche I
Term Loans hereunder in Dollars during the Term Loan Availability Period,
expressed as an amount in Dollars representing the maximum aggregate principal
amount of the Tranche I Term Loans denominated in Dollars to be made by such
Lender hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.09 or 2.11 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04. The
initial amount of each Lender's Tranche I Term Loan Dollar Commitment is set
forth on Schedule I, or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Tranche I Term Loan Dollar Commitment, as
applicable. The initial aggregate amount of the Lenders' Tranche I Term Loan
Dollar Commitments is $64,170,000.
"Tranche I Term Loan Dollar Lender" means a Lender with a Tranche I
Term Loan Dollar Commitment or an outstanding Tranche I Term Loan denominated in
Dollars.
"Tranche I Term Loan Lender" means a Tranche I Term Loan Dollar Lender
or a Tranche I Term Loan Sterling Lender.
"Tranche I Term Loan Sterling Commitment" means, with respect to each
Tranche I Term Loan Lender, the commitment, if any, of such Lender to make one
or more Tranche I Term Loans hereunder in Sterling during the Term Loan
Availability Period, expressed as an amount in Dollars representing the maximum
aggregate principal amount of the Tranche I Term Loans denominated in Sterling
to be made by such Lender hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.09 or 2.11 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender
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pursuant to Section 10.04. The initial amount of each Lender's Tranche I Term
Loan Sterling Commitment is set forth on Schedule I, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Tranche I Term
Loan Sterling Commitment, as applicable. The initial aggregate amount of the
Lenders' Tranche I Term Loan Sterling Commitments is $285,830,000.
"Tranche I Term Loan Sterling Lender" means a Lender with a Tranche I
Term Loan Sterling Commitment or an outstanding Tranche I Term Loan denominated
in Sterling.
"Tranche II Revolving Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make Tranche II Revolving Loans and to
acquire participations in Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Tranche II Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.09 or 2.11 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04. The
initial amount of each Lender's Tranche II Revolving Commitment is set forth on
Schedule I, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Tranche II Revolving Commitment, as applicable. The
initial aggregate amount of the Lenders' Tranche II Revolving Commitments is
$90,600,000.
"Tranche II Revolving Exposure" means, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's Tranche
II Revolving Loans denominated in Dollars and the Dollar Equivalent of such
Lender's Tranche II Revolving Loans denominated in Sterling and its LC Exposure
at such time.
"Tranche II Revolving Lenders" means a Lender with a Tranche II
Revolving Commitment or, if the Tranche II Revolving Commitments have terminated
or expired, a Lender with Tranche II Revolving Exposure.
"Tranche II Revolving Loan" means a Loan made pursuant to Section
2.01(b), which may be ABR Loans and/or Eurocurrency Loans.
"Tranche II Term Loan" means a Loan made pursuant to Section 2.01(e),
which may be ABR Loans and/or Eurocurrency Loans.
"Tranche II Term Loan Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make one or more Tranche II Term Loans
hereunder during the Term Loan Availability Period, expressed as an amount
representing the maximum aggregate principal amount of the Tranche II Term Loans
to be made by such Lender hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.09 or 2.11 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
10.04. The initial amount of each Lender's Tranche II Term Loan Commitment is
set forth on Schedule I, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Tranche II Term Loan Commitment, as
applicable. The initial aggregate amount of the Lenders' Tranche II Term Loan
Commitments is $200,000,000.
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"Tranche II Term Loan Lender" means a Lender with a Tranche II Term
Loan Commitment or an outstanding Tranche II Term Loan.
"Tranche III Revolving Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make Tranche III Revolving Loans and
to acquire participations in Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Tranche III Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.09 or 2.11 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04. The
initial amount of each Lender's Tranche III Revolving Commitment shall be
determined in accordance with the provisions of Section 2.01(c).
"Tranche III Revolving Exposure" means, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's Tranche
III Revolving Loans and its LC Exposure at such time.
"Tranche III Revolving Lenders" means a Lender with a Tranche III
Revolving Commitment or, if the Tranche III Revolving Commitments have
terminated or expired, a Lender with Tranche III Revolving Exposure.
"Tranche III Revolving Loan" means a "Tranche III Revolving Loan"
provided for by Section 2.01(c), which may be ABR Loans and/or Eurocurrency
Loans.
"Tranche III Revolving Loan Agreement" means, with respect to any
Series of Tranche III Revolving Loans, an agreement between the Borrower and one
or more Lenders pursuant to which each such Lenders agrees to become obligated
in respect of a Tranche III Revolving Commitment of such Series hereunder.
"Tranche III Term Loan" means a Loan made pursuant to Section 2.01(f),
which may be ABR Loans and/or Eurocurrency Loans.
"Tranche III Term Loan Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make one or more Tranche III Term
Loans hereunder on the Initial Funding Date, expressed as an amount representing
the maximum aggregate principal amount of the Tranche III Term Loans to be made
by such Lender hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.09 or 2.11 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 10.04. The
initial amount of each Lender's Tranche III Term Loan Commitment is set forth on
Schedule I, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Tranche III Term Loan Commitment, as applicable. The
initial aggregate amount of the Lenders' Tranche III Term Loan Commitments is
$150,000,000.
"Tranche III Term Loan Lender" means a Lender with a Tranche III Term
Loan Commitment or an outstanding Tranche III Term Loan.
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"Transactions" means the execution, delivery and performance by each
Obligor of this Agreement and the other Loan Documents to which such Obligor is
intended to be a party, the borrowing of Loans, the use of the proceeds thereof,
the issuance of Letters of Credit hereunder and the consummation of the Tender
Offer.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or (in the case of a Competitive Loan or Borrowing) the LIBO Rate or a
Fixed Rate, or (in the case of Swingline Loans) the Alternate Base Rate or
Federal Funds Base Rate.
"Underfunded Revolving Lenders" has the meaning assigned to such term
in the penultimate paragraph of Article VIII.
"U.K. Acquisition" means Canandaigua Limited (formerly known as
Walnutglade Limited), a company organized under the laws of England and Wales
with registered number 3649497 and a Wholly-Owned Subsidiary of the Borrower.
"U.K. Pledge Agreements" means, collectively, (a) a Mortgage of Shares
substantially in the form of Exhibit B-2, executed and delivered by the Borrower
in favor of the Administrative Agent creating in favor of the Administrative
Agent, for the benefit of the Lenders, a security interest in the shares of U.K.
Acquisition and (b) a Mortgage of Shares substantially in the form of Exhibit
B-3, executed and delivered by U.K. Acquisition in favor of the Administrative
Agent creating in favor of the Administrative Agent, for the benefit of the
Lenders, a security interest in Target Shares owned by U.K. Acquisition up to
but not exceeding such portion thereof as does not represent more than 65% of
the aggregate outstanding Target Shares issued by Target.
"Wholly-Owned Subsidiary" means, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are directly or indirectly owned or controlled by
such Person or one or more Wholly-Owned Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person. For purposes hereof, BB
Servicios, S.A. de C.V. shall be deemed to be a Wholly-Owned Subsidiary so long
as the direct or indirect ownership interest of the Borrower therein shall not
fall below that indicated on Schedule IV.
"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
"Tranche I Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class
and Type (e.g., a "Tranche I Revolving Eurocurrency Loan"). Borrowings also may
be classified and referred to by Class (e.g., a "Tranche I Revolving Borrowing")
or by Type (e.g., a "Eurocurrency Borrowing") or by Class and Type (e.g., a
"Tranche I Revolving Eurocurrency Borrowing"). Swingline ABR
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Loans, Swingline Eurocurrency Loans and Swingline FFBR Loans shall be deemed to
be Loans of the same Class but different Types. Loans and Borrowings may also be
identified by Currency.
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "Property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Currency Equivalents. Except as provided in Section
2.11(d), for purposes of determining (i) whether the amount of any Borrowing,
together with all other Borrowings then outstanding, would exceed the aggregate
amount of Commitments, (ii) the aggregate unutilized amount of the Commitments
and (iii) the outstanding aggregate principal amount of Borrowings, the
outstanding principal amount of any Borrowing that is denominated in Sterling
shall be deemed to be the Dollar Equivalent of the amount of Sterling of such
Borrowing determined as of the date of such Borrowing (determined in accordance
with the last sentence of the definition of the term "Borrowing"). Wherever in
this Agreement in connection with a Borrowing or Loan a required minimum or
multiple amount is expressed in Dollars, but such Borrowing or Loan is
denominated in Sterling, the minimum or multiple amount will be the relevant
Sterling Equivalent of such Dollar amount (rounded to the nearest 1,000 units of
Sterling).
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ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments.
(a) Tranche I Revolving Loans. Subject to the terms and conditions set
forth herein, each Tranche I Revolving Lender agrees to make Tranche I
Revolving Loans to the Borrower from time to time during the Revolving
Availability Period in Dollars in an aggregate principal amount that will
not result in (i) such Lender's Tranche I Revolving Exposure exceeding such
Lender's Tranche I Revolving Commitment and (ii) the sum of the total
Tranche I Revolving Exposures plus the aggregate principal amount of
outstanding Competitive Loans made by Tranche I Revolving Lenders exceeding
the total Tranche I Revolving Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Tranche I Revolving Loans.
(b) Tranche II Revolving Loans. Subject to the terms and conditions
set forth herein, each Tranche II Revolving Lender agrees to make Tranche
II Revolving Loans to the Borrower from time to time during the Revolving
Availability Period in Dollars or in Sterling in an aggregate principal
amount that will not result in (i) such Lender's Tranche II Revolving
Exposure exceeding such Lender's Tranche II Revolving Commitment, (ii) the
sum of the total Tranche II Revolving Exposures plus the aggregate
principal amount of outstanding Competitive Loans made by Tranche II
Revolving Lenders exceeding the total Tranche II Revolving Commitments,
(iii) the aggregate principal amount of outstanding Tranche II Revolving
Loans and Competitive Loans denominated in Sterling to exceed
(pound)50,000,000 and (iv) (x) the percentage obtained by dividing (A) the
aggregate principal amount of outstanding Tranche II Revolving Loans
denominated in Dollars by (B) the total Tranche II Revolving Commitments
exceeding by more than 110% (y) the percentage obtained by dividing (A) the
aggregate principal amount of outstanding Tranche I Revolving Loans by (y)
the total Tranche I Revolving Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Tranche II Revolving Loans.
(c) Tranche III Revolving Loans. In addition to borrowings of Tranche
I Revolving Loans and Tranche II Revolving Loans specified in Section
2.01(a) and (b), respectively, at any time and from time to time during the
Revolving Availability Period, the Borrower may request that the Lenders
offer to enter into commitments to make Tranche III Revolving Loans to the
Borrower in Dollars (it being understood that such offer may be made by any
financial institution that is to become a Lender hereunder in connection
with the making of such offer under this paragraph (b), so long as the
Administrative Agent shall have consented to such financial institution
being a Lender hereunder (such consent shall not be unreasonably
withheld)). In the event that one or more of the Lenders offer, in their
sole discretion, to enter into such commitments, and such Lenders and the
Borrower agree as to the amount of such commitments that shall be allocated
to the respective Lenders making such offers, as to the fees (if any) to be
payable by the Borrower in connection therewith and the Applicable Rate
relating thereto, the Borrower, the Administrative Agent and such Lenders
shall execute and deliver a Tranche III Revolving Loan Agreement and such
Lenders shall become obligated to make
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Tranche III Revolving Loans under this Agreement in an amount equal to the
amount of their respective Tranche III Revolving Commitments, as specified
in such Tranche III Revolving Loan Agreement. The Tranche III Revolving
Loans to be made pursuant to any Tranche III Revolving Loan Agreement in
response to any such request by the Borrower shall be deemed to be a
separate "Series" of Tranche III Revolving Loans for all purposes of this
Agreement.
Anything herein to the contrary notwithstanding, (i) the minimum
aggregate principal amount of Tranche III Revolving Commitments entered
into pursuant to any request specified above (and, accordingly, the minimum
aggregate principal amount of any Series of Tranche Revolving II Loans)
shall be $50,000,000 and (ii) the aggregate outstanding principal amount of
Tranche III Revolving Loans of all Series, together with the aggregate
unutilized Tranche III Revolving Commitments of all Series, shall not
exceed $200,000,000 at any time.
Following agreement by the Borrower and one or more of the Lenders as
provided above, subject to the terms and conditions set forth herein, each
Tranche III Revolving Lender of any Series agrees to make Tranche III
Revolving Loans of such Series to the Borrower from time to time during the
Revolving Availability Period, in Dollars in an aggregate principal amount
up to but not exceeding the amount of the Tranche III Revolving Commitment
of such Series of such Tranche III Revolving Lender; within the foregoing
limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Tranche III Revolving Loans of any
Series as the Borrower shall from time to time select.
(d) Tranche I Term Loans.
(i) Dollar Loans. Subject to the terms and conditions set forth
herein, each Tranche I Term Loan Dollar Lender agrees to make one or
more Tranche I Term Loans to the Borrower during the Term Loan
Availability Period in Dollars in a principal amount not exceeding its
Tranche I Term Loan Dollar Commitment. Amounts repaid in respect of
Tranche I Term Loans denominated in Dollars may not be reborrowed
hereunder. No Tranche I Term Loans may be made pursuant to this clause
(d)(i) until the full original amount of the Tranche II and Tranche
III Term Loan Commitments shall have been utilized.
(ii) Sterling Loans. Subject to the terms and conditions set
forth herein, each Tranche I Term Loan Sterling Lender agrees to make
one or more Tranche I Term Loans to the Borrower during the Term Loan
Availability Period in Sterling in a principal amount not exceeding
its Tranche I Term Loan Sterling Commitment. Amounts repaid in respect
of Tranche I Term Loans denominated in Sterling may not be reborrowed
hereunder. No Tranche I Term Loans may be made pursuant to this clause
(d)(ii) until the full original amount of the Tranche II and Tranche
III Term Loan Commitments shall have been utilized.
(e) Tranche II Term Loans. Subject to the terms and conditions set
forth herein, each Tranche II Term Loan Lender agrees to make one or more
Tranche II Term Loans to the Borrower during the Term Loan Availability
Period in Dollars in a principal amount not exceeding its Tranche II Term
Loan Commitment. Amounts repaid in respect of Tranche II Term Loans may not
be reborrowed. No Tranche II Term Loans may be made until the full original
amount of the Tranche III Term Loan Commitments shall have been utilized.
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(f) Tranche III Term Loans. Subject to the terms and conditions set
forth herein, each Tranche III Term Loan Lender agrees to make one or more
Tranche III Term Loans to the Borrower on the Initial Funding Date in
Dollars in a principal amount equal to its Tranche III Term Loan
Commitment. Amounts repaid in respect of Tranche III Term Loans may not be
reborrowed.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Syndicated Loan shall be made as part
of a Borrowing consisting of Loans of the same Class, Currency and Type
made by the Lenders ratably in accordance with their respective Commitments
of the applicable Class. 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; provided that the Commitments and Competitive
Bids of the Lenders are several and no Lender shall be responsible for any
other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.14, (i) each Syndicated
Borrowing shall be comprised entirely of ABR Loans or Eurocurrency Loans as
the Borrower may request in accordance herewith, and (ii) each Competitive
Borrowing shall be comprised entirely of Eurocurrency Loans or Fixed Rate
Loans as the Borrower may request in accordance herewith. Each Lender at
its option may make any Eurocurrency Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of the Borrower
to repay such Loan in accordance with the terms of this Agreement.
(c) Minimum Amounts. Each Syndicated Eurocurrency Borrowing shall be
in an aggregate amount of $3,000,000 or a larger multiple of $100,000. Each
Syndicated ABR Borrowing shall be in an aggregate amount equal to
$3,000,000 or a larger multiple of $100,000; provided that a Syndicated ABR
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Commitments of the applicable Class or (in the case of
a Revolving ABR Borrowing) that is required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.06(f). Each Competitive
Borrowing shall be in an aggregate amount equal to $5,000,000 or a larger
multiple of $100,000. Each Swingline Loan shall be in an amount equal to
$500,000 or a larger multiple of $100,000. Borrowings of more than one
Type, Currency and Class may be outstanding at the same time; provided that
there shall not at any time be more than a total of thirty (30) Syndicated
Eurocurrency Borrowings outstanding.
(d) Conversion or Continuation of Eurocurrency Loans. Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert to or continue as a Syndicated
Eurocurrency Borrowing: (i) any Revolving Borrowing or Competitive
Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Commitment Termination Date; or (ii) any Term Loan
Borrowing of any Class if the Interest Period requested with respect
thereto would commence before and end after any Term Loan Principal Payment
Date unless, after giving effect thereto, the aggregate principal
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amount of the Tranche I Term Loans, Tranche II Term Loans or Tranche III
Term Loans, as the case may be, having Interest Periods that end after such
Term Loan Principal Payment Date shall be equal to or less than the
aggregate principal amount of the Tranche I Term Loans, Tranche II Term
Loans or Tranche III Term Loans, respectively, permitted to be outstanding
after giving effect to the payments of principal required to be made on
such Term Loan Principal Payment Date.
SECTION 2.03. Requests for Syndicated Borrowings. To request a
Syndicated Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Syndicated Eurocurrency Borrowing, not
later than 11:00 a.m., Local Time, three Business Days (or, in the case of a
Borrowing denominated in Sterling, 3:00 p.m. New York time, four Business Days)
before the date of the proposed Borrowing or (b) in the case of a Syndicated ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that any such notice of a
Revolving ABR Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(f) may be given not later than 10:00 a.m., New York
City time, on 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) whether the requested Borrowing is to be a Tranche I
Revolving Borrowing, Tranche II Revolving Borrowing, Tranche III
Revolving Borrowing, Tranche I Term Loan Borrowing, Tranche II Term
Loan Borrowing or Tranche III Term Loan Borrowing;
(ii) the aggregate amount and Currency of the requested
Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) in the case of any Borrowing denominated in Dollars, whether
such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
(v) in the case of a Syndicated Eurocurrency Borrowing, the
Interest Period therefor, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
If no election as to the Type of Syndicated Borrowing denominated in Dollars is
specified, then the requested Syndicated Borrowing shall be an ABR Borrowing. If
no Interest Period is specified with respect to any requested Syndicated
Eurocurrency Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration. Promptly following receipt of a
Borrowing Request in accordance with this Section, the Administrative Agent
shall
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advise each Lender of the details thereof and of the amount of such Lender's
Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure.
(a) Requests for Bids by the Borrower. Subject to the terms and
conditions set forth herein, from time to time during the Revolving
Availability Period the Borrower may request Competitive Bids and may (but
shall not have any obligation to) accept Competitive Bids and borrow
Competitive Loans denominated in Dollars or Sterling; provided that (i) the
sum of the total Tranche I Revolving Exposures plus the aggregate principal
amount of outstanding Competitive Loans made by Tranche I Revolving Lenders
at any time shall not exceed the total Tranche I Revolving Commitments,
(ii) the sum of the total Tranche II Revolving Exposures plus the aggregate
principal amount of outstanding Competitive Loans made by Tranche II
Revolving Lenders at any time shall not exceed the total Tranche II
Revolving Commitments, (iii) the sum of the total Tranche III Revolving
Exposures plus the aggregate principal amount of outstanding Competitive
Loans made by Tranche III Revolving Lenders at any time shall not exceed
the total Tranche III Revolving Commitments and (iv) the sum of the
aggregate principal amount of outstanding Tranche II Revolving Loans and
Competitive Loans denominated in Sterling at any time shall not exceed
(pound)50,000,000. To request Competitive Bids, the Borrower shall notify
the Administrative Agent of such request by telephone, in the case of a
Eurocurrency Borrowing, not later than 11:00 a.m., New York City time, four
Business Days (or, in the case of any such Borrowing denominated in
Sterling, 11:00 a.m., London time, five 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 (or, in the case of any such
Borrowing denominated in Sterling, London 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 and Currency of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurocurrency 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
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(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 2.07.
Promptly following receipt of a Competitive Bid Request in accordance
with this Section, the Administrative Agent shall notify the Revolving
Lenders of the details thereof by telecopy, inviting the Revolving Lenders
to submit Competitive Bids.
(b) Making of Bids by Lenders. Each Revolving 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 Revolving 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 Competitive Eurocurrency Borrowing, not later than 9:30 a.m., New York
City time, three Business Days (or, in the case of any such Borrowing
denominated in Sterling, 1:00 p.m., London time, four 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 (or, in the
case of any such Borrowing denominated in Sterling, London 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 applicable Lender of such rejection as promptly as practicable.
Each Competitive Bid shall specify (i) the principal amount (which shall be
$5,000,000 or a larger multiple of $1,000,000 and which may equal the
entire 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 Competitive Bid 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) Notification of Bids by Administrative Agent. 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) Acceptance of Bids by the Borrower. 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 Competitive Eurocurrency Borrowing, not later than 10:30 a.m.,
New York City time, three Business Days (or, in the case of any such
Borrowing denominated in Sterling, 2:00 p.m. London time, four 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 (or, in the case of any such Borrowing denominated in Sterling, London
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, (iii) the
aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the aggregate amount
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of the requested Competitive Borrowing specified in the related Competitive
Bid Request, (iv) to the extent necessary to comply with clause (iii) of
this proviso, 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) of this proviso, no Competitive Bid shall be
accepted for a Competitive Loan unless such Competitive Loan is in a
principal amount of $5,000,000 or a larger multiple of $1,000,000; provided
further that if a Competitive Loan must be in an amount less than
$5,000,000 because of the provisions of clause (iv) of the first proviso of
this paragraph, such Competitive Loan may be in an amount of $1,000,000 or
any multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular
Competitive Bid Rate pursuant to such clause (iv) the amounts shall be
rounded to 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) Notification of Acceptances by the Administrative Agent. 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.
(f) Bids by the Administrative Agent. 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. Swingline Loans.
(a) Agreement to Make Swingline Loans. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time during the Revolving Availability
Period in Dollars in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding
Swingline Loans exceeding $30,000,000 or (ii) the sum of the total Tranche
I Revolving Exposures plus the aggregate principal amount of outstanding
Competitive Loans made by Tranche I Revolving Lenders exceeding the total
Tranche I Revolving Commitments; provided that the Swingline Lender shall
not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b) Interest Rates. Swingline Loans shall be ABR Loans, FFBR Loans or
Eurocurrency Loans (with an Interest Period of two weeks), as selected by
the Borrower, except that the Swingline Lender and the Borrower may agree
that the interest rate in respect of a Swingline Loan made by the Swingline
Lender, for a period ending on the date that is not earlier than one day
and not later than fifteen days after such Swingline Loan is made, be at an
alternative rate of interest (and with such applicable margins and
prepayment premiums) as may
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from time to time be offered by the Swingline Lender to the Borrower in its
sole discretion; provided that upon any sale pursuant to Section 2.05(d) of
participations in any Swingline Loan the interest on which is determined by
reference to the Federal Funds Base Rate or any such alternative rate, such
Swingline Loans shall automatically be converted into an ABR Loan.
(c) Notice of Swingline Loans by the Borrower. To request a Swingline
Loan, the Borrower shall notify the Administrative Agent of such request by
telephone (confirmed by telecopy), not later than 12:00 noon, New York City
time, on the day of a proposed Swingline Loan (or, in the case of a
Swingline Eurocurrency Loan, 11:00 a.m., Local Time, three Business Days
before such day). Each such notice shall be irrevocable and shall specify
the requested date (which shall be a Business Day), amount and Type of the
requested Swingline Loan. The Administrative Agent will promptly advise the
Swingline Lender of any such notice received from the Borrower. The
Swingline Lender shall make each Swingline Loan available to the Borrower
by means of a credit to the general deposit account of the Borrower with
the Swingline Lender (or, in the case of a Swingline Loan made to finance
the reimbursement of an LC Disbursement as provided in Section 2.06(f), by
remittance to the respective Issuing Lender) by 3:00 p.m., New York City
time, on the requested date of such Swingline Loan.
(d) Participations by Lenders in Swingline Loans. The Swingline Lender
may by written notice given to the Administrative Agent not later than
10:00 a.m., New York City time, on any Business Day require the Tranche I
Revolving Lenders to acquire participations on such Business Day (or, in
the case of any Swingline Eurocurrency Loan, on the third succeeding
Business Day) in all or a portion of the Swingline Loans outstanding. Such
notice to the Administrative Agent shall specify the aggregate amount of
Swingline Loans in which Tranche I Revolving Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give
notice thereof to each Tranche I Revolving Lender, specifying in such
notice such Lender's Applicable Percentage of such Swingline Loan or Loans.
Each Tranche I Revolving Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above in this paragraph, to pay
to the Administrative Agent, for the account of the Swingline Lender, such
Lender's Applicable Percentage of such Swingline Loan or Loans on the
applicable Business Day as provided above. Each Tranche I Revolving Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Tranche I Revolving
Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.07 with respect to Loans made by such Lender (and Section 2.07
shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the
Borrower (or other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the
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proceeds of a sale of participations therein shall be promptly remitted to
the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders
that shall have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not
relieve the Borrower of any default in the payment thereof.
(e) Replacement of Swingline Lender. The Borrower may at any time, and
from time to time, request that the then-current Swingline Lender be
replaced with another Lender hereunder designated by the Borrower and
reasonably satisfactory to the Administrative Agent. Any such replacement
shall be effected pursuant to a written instrument, in form and substance
reasonably satisfactory to the Administrative Agent, under which such new
Lender agrees to become the "Swingline Lender" hereunder, and the
predecessor Swingline Lender is relieved of all of its obligations
hereunder as the "Swingline Lender", provided that in no event shall any
such replacement occur unless the principal of and interest on all of the
Swingline Loans of the predecessor Swingline Lender shall have been paid in
full.
SECTION 2.06. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, in
addition to the Loans provided for in Section 2.01, the Borrower may
request Chase, as an Issuing Lender, to issue, at any time and from time to
time during the Revolving Availability Period, Letters of Credit for its
own account in such form as is acceptable to such Issuing Lender in its
reasonable determination. In addition, First Chicago has issued the Qingdao
Letter of Credit for the account of the Borrower. Letters of Credit issued
hereunder shall be issued in Dollars and shall constitute utilization of
the Revolving Commitments of a Class specified by the Borrower at the time
it requests such Letter of Credit to be issued hereunder.
(b) Notice of Issuance, Amendment, Renewal or Extension. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension
of an outstanding Letter of Credit), the Borrower shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for
doing so have been approved by the respective Issuing Lender) to the
applicable Issuing Lender and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension)
a notice requesting the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, and specifying the
date of issuance, amendment, renewal or extension (which shall be a
Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (d) of this Section), the amount of such Letter
of Credit and the Class of Revolving Commitments to be utilized thereby,
the name and address of the beneficiary thereof and such other information
as shall be necessary to prepare, amend, renew or extend such Letter of
Credit. If requested by the respective Issuing Lender, the Borrower also
shall submit a letter of credit application on such Issuing Lender's
standard form in connection with any request for a Letter of Credit. In the
event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered
into by the Borrower with, an Issuing Lender relating to any Letter of
Credit, the terms and conditions of this Agreement shall control. Upon any
modification or
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renewal or reissuance by First Chicago, as an Issuing Lender, of the
Qingdao Letter of Credit, First Chicago shall forthwith notify the
Administrative Agent and the Borrower of the new Qingdao Letter of Credit
Limit for purposes of this Agreement.
(c) Limitations on Amounts. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal
or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the aggregate LC Exposure of Chase, as
an Issuing Lender (determined for these purposes without giving effect to
the participations therein of the Revolving Lenders pursuant to paragraph
(e) of this Section), shall not exceed $20,000,000, (ii) the aggregate LC
Exposure of First Chicago, as an Issuing Lender (determined for these
purposes without giving effect to the participations therein of the
Revolving Lenders pursuant to paragraph(e) of this Section), shall not
exceed the Qingdao Letter of Credit Limit, (iii) the sum of the total
Tranche I Revolving Exposures plus the aggregate principal amount of
outstanding Competitive Loans made by Tranche I Revolving Lenders shall not
exceed the total Tranche I Revolving Commitments, (iv) the sum of the total
Tranche II Revolving Exposures plus the aggregate principal amount of
outstanding Competitive Loans made by Tranche II Revolving Lenders shall
not exceed the total Tranche II Revolving Commitments and (v) the sum of
the total Tranche III Revolving Exposures plus the aggregate principal
amount of outstanding Competitive Loans made by Tranche III Revolving
Lenders shall not exceed the total Tranche III Revolving Commitments.
(d) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date twelve months after
the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, twelve months after the then-current
expiration date of such Letter of Credit, so long as such renewal or
extension occurs within three months of such then-current expiration date)
and (ii) the date that is five Business Days prior to the Revolving
Commitment Termination Date.
(e) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) by either
Issuing Lender in respect of any Class of Revolving Commitments, and
without any further action on the part of such Issuing Lender or the
Lenders, such Issuing Lender hereby grants to each Revolving Lender of such
Class, and each such Lender hereby acquires from such Issuing Lender, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter
of Credit. Each Revolving Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal
or extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Revolving Commitments, and that
each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the respective Issuing Lender,
such Lender's Applicable Percentage of each LC Disbursement made by an
Issuing Lender in respect of each Letter of Credit issued in respect of
such Lender's
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Class, promptly upon the request of such Issuing Lender at any time from
the time of such LC Disbursement until such LC Disbursement is reimbursed
by the Borrower or at any time after any reimbursement payment is required
to be refunded to the Borrower for any reason. Each such payment shall be
made in the same manner as provided in Section 2.07 with respect to Loans
made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the respective Issuing Lender the amounts so received by it
from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to the next
following paragraph, the Administrative Agent shall distribute such payment
to the respective Issuing Lender or, to the extent that the Lenders have
made payments pursuant to this paragraph to reimburse such Issuing Lender,
then to such Lenders and such Issuing Lender as their interests may appear.
Any payment made by a Revolving Lender pursuant to this paragraph to
reimburse an Issuing Lender for any LC Disbursement shall not constitute a
Loan and shall not relieve the Borrower of its obligation to reimburse such
LC Disbursement.
(f) Reimbursement. If an Issuing Lender shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such Issuing
Lender in respect of such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon,
New York City time, on (i) the Business Day that the Borrower receives
notice of such LC Disbursement, if such notice is received prior to 10:00
a.m., New York City time, or (ii) the Business Day immediately following
the day that the Borrower receives such notice, if such notice is not
received prior to such time, provided that, if such LC Disbursement is not
less than $100,000, the Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 or 2.05
that such payment be financed with a Revolving ABR Borrowing or Swingline
Loan in an equivalent amount and, to the extent so financed, the Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting Revolving ABR Borrowing or Swingline Loan.
If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Lender of the applicable
LC Disbursement, the payment then due from the Borrower in respect thereof
and such Lender's Applicable Percentage thereof.
(g) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (f) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit, or any term or provision therein, (ii) any draft
or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue
or inaccurate in any respect, (iii) payment by the respective Issuing
Lender under a Letter of Credit against presentation of a draft or other
document that does not comply strictly with the terms of such Letter of
Credit, and (iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of the Borrower's
obligations hereunder.
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Neither the Administrative Agent, the Lenders nor either Issuing
Lender, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer
of any Letter of Credit by the respective Issuing Lender or any payment or
failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of
Credit (including any document required to make a drawing thereunder), any
error in interpretation of technical terms or any consequence arising from
causes beyond the control of the respective Issuing Lender; provided that
the foregoing shall not be construed to excuse an Issuing Lender from
liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by
the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by such Issuing Lender's negligence or willful
misconduct when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that:
(i) an Issuing Lender may accept documents that appear on their
face to be in substantial compliance with the terms of a Letter of
Credit without responsibility for further investigation, regardless of
any notice or information to the contrary, and may make payment upon
presentation of documents that appear on their face to be in
substantial compliance with the terms of such Letter of Credit;
(ii) an Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such
payment if such documents are not in strict compliance with the terms
of such Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by an Issuing Lender when determining whether drafts and
other documents presented under a Letter of Credit comply with the
terms thereof (and the parties hereto hereby waive, to the extent
permitted by applicable law, any standard of care inconsistent with
the foregoing).
(h) Disbursement Procedures. The Issuing Lender for any Letter of
Credit shall, within a reasonable time following its receipt thereof,
examine all documents purporting to represent a demand for payment under
such Letter of Credit. Such Issuing Lender shall promptly after such
examination notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing
Lender has made or will make an LC Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse such Issuing Lender and the Lenders
with respect to any such LC Disbursement.
(i) Interim Interest. If the Issuing Lender for any Letter of Credit
shall make any LC Disbursement, then, unless the Borrower shall reimburse
such LC Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including
the date such LC Disbursement is made to but excluding the date that the
Borrower reimburses such LC Disbursement, at the rate per annum then
applicable to Syndicated ABR Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due
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pursuant to paragraph (f) of this Section, then Section 2.13(e) shall
apply. Interest accrued pursuant to this paragraph shall be for the account
of such Issuing Lender, except that interest accrued on and after the date
of payment by any Lender pursuant to paragraph (f) of this Section to
reimburse such Issuing Lender shall be for the account of such Lender to
the extent of such payment.
(j) Replacement of an Issuing Lender. Either Issuing Lender may be
replaced at any time pursuant to a written agreement among the Borrower,
the Administrative Agent, the replaced Issuing Lender and the successor
Issuing Lender, such agreement to provide for the succession of the
successor Issuing Lender in place of the replaced Issuing Lender (and for
the release of the replaced Issuing Lender from its obligations, in its
capacity as an Issuing Lender, hereunder) and to be in form and substance
reasonably satisfactory to the replaced Issuing Lender and the
Administrative Agent. The Administrative Agent shall notify the Lenders of
any such replacement of an Issuing Lender. At the time any such replacement
shall become effective, the Borrower shall pay all unpaid fees accrued for
the account of the replaced Issuing Lender pursuant to Section 2.12(b).
From and after the effective date of any such replacement, (i) the
successor Issuing Lender shall have all the rights and obligations of the
replaced Issuing Lender under this Agreement with respect to Letters of
Credit to be issued by it thereafter and (ii) references herein to the term
"Issuing Lender" shall be deemed to include such successor or any previous
Issuing Lender, or such successor and all previous Issuing Lenders, as the
context shall require. After the replacement of an Issuing Lender
hereunder, the replaced Issuing Lender shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Lender
under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters
of Credit.
(k) Cash Collateralization. If either (i) an Event of Default shall
occur and be continuing and the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Lenders with LC Exposure representing at least
66-2/3% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, or (ii) the Borrower shall be required to
provide cover for LC Exposure pursuant to Section 2.11, the Borrower shall
immediately deposit into the Collateral Account an amount in cash equal to,
in the case of an Event of Default, the LC Exposure as of such date plus
any accrued and unpaid interest thereon and, in the case of cover pursuant
to Section 2.11, the amount required under Section 2.11, as the case may
be; provided that the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become immediately due
and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described
in clause (h) or (i) of Article VIII. Such deposit shall be held by the
Administrative Agent in the Collateral Account as collateral in the first
instance for the LC Exposure under this Agreement and thereafter for the
payment of the "Secured Obligations" under and as defined in the Security
Agreement.
(l) Qingdao Letter of Credit. Anything herein to the contrary
notwithstanding, the amount of the Qingdao Letter of Credit for all
purposes of this Agreement and the other Loan Documents (including, without
limitation, the usage of the Revolving Commitments hereunder, the
calculation of fees under Section 2.12 and the obligation of the Revolving
Lenders to
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participate in Letters of Credit arising upon drawings thereunder) shall be
deemed to be equal to the Qingdao Letter of Credit Limit and any LC
Exposure arising in respect of the Qingdao Letter of Credit in excess of
the Qingdao Letter of Credit Limit shall be solely for the account of First
Chicago, as an Issuing Lender, and no other Lender shall be obligated to
participate in such excess amount, nor shall such excess amount be entitled
to the benefits of the Security Documents.
(m) Existing Letters of Credit. Pursuant to Section 2.06 of the 1997
Credit Agreement, Chase, as an "Issuing Lender" thereunder, has issued
various "Letters of Credit" under and as defined in the 1997 Credit
Agreement and First Chicago, as an "Issuing Lender" thereunder, has issued
the "Qingdao Letter of Credit". On the Initial Funding Date, subject to the
satisfaction of the conditions to effectiveness of the obligations of the
Lenders hereunder set forth in Article V, each of such "Letters of Credit"
and the "Qingdao Letter of Credit" under the 1997 Credit Agreement shall
automatically, and without any action on the part of any Person, become a
Letter of Credit hereunder and constitute a utilization of the Tranche I
Revolving Commitments.
SECTION 2.07. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be made by
it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 12:00 noon, Local Time, to the account of the
Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.05. The Administrative Agent will make such Loans
available to the Borrower by promptly remitting the amounts so received, in
like funds, to an account of the Borrower designated by the Borrower in the
applicable Borrowing Request or Competitive Bid Request; provided that
Revolving ABR Borrowings made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(f) shall be remitted by the
Administrative Agent to the respective Issuing Lender.
(b) Presumption by Administrative Agent. 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 Federal Funds
Effective Rate or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
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SECTION 2.08. Interest Elections.
(a) Elections by the Borrower for Syndicated Borrowings. Each
Syndicated Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Syndicated Eurocurrency
Borrowing, shall have the Interest Period specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert any such Borrowing
denominated in Dollars to a Borrowing of a different Type or to continue
such Borrowing as a Borrowing of the same Type and, in the case of a
Syndicated Eurocurrency Borrowing, may elect the Interest Period therefor,
all as provided in this Section (provided that Syndicated Eurocurrency
Borrowings denominated in Sterling may not be converted). 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;
provided that no Syndicated Eurocurrency Borrowing denominated in Sterling
may be continued if, after giving effect thereto, (i) the sum of the
Tranche II Revolving Credit Exposures plus the aggregate principal amount
of outstanding Competitive Loans made by Tranche II Revolving Lenders would
exceed the Tranche II Revolving Commitments or (ii) the sum of the
aggregate principal amount of outstanding Tranche II Revolving Loans and
Competitive Loans denominated in Sterling would exceed (pound)50,000,000.
This Section shall not apply to Competitive Borrowings or Swingline
Borrowings, which may not be converted or continued.
(b) Notice of Elections. 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 Syndicated Borrowing of the
Type resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Interest Election Request in a form
approved by the Administrative Agent and signed by the Borrower.
(c) Information in Interest Election Requests. Each telephonic and
written Interest Election Request shall specify the following information
in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether, in the case of a Eurocurrency Borrowing
denominated in Dollars, the resulting Borrowing is to be an ABR
Borrowing or a Eurocurrency Borrowing; and
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(iv) if the resulting Borrowing is a Eurocurrency 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 Eurocurrency Borrowing but
does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Notice by Administrative Agent to Lenders. 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) Presumption if No Notice. If the Borrower fails to deliver a
timely Interest Election Request with respect to a Syndicated Eurocurrency
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 (x) if denominated in Dollars be
converted to a Syndicated ABR Borrowing and (y) otherwise be deemed to have
an Interest Period of one month. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies
the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Syndicated Borrowing denominated in Dollars may be converted to
or continued as a Syndicated Eurocurrency Borrowing and (ii) unless repaid,
each Syndicated Eurocurrency Borrowing denominated in Dollars shall be
converted to a Syndicated ABR Borrowing at the end of the Interest Period
applicable thereto and (iii) no outstanding Syndicated Borrowing
denominated in Sterling may have an Interest Period of more than one month.
SECTION 2.09. Termination and Reduction of the Commitments.
(a) Scheduled Termination. Unless previously terminated, (i) the
Tranche I Term Loan Dollar Commitments, the Tranche I Term Loan Sterling
Commitments and the Tranche II Term Loan Commitments shall terminate at
5:00 p.m. on the last day of the Term Loan Availability Period, (ii) the
Tranche III Term Loan Commitments shall terminate at 5:00 p.m., New York
City time, on the Initial Funding Date, and (iii) the Revolving Commitments
shall terminate on the Revolving Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at any time
terminate, or from time to time reduce, the Commitments of any Class
(including the Tranche I Term Loan Dollar Commitments and the Tranche I
Term Loan Sterling Commitments); provided that (i) each reduction of the
Commitments of any Class pursuant to this Section shall be in an amount
that is $3,000,000 or a larger multiple of $100,000, (ii) the Borrower
shall not reduce the Tranche I Revolving Commitments without concurrently
reducing the Tranche II Revolving Commitments by a ratable amount and shall
not reduce the Tranche II Revolving Commitments without concurrently
reducing the Tranche I Revolving Commitments by a ratable amount and (iii)
the Borrower shall not terminate or reduce the Revolving Commitments of any
Class if, after giving effect to any concurrent prepayment of the Revolving
Loans of such Class in accordance with Section 2.11, the sum of the total
Revolving Exposures of such Class plus the aggregate
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principal amount of outstanding Competitive Loans made by Lenders of such
Class would exceed the total Revolving Commitments of such Class.
(c) Notice of Termination or Reduction. The Borrower shall notify the
Administrative Agent of any election to terminate or reduce the Commitments
of any Class under paragraph (b) of this Section at least three Business
Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of
the contents thereof. Each notice delivered by the Borrower pursuant to
this Section shall be irrevocable; provided that a notice of termination of
the Revolving Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or reduction
of the Commitments of any Class shall be permanent. Each reduction of the
Commitments of any Class shall be made ratably among the Lenders in
accordance with their respective Commitments of such Class.
SECTION 2.10. Repayment of Loans; Evidence of Debt.
(a) Repayment. The Borrower hereby unconditionally promises to pay the
Loans outstanding hereunder as follows:
(i) to the Administrative Agent for account of the Revolving
Lenders the outstanding principal amount of the Revolving Loans on the
Revolving Commitment Termination Date,
(ii) to the Administrative Agent (x) for account of the Tranche I
Term Loan Dollar Lenders the outstanding principal amount of the
Tranche I Term Loans denominated in Dollars and (y) for account of the
Tranche I Term Loan Sterling Lenders the outstanding principal amount
of the Tranche I Term Loans denominated in Sterling, on each Term Loan
Principal Payment Date set forth below in an aggregate principal
amount equal to the percentage set forth below opposite such Term Loan
Principal Payment Date of the aggregate principal amount of Tranche I
Term Loans denominated in Dollars or Sterling, as the case may be, and
outstanding at 5:00 p.m., New York City time, on the last day of the
Term Loan Availability Period:
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Term Loan
Principal Payment Date Percentage (%)
December 1, 1999 1.79
March 1, 2000 1.79
June 1, 2000 1.79
September 1, 2000 1.79
December 1, 2000 2.86
March 1, 2001 2.86
June 1, 2001 2.86
September 1, 2001 2.86
December 1, 2001 3.57
March 1, 2002 3.57
June 1, 2002 3.57
September 1, 2002 3.57
December 1, 2002 4.29
March 1, 2003 4.29
June 1, 2003 4.29
September 1, 2003 4.29
December 1, 2003 4.64
March 1, 2004 4.64
June 1, 2004 4.64
September 1, 2004 4.64
December 1, 2004 31.40
(iii) to the Administrative Agent for account of the Tranche II
Term Loan Lenders the outstanding principal amount of the Tranche II
Term Loans on the date eighteen months after the Initial Funding Date
(or, if such later date is not a Business Day, on the next succeeding
Business Day),
(iv) to the Administrative Agent for account of the Tranche III
Term Loan Lenders the outstanding principal amount of the Tranche III
Term Loans on each Term Loan Principal Payment Date set forth below in
the aggregate principal amount set forth opposite such Term Loan
Principal Payment Date:
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Term Loan
Principal Payment Date Amount ($)
December 1, 1999 375,000
March 1, 2000 375,000
June 1, 2000 375,000
September 1, 2000 375,000
December 1, 2000 375,000
March 1, 2001 375,000
June 1, 2001 375,000
September 1, 2001 375,000
December 1, 2001 375,000
March 1, 2002 375,000
June 1, 2002 375,000
September 1, 2002 375,000
December 1, 2002 375,000
March 1, 2003 375,000
June 1, 2003 375,000
September 1, 2003 375,000
December 1, 2003 375,000
March 1, 2004 17,953,125
June 1, 2004 17,953,125
September 1, 2004 17,953,125
December 1, 2004 17,953,125
March 1, 2005 17,953,125
June 1, 2005 17,953,125
September 1, 2005 17,953,125
December 1, 2005 17,953,125
(v) to the Administrative Agent for account of the respective
Lender the then unpaid principal amount of each Competitive Loan of
such Lender on the last day of the Interest Period applicable to such
Loan, and
(vi) to the Swingline Lender the then unpaid principal amount of
each Swingline Loan on the earliest of (A) the Revolving Commitment
Termination Date, (B) the fifteenth day after such Loan is made (but
not earlier than one Business Day after such Swingline Loan is made)
and (C) in the case of any Swingline FFBR Loan or Swingline
Eurocurrency Loan, the last day of the Interest Period for such Loan;
provided that (i) if any such day is not a Business Day, then the
Borrower shall pay such Swingline Loan on
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the next preceding Business Day and (ii) on each date that a Tranche I
Revolving Borrowing or Tranche I Competitive Borrowing is made, the
Borrower shall repay all Swingline ABR Loans then outstanding.
(b) Manner of Payment. Prior to any repayment or prepayment of any
Borrowings of any Class hereunder, the Borrower shall select the Borrowing
or Borrowings of the applicable Class to be paid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection
not later than 11:00 a.m., Local Time, three Business Days before the
scheduled date of such payment; provided that each payment of Borrowings of
any Class shall be applied to pay any outstanding ABR Borrowings of such
Class before any other Borrowings of such Class. If the Borrower fails to
make a timely selection of the Borrowing or Borrowings to be repaid or
prepaid, such payment shall be applied, first, to pay any outstanding ABR
Borrowings of the applicable Class and, second, to other Borrowings of such
Class in the order of the remaining duration of their respective Interest
Periods (the Borrowing with the shortest remaining Interest Period to be
paid first), and for these purposes, Competitive Loans shall be deemed to
be in the same Class as Revolving Loans. Each payment of a Syndicated
Borrowing shall be applied ratably to the Loans included in such Borrowing.
(c) Maintenance of Loan Accounts by Lenders. Each Lender shall
maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from
each Loan made by such Lender, including the amounts and Currency of
principal and interest payable and paid to such Lender from time to time
hereunder.
Anything herein to the contrary notwithstanding, the Term Loans of
each Class made by each Lender shall be divided into two portions which
shall be accounted for separately on the books of such Lender. The first of
such portions (the "Mortgage Portion") shall be in a principal amount equal
to 2/700 of the amount of such Lender's Term Loan Commitment of such Class
and shall be secured by all of the collateral security provided for
pursuant to the Security Documents (including, without limitation, the
Mortgages covering real property of the Obligors in New York) and the
second of such portions (the "Non-Mortgage Portion") shall be in a
principal amount equal to 698/700 of the amount of such Lender's Term Loan
Commitment of such Class and shall be secured by all of the collateral
security provided for pursuant to the Security Documents (excluding,
however, the Mortgages covering real property of the Obligors in New York).
Anything in this Agreement to the contrary notwithstanding, all payments
and prepayments of the Term Loans hereunder shall be deemed to be applied
first to Non-Mortgage Portion (until the same shall have been paid in full)
and last to the Mortgage Portion.
(d) Maintenance of Loan Accounts by Administrative Agent. The
Administrative Agent shall maintain accounts in which it shall record (i)
the amount of each Loan made hereunder, the Class, Currency 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.
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The Administrative Agent shall account for the Mortgage Portions and
Non-Mortgage Portions of the Term Loans, as described in paragraph (c) above.
(e) Effect of Loan Accounts. The entries made in the accounts
maintained pursuant to paragraph (c) or (d) 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.
(f) Promissory Notes. Any Lender may request that Loans of any Class
made by it be evidenced by a promissory note. In such event, the Borrower
shall prepare, execute and deliver to such Lender a promissory note payable
to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such promissory
note and interest 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 2.11. Prepayment of Loans.
(a) Optional Prepayments. 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 the requirements of this Section, provided that (i) the
aggregate principal amount of any prepayment on any date pursuant to this
paragraph shall be at least equal to $1,000,000 and (ii) the Borrower shall
not have the right to prepay any Competitive Loan without the prior consent
of the Lender thereof. Any prepayment of a Tranche I Term Loan Borrowing
(denominated in Dollars or in Sterling) or a Tranche III Term Loan
Borrowing pursuant to this paragraph shall be applied first to reduce the
next three scheduled repayments thereof in direct chronological order and
second to reduce the remaining scheduled repayments thereof on a pro rata
basis.
(b) Mandatory Prepayments -- All Loans. The Borrower will make
prepayments of the Loans hereunder as follows:
(i) Casualty Events. Upon the date 180 days following the receipt
by the Borrower of the proceeds of insurance, condemnation award or
other compensation in respect of any Casualty Event affecting any
Property of the Borrower or any of its Subsidiaries (or upon such
earlier date as the Borrower or such Subsidiary, as the case may be,
shall have determined not to repair or replace the Property affected
by such Casualty Event), the Borrower shall prepay the Loans in an
aggregate amount, if any, equal to 100% of the Net Available Proceeds
of such Casualty Event not theretofore applied to the repair or
replacement of such Property, such prepayment to be effected in each
case in the manner and to the extent specified in clause (vi) below.
Notwithstanding the foregoing, in the event that a Casualty Event
shall occur with respect to Property covered by any Mortgage, the
Borrower shall, if required by the terms of such Mortgage, prepay the
Loans on the dates, and in the amounts, of the required prepayments
specified
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in accordance with such Mortgage. Nothing in this paragraph shall be
deemed to limit any obligation of the Borrower or any of its
Subsidiaries pursuant to any of the Security Documents to remit to a
collateral or similar account maintained by the Administrative Agent
pursuant to any of the Security Documents the proceeds of insurance,
condemnation award or other compensation received in respect of any
Casualty Event.
(ii) Equity Issuance. On or prior to the date 90 days after any
Equity Issuance, the Borrower shall prepay the Loans in an aggregate
amount equal to 50% of the Net Available Proceeds thereof (or, for so
long as any Tranche II Term Loans remain outstanding and the Borrower
would be obligated to apply such Net Available Proceeds to the
prepayment thereof as provided in clause (vi)(B) below, 100% of such
Net Available Proceeds), such prepayment to be effected in each case
in the manner and to the extent specified in clause (vi) below,
provided that, notwithstanding the foregoing, the Borrower shall not
be required to make a prepayment under this clause (ii) (x) from the
first $5,000,000 of Net Available Proceeds during any fiscal year
received from the issuance or sale of capital stock in connection with
the Employee Stock Purchase Plan, the Long-Term Stock Incentive Plan
or the Incentive Stock Option Plan or similar plans of the Borrower in
effect from time to time or (y) to the extent that
(A) the Borrower advises the Administrative Agent at the
time of the relevant Equity Issuance that it intends to use such
Net Available Proceeds to finance one or more Acquisitions
pursuant to Section 7.03(d),
(B) such Net Available Proceeds are held by the Borrower in
a segregated investment or other account (or, alternatively,
applied to the prepayment of Revolving Loans), until so used to
finance one or more Acquisitions as contemplated above, and
(C) such Net Available Proceeds are in fact so applied to
such Acquisition(s) within 180 days of such Equity Issuance (it
being understood that, in the event Net Available Proceeds from
more than one Equity Issuance are held by the Borrower, or have
been applied to the prepayment of Revolving Loans, such Net
Available Proceeds shall be deemed to be utilized in the same
order in which such Equity Issuances occurred and, accordingly,
any such Net Available Proceeds so held or applied to the
prepayment of Revolving Loans for more than 180 days shall be
forthwith applied to the prepayment of Loans as provided above),
it being understood that, if the Borrower does not so advise the
Administrative Agent that it intends to use such Net Available
Proceeds to finance one or more Acquisitions, or does not in fact
apply such Net Available Proceeds to one or more Acquisitions
within the time periods specified above, the Borrower shall
immediately prepay the Loans in an amount equal to the amount
specified above.
(iii) Excess Cash Flow. Not later than the date 90 days after the
end of each fiscal year of the Borrower ending on or after February
28, 2000 (unless the Debt Ratio is
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less than or equal to 3.125 to 1 as of the last day thereof, in which
case this clause (iii) shall not apply), the Borrower shall prepay the
Loans in an aggregate amount equal to 50% of Excess Cash Flow for such
fiscal year.
(iv) Sale of Assets. Without limiting the obligation of the
Borrower to obtain the consent of the Required Lenders to any
Disposition not otherwise permitted hereunder, in the event that the
Net Available Proceeds of any Disposition (herein, the "Current
Disposition"), and of all prior Dispositions consummated in the
then-current fiscal year of the Borrower as to which a prepayment has
not yet been made under this paragraph, shall exceed $8,000,000 then,
no later than 180 days after the occurrence of the Current
Disposition, the Borrower will deliver to the Lenders a statement,
certified by a Financial Officer of the Borrower, in form and detail
satisfactory to the Administrative Agent, of the amount of the Net
Available Proceeds of the Current Disposition and of all such prior
Dispositions and will prepay the Loans in an aggregate amount equal to
100% of the Net Available Proceeds of the Current Disposition and such
prior Dispositions, such prepayment to be effected in each case in the
manner and to the extent specified in clause (vi) below, provided
that, notwithstanding the foregoing, the Borrower shall not be
required to make a prepayment under this clause (iv) to the extent
that
(A) the Borrower advises the Administrative Agent at the
time of the relevant Disposition that it intends to use such Net
Available Proceeds to finance one or more Acquisitions pursuant
to Section 7.03(d), or otherwise to reinvest the proceeds thereof
into the business of the Borrower and its Subsidiaries,
(B) such Net Available Proceeds are held by the Borrower in
a segregated investment or other account (or, alternatively,
applied to the prepayment of Revolving Loans), until so used to
finance one or more Acquisitions or to make such reinvestment as
contemplated above, and
(C) such Net Available Proceeds are in fact so applied to
such Acquisition(s) or reinvestment within 180 days of such
Disposition (it being understood that, in the event Net Available
Proceeds from more than one Disposition are held by the Borrower,
or have been applied to the prepayment of Revolving Loans, such
Net Available Proceeds shall be deemed to be utilized in the same
order in which such Dispositions occurred and, accordingly, any
such Net Available Proceeds so held or applied to the prepayment
of Revolving Loans for more than 180 days shall be forthwith
applied to the prepayment of Loans as provided above),
it being understood that, if the Borrower does not so advise the
Administrative Agent that it intends to use such Net Available
Proceeds to finance one or more Acquisitions or make such
reinvestment, or does not in fact apply such Net Available Proceeds to
one or more Acquisitions or reinvestments within the time periods
specified above, the Borrower shall immediately prepay the Loans in an
amount equal to the amount specified above.
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Notwithstanding the foregoing, to the extent that the amount of
the required prepayment on any date is not greater than $20,000,000,
the Borrower shall not be required to make any prepayment of a
Eurocurrency or Competitive Borrowing until the expiration(s) of the
then-current Interest Periods.
(v) Debt Incurrence. Without limiting the obligation of the
Borrower to obtain the consent of the Required Lenders to any Debt
Incurrence not permitted hereunder, on or prior to the date 90 days
after the date of any Debt Incurrence, the Borrower shall prepay the
Loans in an aggregate amount equal to the portion of the Net Available
Proceeds thereof that exceeds (in the aggregate for all Debt
Incurrences after the date hereof) $50,000,000, such prepayment to be
effected in each case in the manner and to the extent specified in
clause (vi) below, provided that, notwithstanding the foregoing, the
Borrower shall not be required to make a prepayment under this clause
(v) to the extent that
(A) the Borrower advises the Administrative Agent at the
time of the relevant Debt Incurrence that it intends to use such
Net Available Proceeds to finance one or more Acquisitions
pursuant to Section 7.03(d),
(B) such Net Available Proceeds are held by the Borrower in
a segregated investment or other account (or, alternatively,
applied to the prepayment of Revolving Loans), until so used to
finance one or more Acquisitions as contemplated above, and
(C) such Net Available Proceeds are in fact so applied to
such Acquisition(s) within 120 days of such Debt Incurrence (it
being understood that, in the event Net Available Proceeds from
more than one Debt Incurrence are held by the Borrower, or have
been applied to the prepayment of Revolving Loans, such Net
Available Proceeds shall be deemed to be utilized in the same
order in which such Debt Incurrence occurred and, accordingly,
any such Net Available Proceeds so held or applied to the
prepayment of Revolving Loans for more than 120 days shall be
forthwith applied to the prepayment of Loans as provided above),
it being understood that, if the Borrower does not so advise the
Administrative Agent that it intends to use such Net Available
Proceeds to finance one or more Acquisitions, or does not in fact
apply such Net Available Proceeds to one or more Acquisitions within
the time periods specified above, the Borrower shall immediately
prepay the Loans in an amount equal to the amount specified above.
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(vi) Application.
(A) Prepayments pursuant to clauses (b)(i), (iii) and (iv)
of this paragraph shall be applied as follows:
first, such prepayment shall be applied to any then
outstanding Tranche I and Tranche III Term Loans (ratably in
accordance with the then-outstanding aggregate principal amounts
thereof), each such prepayment of Tranche I and Tranche III Term
Loans to be applied to reduce the scheduled repayments thereof in
reverse chronological order and, after the prepayment in full of
any then-outstanding Tranche I and Tranche III Term Loans, to the
prepayment of any then-outstanding Tranche II Term Loans; and
second, after the payment in full of any then-outstanding
Term Loans of any Class, to prepay Revolving Loans (without
reduction of Revolving Commitments).
(B) Prepayments pursuant to clauses (b)(ii) and (v) of this
paragraph shall be applied as follows:
first, such prepayment shall be applied to any
then-outstanding Tranche II Term Loans and, after the prepayment
in full of any then-outstanding Tranche II Term Loans, to the
prepayment of the Tranche I and Tranche III Term Loans (ratably
in accordance with the then-outstanding aggregate principal
amounts thereof), each such prepayment of Tranche I and Tranche
III Term Loans to be applied to reduce the scheduled repayments
thereof in reverse chronological order; and
second, after the payment in full of any then-outstanding
Term Loans of any Class, to prepay Revolving Loans (without
reduction of Revolving Commitments).
Any prepayments to be applied to the Tranche I Term Loans or to
the Revolving Loans pursuant to this clause (b)(vi) shall be
applied to any then outstanding Tranche I Term Loans or Revolving
Loans denominated in Dollars and Tranche I Term Loans and
Revolving Loans denominated in Sterling ratably in accordance
with the then outstanding principal amounts thereof (in the case
of the Tranche I Term Loans or Revolving Loans denominated in
Sterling, based on the Dollar Equivalent thereof as in effect on
the date of prepayment).
Notwithstanding the foregoing, if any event described in the
foregoing provisions of this Section 2.11(b) shall occur prior to
the Initial Funding Date, then the prepayment that would
otherwise be required to be made hereunder shall be applied to
the prepayment of the "Term Loans" and "Revolving Loans" under
the 1997 Credit Agreement in the manner provided in Section 2.11
thereof, and the Commitments hereunder shall be automatically
reduced in an amount equal to such prepayment, such
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reduction to be applied first to the Tranche II Term Loan
Commitments, second to the Tranche I and Tranche III Term Loan
Commitments (ratably in accordance with the respective principal
amounts thereof) and third to the Revolving Commitments.
(c) Mandatory Prepayments -- Change of Control. In the event that the
Borrower shall be required pursuant to the provisions of any instrument
evidencing or governing any Subordinated Indebtedness to redeem, or make an
offer to redeem or repurchase, all or any portion of such Subordinated
Indebtedness as a result of a change of control (however defined), then,
concurrently with the occurrence of the event giving rise to such change of
control, the Borrower shall prepay the Loans (and/or provide cover for LC
Exposure as specified in Section 2.06(k)) in full, and the Commitments
shall be automatically reduced to zero.
(d) Currency Valuation. Upon the receipt by the Administrative Agent
of a Currency Valuation Notice (as defined below) and on each Quarterly
Date, the Administrative Agent shall promptly determine the aggregate
outstanding principal amount of all Loans, for which purpose the
outstanding principal amount of any Loan that is denominated in Sterling
shall be deemed to be the Dollar Equivalent (determined at the applicable
times specified in clause (i) or (ii) below) of the amount in Sterling of
such Loan. Upon making such determination, the Administrative Agent shall
promptly notify the Lenders and the Borrower thereof and:
(i) if, on the date of any such determination, (A) the aggregate
outstanding principal amount of all Tranche II Revolving Loans and
Tranche II Competitive Loans (with Dollar Equivalents being determined
(x) as of the Business Day on which the Administrative Agent shall
have received such Currency Valuation Notice if received prior to
11:00 a.m. New York time, (y) if received by the Administrative Agent
after such time on any Business Day, as of the next succeeding
Business Day or (z) as of such Quarterly Date, as applicable) exceeds
105% of (B) the total Tranche II Revolving Commitments, the Borrower
shall, if requested by the Required Tranche II Revolving Lenders
(through the Administrative Agent), prepay outstanding Tranche II
Revolving Loans and Tranche II Competitive Loans (ratably in
accordance with then then-outstanding aggregate principal amounts
thereof), whether denominated in Dollars or Sterling (at the option of
the Borrower), in an amount so that after giving effect thereto the
amount referred to in subclause (A) is no more than 105% of the amount
in subclause (B); or
(ii) if, on the date of any such determination, (A) the total of
the Tranche I and Tranche II Revolving Commitments on such date,
together with the aggregate principal amount of all Term Loans
outstanding on such date (with Dollar Equivalents being determined (x)
as of the Business Day on which the Administrative Agent shall have
received such Currency Valuation Notice if received prior to 11:00
a.m. New York time, (y) if received by the Administrative Agent after
such time on any Business Day, as of the next succeeding Business Day
or (z) as of such Quarterly Date, as applicable), exceeds 103% of (B)
the sum of the total Tranche I and Tranche II Revolving Commitments on
such date, together with the aggregate principal amount of all Term
Loans outstanding on such date (with Dollar Equivalents being
determined at 1.6575
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Dollars per one Sterling), the Borrower shall, if requested by the
Required Lenders (through the Administrative Agent), prepay
outstanding Loans of any Class (ratably in accordance with the
then-outstanding aggregate principal amounts thereof), whether
denominated in Dollars or Sterling (at the option of the Borrower), in
an amount so that after giving effect thereto the amount referred to
in subclause (A) is no more than 103% of the amount in subclause (B);
provided that, any such payment under clause (i) or (ii) above shall be
accompanied by any amounts payable under Sections 2.13(f) and 2.16 hereof.
For purposes of this Section 2.11(d), "Currency Valuation Notice"
shall mean a notice given by the Required Lenders to the Administrative Agent
stating that such notice is a "Currency Valuation Notice" and requesting that
the Administrative Agent determine the aggregate outstanding principal amount of
all Loans.
Anything in this Section 2.11(d) to the contrary notwithstanding, the
Administrative Agent shall not be required to make more than one valuation
determination pursuant to Currency Valuation Notices within any rolling three
month period.
(e) Notices, Etc. The Borrower shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender)
by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the
case of prepayment of a Syndicated Eurocurrency Borrowing, of a Competitive
Borrowing or of a Swingline Eurocurrency Borrowing, not later than 11:00
a.m., Local Time, three Business Days before the date of prepayment, (ii)
in the case of prepayment of a Syndicated ABR Borrowing, not later than
11:00 a.m., New York City time, one Business Day before the date of
prepayment or (iii) in the case of prepayment of a Swingline Loan, not
later than 12:00 noon, New York City time, on the date of prepayment. Each
such notice shall be irrevocable and shall specify the prepayment date, the
principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as
contemplated by Section 2.09, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.09.
Promptly following receipt of any such notice relating to a Syndicated
Borrowing or Competitive Borrowing, the Administrative Agent shall advise
the relevant Lenders of the contents thereof. Each partial prepayment of
any Borrowing shall be in an amount that would be permitted in the case of
a Borrowing of the same Type as provided in Section 2.02, except as
necessary to apply fully the required amount of a mandatory prepayment.
Each prepayment of a Syndicated 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 2.12. Fees.
(a) Facility Fee and Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a facility
fee, which shall accrue at the Applicable Rate on the greater of (i) the
daily average amount of the Revolving Commitment of such Lender (whether
used or unused) and (ii) such Lender's aggregate
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Revolving Exposure, such fee to accrue during the period from and including
the date hereof to but excluding the date such Revolving Commitment shall
have terminated and the date the Revolving Exposure shall have been reduced
to zero. The Borrower agrees to pay to the Administrative Agent for account
of each Lender a commitment fee, which shall accrue at the Applicable Rate
on the average daily unused amount of the Tranche I, Tranche II and Tranche
III Term Loan Commitments of such Lender for the period from and including
the date hereof to but not including the earlier of the date such Term Loan
Commitments terminate and the last day of the Term Loan Availability
Period.
Accrued facility fees and commitment fees shall be payable on each
Quarterly Date and on the earlier of the date the relevant Commitment
terminates and the Revolving Commitment Termination Date (in the case of
the Revolving Commitments), the last day of the Term Loan Availability
Period (in the case of the Tranche I and Tranche II Term Loan Commitments)
and the Initial Funding Date (in the case of the Tranche III Term Loan
Commitments), commencing on the first such date to occur after December 1,
1998; provided that any facility or commitment fees accruing after the date
on which interest on Loans of the respective Class shall be payable on
demand shall similarly be payable on demand. All facility fees and
commitment fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent for the account of each Revolving Lender a
participation fee with respect to its participations in Letters of Credit,
which shall accrue at a rate per annum equal to the Applicable Rate
applicable to interest on Syndicated Eurocurrency Revolving Loans on the
average daily amount of such Lender's LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Initial Funding Date to but excluding the later of
the date on which such Lender's Revolving Commitment terminates and the
date on which such Lender ceases to have any LC Exposure, and (ii) to
Chase, as an Issuing Lender, a fronting fee, which shall accrue at the rate
of 0.125% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC
Disbursements and to the Qingdao Letter of Credit) during the period from
and including the Initial Funding Date to but excluding the date on which
there ceases to be any LC Exposure, and to each Issuing Lender, such
Issuing Lender's standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and
including each Quarterly Date shall be payable on the third Business Day
following such Quarterly Date, commencing on the first such date to occur
after the Initial Funding Date; provided that all such fees shall be
payable on the date on which the Revolving Commitments terminate and any
such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to either
Issuing Lender pursuant to this paragraph shall be payable within 10 days
after demand. All participation fees and fronting fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual number
of days elapsed (including the first day but excluding the last day).
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(c) Administrative Agent Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and
at the times separately agreed upon between the Borrower and the
Administrative Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on the
dates due, in Dollars and immediately available funds, to the
Administrative Agent (or to the respective Issuing Lender, in the case of
fees payable to it) for distribution, in the case of facility fees and
participation fees, to the Lenders entitled thereto. Fees paid shall not be
refundable under any circumstances.
SECTION 2.13. Interest.
(a) ABR Borrowings. The Loans comprising each ABR Borrowing (other
than in respect of Swingline Loans, as to which paragraph (d) below shall
apply) shall bear interest at a rate per annum equal to the Alternate Base
Rate plus the Applicable Rate.
(b) Eurocurrency Borrowings. The Loans comprising each Eurocurrency
Borrowing shall bear interest at a rate per annum equal to (i) in the case
of a Syndicated Eurocurrency Loan or a Swingline Eurocurrency Loan, the
Adjusted LIBO Rate for the Interest Period for such Borrowing plus the
Applicable Rate, or (ii) in the case of a Competitive Eurocurrency
Borrowing, the LIBO Rate for the Interest Period in effect for such
Borrowing plus (or minus, as applicable) the Margin applicable to such
Loan.
(c) Fixed Rate Borrowings. Each Fixed Rate Loan shall bear interest at
a rate per annum equal to the Fixed Rate applicable to such Loan.
(d) Swingline ABR and FFBR Borrowings. Each ABR Borrowing constituting
a Swingline Loan shall bear interest at a rate per annum equal to the
Alternate Base Rate plus the Applicable Rate. Each Swingline Borrowing the
interest on which is determined by reference to the Federal Funds Base Rate
for any Interest Period therefor shall bear interest at a rate per annum,
for each day during such Interest Period, equal to the Federal Funds Base
Rate for such period plus the then-applicable "Facility Fee Rate" specified
in the definition of "Applicable Rate" in Section 1.01 plus the Applicable
Rate plus .50%. Each Swingline Borrowing the interest on which is
determined at an alternate rate of interest as contemplated in Section
2.05(b), shall bear interest at the respective alternate rate of interest
so agreed for the period so contemplated by Section 2.05(b).
(e) Default Interest. Notwithstanding the foregoing, if any principal
of or interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration, by mandatory prepayment or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate per annum
equal to (i) in the case of overdue principal of any Loan, 2% plus the rate
otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
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(f) Payment of Interest. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, in the
case of Revolving Loans, upon termination of the Revolving Commitments;
provided that (i) interest accrued pursuant to paragraph (e) of this
Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of a Revolving ABR Loan
prior to the Revolving Commitment Termination Date), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Syndicated Eurocurrency Borrowing denominated in Dollars prior to the end
of the current Interest Period therefor, accrued interest on such Borrowing
shall be payable on the effective date of such conversion.
(g) Computation. All interest hereunder shall be computed on the basis
of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366
days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate
shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) if such Borrowing is of a particular Class of Loans, the
Administrative Agent is advised by the Required Lenders of such Class (or,
in the case of a Competitive Eurocurrency Loan, the Lender that is required
to make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period will not adequately and fairly reflect
the cost to such Lenders (or Lender) of making or maintaining their Loans
(or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Syndicated Borrowing to, or
continuation of any Syndicated Borrowing as, a Syndicated Eurocurrency Borrowing
denominated in Dollars shall be ineffective, (ii) if any Borrowing Request
requests a Syndicated Eurocurrency Borrowing, such Borrowing shall be made as a
Syndicated ABR Borrowing, (iii) any request by the Borrower for a Swingline
Eurocurrency Borrowing shall be deemed to be a request for a Swingline FFBR
Borrowing and (iv) any request by the Borrower for a Competitive Eurocurrency
Borrowing, or for the continuance of a Syndicated Eurocurrency Borrowing
denominated in Sterling, shall be ineffective; provided that if the
circumstances giving rise to
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such notice do not affect all the Lenders, then requests by the Borrower for
Competitive Eurocurrency Borrowings may be made to Lenders that are not affected
thereby.
SECTION 2.15. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or either Issuing
Lender; or
(ii) impose on any Lender or either Issuing Lender or the London
interbank market any other condition affecting this Agreement or
Eurocurrency Loans or Fixed Rate Loans made by such Lender or any
Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to
such Lenders of making or maintaining any Eurocurrency Loan or Fixed Rate
Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or such Issuing Lender of participating
in, issuing or maintaining any Letter of Credit or to reduce the amount of
any sum received or receivable by such Lender or such Issuing Lender
hereunder (whether of principal, interest or otherwise), then the Borrower
will pay to such Lender or such Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing
Lender, as the case may be, for such additional costs incurred or reduction
suffered.
(b) Capital Requirements. If any Lender or either Issuing Lender
determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender's or
such Issuing Lender's capital or on the capital of such Lender's or such
Issuing Lender's holding company, if any, as a consequence of this
Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by such Issuing Lender, to
a level below that which such Lender or such Issuing Lender or such
Lender's or such Issuing Lender's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's or such
Issuing Lender's policies and the policies of such Lender's or such Issuing
Lender's holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender or such Issuing Lender, as the
case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Lender or such Lender's or such Issuing Lender's
holding company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender or either
Issuing Lender setting forth the amount or amounts necessary to compensate
such Lender or such Issuing Lender or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender or such Issuing Lender, as the case may be, the
amount shown as due on any such certificate within 10 days after receipt
thereof.
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(d) Delay in Requests. Failure or delay on the part of any Lender or
either Issuing Lender to demand compensation pursuant to this Section shall
not constitute a waiver of such Lender's or such Issuing Lender's right to
demand such compensation; provided that the Borrower shall not be required
to compensate a Lender or an Issuing Lender pursuant to this Section for
any increased costs or reductions incurred more than six months prior to
the date that such Lender or such Issuing Lender, as the case may be,
notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or such Issuing Lender's intention
to claim compensation therefor; provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
six-month period referred to above shall be extended to include the period
of retroactive effect thereof.
(e) Competitive Loans. 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 2.16. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurocurrency Loan, Fixed Rate Loan or Swingline FFBR
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
Syndicated Eurocurrency Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay any
Syndicated Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice is permitted to be revocable under Section
2.11(d) and is revoked in accordance herewith), (d) the failure to borrow any
Competitive Loan after accepting the Competitive Bid to make such Loan, or (e)
the assignment of any Eurocurrency 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 2.19, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense attributable to such
event (and for avoidance of doubt excluding the Applicable Rate).
In the case of a Eurocurrency Loan, the loss to any Lender
attributable to any such event shall be deemed to include an amount determined
by such Lender to be equal to the excess, if any, of (i) the amount of interest
that such Lender would pay for a deposit equal to the principal amount of such
Loan for the period from the date of such payment, conversion, failure or
assignment to the last day of the then current Interest Period for such Loan
(or, in the case of a failure to borrow, convert or continue, the duration of
the Interest Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the
Adjusted LIBO Rate for such Interest Period (and for avoidance of doubt
excluding the Applicable Rate), over (ii) the amount of interest that such
Lender would earn on such principal amount for such period if such Lender were
to invest such principal amount for such period at the interest rate that would
be bid by such Lender (or an affiliate of such Lender) for deposits in the
Currency of such Loan from other banks in the eurocurrency market at the
commencement of such period.
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In the case of a Swingline FFBR Loan, the loss to the Swingline Lender
attributable to any such event shall be deemed to include an amount determined
by the Swingline Lender to be equal to the excess, if any, of (i) the Federal
Funds Base Rate for the period commencing on the date of such payment to but not
including the last day of the Interest Period for such Swingline FFBR Loan, over
(ii) the Federal Funds Base Rate for such Interest Period.
A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.17. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to
deduct any Indemnified Taxes or Other Taxes from such payments, then (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, Lender or Issuing
Lender (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) Payment of Other Taxes by the Borrower. In addition, the Borrower
shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and each Issuing Lender, within 30 days
after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by
the Administrative Agent, such Lender or such Issuing Lender, as the case
may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or an Issuing Lender, or by
the Administrative Agent on its own behalf or on behalf of a Lender or an
Issuing Lender, shall be conclusive absent manifest error.
(d) Receipt for Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such
payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.
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(e) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement
shall deliver to the Borrower (with a copy to the Administrative Agent), at
the time or times prescribed by applicable law or reasonably requested by
the Borrower, such properly completed and executed documentation prescribed
by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
SECTION 2.18. Payments; Pro Rata Treatment; Sharing of Setoffs, Etc.
(a) Payments by the Obligors. Each Obligor shall make each payment
required to be made by it hereunder (whether of principal, interest, fees
or reimbursement of LC Disbursements, or under Section 2.15, 2.16 or 2.17,
or otherwise) or under any other Loan Document (except to the extent
otherwise provided therein) prior to 12:00 noon, Local Time, on the date
when due, in immediately available funds, without set-off or counterclaim.
Any amounts received after such time on any date may, in the discretion of
the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at the
Administrative Agent's Account, except as otherwise expressly provided in
the relevant Loan Document, and except payments to be made directly to an
Issuing Lender or the Swingline Lender as expressly provided herein and
except that payments pursuant to Sections 2.15, 2.16, 2.17 and 10.03 shall
be made directly to the Persons entitled thereto. The Administrative Agent
shall distribute any such payments received by it for account of any other
Person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day and,
in the case of any payment accruing interest, interest thereon shall be
payable for the period of such extension. All amounts owing under this
Agreement (including facility fees, but not including principal of, and
interest on, Loans denominated in Sterling, which are payable in Sterling)
are payable in Dollars.
Notwithstanding the foregoing, if the Borrower shall fail to pay any
principal of any Loan when due (whether at stated maturity, by
acceleration, by mandatory prepayment or otherwise), the unpaid portion of
such Loan shall, if such Loan is denominated in Sterling, automatically be
redenominated in Dollars on the due date thereof (or, if such due date is a
day other than the last day of the Interest Period therefor, on the last
day of such Interest Period) in an amount equal to the Dollar Equivalent
thereof on the date of such redenomination and such principal shall be
payable on demand; and if the Borrower shall fail to pay any interest on
any Loan that is denominated in Sterling, such interest shall automatically
be redenominated in Dollars on the due date therefor (or, if such due date
is a day other than the last day of the Interest Period therefor, on the
last day of such Interest Period) in an amount equal to the Dollar
Equivalent thereof on the date of such redenomination and such interest
shall be payable on demand.
(b) Application if Payments Insufficient. If at any time insufficient
funds are received by and available to the Administrative Agent to pay
fully all amounts of principal, unreimbursed LC Disbursements, interest and
fees then due hereunder, such funds shall be
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applied (i) first, to pay interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, to pay
principal and unreimbursed LC Disbursements then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided herein
(including in Section 2.10(a)(ii)): (i) each Syndicated Borrowing of a
particular Class shall be made from the relevant Lenders, each payment of
facility fee and commitment fee under Section 2.12 in respect of
Commitments of a particular Class shall be made for account of the relevant
Lenders, and each termination or reduction of the amount of the Commitments
of a particular Class under Section 2.09 shall be applied to the respective
Commitments of such Class of the relevant Lenders, pro rata according to
the amounts of their respective Commitments of such Class; (ii) each
Syndicated Borrowing of any Class shall be allocated pro rata among the
relevant Lenders according to the amounts of their respective Commitments
of such Class (in the case of the making of Syndicated Loans) or their
respective Loans of such Class (in the case of conversions and
continuations of Loans); (iii) each payment or prepayment of principal of
Revolving Loans, Tranche I Term Loans, Tranche II Term Loans and Tranche
III Term Loans by the Borrower shall be made for account of the relevant
Lenders pro rata in accordance with the respective unpaid principal amounts
of the Syndicated Loans of such Class held by them; and (iv) each payment
of interest on Revolving Loans, Tranche I Term Loans, Tranche II Term Loans
and Tranche III Term Loans by the Borrower shall be made for account of the
relevant Lenders pro rata in accordance with the amounts of interest on
such Loans then due and payable to the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by exercising
any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Syndicated Loans or
participations in LC Disbursements or Swingline Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of
its Syndicated Loans and participations in LC Disbursements and Swingline
Loans and accrued interest thereon then due than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Syndicated Loans
and participations in LC Disbursements and Swingline Loans of other Lenders
to the extent necessary so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Syndicated Loans and
participations in LC Disbursements and Swingline Loans; provided that (i)
if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by any Obligor pursuant to and in
accordance with the express terms of this Agreement or any payment obtained
by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements to
any assignee or participant, other than to the Borrower or any Subsidiary
or Affiliate thereof (as to which the provisions of this paragraph shall
apply). Each Obligor consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law,
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that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Obligor rights of set-off and
counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of such Obligor in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent shall
have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders
or an Issuing Lender hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or such Issuing Lender, as the
case may be, the amount due. In such event, if the Borrower has not in fact
made such payment, then each of the Lenders or such Issuing Lender, as the
case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or such
Issuing Lender with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by Administrative Agent. If any Lender shall
fail to make any payment required to be made by it pursuant to Section
2.05(c), 2.06(e) or (f), 2.07(b) or 2.18(e), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for
account of such Lender to satisfy such Lender's obligations under such
Sections until all such unsatisfied obligations are fully paid.
(g) Exercises of Remedies by Lenders. Anything in this Agreement to
the contrary notwithstanding (including Section 10.08), each Lender hereby
agrees with each other Lender that no Lender shall take any action to
protect or enforce its rights arising out of this Agreement (including,
without limitation, exercising any rights of off-set) without first
obtaining the prior written consent of the Administrative Agent or the
Required Lenders, it being the intent of the Lenders that any such action
to protect or enforce rights under this Agreement shall be taken in concert
and at the direction or with the consent of the Administrative Agent or the
Required Lenders and not individually by a single Lender.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
(a) Designation of Different Lending Office. If any Lender requests
compensation under Section 2.15, 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 2.17, 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 2.15 or 2.17, as the case may
be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
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(b) Replacement of Lenders. If any Lender requests compensation under
Section 2.15, 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 2.17, or if any Lender defaults in its obligation to
fund Loans hereunder, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions contained in Section 10.04), all its
interests, rights and obligations under this Agreement (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 (i) the Borrower shall have received the
prior written consent of the Administrative Agent (and, if a Revolving
Commitment is being assigned, each Issuing Lender and the Swingline
Lender), which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal
of its Loans (other than Competitive Loans) and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (iii) in the case of any
such assignment resulting from a claim for compensation under Section 2.15
or payments required to be made pursuant to Section 2.17, such assignment
will result in a reduction in such compensation or payments. A Lender shall
not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and
delegation cease to apply.
ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee. The Subsidiary Guarantors hereby jointly
and severally guarantee to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the principal of and
interest on the Loans made by the Lenders to the Borrower, all indebtedness of
the Borrower to any of the Lenders (or any affiliate thereof) in respect of
Hedging Agreements, and all other amounts from time to time owing to the Lenders
or the Administrative Agent by the Borrower under this Agreement and by any
Obligor under any of the other Loan Documents, in each case strictly in
accordance with the terms hereof and thereof (such obligations being herein
collectively called the "Guaranteed Obligations"). The Subsidiary Guarantors
hereby further jointly and severally agree that if the Borrower shall fail to
pay in full when due (whether at stated maturity, by acceleration or otherwise)
any of the Guaranteed Obligations, the Subsidiary Guarantors will promptly pay
the same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
by acceleration or otherwise) in accordance with the terms of such extension or
renewal.
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SECTION 3.02. Obligations Unconditional. The obligations of the
Subsidiary Guarantors under Section 3.01 are absolute and unconditional, joint
and several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Borrower under this Agreement or any
other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section that the obligations of the
Subsidiary Guarantors hereunder shall be absolute and unconditional, joint and
several, under any and all circumstances. In full recognition and in furtherance
of the foregoing, each Subsidiary Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of Section
3.01 in accordance with its terms and without affecting, limiting,
reducing, discharging or terminating the liability of such Subsidiary
Guarantor, or the rights, remedies, powers and privileges of the
Administrative Agent and the Lenders under this Agreement or any other
agreement or instrument referred to herein or therein, the Administrative
Agent and the Lenders may, at any time and from time to time and without
notice or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew, waive, accelerate
or otherwise change the time for payment or performance of, or the
terms of, all or any part of the Guaranteed Obligations (including any
increase or decrease in the rate or rates of interest on all or any
part of the Guaranteed Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise
change, or enter into or give, any Loan Document or any agreement,
security document, guarantee, approval, consent or other instrument
with respect to all or any part of the Guaranteed Obligations, any
Loan Document or any such other instrument or any term or provision of
the foregoing (it being understood that this clause (ii) shall not be
deemed to constitute a consent by any Subsidiary Guarantor to any such
amendment with respect to any Loan Document to which it is a party);
(iii) accept or enter into new or additional agreements, security
documents, guarantees (including letters of credit) or other
instruments in addition to, in exchange for or relative to any Loan
Document, all or any part of the Guaranteed Obligations or any
collateral now or in the future serving as security for the Guaranteed
Obligations;
(iv) accept or receive (including from any other Subsidiary
Guarantor) partial payments or performance on the Guaranteed
Obligations (whether as a result of the exercise of any right, remedy,
power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or
any part of the Guaranteed Obligations (including from any other
Guarantor);
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(vi) release, reconvey, terminate, waive, abandon, allow to lapse
or expire, fail to perfect, subordinate, exchange, substitute,
transfer, foreclose upon or enforce any collateral, security documents
or guarantees (including Letters of Credit or the obligations of any
other Subsidiary Guarantor) for or relative to all or any part of the
Guaranteed Obligations;
(vii) apply any collateral or the proceeds of any collateral or
guarantee (including any Letter of Credit or the obligations of any
other Subsidiary Guarantor) to all or any part of the Guaranteed
Obligations in such manner and extent as the Administrative Agent or
any Lender may in its discretion determine;
(viii) release any Person (including any other Subsidiary
Guarantor) from any personal liability with respect to all or any part
of the Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such
terms and in such manner as the Administrative Agent or the Lenders
may determine or as applicable law may dictate all or any part of the
Guaranteed Obligations or any collateral on or guarantee (including
any Letter of Credit issued with respect to) of all or any part of the
Guaranteed Obligations;
(x) consent to the merger or consolidation of, the sale of
substantial assets by, or other restructuring or termination of the
corporate existence of the Borrower or any other Person (including any
other Subsidiary Guarantor);
(xi) proceed against the Borrower, such or any other Subsidiary
Guarantor or any other guarantor of (including any issuer of any
letter of credit issued with respect to) all or any part of the
Guaranteed Obligations or any collateral provided by any Person and
exercise the right, remedies, powers and privileges of the
Administrative Agent and the Lenders under this Agreement or any other
agreement or instrument referred to herein or therein, or otherwise in
such order and such manner as the Administrative Agent or any Lender
may, in its discretion, determine, without any necessity to proceed
upon or against or exhaust any collateral, right, remedy, power or
privilege before proceeding to call upon or otherwise enforce Section
3.01 as to any Subsidiary Guarantor;
(xii) foreclose upon any deed of trust, mortgage or other
instrument creating or granting liens on any interest in real property
by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid
any amount or make no bid in any foreclosure sale or make any other
election of remedies with respect to such liens or exercise any right
of set-off;
(xiii) obtain the appointment of a receiver with respect to any
collateral for all or any part of the Guaranteed Obligations and apply
the proceeds of such receivership as the Administrative Agent or any
Lender may in its discretion determine (it being agreed that nothing
in this clause (xiii) shall be deemed to
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make the Administrative Agent or any Lender a party in possession in
contemplation of law, except at its option);
(xiv) enter into such other transactions or business dealings
with any other Subsidiary Guarantor, the Borrower, any Subsidiary or
Affiliate of the Borrower or any other guarantor of all or any part of
the Guaranteed Obligations as the Administrative Agent or any Lender
may desire; and
(xv) do all or any combination of the actions set forth in this
Section.
(b) The enforceability and effectiveness of this Article and the
liability of the Subsidiary Guarantors, and the rights remedies, powers and
privileges of the Administrative Agent and the Lenders, under this
Agreement or any other agreement or instrument referred to herein or
therein, shall not be affected, limited, reduced, discharged or terminated,
and each Subsidiary Guarantor hereby expressly waives any defense now or in
the future arising, by reason of:
(i) the illegality, invalidity, irregularity, authenticity, or
unenforceability of all or any part of the Guaranteed Obligations,
this Agreement or any other agreement or instrument referred to herein
or therein, or any agreement, security document, guarantee or other
instrument relative to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense of the Borrower or any other
Subsidiary Guarantor with respect to all or any part of the Guaranteed
Obligations or any other guarantor of all or any part of the
Guaranteed Obligations (including any issuer of any letters of
credit), including the effect of any statute of limitations that may
bar the enforcement of all or any part of the Guaranteed Obligations
or the obligations of any such other guarantor;
(iii) the illegality, invalidity, irregularity, authenticity or
unenforceability of any security or guarantee (including any letter of
credit) for all or any part of the Guaranteed Obligations or the lack
of perfection or continuing perfection or failure of the priority of
any lien on any collateral for all or any part of the Guaranteed
Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of
the Borrower or any other Subsidiary Guarantor (other than subject to
Section 3.05, by reason of the full payment and performance of all
Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to
marshal assets in favor of the Borrower or any other Person (including
any other Subsidiary Guarantor), to exhaust any collateral for all or
any part of the Guaranteed Obligations, to pursue or exhaust any
right, remedy, power or privilege it may have against any other
Subsidiary Guarantor, the Borrower, any other guarantor, all or any
part of the Guaranteed Obligations (including either
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Issuing Lender in respect of Letters of Credit) or any other Person or
to take any action whatsoever to mitigate or reduce such or any other
Subsidiary Guarantor's liability under this Article, neither the
Administrative Agent nor any Lender being under any obligation to take
any such action notwithstanding the fact that all or any part of the
Guaranteed Obligations may be due and payable and that the Borrower
may be in default of its obligations under this Agreement or any other
agreement or instrument referred to herein or therein;
(vi) any failure of the Administrative Agent or any Lender to
give notice after any Default of sale or other disposition of any
collateral (including any notice of any judicial or nonjudicial
foreclosure or sale of any interest in real property serving as
collateral for all or any part of the Guaranteed Obligations) for all
or any part of the Guaranteed Obligations to the Borrower, any
Subsidiary Guarantor or any other Person or any defect in, or any
failure by any Subsidiary Guarantor or any other Person to receive,
any notice that may be given in connection with any sale or
disposition of any collateral;
(vii) any failure of the Administrative Agent or any Lender to
comply with applicable laws in connection with the sale or other
disposition of any collateral for all or any part of the Guaranteed
Obligations, including any failure to conduct a commercially
reasonable sale or other disposition of any collateral for all or any
part of the Guaranteed Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or
other election of remedies with respect to, any interest in real
property or other collateral serving as security for all or any part
of the Guaranteed Obligations, even though such foreclosure, sale or
election of remedies may impair the subrogation rights of any
Subsidiary Guarantor or may preclude any Subsidiary Guarantor from
obtaining reimbursement, contribution, indemnification or other
recovery from any other Subsidiary Guarantor, the Borrower any other
guarantor or any other Person and even though the Borrower may not, as
a result of such foreclosure, sale or election of remedies, be liable
for any deficiency;
(ix) any benefits the Borrower, any Subsidiary Guarantor or any
other guarantor may otherwise derive from Sections 580(a), 580(b),
580(d) or 726 of the California Code of Civil Procedure or any
comparable provisions of the laws of any other jurisdiction;
(x) any act or omission of the Administrative Agent, any Lender
or any other person that directly or indirectly results in or aids the
discharge or release of the Borrower or any other Subsidiary
Guarantor, of all or any part of the Guaranteed Obligations or any
security or guarantee (including any letter of credit) for all or any
part of the Guaranteed Obligations by operation of law or otherwise;
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(xi) any law which provides that the obligation of a surety or
guarantor must neither be larger in amount nor in other respects more
burdensome than that of the principal or which reduces a surety's
principal obligation;
(xii) the possibility that the obligations of the Borrower to the
Administrative Agent and the Lenders may at any time and from time to
time exceed the aggregate liability of the Subsidiary Guarantors under
this Article;
(xiii) any counterclaim, set-off or other claim which the
Borrower or any other Subsidiary Guarantor has or alleges to have with
respect to all or any part of the Guaranteed Obligations;
(xiv) any failure of the Administrative Agent or any Lender to
file or enforce a claim in any bankruptcy or other proceeding with
respect to any Person;
(xv) the election by the Administrative Agent or any Lender, in a
bankruptcy proceeding of any Person, of the application or
nonapplication of Section 1111(b)(2) of the United States Bankruptcy
Code;
(xvi) any extension of credit or the grant of any lien under
Section 364 of the United States Bankruptcy Code;
(xvii) any use of cash collateral under Section 363 of the United
States Bankruptcy Code;
(xviii) any agreement or stipulation with respect to the
provision of adequate protection in any bankruptcy proceeding of any
Person;
(xix) the avoidance of any lien in favor of the Administrative
Agent or any Lender for any reason;
(xx) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced
by or against any Person, including any discharge of, or bar or stay
against collecting, all or any part of the Guaranteed Obligations (or
any interest on all or any part of the Guaranteed Obligations) in or
as a result of any such proceeding;
(xxi) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor, including by reason of Sections 2809, 2810, 2819, 2839,
2845, 2850, 2899, 3275 and 3433 of the California Civil Code, and any
future judicial decisions or legislation or of any comparable
provisions of the laws of any other jurisdiction; or
(xxiii) diligence, presentment, demand of payment, protest and
all notices whatsoever.
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(c) Each Subsidiary Guarantor represents and warrants to the
Administrative Agent that it has established adequate means of obtaining
financial and other information pertaining to the business, operations and
condition (financial and otherwise) of the Borrower and its properties on a
continuing basis and that such Subsidiary Guarantor is now and will in the
future remain fully familiar with the business, operations and condition
(financial and otherwise) of the Borrower and its properties. Each
Subsidiary Guarantor further represents and warrants that it has reviewed
and approved this Agreement and the related Loan Documents and is fully
familiar with the transactions contemplated by such Loan Documents and that
it will in the future remain fully familiar with such transaction and with
any new Loan Documents and the transaction contemplated by such Loan
Documents. Each Subsidiary Guarantor hereby expressly waives and
relinquishes any duty on the part of the Administrative Agent or the
Lenders (should any such duty exist) to disclose to such or any other
Subsidiary Guarantor any matter of fact or other information related to the
business, operations or condition (financial or otherwise) of the Borrower
or its properties or to any Loan Documents or the transactions undertaken
pursuant to, or contemplated by, such Loan Documents, whether now or in the
future known by the Administrative Agent or any Lender.
SECTION 3.03. Reinstatement. The obligations of the Subsidiary
Guarantors under this Article shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
SECTION 3.04. Subrogation. Each Subsidiary Guarantor hereby waives all
rights of subrogation or contribution, whether arising by contract or operation
of law (including, without limitation, any such right arising under the Federal
Bankruptcy Code) or otherwise by reason of any payment by it pursuant to the
provisions of this Article. Each Subsidiary Guarantor understands that, by
reason of the foregoing provisions of this Section, the exercise by the
Administrative Agent or any Lender of the rights, remedies, powers and
privileges that it has under this Article and under the other Loan Documents
will result in nonreimbursable liabilities under this Agreement. Nevertheless,
each Subsidiary Guarantor hereby authorizes and empowers the Administrative
Agent and the Lenders to exercise, in its or their sole discretion, any
combination of such rights, remedies, powers and privileges as they, in their
sole discretion, shall deem appropriate.
SECTION 3.05. Remedies. The Subsidiary Guarantors jointly and
severally agree that, as between the Subsidiary Guarantors and the Lenders, the
obligations of the Borrower under this Agreement may be declared to be forthwith
due and payable as provided in Article VIII (and shall be deemed to have become
automatically due and payable in the
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circumstances provided in Article VIII) for purposes of Section 3.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Borrower and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Borrower) shall forthwith
become due and payable by the Subsidiary Guarantors for purposes of Section
3.01.
SECTION 3.06. Continuing Guarantee. The guarantee in this Article is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
SECTION 3.07. Limitation on Guarantee Obligations. In any action or
proceeding involving any state corporate law, or any state, Federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally (including "financial assistance" rules under the laws of
England, including Sections 151 to and including 158 of the Companies Act), if
the obligations of any Subsidiary Guarantor under Section 3.01 would otherwise
be held or determined to be void, invalid or unenforceable, or subordinated to
the claims of any other creditors, on account of the amount of its liability
under Section 3.01, then, notwithstanding any other provision hereof to the
contrary, the amount of such liability shall, without any further action by such
Subsidiary Guarantor, any Lender, the Administrative Agent or any other Person,
be automatically limited and reduced to the highest amount which is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding (or, in the case of U.K. Acquisition, be limited so
as not to guarantee the portion of the Loans that are not permitted to be
guaranteed under such "financial assistance" rules, including any portion of the
Loans made hereunder that are used to purchase shares in U.K. Acquisition).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that (with respect
to the Target, on and after the Initial Funding Date and subject to Section
10.17):
SECTION 4.01. Organization; Powers. Each of the Borrower and its
Subsidiaries (excluding Inactive Subsidiaries) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to 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 4.02. Authorization; Enforceability. The Transactions are
within each Obligor's corporate powers and (other than with respect to
Borrowings of Tranche III Revolving Loans until such date as any such Borrowings
are made) have been duly authorized by all necessary corporate and, if required,
by all necessary shareholder action. This Agreement has
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been duly executed and delivered by each Obligor and constitutes, and each of
the other Loan Documents to which it is a party when executed and delivered by
such Obligor will constitute, a legal, valid and binding obligation of such
Obligor, enforceable against each Obligor in accordance with its terms, except
as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
SECTION 4.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except for (i) such as have
been obtained or made and are in full force and effect and (ii) filings and
recordings in respect of the Liens created pursuant to the Security Documents,
(b) will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) subject to the repayment of all of the
Borrower's obligations under the 1997 Credit Agreement, will not violate or
result in a default under any indenture, agreement or other instrument binding
upon the Borrower or any of its Subsidiaries or assets, or give rise to a right
thereunder to require any payment to be made by any such Person, and (d) except
for the Liens created pursuant to the Security Documents, will not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
SECTION 4.04. Financial Condition; No Material Adverse Change.
(a) Financial Statements. The Borrower has heretofore furnished to the
Lenders the following:
(i) the consolidated balance sheet and statements of income,
stockholders' equity and cash flows of the Borrower (x) as of and for
the fiscal year ended February 28, 1998, certified by Arthur Andersen
LLP, independent public accountants, and (y) as of and for the fiscal
quarter and the portion of the fiscal year ended August 31, 1998,
certified by its chief financial officer;
(ii) the consolidated balance sheet and statements of income,
stockholders' equity and cash flows of the Target as of and for the
fiscal year ended April 30, 1998, certified by KPMG Audit, Plc,
independent public accountants; and
(iii) the pro forma consolidated balance sheet of the Borrower
(including of the Target and its Subsidiaries) as at August 31, 1998
and based on estimates with respect to the Target as at October 31,
1998 prepared under the assumption that the Tender Offer and the
Compulsory Acquisition, had been consummated on August 31, 1998.
Such financial statements present fairly, in all material respects, the
actual or pro forma (as applicable) financial position and results of
operations and cash flows of the Borrower and its Consolidated Subsidiaries
as of such dates and for such periods in accordance with GAAP (or, in the
case of the financial statements referred to in clause (ii) above,
accounting principles generally accepted in England), subject to year-end
audit adjustments and the absence of
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footnotes in the case of the statements referred to in subclause (y) of
clause (i) above; provided, that any representation herein with respect to
the pro forma consolidated balance sheet specified in clause (a)(iii)
above, insofar as such representation relates to the Target, is based on
the Borrower's actual knowledge (after due inquiry) and reasonable
estimates.
(b) No Material Adverse Change. Since February 28, 1998, there has
been no material adverse change in the business, assets, operations,
prospects or condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole.
SECTION 4.05. Properties.
(a) Property Generally. Each of the Borrower and its Subsidiaries
(excluding Inactive Subsidiaries) has good title to, or valid leasehold
interests in, all its real and personal Properties material to its
business, subject only to Liens permitted by Section 7.02 and except for
minor defects in title or leasehold interests that do not interfere with
its ability to conduct its business as currently conducted or to utilize
such Properties for their intended purposes.
(b) Intellectual Property. Each of the Borrower and its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights,
patents and other intellectual property material to its business, and the
use thereof by the Borrower and its Subsidiaries does not infringe upon the
rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 4.06. Litigation.
(a) Actions, Suits and Proceedings. There are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority now
pending against or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries (i) as to which there is
a reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect (other than the Disclosed Matters) or
(ii) that involve this Agreement or the Transactions.
(b) Disclosed Matters. Since the date of this Agreement, there has
been no change in the status of the Disclosed Matters that, individually or
in the aggregate, has resulted in, or materially increased the likelihood
of, a Material Adverse Effect.
SECTION 4.07. Environmental Matters. Except as described in the
Disclosed Matters, each of the Borrower and its Subsidiaries has obtained all
environmental, health and safety permits, licenses and other authorizations
required under all Environmental Laws to carry on its business as now being or
as proposed to be conducted, except to the extent failure to have any such
permit, license or authorization would not (either individually or in the
aggregate) have a Material Adverse Effect. Each of such permits, licenses and
authorizations is in full force and effect and each of the Borrower and its
Subsidiaries is in compliance with the terms and conditions thereof, and is also
in compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
any
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applicable Environmental Law or in any regulation, code, plan, order, decree,
judgment, injunction, notice or demand letter issued, entered, promulgated or
approved thereunder, except as described in Disclosed Matters and except to the
extent failure to comply therewith would not (either individually or in the
aggregate) have a Material Adverse Effect.
In addition, except as described in Disclosed Matters:
(a) No Pending Environmental Matters. No notice, notification, demand,
request for information, citation, summons or order has been issued, no
complaint has been filed, no penalty has been assessed and no investigation
or review is pending or threatened by any governmental or other entity with
respect to any alleged failure by the Borrower or any of its Subsidiaries
to have any environmental, health or safety permit, license or other
authorization required under any Environmental Law in connection with the
conduct of the business of the Borrower or any of its Subsidiaries or with
respect to any generation, treatment, storage, recycling, transportation,
discharge or disposal, or any Release of any Hazardous Materials generated
by the Borrower or any of its Subsidiaries, in each case in circumstances
which may reasonably be expected to have a Material Adverse Effect.
(b) No Permits Required; Certain Specific Representations. Neither the
Borrower nor any of its Subsidiaries owns, operates or leases a treatment,
storage or disposal facility requiring a permit under the Resource
Conservation and Recovery Act of 1976, as amended, or under any comparable
state or local statute; and
(i) no polychlorinated biphenyls (PCB's) are or have been present
at any site or facility now or previously owned, operated or leased by
the Borrower or any of its Subsidiaries;
(ii) no asbestos or asbestos-containing materials is or has been
present at any site or facility now or previously owned, operated or
leased by the Borrower or any of its Subsidiaries;
(iii) there are no underground storage tanks or surface
impoundments for Hazardous Materials, active or abandoned, at any site
or facility now or previously owned, operated or leased by the
Borrower or any of its Subsidiaries;
(iv) no Hazardous Materials have been Released at, on or under
any site or facility now or previously owned, operated or leased by
the Borrower or any of its Subsidiaries in a reportable quantity
established by statute, ordinance, rule, regulation or order; and
(v) no Hazardous Materials have been otherwise Released at, on or
under any site or facility now or previously owned, operated or leased
by the Borrower or any of its Subsidiaries;
that, in the case of any of clauses (i) through (v) above, may reasonably be
expected to have a Material Adverse Effect.
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(c) No Hazardous Material Transported to NPL Sites. Neither the
Borrower nor any of its Subsidiaries has transported or arranged for the
transportation of any Hazardous Material to any location that is listed on
the National Priorities List ("NPL") under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"),
listed for possible inclusion on the NPL by the Environmental Protection
Agency in the Comprehensive Environmental Response and Liability
Information System, as provided for by 40 C.F.R. ss. 300.5 ("CERCLIS"), or
on any similar state or local list or that is the subject of Federal, state
or local enforcement actions or other investigations that may lead to
Environmental Claims against the Borrower or any of its Subsidiaries.
(d) No Notifications or Listings. No oral or written notification of a
Release of a Hazardous Material has been filed by or on behalf of the
Borrower or any of its Subsidiaries and no site or facility now or
previously owned, operated or leased by the Borrower or any of its
Subsidiaries is listed or proposed for listing on the NPL, CERCLIS or any
similar state list of sites requiring investigation or clean-up that in any
such case could reasonably be expected to result in remediation costs and
fines in excess of $5,000,000.
(e) No Liens or Restrictions. No Liens have arisen under or pursuant
to any Environmental Laws on any site or facility owned, operated or leased
by the Borrower or any of its Subsidiaries, and no government action has
been taken or is in process that could subject any such site or facility to
such Liens and neither the Borrower nor any of its Subsidiaries would be
required to place any notice or restriction relating to the presence of
Hazardous Materials at any site or facility owned by it in any deed to the
real Property on which such site or facility is located.
(f) Full Disclosure. All environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or that are in the
possession of the Borrower or any of its Subsidiaries in relation to facts,
circumstances or conditions at or affecting any site or facility now or
previously owned, operated or leased by the Borrower or any of its
Subsidiaries and that could result in a Material Adverse Effect have been
made available to the Lenders.
SECTION 4.08. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its Property and all
indentures, agreements and other instruments binding upon it or its Property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 4.09. Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
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SECTION 4.10. Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Person has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.11. ERISA. The Borrower and its ERISA Affiliates have
fulfilled their respective obligations under the minimum funding standards of
ERISA and the Code with respect to each Plan and are in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code, and have not incurred any liability to the PBGC or any Plan or
Multiemployer Plan (other than to make contributions, pay annual PBGC premiums
or pay out benefits in the ordinary course of business).
SECTION 4.12. Disclosure. The Borrower has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Obligors to the Lenders in
connection with the negotiation of this Agreement and the other Loan Documents
or delivered hereunder or thereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time and does not omit information that would render
such projections misleading in any material respect.
SECTION 4.13. Use of Credit. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
SECTION 4.14. Material Agreements and Liens.
(a) Material Agreements. Part A of Schedule II is a complete and
correct list of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for
or otherwise relating to any Indebtedness or any extension of credit (or
commitment for any extension of credit) to, or guarantee by, the Borrower
or any of its Subsidiaries outstanding on the date hereof (or to the
Borrower's knowledge that may be outstanding after giving effect to the
Tender Offer) the aggregate principal or face amount of which equals or
exceeds (or may equal or exceed) $500,000, and the aggregate principal or
face amount outstanding or that may become outstanding under each such
arrangement is correctly described in Part A of Schedule II.
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(b) Liens. Part B of Schedule II is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the date
hereof (or to the Borrower's knowledge that may be outstanding after giving
effect to the Tender Offer) the aggregate principal or face amount of which
equals or exceeds (or may equal or exceed) $500,000 and covering any
Property of the Borrower or any of its Subsidiaries, and the aggregate
Indebtedness secured (or that may be secured) by each such Lien and the
Property covered by each such Lien is correctly described in Part B of
Schedule II.
SECTION 4.15. Capitalization. The authorized capital stock of the
Borrower consists, as at September 30, 1998, of an aggregate of 141,000,000
shares consisting of (i) 120,000,000 shares of Class A common stock, par value
$.01 per share, of which 14,628,860 shares are duly and validly issued and
outstanding and 3,183,605 shares are issued and held in treasury, each of which
shares is fully paid and nonassessable, (ii) 20,000,000 shares of Class B common
stock, par value $.01 per share, of which 3,248,187 shares are duly and validly
issued and outstanding and 625,725 shares are issued and held in treasury, each
of which shares is fully paid and nonassessable and (iii) 1,000,000 shares of
preferred stock, par value $.01 per share, none of which are issued or are
outstanding.
As at September 30, 1998, 12.83% of such issued and outstanding shares
of Class A common stock and 87.38% of such issued and outstanding shares of
Class B common stock are owned beneficially and of record by (i) Marvin Sands,
his spouse, his children, his grandchildren or the Mac and Sally Sands
Foundation, Incorporated, (ii) trusts which are for the benefit of Marvin Sands,
his spouse, his children or his grandchildren or Andrew Stern, which trusts are
under the control of Marvin Sands, his spouse, his children or his grandchildren
or (iii) partnerships which are controlled by (and a majority in interest of the
partnership interests in which are owned by) Marvin Sands, his spouse, his
children, his grandchildren, by a trust referred to in the foregoing clause (ii)
or by a partnership that satisfies the conditions of this clause (iii). The
percentage of Class A common stock set forth above does not include shares of
Class A common stock (i) that may be acquired by Marvin Sands or his children
through the exercise of any stock options or (ii) issuable pursuant to the
conversion feature of the Class B common stock owned beneficially and of record
by any of the persons, trusts and partnerships referred to in the foregoing
clauses (i), (ii) and (iii).
As of the date hereof, (x) except for conversion rights associated
with the Class B common stock, purchase rights associated with the Employee
Stock Purchase Plan, options associated with the Long-Term Stock Incentive Plan
and options listed on Schedule V hereto, there are no outstanding Equity Rights
with respect to the Borrower and (y) there are no outstanding obligations of the
Borrower or any of its Subsidiaries to repurchase, redeem, or otherwise acquire
any shares of capital stock of the Borrower nor, are there any outstanding
obligations of the Borrower or any of its Subsidiaries to make payments to any
Person, such as "phantom stock" payments, where the amount thereof is calculated
with reference to the fair market value or equity value of the Borrower or any
Subsidiary. The Borrower has heretofore delivered to the Administrative Agent a
complete and correct copy of the Employee Stock Purchase Plan, the Long-Term
Stock Incentive Plan and the Incentive Stock Option Plan, each as in effect on
the date hereof.
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SECTION 4.16. Subsidiaries and Investments.
(a) Subsidiaries. Set forth in Part A of Schedule IV is a complete and
correct list of all of the Subsidiaries of the Borrower as of the date
hereof, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership
interests in such Subsidiary and (iii) the nature of the ownership
interests held by each such Person and the percentage of ownership of such
Subsidiary represented by such ownership interests. Except as disclosed in
Part A of Schedule IV, (x) each of the Borrower and its Subsidiaries owns,
free and clear of Liens (other than Liens created pursuant to the Security
Documents and Liens securing the obligations under the 1997 Credit
Agreement), and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in Part A of
Schedule IV, (y) all of the issued and outstanding capital stock of each
such Person organized as a corporation is validly issued, fully paid and
nonassessable and (z) there are no outstanding Equity Rights with respect
to such Person.
(b) Investments. Set forth in Part B of Schedule IV is a complete and
correct list of all Investments (other than Investments disclosed in Part A
of Schedule IV and other than Investments of the types referred to in
clauses (b), (c), (f) or (h) of Section 7.04) held by the Borrower or any
of its Subsidiaries in any Person on the date hereof and, for each such
Investment, (x) the identity of the Person or Persons holding such
Investment and (y) the nature of such Investment. Except as disclosed in
Part B of Schedule IV, each of the Borrower and its Subsidiaries owns, free
and clear of all Liens (other than Liens created pursuant to the Security
Documents and Liens securing the obligations under the 1997 Credit
Agreement), all such Investments.
(c) Restrictions on Subsidiaries. None of the Subsidiaries of the
Borrower is, on the date hereof, subject to any indenture, agreement,
instrument or other arrangement of the type described in Section 7.07 (and
not permitted by clauses (i) through (v) of said Section).
SECTION 4.17. Real Property. Except with respect to leased space which
does not cost in excess of $25,000 per month in rental expense, set forth in
Schedule VI is a list, as of the date of this Agreement, of all the real
Property interests held by the Borrower and its Subsidiaries, indicating in each
case whether the respective Property is owned or leased, the identity of the
owner or lessee and the location of the respective Property.
SECTION 4.18. Year 2000 Issues. Any reprogramming required to permit
the proper functioning, prior to, during and following the year 2000, of (i) the
Borrower's computer systems and (ii) equipment containing embedded microchips
(including systems and equipment supplied by others or with which the Borrower's
systems interface) and the testing of all such systems and equipment, as so
reprogrammed, will be completed consistent with prudent operating practices. The
cost to the Borrower of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Borrower (including reprogramming
errors and the failure of others' systems or equipment) will not be material in
amount.
SECTION 4.19. Target Credit Facilities. The Borrower has heretofore
delivered to the Administrative Agent a true and complete copy of each of the
Target Credit Facilities. To
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the best knowledge of the Borrower, no event of default (or similar event), and
no event that with notice or lapse of time would become such an event of
default, has occurred and is continuing under any of the Target Credit
Facilities, nor has any demand for payment been made under any thereof, it being
understood that the Borrower makes no representation with respect to documents
or agreements executed in connection with the Target Credit Facilities and
referred to therein and makes no representation with respect to any default or
event of default that might arise as a result of a "change of control" or
similar provision in any of the Target Credit Facilities.
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Lender(s) to issue Letters of Credit hereunder shall
not become effective until the date (herein, the "Effective Date") on which the
Administrative Agent shall have received each of the following documents, each
of which shall be satisfactory to the Administrative Agent (and to the extent
specified below, to each Lender) in form and substance (or such condition shall
have been waived in accordance with Section 10.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
(b) Opinions of Counsel to the Obligors. Favorable written opinions
(addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of (i) Nixon, Hargrave, Devans & Doyle LLP, counsel for the
Obligors, substantially in the form of Exhibit E-1 to the Existing Credit
Agreement (a copy of which form is annexed hereto as Exhibit E-1), and
covering such other matters relating to the Obligors, this Agreement, any
other Loan Document or the Transactions as the Required Lenders shall
reasonably request and (ii) of McDermott, Will & Emory covering such
matters relating to the Indentures as the Required Lenders shall reasonably
request (and each Obligor hereby requests each such counsel to deliver such
opinion to the Lenders).
(c) Opinion of Special New York Counsel to Chase. An opinion, dated
the Effective Date, of Milbank, Tweed, Hadley & McCloy, special New York
counsel to Chase, substantially in the form of Exhibit F to the Existing
Credit Agreement (a copy of which form is annexed hereto as Exhibit F) (and
Chase hereby instructs such counsel to deliver such opinion to the
Lenders).
(d) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Obligor, the
authorization of the Transactions and any other legal
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matters relating to the Obligors, this Agreement or the Transactions, all
in form and substance satisfactory to the Administrative Agent and its
counsel.
(e) Officer's Certificate. A certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the
Borrower, confirming that, on and as of the Effective Date, (i) the
representations and warranties of the Borrower set forth in this Agreement,
and of each Obligor in each of the other Loan Documents to which it is a
party, are true and correct and (ii) no Default has occurred and be
continuing.
(f) Terms of Tender Offer. The terms of the Tender Offer as set forth
in the joint press release to be issued by J. Henry Schroder & Co. Limited
on behalf of the Borrower and U.K. Acquisition, which terms shall be
satisfactory to the Administrative Agent.
(g) Fees. All fees that the Borrower shall have agreed to pay to any
Lender or the Administrative Agent in connection herewith, including the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy, special
New York counsel to Chase, in connection with the negotiation, preparation,
execution and delivery of this Agreement and the other Loan Documents and
the extensions of credit hereunder (to the extent that statements for such
fees and expenses have been delivered to the Borrower).
The Administrative Agent shall notify the Borrower and the Lenders of
the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Lenders to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) on or prior to 3:00 p.m., New York City time, on
November 13, 1998 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
The parties hereto acknowledge and agree that the Administrative Agent
has notified the Borrower that the foregoing conditions were satisfied on or
prior to, and that the "Effective Date" for purposes of this Agreement occurred
on, November 2, 1998.
SECTION 5.02. Initial Funding Date . The obligations of the Lenders to
make the initial Loans and of the Issuing Lender(s) to issue the initial Letters
of Credit hereunder shall be subject to the satisfaction (or waiver in
accordance with Section 10.02) of the following conditions precedent on the date
of the making of such Loans or the issuance of such Letters of Credit, which
date shall in any event be on or after December 11, 1998 (the date upon which
such conditions are satisfied being herein called the "Initial Funding Date"):
(a) Offer Documents; Terms of Tender Offer. The Administrative Agent
shall have received copies of the Offer Documents, and of all other
documents and materials filed or released publicly by the Borrower or U.K.
Acquisition in connection with the Tender Offer, certified as true and
correct copies thereof as of the Initial Funding Date by the President, a
Vice President or a Financial Officer of the Borrower, and the conditions
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set forth in such documents shall conform to the conditions set forth in
the Press Release as approved by the Administrative Agent on or before the
Effective Date.
(b) The Tender Offer. The Tender Offer shall have been declared wholly
unconditional on behalf of U.K. Acquisition, without any amendment,
supplement, modification or waiver or decision not to invoke any of the
terms or conditions thereof contained in the Press Release and the related
Tender Offer documentation, unless consented to by the Required Lenders,
other than (i) any amendments, supplements, modifications, waivers or
decisions not to invoke which in the aggregate are not material in the
context of the Tender Offer (it being understood that mere extensions of
the time periods with respect to the Tender Offer shall not be deemed to be
material for these purposes, and that any increase in the aggregate
purchase price shall in any event require the consent of the Required
Lenders) and (ii) the failure to invoke a condition because the Panel has
directed that it may not do so (the Lenders hereby acknowledging that,
under the Takeovers Code, U.K. Acquisition may not invoke any condition of
the Tender Offer so as to cause the Tender Offer to lapse unless the
circumstances which give rise to the right to invoke such condition are of
material significance to U.K. Acquisition in the context of the Tender
Offer), provided that with respect to the minimum acceptance condition set
forth in the Press Release and the related Tender Offer documentation,
unless acceptances with respect to 90% of the Target Shares that are the
subject of the Tender Offer have been received by U.K. Acquisition prior to
the Initial Funding Date, the Borrower shall have demonstrated to the
reasonable satisfaction of the Required Lenders that there is no reasonable
basis to believe that the total number of acceptances that will be
eventually received during the period beginning on the date when the Tender
Offer documentation is posted to holders of Target Shares to and including
the date falling four months thereafter will be less than 90% of the Target
Shares that are the subject of the Tender Offer.
(c) Repayment of 1997 Credit Agreement. The principal of and interest
on, and all other amounts owing in respect of, the Indebtedness (other than
in respect of letters of credit which, as provided in Section 2.06(l) are
to become Letters of Credit hereunder) under the 1997 Credit Agreement,
shall have been (or shall be simultaneously) paid in full and any
commitments to extend credit thereunder shall have been (or shall be
simultaneously) canceled or terminated.
(d) Security Agreement; U.K. Pledge Agreements. The Administrative
Agent shall have received (i) the Security Agreement, duly executed and
delivered by the Borrower and the Subsidiary Guarantors, and the
certificates identified under the name of such Obligor in Annex 1 thereto,
in each case accompanied by undated stock powers executed in blank and (ii)
the U.K. Pledge Agreements duly executed and delivered by the Borrower and
U.K. Acquisition, respectively, together with certificates evidencing the
shares of U.K. Acquisition.
(e) Mortgage Modifications. With respect to each Mortgage, an
instrument of Modification and Confirmation substantially in the form of
Exhibits C-1 through C-7, pursuant to which such Mortgage shall have been
amended to spread the Lien thereof to
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secure the obligations under this Agreement, in each case duly executed,
acknowledged and delivered by the respective parties thereto, in recordable
form.
(f) Opinions of Counsel to the Obligors. The Administrative Agent
shall have received favorable written opinions (addressed to the
Administrative Agent and the Lenders and dated the Initial Funding Date) of
(i) Nixon, Hargrave, Devans & Doyle LLP, counsel for the Obligors,
substantially in the form of Exhibit E-2, (ii) Landels, Ripley and Diamond,
LLP, special California counsel for the Obligors, substantially in the form
of Exhibit E-3 and (iii) Fulton, Hubbard & Hubbard, special Kentucky
counsel for the Obligors, substantially in the form of Exhibit E-4 (and
each Obligor hereby requests each such counsel to deliver such opinion to
the Lenders).
(g) Representations and Warranties; No Defaults. The representations
and warranties contained in Sections 4.01, 4.02, 4.09 and 4.13 of this
Agreement, and in clauses (a), (b) and (c) of Section 2 of the Security
Agreement, shall be true and correct, and no Default shall have occurred
and be continuing under paragraph (b) of Article VIII and no Event of
Default shall have occurred and be continuing under (i) paragraph (a) of
Article VIII, (ii) paragraph (d) of Article VIII (only insofar as arising
out of a failure to apply the proceeds of the Term Loans to the purposes
enumerated in Section 6.08, the failure of U.K. Acquisition to be a Wholly
Owned Subsidiary of the Borrower, a breach by U.K. Acquisition of any of
the provisions of Article VII (excluding Section 7.08) where expressed to
apply to a Subsidiary of the Borrower or a breach by the Borrower of
Section 7.12(a) or 7.12(b)) or (iii) paragraph (h), (i) or (j) of Article
VIII (insofar as relating to the Borrower or U.K. Acquisition).
(h) Illegality. Such Borrowing and the use of the proceeds thereof
shall not violate (i) any provision of the certificate of incorporation or
by-laws or other organizational or governing documents of the Borrower or
U.K. Acquisition, or any United States or United Kingdom law, treaty, rule
or regulation or determination or injunction or similar order of an
arbitrator or a court or other Governmental Authority having (in each case)
the force of law, in each case applicable to or binding upon the Borrower
or U.K. Acquisition, or any of the Property of the Borrower or U.K.
Acquisition, or to which the Borrower or U.K. Acquisition or any of its
Property is subject or (ii) any United States or United Kingdom law,
treaty, rule or regulation or determination or injunction or similar order
of an arbitrator or a court or other Governmental Authority having (in each
case) the force of law, in each case applicable to or binding upon the
Administrative Agent or the Lenders.
(i) Officer's Certificate. The Administrative Agent shall have
received a certificate, dated the Initial Funding Date and signed by the
President, a Vice President or a Financial Officer of the Borrower,
confirming each of the matters set forth in paragraphs (g) and (h)(i)
above.
Anything herein to the contrary notwithstanding, the aggregate amount of Loans
that may be borrowed on the Initial Funding Date may not exceed the sum of (i)
the aggregate amount required, on the Initial Funding Date, to repay in full the
principal of and interest on and all other
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amounts owing under the 1997 Credit Agreement plus (ii) the aggregate purchase
price of the Target Shares required to be paid on the Initial Funding Date plus
(iii) the aggregate amount of funds to be advanced to the Target and its
Subsidiaries to repay or prepay Indebtedness of the Target and its Subsidiaries
on the Initial Funding Date plus (iv) fees and expenses payable in connection
with the Transactions. The Administrative Agent is authorized to deposit the
proceeds of the Loans made on the Initial Funding Date and to be used to provide
financing in connection with the Tender Offer in one or more accounts with Chase
pending the remittance of such proceeds by Chase to an account of the Borrower
with a receiving agent for the Tender Offer (which remittance shall occur no
later than the Business Day next succeeding the Initial Funding Date).
SECTION 5.03. Subsequent Tender Offer Loans. The obligations of the
Lenders to make the Tranche I and Tranche II Term Loans after the Initial
Funding Date, and to make any Revolving Loans the proceeds of which are to be
applied to finance the purchase of Target Shares in the Tender Offer or the
Compulsory Acquisition, shall be subject to the satisfaction (or waiver in
accordance with Section 10.02) of the following conditions precedent on the date
of the making of such Loans:
(a) Representations and Warranties; No Defaults. The representations
and warranties contained in Sections 4.01, 4.02, 4.09 and 4.13 of this
Agreement, and in clauses (a), (b) and (c) of Section 2 of the Security
Agreement, shall be true and correct, and no Default shall have occurred
and be continuing under paragraph (b) of Article VIII and no Event of
Default shall have occurred and be continuing under (i) paragraph (a) of
Article VIII, (ii) paragraph (d) of Article VIII (only insofar as arising
out of a failure to apply the proceeds of the Term Loans to the purposes
enumerated in Section 6.08, the failure of U.K. Acquisition to be a Wholly
Owned Subsidiary of the Borrower, a breach by U.K. Acquisition of any of
the provisions of Article VII (excluding Section 7.08) where expressed to
apply to a Subsidiary of the Borrower or a breach by the Borrower of
Section 7.12(a) or 7.12(b)) or (iii) paragraph (h), (i) or (j) of Article
VIII (insofar as relating to the Borrower or U.K. Acquisition).
(b) Illegality. Such Borrowing and the use of the proceeds thereof
shall not violate (i) any provision of the certificate of incorporation or
by-laws or other organizational or governing documents of the Borrower or
U.K. Acquisition, or any United States or United Kingdom law, treaty, rule
or regulation or determination or injunction or similar order of an
arbitrator or a court or other Governmental Authority having (in each case)
the force of law, in each case applicable to or binding upon the Borrower
or U.K. Acquisition, or any of the Property of the Borrower or U.K.
Acquisition, or to which the Borrower or U.K. Acquisition or any of its
Property is subject or (ii) any United States or United Kingdom law,
treaty, rule or regulation or determination or injunction or similar order
of an arbitrator or a court or other Governmental Authority having (in each
case) the force of law, in each case applicable to or binding upon the
Administrative Agent or the Lenders.
(c) Officer's Certificate. The Administrative Agent shall have
received a certificate, dated the date of such Loans and signed by the
President, a Vice President or a
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Financial Officer of the Borrower, confirming each of the matters set forth
in paragraph (a) and (b)(i) above.
SECTION 5.04. Each Credit Event. Except with respect to the initial
extension of credit hereunder (as to which the conditions precedent set forth in
Section 5.02 shall be applicable) or with respect to the making of Tranche I and
Tranche II Term Loans after the Initial Funding Date or Revolving Loans the
proceeds of which are to be applied to finance the purchase of Target Shares in
the Tender Offer or the Compulsory Acquisition (as to which the conditions
precedent set forth in Section 5.03 shall be applicable), the obligation of each
Lender to make a Loan on the occasion of any Borrowing, and of each Issuing
Lender to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in
this Agreement, and of each Obligor in each of the other Loan Documents to
which it is a party, shall be true and correct on and as of the date of
such Borrowing or the date of issuance, amendment, renewal or extension of
such Letter of Credit, as applicable; and
(b) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in the preceding
sentence.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that (in each case, subject to Section 10.17):
SECTION 6.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
the audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows of the Borrower and its
Consolidated Subsidiaries as of the end of and for such year, setting forth
in each case in comparative form the figures for the previous fiscal year,
all reported on by Arthur Andersen LLP or other independent public
accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all
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material respects the financial condition and results of operations of the
Borrower and its Consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, the consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows of the Borrower and its Consolidated Subsidiaries as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for (or,
in the case of the balance sheet, as of the end of) the corresponding
period or periods of the previous fiscal year, all certified by a Financial
Officer of the Borrower as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
Consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth
calculations in form and detail satisfactory to the Administrative Agent
demonstrating compliance with Sections 7.01(f), 7.01(g), 7.01(h), 7.04(e),
7.04(j), 7.04(k), 7.04(l) and 7.08, (iii) setting forth a calculation of
the Debt Ratio as at the end of the respective fiscal period (and
indicating which Category of Applicable Rate shall become effective upon
the delivery of such financial statements as contemplated by the definition
of the term "Applicable Rate" in Section 1.01) and (iv) stating whether any
change in GAAP or in the application thereof has occurred since the date of
the audited financial statements referred to in Section 4.04 and, if any
such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) of this Section, (i) 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) and (ii) a calculation setting
forth the amount of Excess Cash Flow for the relevant period for which such
Excess Cash Flow is to be calculated under Section 2.11(b)(iii);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any of its Subsidiaries with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally or to holders of
Subordinated Indebtedness generally, as the case may be; and
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(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any of its Subsidiaries, or compliance with the terms of this
Agreement and the other Loan Documents, as the Administrative Agent or any
Lender may reasonably request.
SECTION 6.02. Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any of its Affiliates that, if adversely determined, could
reasonably be expected to 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, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $1,000,000;
(d) the assertion of any Environmental Claim by any Person against, or
with respect to the activities of, the Borrower or any of its Subsidiaries
and any alleged violation of or non-compliance with any Environmental Laws
or any permits, licenses or authorizations, other than any Environmental
Claim or alleged violation that, if adversely determined, would not (either
individually or in the aggregate) have a Material Adverse Effect; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 6.03. Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
7.03.
SECTION 6.04. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could 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 or such Subsidiary has set aside on its books adequate reserves
with respect
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thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 6.05. Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all Property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 6.06. Books and Records; Inspection Rights. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 6.07. Compliance with Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its Property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 6.08. Use of Proceeds and Letters of Credit. The proceeds of
the Tranche I Revolving Loans and Tranche II Revolving Loans will be used solely
to (a) repay on the Initial Funding Date Indebtedness owing under the 1997
Credit Agreement, (b) provide working capital for the Borrower and its
Subsidiaries, (c) make Acquisitions as provided in the next succeeding sentence,
(d) pay the expenses relating to the consummation of the transactions
contemplated hereby and (e) to provide funds for the other general corporate
purposes (including Capital Expenditures) of the Borrower and its Subsidiaries.
Subject to the foregoing, the proceeds of the Tranche I Revolving Loans, Tranche
II Revolving Loans and Tranche III Revolving Loans will be used solely to make
acquisitions permitted under Section 7.03, provided that, as provided in Section
7.03(d), the Borrower will not use more than $75,000,000 of the aggregate
proceeds of the Tranche I Revolving Loans and Tranche II Revolving Loans to fund
any transaction described therein (other than the Tender Offer and related fees
and expenses) and/or pay any related fees or expenses referred to in said
Section. The proceeds of the Tranche III Term Loans will be used solely to repay
on the Initial Funding Date Indebtedness owing under the 1997 Credit Agreement.
The proceeds of the Tranche I and Tranche II Term Loans will be used solely to
provide financing in connection with the Tender Offer, the Compulsory
Acquisition and the repayment of Indebtedness of the Target and its
Subsidiaries, through investments in Dutch Acquisition, U.K. Acquisition and
Target in the manner provided for in Section 7.04(d). No part of the proceeds of
any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations U and X. Letters of Credit will be issued only to support general
corporate purposes of the Borrower and its Subsidiaries.
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SECTION 6.09. Certain Obligations Respecting Subsidiaries; Further
Assurances.
(a) Subsidiary Guarantors. The Borrower will take such action, and
will cause each of its Subsidiaries to take such action, from time to time
as shall be necessary to ensure that all Subsidiaries of the Borrower
(other then Excluded Entities) are "Subsidiary Guarantors" hereunder.
Without limiting the generality of the foregoing, in the event that the
Borrower or any of its Subsidiaries shall acquire or form any new
Subsidiary after the date hereof that the Borrower or the respective
Subsidiary anticipates will not be an Excluded Entity (or, in the event
that any Excluded Entity shall cease to be an Excluded Entity), the
Borrower or the respective Subsidiary will cause such new Subsidiary (or
such Excluded Entity which ceases to be an Excluded Entity) to
(i) become a "Subsidiary Guarantor" hereunder, and an "Obligor"
under the Security Agreement pursuant to a Guarantee Assumption
Agreement,
(ii) take such action (including delivering such shares of stock,
executing and delivering such Uniform Commercial Code financing
statements) as shall be necessary to create and perfect valid and
enforceable first priority Liens on substantially all of the personal
Property of such new Subsidiary as collateral security for the
obligations of such new Subsidiary hereunder and
(iii) deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent
with those delivered by each Obligor pursuant to Section 5.01 on the
Effective Date or as the Administrative Agent shall have requested.
Without limiting the generality of the foregoing, the Borrower hereby
agrees, on the Initial Funding Date (or as promptly as practicable
thereafter), (A) to execute and deliver to the Administrative Agent a
pledge agreement under Dutch law pursuant to which all of the shares of
Dutch Acquisition would be pledged to the Administrative Agent as
collateral security for the obligations of the Borrower hereunder and other
the other instruments referred to in the definition of "Secured
Obligations" in the Security Agreement and (B) to deliver an opinion of
Dutch counsel with respect to this Agreement and the foregoing pledge
agreement, in each case in form and substance reasonably satisfactory to
the Administrative Agent.
(b) Ownership of Subsidiaries. The Borrower will, and will cause each
of its Subsidiaries to, take such action from time to time as shall be
necessary to ensure that each of its Subsidiaries (other than Joint Venture
Entities and Inactive Subsidiaries) is a Wholly-Owned Subsidiary. In the
event that any additional shares of stock shall be issued by any
Subsidiary, the respective Obligor agrees forthwith to deliver to the
Administrative Agent pursuant to the Security Agreement the certificates
evidencing such shares of stock, accompanied by undated stock powers
executed in blank and to take such other action as the Administrative Agent
shall request to perfect the security interest created therein pursuant to
the Security Agreement, provided that, notwithstanding anything in this
Agreement to the contrary, the Obligors shall not
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be required to pledge more than 65% of the outstanding shares of voting
stock of any Foreign Subsidiary.
(c) Further Assurances. The Borrower will, and will cause each of the
other Obligors to, take such action from time to time as shall reasonably
be requested by the Administrative Agent to effectuate the purposes and
objectives of the parties to this Agreement. In that connection, on the
Initial Funding Date, the Borrower will deliver to the Administrative Agent
(i) certificates of insurance evidencing the existence of all insurance
required to be maintained by the Borrower pursuant to Section 6.05(b) and
the designation of the Administrative Agent as the loss payee or additional
named insured, as the case may be, thereunder to the extent required by
Section 6.05(b), such certificates to be in such form and contain such
information as is specified in Section 6.05(b) and (ii) a certificate of a
Financial Officer of the Borrower setting forth the insurance obtained by
it in accordance with the requirements of Section 6.05(b) and stating that
such insurance is in full force and effect and that all premiums then due
and payable thereon have been paid.
Without limiting the generality of the foregoing, the Borrower will,
and will cause each of its Subsidiaries (other than Excluded Entities,
except with respect to any Foreign Subsidiary that is not an Inactive
Subsidiary to the extent such action can be taken without resulting in
adverse tax consequences under Section 956 of the Code) to, take such
action from time to time (including filing appropriate Uniform Commercial
Code financing statements and executing and delivering such assignments,
security agreements and other instruments) as shall be reasonably requested
by the Administrative Agent to create, in favor of the Administrative Agent
for the benefit of the Lenders, perfected security interests and Liens in
substantially all of the Property of the Borrower and each of such
Subsidiaries (except that with respect to real property in the State of New
York, the Borrower and such Subsidiaries shall not be required to execute
Mortgages on such property except to secure not more than $2,000,000 of the
Term Loans hereunder).
With respect to each Modification and Confirmation of a Mortgage
executed and delivered pursuant to Section 5.02(e), the Borrower will (i)
deliver on the Initial Funding Date mortgagee down-date continuation
reports for the existing title policies issued pursuant to the 1997 Credit
Agreement, subject only to such exceptions as are satisfactory to the
Administrative Agent and, to the extent necessary under applicable law, for
filing in the appropriate county land offices, Uniform Commercial Code
financing statements covering fixtures, in each case appropriately
completed and duly executed and (ii) will pay to the respective title
companies all expenses of such title companies in connection with the
issuance of such down-date continuation reports and an amount equal to the
recording and stamp taxes payable in connection with recording the
respective instruments of Modification and Confirmation in the appropriate
county land offices.
SECTION 6.10. Hedging Agreements. The Borrower will from time to time
enter into such Hedging Agreements with one or more of the Lenders (and/or with
a bank or other financial institution having capital, surplus and undivided
profits of at least $500,000,000), that effectively enables the Borrower protect
itself against interest rate and currency fluctuations in a manner to be agreed
upon between the Borrower and the Required Lenders.
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ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
that (in each case subject to Section 10.17):
SECTION 7.01. Indebtedness. Subject to Section 10.14, the Borrower
will not, nor will it permit any of its Subsidiaries to, create, incur, assume
or permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in Part A
of Schedule II (or, to the extent not meeting the minimum thresholds for
required listing on said Schedule II pursuant to Section 4.14, in an
aggregate amount not exceeding $1,000,000), provided that (i) the principal
of and interest on, and all other amounts owing in respect of Indebtedness
under the 1997 Credit Agreement (other than in respect of letters of credit
which, as provided in Section 2.06(l) are to become Letters of Credit
hereunder) shall in any event be repaid in full on the Initial Funding Date
and (ii) to the extent provided in Section 7.12(c), the principal of and
interest on, and all other amounts owing in respect of Indebtedness under
the Target Credit Facilities shall be repaid as promptly as practicable
following the Initial Funding Date (except to the extent such Indebtedness
is permitted to be outstanding under clause (g) below);
(c) Subordinated Indebtedness;
(d) Indebtedness (i) of any Subsidiary to the Borrower or to any other
Subsidiary or (ii) of the Borrower to any Subsidiary Guarantor or to any
other Subsidiary (provided, that the aggregate principal amount of
Indebtedness outstanding to such other Subsidiaries shall at no time exceed
$50,000,000 (or its Sterling Equivalent) and such Indebtedness shall be
subordinated to the obligations of the Borrower to pay principal of and
interest on the Loans, the Reimbursement Obligations and all other amounts
payable hereunder on terms and conditions reasonably satisfactory to the
Administrative Agent);
(e) Guarantees by the Borrower of Indebtedness of any Subsidiary and
by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary;
(f) Guarantees by the Borrower or by any Subsidiary of Indebtedness of
any Person (other than the Borrower or any of its Subsidiaries); provided
that the aggregate principal amount of Indebtedness in respect of all such
Guarantees shall not exceed $40,000,000 at any time outstanding;
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(g) Indebtedness of the Target and its Subsidiaries; provided that at
the time of the creation, incurrence or assumption thereof and at any time
after giving effect thereto the aggregate principal amount of such
Indebtedness shall not exceed $15,000,000 (or its Sterling Equivalent); and
(h) other Indebtedness (including Capital Lease Obligations) of the
Borrower and its Subsidiaries, provided that at the time of the creation,
incurrence or assumption thereof and at any time after giving effect
thereto the aggregate principal amount of such Indebtedness shall not
exceed $75,000,000.
SECTION 7.02. Liens. Subject to Section 10.14, the Borrower will not,
nor will it permit any of its Subsidiaries to, create, incur, assume or permit
to exist any Lien on any Property or asset now owned or hereafter acquired by
it, or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except:
(a) Liens created pursuant to the Security Documents (and, prior to
the Initial Funding Date, Liens securing Indebtedness under the 1997 Credit
Agreement);
(b) Permitted Encumbrances;
(c) any Lien on any Property or asset of the Borrower or any of its
Subsidiaries existing on the date hereof and set forth in Part B of
Schedule II (or, to the extent not meeting the minimum thresholds for
required listing on said Schedule II pursuant to Section 4.14, in an
aggregate amount not exceeding $500,000); provided that (i) no such Lien
shall extend to any other Property or asset of the Borrower or any of its
Subsidiaries and (ii) any such Lien shall secure only those obligations
which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
(d) any Lien upon tangible personal Property acquired after the date
hereof by the Borrower or any of its Subsidiaries, which Lien either (A)
existed on such Property before the time of its acquisition and was not
created in anticipation thereof, or (B) was created solely for the purpose
of securing Indebtedness permitted under Section 7.01(h) representing, or
incurred to finance, refinance or refund, the cost of such Property;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition, (ii) such Lien shall not apply to any
other Property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date of
such acquisition and extensions, renewals and replacements thereof
permitted under clause (f) below;
(e) any Lien on any Property or asset of the Target or any of its
Subsidiaries securing Indebtedness permitted under Section 7.01(g),
provided, however, that the Liens permitted hereunder shall not be spread
to cover any Indebtedness or Property of the Borrower or any Subsidiary of
the Borrower other than the Target or any of its Subsidiaries; and
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(f) any extension, renewal or replacement of the foregoing, provided,
however, that the Liens permitted hereunder shall not be spread to cover
any additional Indebtedness or Property (other than a substitution of like
Property).
SECTION 7.03. Fundamental Changes. Subject to Section 10.14, the
Borrower will not, nor will it permit any of its Subsidiaries to, enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution). Subject to Section
10.14, the Borrower will not, nor will it permit any of its Subsidiaries to,
acquire any business or Property from, or capital stock of, or be a party to any
acquisition of, any Person except purchases of inventory and other Property to
be sold or used in the ordinary course of business, Investments permitted under
Section 7.04 and Capital Expenditures. Subject to Section 10.14, the Borrower
will not, nor will it permit any of its Subsidiaries to, convey, sell, lease,
transfer or otherwise dispose of, in one transaction or a series of
transactions, any part of its business or Property, whether now owned or
hereafter acquired (including, without limitation, receivables and leasehold
interests, but excluding sales and other dispositions of (i) any inventory or
other Property sold or disposed of in the ordinary course of business and on
ordinary business terms and (ii) other Property so long as the amount of such
other Property sold in any single fiscal year by the Borrower and its
Subsidiaries shall have a fair market value not in excess of 3% of the
Consolidated Tangible Assets as at the first day of such fiscal year).
Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary of the Borrower may be merged or consolidated with
or into: (i) the Borrower if the Borrower shall be the continuing or
surviving corporation, (ii) any Wholly-Owned Subsidiary of the Borrower
that is not a Foreign Subsidiary or (iii) if such Subsidiary is a Foreign
Subsidiary, any Wholly-Owned Subsidiary of the Borrower that is a Foreign
Subsidiary; provided that in any such transaction, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation;
(b) any such Subsidiary may sell, lease, transfer or otherwise dispose
of any or all of its Property (upon voluntary liquidation or otherwise) to
(i) the Borrower, (ii) any Wholly-Owned Subsidiary of the Borrower that is
not a Foreign Subsidiary or (iii) if such Subsidiary is a Foreign
Subsidiary, any Wholly-Owned Subsidiary of the Borrower that is a Foreign
Subsidiary;
(c) the Borrower or any Subsidiary of the Borrower may merge or
consolidate with any other Person if (i) in the case of a merger or
consolidation of the Borrower, the Borrower is the surviving corporation
and, in any other case, the surviving corporation is a Wholly-Owned
Subsidiary of the Borrower that is not a Foreign Subsidiary or, if such
merging or consolidating Subsidiary is a Foreign Subsidiary, any
Wholly-Owned Subsidiary of the Borrower that is a Foreign Subsidiary and
(ii) after giving effect thereto no Default would exist hereunder;
(d) the Borrower may (either directly, or indirectly through its
Wholly-Owned Subsidiaries) acquire the business or Property from, or
capital stock of, or enter into a
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joint venture with, or be a party to an Acquisition of another Person, so
long as at the time thereof and after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing hereunder and the
Borrower shall have delivered to the Administrative Agent a certificate of
its chief financial officer to such effect; provided that the Borrower will
not use more than $75,000,000 of the aggregate proceeds of the Tranche I
Revolving Loans and Tranche II Revolving Loans to fund any such transaction
and/or pay any related fees or expenses;
(e) the Borrower may, through U.K. Acquisition in the manner
contemplated under this Agreement, consummate the acquisition of Target
Shares in one or more installments in open market purchases, pursuant to
the Tender Offer or pursuant to the Compulsory Acquisition;
(f) the Borrower may (either directly, or indirectly through its
Wholly-Owned Subsidiaries) sell, lease, transfer or otherwise dispose of
(i) the Bisceglia Winery facility located in Madera, California and (ii)
the facility located in Taunton, England;
(g) the Borrower may, for the purpose of transferring its jurisdiction
of incorporation from Delaware to another state of incorporation, merge
with and into a Wholly-Owned Subsidiary in a transaction constituting a
tax-free reorganization under 368(a)(1)(F) of the Code, so long as:
(x) the Borrower shall give the Lenders and the Administrative
Agent at least 15 days prior written notice of the occurrence of such
merger;
(y) such Subsidiary shall execute and deliver an instrument in
form and substance satisfactory to each Lender and the Administrative
Agent pursuant to which such Subsidiary shall, effective upon such
merger, assume all of the obligations of the Borrower hereunder and
under the Security Documents (and execute and deliver such other
instruments as the Administrative Agent shall request to ensure the
continued perfection and priority of any Liens granted by the Borrower
pursuant to the Security Documents); and
(z) such Subsidiary shall deliver such proof of corporate action,
incumbency of officers, opinions of counsel and other documents as is
consistent with those delivered by the Borrower pursuant to Section
5.01 hereof upon the Effective Date or as any Lender or the
Administrative Agent shall have requested; and
(h) the Borrower may, for the purpose of making itself a Wholly-Owned
Subsidiary of a newly-formed holding company (herein the "Holding
Company"), enter into a transaction of merger or consolidation with another
entity or transfer its assets to another entity (such entity, in either
such case, being herein called the "New Company"), so long as:
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(u) the Borrower shall give the Lenders and the Administrative
Agent at least 15 days prior written notice of the occurrence of such
transaction (which notice shall specify the manner and timing in which
such transaction is to occur);
(v) in such transaction the shareholders of the Borrower shall
receive in exchange for the shares of stock in the Borrower held by
them immediately prior to such transaction newly-issued shares of
stock in the Holding Company representing substantially the same
respective percentage ownership interests in the Holding Company as
such shareholders held in the Borrower immediately prior to such
transaction;
(w) immediately after giving effect to such transaction, the
Borrower (or the New Company, as the case may be) shall be a
Wholly-Owned Subsidiary of the Holding Company;
(x) in the event that such transaction constitutes a merger with
a New Company in which the Borrower is not the surviving entity or
such transaction involves the transfer by the Borrower of its assets
to a New Company, the New Company shall execute and deliver an
instrument in form and substance satisfactory to each Lender and the
Administrative Agent pursuant to which the New Company shall,
effective upon such transaction, assume all of the obligations of the
Borrower hereunder and under the Security Documents (and execute and
deliver such other instruments as the Administrative Agent shall
request to ensure the continued perfection and priority of any Liens
granted by the Borrower pursuant to the Security Documents);
(y) the Holding Company shall execute and deliver an instrument
in form and substance satisfactory to each Lender and the
Administrative Agent pursuant to which the Holding Company shall,
effective upon such transaction, guarantee all of the obligations of
the Borrower (or the New Company, as the case may be) hereunder and
under the Security Documents and pledge all of the shares of stock
held by it in the Borrower (or the New Company, as the case may be)
and shall take such further action as the Administrative Agent shall
request to ensure the perfection and priority of any Liens granted by
the Holding Company pursuant to such instrument; and
(z) the Holding Company and the Borrower (or the New Company, as
the case may be) shall each deliver such proof of corporate action,
incumbency of officers, opinions of counsel and other documents as is
consistent with those delivered by the Borrower pursuant to Section
5.01 upon the Effective Date or as any Lender or the Administrative
Agent shall have requested.
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SECTION 7.04. Investments. Subject to Section 10.14, the Borrower will
not, nor will it permit any of its Subsidiaries to, make or permit to remain
outstanding any Investments except:
(a) Investments outstanding on the date hereof and identified in Part
B of Schedule IV;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments in connection with the Tender Offer consisting of (i)
Investments by the Borrower in U.K. Acquisition (whether directly, or
indirectly through Dutch Acquisition) for the purpose of providing funds to
purchase Target Shares in the Tender Offer and the Compulsory Acquisition,
(ii) Investments by U.K. Acquisition consisting of the purchase of Target
Shares in the Tender Offer and the Compulsory Acquisition and (iii)
Investments by the Borrower in the Target (whether directly, or indirectly
through Dutch Acquisition, U.K. Acquisition or otherwise) to enable the
Target to repay any outstanding Indebtedness of the Target and its
Subsidiaries;
(e) additional Investments by the Borrower and its Wholly-Owned
Subsidiaries in the Borrower and its Wholly-Owned Subsidiaries (i.e.
Investments other than those described in paragraph (d) above), provided
that the aggregate amount of such Investments in Foreign Subsidiaries,
together with the aggregate amount of Investments in Joint Venture Entities
under paragraph (j) below, shall not exceed $40,000,000 at any one time;
(f) Hedging Agreements entered into in the ordinary course of business
and not for speculative purposes;
(g) Investments permitted pursuant to Section 7.03(d);
(h) Investments consisting of security deposits with utilities and
other like Persons made in the ordinary course of business;
(i) the Senior Subordinated Note Guarantees, and any Guarantee of
additional Subordinated Indebtedness that complies with the requirements
Section 7.09(b);
(j) Investments by the Borrower and its Subsidiaries in Joint Venture
Entities (and Investments by Joint Venture Entities in other Persons),
provided that the aggregate amount of such Investments in Joint Venture
Entities, together with the aggregate amount of Investments in Foreign
Subsidiaries, under paragraph (e) above, shall not exceed $40,000,000 at
any one time;
(k) additional Investments by the Borrower and its Subsidiaries in the
Target, provided that the aggregate amount of such Investments shall not
exceed $100,000,000 at any one time; and
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(l) additional Investments by the Borrower (excluding, however,
Investments in Joint Venture Entities) up to but not exceeding $25,000,000
at any one time outstanding.
The aggregate amount of an Investment at any one time outstanding for purposes
of clauses (e), (j) and (k) above shall be deemed to be equal to (A) the
aggregate amount of cash, together with the aggregate fair market value of
Property, loaned, advanced, contributed, transferred or otherwise invested that
gives rise to such Investment minus (B) the aggregate amount of dividends,
distributions or other payments received in cash in respect of such Investment;
the amount of an Investment shall not in any event be reduced by reason of any
write-off of such Investment nor increased by any increase in the amount of
earnings retained in the Person in which such Investment is made that have not
been dividended, distributed or otherwise paid out.
SECTION 7.05. Restricted Payments.
(a) The Borrower will not, nor will it permit any of its Subsidiaries
to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except that the Borrower may (i) declare and pay
dividends with respect to its capital stock payable solely in additional
shares of its common stock, (ii) make Restricted Payments in respect of
stock appreciation rights, or other stock-based awards, under any stock
option plan of the Borrower (including without limitation the Long-Term
Stock Incentive Plan) so long as no Default shall have occurred and be
continuing or would result therefrom, (iii) cancel or terminate any
warrants, options or any other rights to acquire any shares of capital
stock of the Borrower in exchange for the issuance of any other warrants,
options or rights to acquire shares of capital stock of the Borrower, (iv)
repurchase its capital stock to the extent provided in paragraph (b) below
and (v) declare and make Restricted Payments in cash, subject (in the case
of this clause (v)) to the satisfaction of each of the following conditions
on the date of such Restricted Payment and after giving effect thereto:
(w) no Default shall have occurred and be continuing;
(x) the aggregate amount of Restricted Payments made during any
fiscal year, including the fiscal year ending February 28, 1998, shall
not exceed an amount equal to 50% of consolidated net income of the
Borrower and its Consolidated Subsidiaries for such fiscal year;
(y) the Debt Ratio for the period of four consecutive fiscal
quarters most recently ended prior to the date of any such Restricted
Payment shall not exceed 2.00 to 1; and
(z) the Borrower shall have delivered to the Administrative
Agent, at least 10 Business Days (but not more than 20 Business Days)
prior to the date of declaration of any such Restricted Payment, a
certificate of a Financial Officer of the Borrower setting forth
computations in reasonable detail demonstrating satisfaction of the
foregoing conditions as at the date of such certificate and stating
that such Financial Officer believes in good faith that none of such
conditions will fail to be satisfied on the date of payment of such
Restricted Payment,
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it being understood that to the extent the conditions specified in the
foregoing clauses (w) through (y) are satisfied on the date of declaration
of such Restricted Payment by the board of directors of the Borrower, such
Restricted Payment may be made at any time within the 60-day period
thereafter, regardless of whether such conditions continue to be satisfied.
(b) The Borrower may make Restricted Payments consisting of
repurchases of its capital stock, provided that:
(i) the aggregate amount of all such Restricted Payments,
together with the aggregate amount of prepayments of Subordinated
Indebtedness pursuant to clause (iii) of the last paragraph of Section
7.09, made during the term of this Agreement shall not exceed
$100,000,000;
(ii) after giving effect to any such Restricted Payment, the
Borrower shall be in compliance, on a pro forma basis, with Section
7.08 during the four quarter period most-recently ended under the
assumption that such Restricted Payment, and any related borrowing,
shall have been made or incurred at the beginning of such period (and,
to the extent requested by the Administrative Agent, the Borrower
shall have delivered a calculation demonstrating such pro forma
compliance satisfactory to the Administrative Agent); and
(iii) the Borrower will not make any Restricted Payment under
this paragraph (b) unless at the time thereof, and after giving effect
thereto, no Default shall have occurred and be continuing.
(c) Nothing in this Section shall be deemed to prohibit the payment of
dividends by any Subsidiary of the Borrower to the Borrower or to any other
Subsidiary of the Borrower.
SECTION 7.06. Transactions with Affiliates. The Borrower will not, nor
will it permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates; provided that (x) any Affiliate who is an individual may serve as a
director, officer or employee of the Borrower or any of its Subsidiaries and
receive reasonable compensation for his or her services in such capacity and (y)
the Borrower and its Subsidiaries may enter into transactions (other than
extensions of credit by the Borrower or any of its Subsidiaries to an Affiliate)
providing for the leasing of Property, the rendering or receipt of services or
the purchase or sale of inventory and other Property in the ordinary course of
business if the monetary or business consideration arising therefrom would be
substantially as advantageous to the Borrower and its Subsidiaries as the
monetary or business consideration which would obtain in a comparable
transaction with a Person not an Affiliate.
During any period that the Borrower is a public company regulated by,
and required to file regular periodic reports with, the Securities and Exchange
Commission, any compensation paid to an executive officer of the Borrower (who
is an Affiliate) which has been specifically approved by the board of directors
of the Borrower (or by the Compensation Committee of the board of directors of
the Borrower or other committee responsible for such
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approval) during such period will be deemed to be reasonable for purposes of the
foregoing. Notwithstanding the foregoing, the Borrower may enter into so-called
split-dollar life insurance agreements with Affiliates substantially in the form
of Schedule VII, so long as the aggregate amount of premiums payable by the
Borrower during any fiscal year pursuant to such agreements shall not exceed
$2,000,000 in the aggregate.
SECTION 7.07. Certain Restrictions on Subsidiaries. The Borrower will
not permit any of its Subsidiaries (other then Joint Venture Entities) to enter
into, after the date hereof, any indenture, agreement, instrument or other
arrangement that, directly or indirectly, prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially adverse conditions
upon, the incurrence or payment of Indebtedness, the granting of Liens, the
declaration or payment of dividends, the making of loans, advances, guarantees
or Investments or the sale, assignment, transfer or other disposition of
Property; provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by this Agreement, (ii) the foregoing shall not
apply to restrictions and conditions existing pursuant to the Target Credit
Facilities (as each such Target Credit Facility is in effect on the Initial
Funding Date, excluding any such restriction or condition implemented in
anticipation of the acquisition of the Target pursuant to the Tender Offer) or
the Senior Subordinated Note Indentures (it being understood that the foregoing
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition), or pursuant to any
additional Subordinated Indebtedness to the extent that such restrictions are
not less favorable to the Borrower than those contained in the Senior
Subordinated Note Indentures, (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) as applied to Liens, the foregoing shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the property
or assets securing such Indebtedness and (v) as applied to Liens, the foregoing
shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof.
SECTION 7.08. Certain Financial Covenants.
(a) Debt Ratio. The Borrower will not permit the Debt Ratio to exceed
the following respective ratios at any time during the following respective
periods:
Period Ratio
--------------- ---------
From the date hereof
through February 29, 2000 4.50 to 1
From March 1, 2000
through February 28, 2001 4.25 to 1
From March 1, 2001
and at all times thereafter 3.75 to 1
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(b) Senior Debt Ratio. The Borrower will not permit the Senior Debt
Ratio to exceed the following respective ratios at any time during the
following respective periods:
Period Ratio
--------------- ---------
From the date hereof
through February 29, 2000 3.75 to 1
From March 1, 2000
through August 31, 2000 3.50 to 1
From September 1, 2000
and at all times thereafter 3.00 to 1
(c) Interest Coverage Ratio. The Borrower will not permit the Interest
Coverage Ratio to be less than the following respective ratios at any time
during the following respective periods:
Period Ratio
---------------- ---------
From the date hereof
through February 29, 2000 2.50 to 1
From March 1, 2000
through February 28, 2001 2.75 to 1
From March 1, 2001
through February 28, 2002 3.00 to 1
From March 1, 2002
and at all times thereafter 3.25 to 1
(d) Fixed Charges Ratio. The Borrower will not permit the Fixed
Charges Ratio to be less than 1.00 to 1 as at the last day of any fiscal
quarter of each fiscal year.
SECTION 7.09. Subordinated Indebtedness. The Borrower may after the
date hereof incur additional Subordinated Indebtedness subject to the following
conditions (each of which shall have been fulfilled in form and substance
satisfactory to the Required Lenders):
(a) such Indebtedness shall be subordinated to the obligations of the
Borrower to pay principal of and interest on the Loans, the Reimbursement
Obligations and all other amounts payable hereunder on terms and conditions
no less favorable to the Lenders than the terms and conditions of the
Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and
none of its Subsidiaries shall be contingently or otherwise obligated in
respect thereof, unless subordinated to the obligations of such Subsidiary
to pay principal of and interest on the
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Loans, the Reimbursement Obligations and all other amounts payable
hereunder on terms and conditions no less favorable to the Lenders than the
terms and conditions of the Senior Subordinated Note Indentures;
(c) to the extent required pursuant to Section 2.11(b)(v), proceeds of
such Indebtedness shall be applied to prepay Loans in the manner provided
in Section 2.11(b)(v);
(d) the terms of such Indebtedness shall not provide for payment of
any portion of the principal thereof prior to the date six months after the
final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of
default and mandatory prepayments applicable to such Indebtedness shall be
terms that are at the time customary in the market for subordinated debt
being incurred by borrowers, and in transactions, comparable to the
Borrower and proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving
effect thereto, the Borrower shall be in compliance with Section 7.08 (the
determination of such ratios to be calculated under the assumption that
such Indebtedness was issued, at the beginning of the respective period and
that any other Indebtedness to be retired with the proceeds thereof was in
fact retired on such date of issuance), and the Borrower shall have
delivered to the Administrative Agent a certificate of its chief financial
officer to such effect setting forth in reasonable detail the computations
necessary to determine such compliance; and
(g) at the time of such issuance, and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing hereunder
and the Borrower shall have delivered to the Administrative Agent a
certificate of a Financial Officer to such effect.
Neither the Borrower nor any of its Subsidiaries shall purchase,
redeem, retire or otherwise acquire for value, or set apart any money for a
sinking, defeasance or other analogous fund for, the purchase, redemption,
retirement or other acquisition of, or make any voluntary payment or prepayment
of the principal of or interest on, or any other amount owing in respect of, any
Subordinated Indebtedness, except that the Borrower may (i) make payments on the
regularly-scheduled payment dates with respect to the principal of and interest
on the Subordinated Indebtedness as in effect on the date hereof (or, as to any
Subordinated Indebtedness issued after the date hereof, as originally in
effect), (ii) so long as no Default shall have occurred and be continuing (or
will occur as a result of such payment), from the proceeds of Subordinated
Indebtedness issued in accordance with the first paragraph of this Section,
redeem Subordinated Indebtedness that is being refinanced with such proceeds and
(iii) the Borrower may prepay Subordinated Indebtedness, so long as (x) at the
time thereof and after giving effect thereto no Default shall have occurred and
be continuing and (y) the aggregate amount of all such prepayments, together
with the aggregate amount of Restricted Payments made pursuant to section
7.05(b), shall not exceed $100,000,000. Neither the Borrower nor any of its
Subsidiaries
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will consent to any modification, supplement or waiver of any of the provisions
of any Subordinated Indebtedness without the prior consent of the Administrative
Agent (with the approval of the Required Lenders).
SECTION 7.10. Modifications of Certificate of Incorporation.
Notwithstanding the provisions of clause (g) or (h) of Section 7.03, the
Borrower will not modify or supplement its Certificate of Incorporation as in
effect on the date hereof in any manner adverse to the interests of the Lenders
without the prior consent of the Administrative Agent (with the approval of the
Required Lenders).
SECTION 7.11. Inventory Located in Off-Premises Warehouses. The
Borrower will not, nor will it permit any of its Subsidiaries (other than
Foreign Subsidiaries) to, maintain inventory at Off-Premises Warehouses in an
amount in excess of $50,000,000 (as to the Borrower and all Subsidiaries) at any
time unless the Borrower or such Subsidiary has taken such steps as are
necessary to ensure that the Administrative Agent has a valid prior perfected
security interest in such inventory (including, without limitation, the filing
of an appropriate uniform commercial code financing statement in the respective
jurisdiction in which such inventory is located naming the Borrower or such
Subsidiary as "secured party" and the delivery of satisfactory evidence that
such an arrangement constitutes a consignment or first priority perfected
security interest under applicable law and that such security interest has been
validly assigned to the Administrative Agent under the Security Agreement).
SECTION 7.12. Certain Matters Relating to the Tender Offer, Etc.
(a) Conduct of Tender Offer. In connection with the Tender Offer, the
Borrower will cause U.K. Acquisition to:
(i) comply in all material respects with the Financial Services
Act 1986 and the Companies Act and all other applicable laws and
regulations relevant in the context of the Tender Offer and use all
reasonable measures to comply with the Takeovers Code in all material
respects;
(ii) except and to the extent that compliance with this clause
(ii) would result in information being required to be made available
to Target shareholders under the Takeovers Code, provide the
Administrative Agent with such information regarding the progress of
the Tender Offer as it may reasonably request or that is publicly
available (including information with respect to any market purchases
of shares in the Target made or agreed upon by U.K. Acquisition), and
not approach the Panel seeking advice with respect to whether or not
any condition to the Tender Offer has been satisfied, or whether U.K.
Acquisition may invoke any such condition, without giving the
Administrative Agent prior notice thereof (and permitting the
Administrative Agent, if it so elects, a reasonable opportunity to
participate in such approach to the Panel);
(iii) subject to any requirements of the Takeovers Code or other
law, not issue any press release or make any statement during the
course of the Tender Offer that contains any information or statement
concerning this Agreement or the Lenders without
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first obtaining the prior approval of the information or statement
from the Administrative Agent or the Required Lenders;
(iv) unless the Tender Offer is lapsed or otherwise withdrawn,
not close the Tender Offer at a level of acceptances below the minimum
level required to entitle U.K. Acquisition to consummate the
Compulsory Acquisition of Target Shares, and related options, not then
owned by U.K. Acquisition;
(v) without limiting the generality of paragraph (b) below, after
the date upon which the Tender Offer is declared wholly unconditional,
use its commercially reasonable efforts (excluding, however, purchases
in the open market at prices above the offer price stipulated in the
Tender Offer) to acquire all outstanding Target Shares, and related
options, as soon as practicable either pursuant to, or otherwise on
the same terms as, the Tender Offer;
(vi) ensure that at no time shall circumstances arise whereby a
mandatory offer is required to be made by the terms of Rule 9 of the
Takeovers Code in respect of the Target Shares;
(vii) ensure that all of its obligations in connection with the
Tender Offer are complied with and performed in all material respects;
(viii) not acquire any shares in the Target in the market at a
price above the offer price stipulated in the Tender Offer; or
(ix) as soon as practicable after the acquisition by U.K.
Acquisition of any of the Target Shares (whether or not pursuant to
the Tender Offer or the Compulsory Acquisition), cause such Target
Shares (if the same are not in certificated form) to be converted into
certificated form, and to be delivered in pledge to the Administrative
Agent pursuant to the U.K. Pledge Agreement executed and delivered by
U.K. Acquisition, provided that in no event shall U.K. Acquisition be
required to deliver and pledge to the Administrative Agent more than
65% of the issued outstanding Target Shares.
(b) Consummation of Compulsory Acquisition. As promptly as reasonably
practicable after the Initial Funding Date, the Borrower will cause U.K.
Acquisition to consummate the Compulsory Acquisition of Target Shares, and
related options, not then owned by U.K. Acquisition, provided that in any
event the Borrower will cause U.K. Acquisition, not later than ten Business
Days after it becomes entitled to apply the provisions of Part XIIIA of the
Companies Act in relation to the holders of Target Shares, and related
options, to deliver appropriate notices under Section 429 of the Companies
Act to holders of Target Shares, and related options, that have not
accepted the Tender Offer.
(c) Target Credit Facilities. As promptly as practicable after the
Initial Funding Date, the Borrower shall cause the Target to repay or
prepay any Indebtedness then due and owing under the Target Credit
Facilities (except to the extent such Indebtedness is permitted to
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be outstanding under Section 7.01(g)). At any time after the date that the
Target is a Wholly-Owned Subsidiary of the Borrower, the Borrower shall not
permit the Target to incur any additional Indebtedness under any of the
Target Credit Facilities and, as loans, advances or other obligations under
the Target Credit Facilities mature or otherwise become due and payable,
will cause the Target to pay such amounts immediately.
(d) Offer Documents. Except as otherwise permitted by Section 5.02,
the Borrower will not enter into, or consent to, any modification,
supplement or waiver of any of the provisions of any Offer Document (as in
effect on the Initial Funding Date) without the prior written consent of
the Required Lenders.
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or under any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five or more Business Days;
(c) subject to Section 10.17, any representation or warranty made or
deemed made by or on behalf of the Borrower or any of its Subsidiaries in
or in connection with this Agreement or any other Loan Document or any
amendment or modification hereof or thereof, or in any report, certificate,
financial statement or other document furnished pursuant to or in
connection with this Agreement or any other Loan Document or any amendment
or modification hereof or thereof, shall prove to have been incorrect when
made or deemed made in any material respect;
(d) subject to Section 10.17, the Borrower shall fail to observe or
perform any covenant or agreement contained in Section 6.02, 6.03 (with
respect to the Borrower's existence), 6.08 or 6.09, or in Article VII;
(e) subject to Section 10.17, any Obligor shall fail to observe or
perform any covenant, condition or agreement contained in this Agreement
(other than those specified in clause (a), (b) or (d) of this Article) or
any other Loan Document and such failure shall continue unremedied for a
period of 45 or more days after notice thereof from the Administrative
Agent (given at the request of any Lender) to the Borrower;
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(f) subject to Section 10.17, the Borrower or any of its Subsidiaries
shall fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when and as
the same shall become due and payable;
(g) subject to Section 10.17, any event or condition occurs that
results in any Material Indebtedness becoming due prior to its scheduled
maturity or that enables or permits (with or without the giving of notice,
the lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer
of the Property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any of its Subsidiaries or its debts,
or of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any of
its Subsidiaries or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for a period
of 60 or more days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Borrower or any of its Subsidiaries shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any of its Subsidiaries or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower or any of its Subsidiaries shall become unable, admit
in writing its inability or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in excess of
$15,000,000 in the aggregate (regardless of insurance coverage) shall be
rendered against the Borrower or any of its Subsidiaries or any combination
thereof and the same shall remain undischarged for a period of 45
consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to attach or levy
upon any assets of the Borrower or any of its Subsidiaries to enforce any
such judgment;
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(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect;
(m) a reasonable basis shall exist for the assertion against the
Borrower or any of its Subsidiaries of (or there shall have been asserted
against the Borrower or any of its Subsidiaries) claims or liabilities,
whether accrued, absolute or contingent, based on or arising from the
generation, storage, transport, handling or disposal of Hazardous Materials
by the Borrower or any of its Subsidiaries or Affiliates, or any
predecessor in interest of the Borrower or any of its Subsidiaries or
Affiliates, or relating to any site or facility owned, operated or leased
by the Borrower or any of its Subsidiaries or Affiliates, which claims or
liabilities (insofar as they are payable by the Borrower or any of its
Subsidiaries but after deducting any portion thereof which is reasonably
expected to be paid by other creditworthy Persons jointly and severally
liable therefor), in the judgment of the Required Lenders are reasonably
likely to be determined adversely to the Borrower or any of its
Subsidiaries, and the amount thereof is, singly or in the aggregate,
reasonably likely to have a Material Adverse Effect (determined without
reference to the second sentence of the definition of such term);
(n) common stock of the Borrower (after giving effect to the exercise
of all outstanding Equity Rights, other than the conversion of shares of
Class B common stock into shares of Class A common stock), which in the
aggregate represents voting power to elect at least 50% (in number of
votes) of the board of directors of the Borrower, shall cease to be owned
or otherwise controlled by (i) Marvin Sands, his children, his
grandchildren or any spouse of any of the foregoing persons, (ii) trusts
for the benefit of Marvin Sands, his children, his grandchildren or any
spouse of any of the foregoing persons, or any trust for the benefit of
Andrew Stern, which trusts are under the control of Marvin Sands, his
children, his grandchildren or any spouse of any of the foregoing persons,
or (iii) partnerships which are controlled by (and a majority in interest
of the partnership interests in which are owned by) Marvin Sands, his
children, his grandchildren, any spouse of any of the foregoing persons, by
a trust referred to in the foregoing clause (ii) or by any partnership that
satisfies the conditions of this clause (iii); or
(o) any Lien created by the Security Documents shall at any time not
constitute a valid and perfected Lien on the collateral intended to be
covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of the
Administrative Agent for the benefit of the Lenders (excluding Liens on
collateral with a fair market value of less than $3,000,000 in the
aggregate), free and clear of all other Liens (other than Liens permitted
under Section 7.02 or under the respective Security Documents), or, except
for expiration in accordance with its terms, any of the Security Documents
shall for whatever reason be terminated or cease to be in full force and
effect, or the enforceability thereof shall be contested by any Obligor;
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then,
(A) in every such event (other than an event with respect to any
Obligor described in clause (h) or (i) of this Article), and at any
time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following
actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due
and payable), and thereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and all
fees and other obligations of the Obligors accrued hereunder, shall
become due and payable immediately, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
each Obligor; and
(B) in case of any event with respect to any Obligor described in
clause (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together
with accrued interest thereon and all fees and other obligations of
the Obligors accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Obligor.
Notwithstanding the foregoing, during the Term Loan Availability
Period, if the applicable conditions precedent to any extension of credit set
forth in Section 5.02 (or to any Term Loans set forth in Section 5.03) are
satisfied, (x) no termination of the Commitments, and no declaration, pursuant
to the foregoing paragraph (A) or any other circumstance shall relieve the
Lenders of their obligations to make Tranche I Revolving Loans, Tranche II
Revolving Loans or Term Loans (or to issue Letters of Credit) hereunder, (y) no
declaration pursuant to the foregoing clause (A) shall apply to any outstanding
Loans (whether such Loans were made before or after such declaration) to the
extent that the proceeds thereof have not been disbursed to pay holders of
Target Shares, or related options, for the purchase of Target Shares, or related
options, pursuant to the Tender Offer (such undisbursed proceeds being herein
called "Acquisition Funds") and (z) neither the Administrative Agent nor any
Lender will take any enforcement action against any Acquisition Funds or
otherwise seek to prevent the disbursement of any Acquisition Funds to pay
holders of Target Shares, or related options, for the purchase of Target Shares,
or related options, pursuant to the Tender Offer.
In the event that any outstanding Tranche I Revolving Loans, Tranche
II Revolving Loans or Swingline Loans are declared to be, or become, due and
payable pursuant to this Article, the Administrative Agent shall calculate the
Funding Percentages of the Tranche I Revolving Lenders and the Tranche II
Revolving Lenders as of the date that such Loans are declared to be, or become,
due and payable (the "Acceleration Date") and shall, on or prior to the Business
Day next succeeding the Acceleration Date, provide notice of such Funding
Percentages to all Tranche I Revolving Lenders and Tranche II Revolving Lenders,
together with a calculation of any amounts required to be paid by the
Underfunded Revolving Lenders as provided below. If on the Acceleration Date
either (i) the Funding Percentage of the Tranche I
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Revolving Lenders exceeds the Funding Percentage of the Tranche II Revolving
Lenders or (ii) the Funding Percentage of the Tranche II Revolving Lenders
exceeds the Funding Percentage of the Tranche I Revolving Lenders (such
Revolving Lenders whose Funding Percentage is so in excess being referred to
herein as the "Overfunded Revolving Lenders" and such other Revolving Lenders
being referred to herein as the "Underfunded Revolving Lenders"), each
Underfunded Revolving Lender shall be deemed to have acquired, on the
Acceleration Date, a participation in each outstanding Revolving Loan or
Swingline Loan (but not any Competitive Loan) made by, and in the LC Exposure
of, each Overfunded Revolving Lender (on a pro rata basis based on the
Applicable Percentage of such Underfunded Revolving Lender as of the
Acceleration Date) such that, after giving effect thereto, the Funding
Percentage of the Overfunded Revolving Lenders is equal to the Funding
Percentage of the Underfunded Revolving Lenders.
Each Tranche I Revolving Lender and Tranche II Revolving Lender hereby
absolutely and unconditionally agrees that, if such Lender is an Underfunded
Revolving Lender as provided above, upon receipt of notice from the
Administrative Agent as provided above, such Revolving Lender shall on or prior
to the date five Business Days after the Acceleration Date pay to the
Administrative Agent, for the account of the Overfunded Revolving Lenders, an
amount equal to the aggregate purchase price for all of the participations
acquired by such Revolving Lender as provided above. Each Tranche I Revolving
Lender and Tranche II Revolving Lender acknowledges and agrees that its
obligation to acquire participations in Revolving Loans, Swingline Loans and LC
Exposure pursuant to this paragraph is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or Event of Default or the reduction or termination of
the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Tranche I Revolving Lender
and Tranche II Revolving Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.07 with respect to Loans made by such Lender (and Section
2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Overfunded Revolving
Lenders (as their interests may appear) the respective amounts so received by it
from the Underfunded Revolving Lenders. The Administrative Agent shall notify
the Borrower of any participations in any Loans and LC Exposure acquired
pursuant to this paragraph. The purchase of participations in any Loan pursuant
to this paragraph shall not relieve the Borrower of any default in the payment
thereof.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Lenders hereby irrevocably
appoints the Administrative Agent as its agent hereunder and under the other
Loan Documents and as its trustee in relation to the U.K. Pledge Agreements and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative
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Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto.
The Person 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
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent 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 or
by the other Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders, and (c) except as expressly set
forth herein and in the other Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders or in the absence of its own gross negligence or willful
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 or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article V or
elsewhere herein or therein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
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 an Obligor), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
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The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
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, the Issuing Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right,
in consultation with the Borrower, to appoint a successor, which shall be a
commercial bank having an office in New York City and capital and surplus of at
least $500,000,000. If no such 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 and the Issuing
Lenders, appoint a successor Administrative Agent meeting the qualifications
described above. 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 its benefit in respect of any actions
taken or omitted to be taken by it 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 other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Except as otherwise provided in Section 10.02(b) with respect to this
Agreement, the Administrative Agent may, with the prior consent of the Required
Lenders (but not otherwise), consent to any modification, supplement or waiver
under any of the Loan Documents, provided that, without the prior consent of
each Lender, the Administrative Agent shall not (except as provided herein or in
the Security Documents) release any collateral or otherwise terminate any Lien
under any Security Document providing for collateral security, agree to
additional obligations being secured by such collateral security (unless the
Lien for such additional obligations shall be junior to the Lien in favor of the
other obligations secured by such Security Document, in which event the
Administrative Agent may consent to such junior Lien
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provided that it obtains the consent of the Required Lenders thereto) or alter
the relative priorities of the obligations entitled to the benefits of the Liens
created under the Security Documents, except that no such consent shall be
required, and the Administrative Agent is hereby authorized, to release any Lien
covering Property that is the subject of either a disposition of Property
permitted hereunder or a disposition to which the Required Lenders have
consented.
Without the authorization of the Required Lenders, neither the
Administrative Agent nor any Lender shall send to the Borrower or the Trustee
under the Senior Subordinated Note Indentures any notice of a Default or Event
of Default hereunder if such notice would result in a payment block in respect
of the Senior Subordinated Notes.
The Administrative Agent in its capacity as trustee or otherwise under
the UK Pledge Agreements:
(a) shall not be liable for any failure, omission, or defect in
perfecting the security constituted or created by either UK Pledge
Agreement including, without limitation, any failure to (i) register the
same in accordance with the provisions of any of the documents of title of
the Chargor (as defined in such U.K. Pledge Agreement) to any of the assets
thereby charged or (ii) effect or procure registration of or otherwise
protect the security created by this deed under any registration laws in
any jurisdiction;
(b) may accept without inquiry such title as the Chargor (as defined
in each U.K. Pledge Agreement) may have to the Shares (as so defined); and
(c) shall not be under any obligation to hold any title deed or any
other documents in connection with the UK Pledge Agreements or to take any
steps to protect or preserve the same. The Administrative Agent may permit
the Chargor (as defined in each U.K. Pledge Agreement) to retain all such
title deeds and other documents in its possession.
Except as otherwise provided in the U.K. Pledge Agreements, all moneys
which under the trusts therein contained are received by the Administrative
Agent in its capacity as trustee or otherwise may be invested in the name of or
under the control of the Administrative Agent in any investment for the time
being authorized by English law for the investment by trustees of trust money or
in any other investments which may be selected by the Administrative Agent.
Additionally, the same may be placed on deposit in the name of or under the
control of the Administrative Agent at such bank or institution (including
Chase) and upon such terms as the Administrative Agent may think fit.
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
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communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:
(a) if to the Borrower or any Subsidiary Guarantor, to it at 300
Willowbrook Office Park, Fairport, New York 14450, Attention of Robert
Sands, Esq. (Telecopy No. (716) 218-2160);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, 1
Chase Manhattan Plaza, 8th Floor, New York, New York 10081, Attention Loan
and Agency Services Group (Telecopy No. (212) 552-5658) (or, if such notice
or other communication relates to borrowings of, or payments or prepayments
of, or duration of Interest Periods for, Loans denominated in Sterling, to
The Chase Manhattan Bank, Woolgate House, Coleman Street, London, England
(Telecopy No. 44-171-777-2360), with a copy to The Chase Manhattan Bank,
270 Park Avenue, New York, New York 10017, Attention of Elizabeth
Iacoviello (Telecopy No. 212-270-6937);
(c) if to either Issuing Lender, to it at such address as may be
notified by it to the other parties hereto;
(d) if to the Swingline Lender, to it at such address as may be
notified by it to the other parties hereto; and
(e) if to a 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 Deemed Waivers; Remedies Cumulative. No failure or delay by the
Administrative Agent, either Issuing Lender or any Lender in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Administrative Agent, the Issuing
Lenders and the Lenders hereunder are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by any Obligor
therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the making
of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, any
Lender or either Issuing Lender may have had notice or knowledge of such
Default at the time.
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(b) Amendments. Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements
in writing entered into by the Borrower and the Required Lenders or by the
Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall (i) increase any Commitment
of any Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date
of payment of the principal amount of any Loan or LC Disbursement, or any
interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) alter the manner in which payments or prepayments of
principal, interest or other amounts hereunder shall be applied between or
among the Lenders or Classes of Loans without the written consent of each
Lender, (v) change any of the provisions of this Section or the definition
of the term "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender, (vi) change any of the
provisions of this Agreement in respect of the Tranche I Term Loan Sterling
Commitments, the Tranche I Term Loans or Revolving Loans denominated in
Sterling or the determination of amounts payable in Sterling hereunder
without the written consent of Tranche I Term Loan Sterling Lenders
representing at least 51% of the sum of the total Tranche I Term Loan
Sterling Commitments and the Tranche I Term Loans denominated in Sterling
at such time, or (vii) release any Subsidiary Guarantor from any of its
guarantee obligations under Article III without the written consent of each
Lender; and provided further that (x) no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent,
either Issuing Lender or the Swingline Lender hereunder without the prior
written consent of the Administrative Agent, such Issuing Lender or the
Swingline Lender, as the case may be, and (y) that any modification or
supplement of Article III shall require the consent of each Subsidiary
Guarantor.
Anything in this Agreement to the contrary notwithstanding, no waiver
or modification of any provision of this Agreement that has the effect
(either immediately or at some later time) of enabling the Borrower to
satisfy a condition precedent to the making of a Tranche I Revolving Loan,
Tranche II Revolving Loan or Tranche II Term Loan of any Series, shall be
effective against the Lenders of such Class for purposes of the respective
Tranche I Revolving Commitments, Tranche II Revolving Commitments or
Tranche III Revolving Commitments or Tranche II Term Loan Commitments of
such Series, as applicable, unless the Required Lenders of such Class shall
have concurred with such waiver or modification, and no waiver or
modification of any provision of this Agreement or any other Loan Document
that could reasonably be expected to adversely affect the Lenders of any
Class shall be effective against the Lenders of such Class unless the
Required Lenders of such Class shall have concurred with such waiver or
modification.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees,
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charges and disbursements of counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement and the other
Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all out-of-pocket expenses
incurred by either Issuing Lender in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder, (iii) all out-of-pocket expenses incurred by the
Administrative Agent, either Issuing Lender or any Lender, including the
fees, charges and disbursements of any counsel for the Administrative
Agent, either Issuing Lender or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or
in connection with the Loans made or Letters of Credit issued hereunder,
including in connection with any workout, restructuring or negotiations in
respect thereof and (iv) and all costs, expenses, taxes, assessments and
other charges incurred in connection with any filing, registration,
recording or perfection of any security interest contemplated by any
Security Document or any other document referred to therein.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Issuing Lender and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations hereunder
or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by an Issuing Lender to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any Property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to the Borrower or any of its Subsidiaries, or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct
of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower fails to
pay any amount required to be paid by it to the Administrative Agent, an
Issuing Lender or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent,
such Issuing Lender or the Swingline Lender, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed
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expense or indemnified loss, claim, damage, liability or related expense,
as the case may be, was incurred by or asserted against the Administrative
Agent, such Issuing Lender or the Swingline Lender in its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, no Obligor shall assert, and each Obligor hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(e) Payments. All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Obligor
may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted
assignment or transfer by any Obligor without such consent shall be null
and void), provided that any merger or consolidation involving any Obligor
permitted under Section 7.03 shall not be deemed to be an assignment for
purposes of this paragraph (a). 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, the Issuing Lenders and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Assignments by Lenders. 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 Commitments and the Loans at
the time owing to it); provided that:
(i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, and except during the period prior to the
completion of the general syndication of the Commitments and Loans
hereunder (in respect of any assignment by Chase), each of the
Borrower and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment or any Lender's
obligations in respect of its LC Exposure or Swingline Exposure, the
respective Issuing Lender and the Swingline Lender) 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(s), the amount of the
Commitment(s) of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect
to
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such assignment is delivered to the Administrative Agent) shall not be
less than $10,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent,
(iii) each partial assignment of the Loans or Commitments of any
Class shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement in
respect of such Class (provided that (x) Tranche I Term Loan Sterling
Commitments and Tranche I Term Loans denominated in Sterling may be
assigned separately from Tranche I Term Loan Dollar Commitments and
Tranche I Term Loans denominated in Dollars and (y) this clause (iii)
shall not apply to rights in respect of outstanding Competitive
Loans),
(iv) except in the case of an assignment to an Affiliate of a
Lender, 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, and
(v) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire;
provided further that any consent of the Borrower otherwise required under
this paragraph shall not be required if an Event of Default under clause
(h) or (i) of Article VIII has occurred and is continuing. Upon acceptance
and recording 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 2.15, 2.16, 2.17 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) Maintenance of Register by Administrative Agent. 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 Commitments
of, and principal amount of the Loans and LC Disbursements owing to, each
Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Lenders 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, either Issuing Lender and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
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(d) Effectiveness of Assignments. Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Lender and an assignee,
the assignee's completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee
referred to in paragraph (b) of this Section 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) Participations. Any Lender may, without the consent of the
Borrower, the Administrative Agent, either Issuing Lender or the Swingline
Lender, 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 and the other Loan Documents (including all or a
portion of its Commitments and the Loans owing to it); provided that (i)
such Lender's obligations under this Agreement and the other Loan Documents
shall remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations and (iii)
the Borrower, the Administrative Agent, the Issuing Lenders and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement
and the other Loan Documents. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any
provision of this Agreement or any other Loan Document; 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 2.15,
2.16 and 2.17 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this Section.
(f) Limitations on Rights of Participants. A Participant shall not be
entitled to receive any greater payment under Section 2.15 or 2.17 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 2.17 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
2.17(e) as though it were a Lender.
(g) Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any such pledge or assignment to a
Federal Reserve Bank, 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 assignee for such Lender as a
party hereto.
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(h) No Assignments to Obligors or Affiliates. Anything in this Section
to the contrary notwithstanding, no Lender may assign or participate any
interest in any Loan or LC Exposure held by it hereunder to the Borrower or
any of its Affiliates or Subsidiaries without the prior consent of each
Lender.
SECTION 10.05. Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, either Issuing Lender or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.15, 2.16, 2.17, 3.03 and 10.03 and
Article IX 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 Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of any Obligor against any of and all the
obligations of
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any Obligor now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby irrevocably and
unconditionally submits, for itself and its Property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New
York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Administrative Agent, either
Issuing Lender or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Obligor or its properties
in the courts of any jurisdiction.
(c) Waiver of Venue. Each Obligor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any court referred to in paragraph (b) of
this Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(d) Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in
Section 10.01. 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
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AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Treatment of Certain Information; Confidentiality.
(a) Treatment of Certain Information. The Borrower acknowledges that
from time to time financial advisory, investment banking and other services
may be offered or provided to the Borrower or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by any Lender
or by one or more subsidiaries or affiliates of such Lender and the
Borrower hereby authorizes each Lender to share any information delivered
to such Lender by the Borrower and its Subsidiaries pursuant to this
Agreement, or in connection with the decision of such Lender to enter into
this Agreement, to any such subsidiary or affiliate, it being understood
that any such subsidiary or affiliate receiving such information shall be
bound by the provisions of paragraph (b) of this Section as if it were a
Lender hereunder. Such authorization shall survive the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
(b) Confidentiality. Each of the Administrative Agent, the Issuing
Lenders and the Lenders agrees (on behalf of itself and each of its
affiliates, directors, officers, employees and representatives) to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (i) 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), (ii) to
bank examiners (or any other regulatory authority having jurisdiction over
any Lender or the Administrative Agent), (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iv) to any other party to this Agreement, (v) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (vi) subject
to an agreement containing provisions substantially the same as those of
this paragraph, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (vii) with the consent of the Borrower or (viii) to the extent
such Information (A) becomes publicly available other than as a result of a
breach of this paragraph or (B) becomes available to the Administrative
Agent, either Issuing Lender or any Lender on a nonconfidential basis from
a source other than an Obligor. For the purposes of this paragraph,
"Information" means all information received from any Obligor or any of its
Subsidiaries or Joint Venture Entities relating to any Obligor, its
business or any such Subsidiary or Joint Venture Entity, other than any
such information that is available to the Administrative Agent, either
Issuing Lender or any Lender on a nonconfidential basis prior to disclosure
by an Obligor. 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
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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.
Unless specifically prohibited by applicable law or court order, each
Lender and the Administrative Agent shall, prior to disclosure thereof, notify
the Borrower of any request for disclosure of any Information (A) by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender by such
governmental agency) or (B) pursuant to legal process, and will permit the
Borrower (to the extent the same would not adversely affect such Lender or the
Administrative Agent) to pursue available remedies to resist such disclosure and
or obtain a protective order limiting such disclosure.
SECTION 10.13. "Credit Agreement" under Senior Subordinated
Indentures. It is the intention of the parties hereto that this Agreement
constitutes one of the successive renewals, substitutions, refinancings or
replacements of the Credit Agreement dated as of June 29, 1993 between the
Borrower, the Subsidiaries of the Borrower identified on the signature pages
thereof under the caption "Subsidiary Guarantors", the lenders named therein and
The Chase Manhattan Bank, as agent, referred to in the definition of "Credit
Agreement" in Section 101 of the Senior Subordinated Note Indentures and that,
accordingly, this Agreement constitutes the "Credit Agreement" under and as
defined in the Senior Subordinated Notes Indentures.
SECTION 10.14. Exceptions to Certain Covenants. To the extent that the
covenants set forth in Section 7.01, 7.02, 7.03 or 7.04 would, as applied to the
Subsidiaries of the Borrower, be deemed to violate the provisions of Section
7.07 of the 1997 Credit Agreement, such covenants shall be deemed inapplicable
until the Initial Funding Date.
SECTION 10.15. European Monetary Union.
(a) Definitions. In this Section 10.15 and in each other provision of
this Agreement to which reference is made in this Section 10.15 (whether
expressly or impliedly), the following terms have the meanings given to
them in this Section 10.15:
"Commencement of the Third Stage of EMU" means the date of
commencement of the third stage of EMU (on the date hereof expected to
be January 1, 1999) or the date on which circumstances arise which (in
the opinion of the Required Lenders of the relevant Class providing
such Loan in Sterling hereunder) have substantially the same effect
and result in substantially the same consequences as commencement of
the third stage of EMU as contemplated by the Treaty on European
Union.
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"EMU Legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of a
single or unified European currency (whether known as the euro or
otherwise), being in part the implementation of the third stage of
EMU.
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"Euro" means the single currency of Participating Member States
of the European Union, which shall be a Currency under this Agreement.
"Euro Unit" means a currency unit of the Euro.
"National Currency Unit" means a unit of any Currency (other than
a Euro Unit) of a Participating Member State.
"Participating Member State" means each state so described in any
EMU Legislation.
"Target Operating Day" means any day that is not (i) a Saturday
or Sunday, (ii) Christmas Day or New Year's Day or (iii) any other day
on which the Trans-European Real-time Gross Settlement Operating
System (or any successor settlement system) is not operating (as
determined by the Administrative Agent).
"Treaty on European Union" means the Treaty of Rome of March 25,
1957, as amended by the Single European Act 1986 and the Maastricht
Treaty (which was signed at Maastricht on February 7, 1992, and came
into force on November 1, 1993), as amended from time to time.
(b) Effectiveness of Provisions. The provisions of paragraphs (c)
through (h) below shall be effective at and from the Commencement of the
Third Stage of EMU, provided, that if and to the extent that any such
provision relates to any state (or the currency of such state) that is not
a Participating Member State on the Commencement of the Third Stage of EMU,
such provision shall become effective in relation to such state (and the
currency of such state) at and from the date on which such state becomes a
Participating Member State.
(c) Redenomination and Alternative Currencies. Each obligation under
this Agreement of a party to this Agreement which has been denominated in
the National Currency Unit of a Participating Member State shall be
redenominated into the Euro Unit in accordance with EMU Legislation,
provided, that if and to the extent that any EMU Legislation provides that
following the Commencement of the Third Stage of EMU an amount denominated
either in the Euro or in the National Currency Unit of a Participating
Member State and payable within the Participating Member State by crediting
an account of the creditor can be paid by the debtor either in the Euro
Unit or in that National Currency Unit, any party to this Agreement shall
be entitled to pay or repay any such amount either in the Euro Unit or in
such National Currency Unit.
(d) Payments by the Administrative Agent Generally. With respect to
the payment of any amount denominated in the Euro or in a National Currency
Unit, the Administrative Agent shall not be liable to the Borrower or any
of the Lenders in any way whatsoever for any delay, or the consequences of
any delay, in the crediting to any account of any amount required by this
Agreement to be paid by the Administrative Agent if the Administrative
Agent shall have taken all relevant steps to achieve, on the date required
by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared
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funds (in the Euro Unit or, as the case may be, in a National Currency
Unit) to the account of any Lender in the Principal Financial Center in the
Participating Member State which such Borrower or, as the case may be, such
Lender shall have specified for such purpose. In this paragraph (d), "all
relevant steps" means all such steps as may be prescribed from time to time
by the regulations or operating procedures of such clearing or settlement
system as the Administrative Agent may from time to time determine for the
purpose of clearing or settling payments of the Euro.
(e) Determination of LIBO Rate. For the purposes of determining the
date on which the applicable rate for Eurocurrency Borrowings is determined
under this Agreement for any Borrowing or Loan denominated in the Euro (or
any National Currency Unit) for any Interest Period therefor, references in
this Agreement to Business Days shall be deemed to be references to Target
Operating Days. In addition, if the Administrative Agent determines that
there is no LIBO Rate displayed on the applicable Telerate screen page for
deposits denominated in the National Currency Unit in which any Borrowings
or Loans are denominated, the LIBO Rate for such Borrowings or Loans shall
be based upon the rate displayed on the applicable Telerate screen page for
the offering of deposits denominated in Euro Units.
(f) Basis of Accrual. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the Currency of any state that
becomes a Participating Member State shall be inconsistent with any
convention or practice in the applicable interbank market for the basis of
accrual of interest or fees in respect of the Euro, such convention or
practice shall replace such expressed basis effective as of and from the
date on which such state becomes a Participating Member State, provided,
that if any Borrowing or Loan in the Currency of such state if outstanding
immediately prior to such date, such replacement shall take effect, with
respect to such Borrowing or Loan, at the end of the then current Interest
Period.
(g) Rounding. Without prejudice and in addition to any method of
conversion or rounding prescribed by the EMU Legislation, each reference in
this Agreement to a minimum amount (or a multiple thereof) in a National
Currency Unit to be paid to or by the Administrative Agent shall be
replaced by a reference to such reasonably comparable and convenient amount
(or a multiple thereof) in the Euro Unit as the Administrative Agent may
from time to time specify.
(h) Other Consequential Changes. Without prejudice to the respective
liabilities of the Borrowers to the Lenders and the Lenders to the
Borrowers under or pursuant to this Agreement, except as expressly provided
in this Section 10.15, each provision of this Agreement shall be subject to
such reasonable changes of construction as the Administrative Agent may
from time to time specify to be necessary or appropriate to reflect the
introduction of or changeover to the Euro in Participating Member States.
Without limiting the generality of the foregoing, if Sterling is at any
time a National Currency Unit, the relevant display page on the Telerate
screen used to determine the Eurocurrency Rate for applicable Borrowings or
Loans in Sterling shall be determined by the Administrative Agent.
SECTION 10.16. Judgment Currency. This is an international loan
transaction in which the specification of Dollars or Sterling, as the case may
be (the "Specified Currency"), and any payment in New York County or the country
of the Specified Currency, as the case may be
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(the "Specified Place"), is of the essence, and the Specified Currency shall be
the currency of account in all events relating to Loans denominated in the
Specified Currency. The payment obligations of the Borrower under this Agreement
shall not be discharged by an amount paid in another currency or in another
place, whether pursuant to a judgment or otherwise, to the extent that the
amount so paid on conversion to the Specified Currency and transfer to the
Specified Place under normal banking procedures does not yield the amount of the
Specified Currency at the Specified Place due hereunder. If for the purpose of
obtaining judgment in any court it is necessary to convert a sum due hereunder
in the Specified Currency into another currency (the "Second Currency"), the
rate of exchange which shall be applied shall be that at which in accordance
with normal banking procedures the Administrative Agent could purchase the
Specified Currency with the Second Currency on the Business Day next preceding
that on which such judgment is rendered. The obligation of the Borrower in
respect of any such sum due from it to the Administrative Agent or any Lender
hereunder shall, notwithstanding the rate of exchange actually applied in
rendering such judgment, be discharged only to the extent that on the Business
Day following receipt by the Administrative Agent or such Lender, as the case
may be, of any sum adjudged to be due hereunder in the Second Currency to the
Administrative Agent or such Lender, as the case may be, the Administrative
Agent or such Lender, as the case may be, may in accordance with normal banking
procedures purchase and transfer to the Specified Place the Specified Currency
with the amount of the Second Currency so adjudged to be due; and the Borrower
hereby, as a separate obligation and notwithstanding any such judgment, agrees
to indemnify the Administrative Agent or such Lender, as the case may be,
against, and to pay the Administrative Agent or such Lender, as the case may be,
on demand in the Specified Currency, any difference between the sum originally
due to the Administrative Agent or such Lender, as the case may be, in the
Specified Currency and the amount of the Specified Currency so purchased and
transferred.
SECTION 10.17. Cleanup Period. The Lenders and the Administrative
Agent acknowledge and agree that if, at any time during the period (herein, the
"Cleanup Period") commencing on the Effective Date through but not including the
forty-sixth day following the date on which the Tender Offer is declared wholly
unconditional by U.K. Acquisition, the Borrower shall fail to cause the Target
or any of its Subsidiaries to comply with any of the covenants herein or in any
of the other Loan Documents, or if any of the representations or warranties made
herein or in any of the other Loan Documents (or in any report, financial
statement, certificate or other document furnished in connection herewith or
therewith) by or on behalf of the Target or any of its Subsidiaries shall prove
to have been incorrect in any material respect, then, notwithstanding anything
herein to the contrary, such failure to comply with covenants (other than any
such failure that is caused or authorized by the Borrower, it being understood
that mere knowledge of a failure to comply shall not constitute authorization
for purposes hereof) and any such incorrectness with respect to representations
or warranties shall not constitute a Default or Event of Default hereunder until
after the expiration of the Cleanup Period (and then only to the extent that the
same is continuing).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
CANANDAIGUA BRANDS, INC.
By: /s/Thomas S. Summer
Title: Chief Financial Officer
SUBSIDIARY GUARANTORS
BATAVIA WINE CELLARS, INC.
CANANDAIGUA EUROPE LIMITED
CANANDAIGUA WINE COMPANY, INC
POLYPHENOLICS, INC.
ROBERTS TRADING CORP.
By: /s/Thomas S. Summer
Title: Treasurer
BARTON INCORPORATED
BARTON BRANDS, LTD.
BARTON BEERS, LTD.
BARTON BRANDS OF CALIFORNIA, INC.
BARTON BRANDS OF GEORGIA, INC.
BARTON DISTILLERS IMPORT CORP.
BARTON FINANCIAL CORPORATION
MONARCH IMPORT COMPANY
STEVENS POINT BEVERAGE CO.
THE VIKING DISTILLERY, INC.
By /s/Thomas S. Summer
Title: Vice President
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CANANDAIGUA LIMITED
By /s/Thomas S. Summer
Title: Director
CANANDAIGUA B.V.
By /s/Thomas S. Summer
Title:
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LENDERS
THE CHASE MANHATTAN BANK,
individually, as Swingline Lender
and as Administrative Agent
By: /s/Bruce S. Borden
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/J. Alan Edwards
Title: Authorized Signatory
CREDIT SUISSE FIRST BOSTON
By: /s/Kristin Lepri
Title: Associate
By: /s/Thomas G. Muoio
Title: Vice President
FLEET NATIONAL BANK
By: /s/Martin K. Birmingham
Title: Vice President
<PAGE>
-132-
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/Angelo J. Balestrieri
Title: Vice President
By: /s/W. Pieter C. Kodde
Title: Vice President
CREDIT LYONNAIS, NEW YORK BRANCH
By: /s/Vladimir Labun
Title: First Vice President,
Manager
FIRST NATIONAL BANK OF CHICAGO
By: /s/Juan J. Duarte
Title: Vice President
FIRST UNION NATIONAL BANK
(successor to CoreStates Bank, N.A.)
By: /s/Irene Rosen Marks
Title: Vice President
<PAGE>
-133-
NATIONSBANK, N.A.
By: /s/Kathryn W. Robinson
Title: Senior Vice President
SUNTRUST BANK, ATLANTA
By: /s/Robert V. Honeycutt
Title: Vice President
By: /s/Hugh E. Brown
Title: Banking Officer
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/Clifford S. Lawrence
Title: Vice President
BARCLAYS BANK PLC
By: /s/T. Bullock
Title: Vice President
CIBC INC
By:/s/Katherine Bass
Title: Executive Director
<PAGE>
-134-
COBANK, ACB
By: /s/Brian J. Klatt
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/W. Leroy Startz
Title: First Vice President
By: /s/Katherine L. Abbott
Title: First Vice President
DEUTSCHE BANK, NEW YORK and/or
CAYMAN ISLANDS BRANCH
By: /s/Stephan A. Wiedemann
Title: Director
By: /s/Hans-Josef Thiele
Title: Director
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/Philip M. Smith
Title: Regional Senior
Vice President
MARINE MIDLAND BANK
By: /s/Gina Sidorsky
Title: Authorized Signatory
<PAGE>
-135-
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/Kevin B. McGinn
Title: Senior Vice President
By: /s/Robert TenHave
Title: Senior Vice President
BANK UNITED
By: /s/Phil Green
Title: Director Commercial
Syndications
BANQUE NATIONALE DE PARIS
By: /s/Richard L. Sted
Title: Senior Vice President
By: /s/Richard Pace
Title: Vice President
Corporate Banking Division
HARRIS TRUST AND SAVINGS BANK
By: /s/Edwin A. Adams, Jr.
Title: Vice President
<PAGE>
-136-
KEY BANK NATIONAL ASSOCIATION
By: /s/Lawrence A. Mack
Title: Senior Vice President
NATIONAL CITY BANK
By: /s/Robert C. Rowe
Title: Vice President
STATE STREET BANK AND TRUST COMPANY
By: /s/Christopher Del Signore
Title: Vice President
USTRUST
By: /s/Thomas F. Macina
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/Fitzhugh L. Wickham III
Title: Vice President
<PAGE>
-137-
IMPERIAL BANK,
a California Banking Corporation
By: /s/Ray Vadalma
Title: Senior Vice President
<PAGE>
The Registrant has omitted from this filing the Schedules and Exhibits listed
below. The Registrant will furnish supplementally to the Commission, upon
request, a copy of such Schedules and Exhibits.
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Disclosed Matters
SCHEDULE IV - Subsidiaries and Investments
SCHEDULE V - Stock Options
SCHEDULE VI - Real Property
SCHEDULE VII - Life Insurance Agreements
SCHEDULE VIII - Calculation of MCR Cost
SCHEDULE IX - Certain Non-Recurring Charges
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B-1 - Form of Security Agreement
EXHIBIT B-2 - Form of U.K. Pledge Agreement (Borrower)
EXHIBIT B-3 - Form of U.K. Pledge Agreement (U.K. Acquisition)
EXHIBIT C-1 - Form of Mortgage Modification (Gonzalez)
EXHIBIT C-2 - Form of Mortgage Modification (Madera/Vintners)
EXHIBIT C-3 - Form of Mortgage Modification (Madera/Canandaigua)
EXHIBIT C-4 - Form of Mortgage Modification (Bardstown)
EXHIBIT C-5 - Form of Mortgage Modification (Canandaigua)
EXHIBIT C-6 - Form of Mortgage Modification (Naples/Ontario Co.)
EXHIBIT C-7 - Form of Mortgage Modification (Naples/Yates Co.)
EXHIBIT D - Form of Guarantee Assumption Agreement
EXHIBIT E-1 - Form of Opinion of Counsel to the Obligors
(Effective Date)
EXHIBIT E-2 - Form of Opinion of Counsel to the Obligors
(Initial Funding Date)
EXHIBIT E-3 - Form of Opinion of Special California Counsel to the
Obligors
EXHIBIT E-4 - Form of Opinion of Special Kentucky Counsel to the
Obligors
EXHIBIT F - Form of Opinion of Special New York Counsel to Chase
EXHIBIT 23.1
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statements on
Form S-8 (Nos. 33-26694 and 33-56557) and Form S-3 (Nos. 333-40571 and
333-67037) of Canandaigua Brands, Inc. of our report dated November 30, 1998
with respect to the consolidated balance sheets of Matthew Clark plc and its
subsidiaries as of April 30, 1998 and 1997, and the related consolidated profit
and loss accounts and cash flow statements for each of the years in the
three-year period ended April 30, 1998, which report appears in the Form 8-K of
Canandaigua Brands, Inc. dated December 16, 1998.
/s/ KPMG Audit Plc
Chartered Accountants
Registered Auditor
London, England
December 16, 1998
