FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended November 30, 1999
-----------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
--------------- ---------------
COMMISSION FILE NUMBER 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 98-0198402
NEW YORK POLYPHENOLICS, INC. 16-1546354
NEW YORK ROBERTS TRADING CORP. 16-0865491
NETHERLANDS CANANDAIGUA B.V. 98-0205132
CALIFORNIA SIMI WINERY, INC. 94-2244918
DELAWARE FRANCISCAN VINEYARDS, INC. 94-2602962
NEW YORK SCV-EPI VINEYARDS, INC. 16-1568478
CALIFORNIA ALLBERRY, INC. 68-0324763
CALIFORNIA CLOUD PEAK CORPORATION 68-0324762
CALIFORNIA M.J. LEWIS CORP. 94-3065450
CALIFORNIA MT. VEEDER CORPORATION 94-2862667
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
ILLINOIS BARTON CANADA, LTD. 36-4283446
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 No.)
incorporation or
organization)
<PAGE>
300 WILLOWBROOK OFFICE PARK, FAIRPORT, NEW YORK 14450
------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(716) 218-2169
----------------------------------------------------
(Registrants' telephone number, including area code)
----------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the Registrants (1) have filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrants were required to file such reports), and (2) have been subject to
such filing requirements for the past 90 days. Yes X No
--- ---
The number of shares outstanding with respect to each of the classes of common
stock of Canandaigua Brands, Inc., as of December 31, 1999, is set forth below
(all of the Registrants, other than Canandaigua Brands, Inc., are direct or
indirect wholly-owned subsidiaries of Canandaigua Brands, Inc.):
CLASS NUMBER OF SHARES OUTSTANDING
----- ----------------------------
Class A Common Stock, Par Value $.01 Per Share 14,985,368
Class B Common Stock, Par Value $.01 Per Share 3,137,245
<PAGE>
- 1 -
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
- ------- --------------------
<TABLE>
CANANDAIGUA BRANDS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
<CAPTION>
November 30, February 28,
1999 1999
------------ ------------
(unaudited)
<S> <C> <C>
ASSETS
------
CURRENT ASSETS:
Cash and cash investments $ 24,667 $ 27,645
Accounts receivable, net 402,128 260,433
Inventories, net 677,363 508,571
Prepaid expenses and other current assets 67,084 59,090
------------ ------------
Total current assets 1,171,242 855,739
PROPERTY, PLANT AND EQUIPMENT, net 561,397 428,803
OTHER ASSETS 800,356 509,234
------------ ------------
Total assets $ 2,532,995 $ 1,793,776
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
CURRENT LIABILITIES:
Notes payable $ 114,391 $ 87,728
Current maturities of long-term debt 40,249 6,005
Accounts payable 182,971 122,746
Accrued excise taxes 46,028 49,342
Other accrued expenses and liabilities 256,729 149,451
------------ ------------
Total current liabilities 640,368 415,272
------------ ------------
LONG-TERM DEBT, less current maturities 1,253,863 831,689
------------ ------------
DEFERRED INCOME TAXES 113,609 88,179
------------ ------------
OTHER LIABILITIES 27,860 23,364
------------ ------------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Preferred Stock, $.01 par value-
Authorized, 1,000,000 shares;
Issued, none at November 30, 1999,
and February 28, 1999 - -
Class A Common Stock, $.01 par value-
Authorized, 120,000,000 shares;
Issued, 18,135,272 shares at November 30, 1999,
and 17,915,359 shares at February 28, 1999 181 179
Class B Convertible Common Stock, $.01 par value-
Authorized, 20,000,000 shares;
Issued, 3,762,970 shares at November 30, 1999,
and 3,849,173 shares at February 28, 1999 38 39
Additional paid-in capital 243,539 239,912
Retained earnings 342,928 281,081
Accumulated other comprehensive income-
Cumulative translation adjustment (7,677) (4,173)
------------ ------------
579,009 517,038
------------ ------------
Less-Treasury stock-
Class A Common Stock, 3,156,004 shares at
November 30, 1999, and 3,168,306 shares at
February 28, 1999, at cost (79,507) (79,559)
Class B Convertible Common Stock, 625,725 shares at
November 30, 1999, and February 28, 1999, at cost (2,207) (2,207)
------------ ------------
(81,714) (81,766)
------------ ------------
Total stockholders' equity 497,295 435,272
------------ ------------
Total liabilities and stockholders' equity $ 2,532,995 $ 1,793,776
============ ============
<FN>
The accompanying notes to consolidated financial statements
are an integral part of these balance sheets.
</FN>
</TABLE>
<PAGE>
- 2 -
<TABLE>
CANANDAIGUA BRANDS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(in thousands, except per share data)
<CAPTION>
For the Nine Months Ended November 30, For the Three Months Ended November 30,
-------------------------------------- ---------------------------------------
1999 1998 1999 1998
--------------- --------------- --------------- ---------------
(unaudited) (unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C>
GROSS SALES $ 2,383,909 $ 1,374,183 $ 864,075 $ 494,033
Less - Excise taxes (570,640) (336,283) (202,555) (118,447)
--------------- --------------- --------------- ---------------
Net sales 1,813,269 1,037,900 661,520 375,586
COST OF PRODUCT SOLD (1,258,332) (726,908) (451,833) (259,891)
--------------- --------------- --------------- ---------------
Gross profit 554,937 310,992 209,687 115,695
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES (368,130) (202,561) (132,309) (73,775)
NONRECURRING CHARGES (5,510) - - -
--------------- --------------- --------------- ---------------
Operating income 181,297 108,431 77,378 41,920
INTEREST EXPENSE, net (78,219) (23,700) (27,544) (7,748)
--------------- --------------- --------------- ---------------
Income before income taxes 103,078 84,731 49,834 34,172
PROVISION FOR INCOME TAXES (41,231) (34,740) (19,934) (14,011)
--------------- --------------- --------------- ---------------
NET INCOME $ 61,847 $ 49,991 $ 29,900 $ 20,161
=============== =============== =============== ===============
SHARE DATA:
Earnings per common share:
Basic $ 3.43 $ 2.72 $ 1.65 $ 1.13
=============== =============== =============== ===============
Diluted $ 3.34 $ 2.65 $ 1.60 $ 1.10
=============== =============== =============== ===============
Weighted average common shares outstanding:
Basic 18,023 18,412 18,083 17,892
Diluted 18,502 18,881 18,651 18,325
<FN>
The accompanying notes to consolidated financial statements are an integral part of these statements.
</FN>
</TABLE>
<PAGE>
- 3 -
<TABLE>
CANANDAIGUA BRANDS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<CAPTION>
For the Nine Months Ended November 30,
--------------------------------------
1999 1998
-------------- --------------
(unaudited) (unaudited)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 61,847 $ 49,991
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation of property, plant and equipment 33,938 18,166
Amortization of intangible assets 16,904 7,523
Stock-based compensation expense 776 76
Amortization of discount on long-term debt 316 287
Deferred tax benefit (3,860) (2,800)
Gain on sale of assets (778) (16)
Change in operating assets and liabilities,
net of effects from purchases of businesses:
Accounts receivable, net (123,109) (31,143)
Inventories, net (55,602) (48,636)
Prepaid expenses and other current assets (5,432) (15,690)
Accounts payable 44,292 19,324
Accrued excise taxes (3,191) 7,134
Other accrued expenses and liabilities 88,960 59,032
Other assets and liabilities, net 1,201 (3,917)
-------------- --------------
Total adjustments (5,585) 9,340
-------------- --------------
Net cash provided by operating activities 56,262 59,331
-------------- --------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of businesses, net of cash acquired (452,526) -
Purchases of property, plant and equipment (46,657) (21,660)
Proceeds from sale of assets 1,276 45
Purchase of joint venture minority interest - (716)
-------------- --------------
Net cash used in investing activities (497,907) (22,331)
-------------- --------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of long-term debt 1,486,240 -
Net proceeds from notes payable 25,995 22,600
Exercise of employee stock options 2,386 3,021
Proceeds from employee stock purchases 601 1,285
Principal payments of long-term debt (1,059,406) (18,119)
Payment of issuance costs of long-term debt (14,494) -
Purchases of treasury stock - (44,878)
-------------- --------------
Net cash provided by (used in) financing activities 441,322 (36,091)
-------------- --------------
Effect of exchange rate changes on cash and cash investments (2,655) -
-------------- --------------
NET (DECREASE) INCREASE IN CASH AND CASH INVESTMENTS (2,978) 909
CASH AND CASH INVESTMENTS, beginning of period 27,645 1,232
-------------- --------------
CASH AND CASH INVESTMENTS, end of period $ 24,667 $ 2,141
============== ==============
SUPPLEMENTAL DISCLOSURES OF NONCASH INVESTING
AND FINANCING ACTIVITIES:
Fair value of assets acquired, including cash acquired $ 559,541 $ -
Liabilities assumed (104,526) -
-------------- --------------
Cash paid 455,015 -
Less - cash acquired (2,489) -
-------------- --------------
Net cash paid for purchases of businesses $ 452,526 $ -
============== ==============
<FN>
The accompanying notes to consolidated financial statements are an integral part of these statements.
</FN>
</TABLE>
<PAGE>
- 4 -
CANANDAIGUA BRANDS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOVEMBER 30, 1999
1) MANAGEMENT'S REPRESENTATIONS:
The condensed consolidated financial statements included herein have been
prepared by Canandaigua Brands, Inc. and its subsidiaries (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 Company. 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 February 28, 1999.
2) ACQUISITIONS:
On April 9, 1999, in an asset acquisition, the Company acquired several
well-known Canadian whisky brands, including Black Velvet, production facilities
located in Alberta and Quebec, Canada, case goods and bulk whisky inventories
and other related assets from affiliates of Diageo plc (the "Black Velvet
Acquisition"). In connection with the transaction, the Company also entered into
multi-year agreements with Diageo to provide packaging and distilling services
for various brands retained by Diageo. The purchase price was approximately
$185.5 million and was financed by the proceeds from the sale of the "Senior
Subordinated Notes" (as defined in Note 6).
The Black Velvet Acquisition was accounted for using the purchase method;
accordingly, the acquired 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), $30.7 million, is being amortized
on a straight-line basis over 40 years. The results of operations of the Black
Velvet Acquisition have been included in the Consolidated Statements of Income
since the date of acquisition.
On June 4, 1999, the Company purchased all of the outstanding capital stock
of Franciscan Vineyards, Inc. and in related transactions purchased vineyards, a
winery, equipment and other vineyard related assets located in Northern
California (collectively, the "Franciscan Acquisition"). The purchase price was
approximately $212.0 million in cash plus assumed debt, net of cash acquired, of
approximately $30.8 million. The purchase price was financed by additional term
loan borrowings under the bank credit agreement. Also, on June 4, 1999, the
Company acquired all of the outstanding capital stock of Simi Winery, Inc. (the
"Simi Acquisition"). The cash purchase price was approximately $57.5 million and
was financed by revolving loan borrowings under the bank credit agreement. The
purchases were accounted for using the purchase method; accordingly, the
acquired 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) for the Franciscan Acquisition and the Simi
Acquisition, $72.3 million and $7.0 million, respectively, is being amortized on
a straight-line basis over 40 years. The Franciscan and Simi operations are
managed together as a separate business segment of the Company ("Franciscan").
The results of operations of Franciscan have been included in the Consolidated
Statements of Income since the date of acquisition. The unaudited pro forma
results of operations for the nine months ended November 30, 1999 (shown in the
table below), reflect total nonrecurring charges of $12.4 million ($0.40 per
share on a diluted basis) related to transaction costs, primarily for exercise
of stock options, which were incurred by Franciscan Vineyards, Inc. prior to the
acquisition.
<PAGE>
- 5 -
The following table sets forth the unaudited pro forma results of
operations of the Company for the nine months ended November 30, 1999 and 1998,
which gives effect to the acquisition of Matthew Clark plc ("Matthew Clark"),
the Black Velvet Acquisition and Franciscan as if they occurred on March 1,
1998. The unaudited pro forma results of operations are presented after giving
effect to certain adjustments for depreciation, amortization of goodwill,
interest expense on the acquisition financing and related income tax effects.
The unaudited pro forma results of operations are based upon currently available
information and upon certain assumptions that the Company believes are
reasonable under the circumstances. The unaudited pro forma results of
operations do not purport to present what the Company's results of operations
would actually have been if the aforementioned transactions had in fact occurred
on such date or at the beginning of the period indicated, nor do they project
the Company's financial position or results of operations at any future date or
for any future period.
For the Nine Months
Ended November 30,
---------------------------
1999 1998
------------ ------------
(in thousands, except per share data)
Net sales $ 1,840,633 $ 1,659,975
Income before income taxes $ 87,547 $ 65,130
Net income $ 52,528 $ 38,426
Earnings per common share:
Basic $ 2.91 $ 2.09
============ ============
Diluted $ 2.84 $ 2.04
============ ============
Weighted average common shares outstanding:
Basic 18,023 18,412
Diluted 18,502 18,881
3) INVENTORIES:
Inventories are stated at the lower of cost (computed in accordance with
the first-in, first-out method) or market. Elements of cost include materials,
labor and overhead and consist of the following:
November 30, February 28,
1999 1999
------------- -------------
(in thousands)
Raw materials and supplies $ 40,342 $ 32,388
Wine and distilled spirits in process 455,144 344,175
Finished case goods 181,877 132,008
------------- -------------
$ 677,363 $ 508,571
============= =============
<PAGE>
- 6 -
4) OTHER ASSETS:
The major components of other assets are as follows:
November 30, February 28,
1999 1999
------------- -------------
(in thousands)
Goodwill $ 421,468 $ 311,908
Trademarks 270,924 102,183
Distribution rights and agency
license agreements 87,052 76,894
Other 72,576 53,779
------------- -------------
852,020 544,764
Less - Accumulated amortization (51,664) (35,530)
------------- -------------
$ 800,356 $ 509,234
============= =============
5) OTHER ACCRUED EXPENSES AND LIABILITIES:
The major components of other accrued expenses and liabilities are as
follows:
November 30, February 28,
1999 1999
------------- -------------
(in thousands)
Accrued advertising and promotions $ 61,032 $ 38,604
Accrued income taxes payable 31,647 9,347
Accrued interest 29,025 11,384
Accrued salaries and commissions 16,323 15,584
Other 118,702 74,532
------------- -------------
$ 256,729 $ 149,451
============= =============
6) BORROWINGS:
Senior Subordinated Notes -
On March 4, 1999, the Company issued $200.0 million aggregate principal
amount of 8 1/2% Senior Subordinated Notes due March 2009 ("Senior Subordinated
Notes"). The net proceeds of the offering (approximately $195.0 million) were
used to fund the Black Velvet Acquisition and to pay the fees and expenses
related thereto with the remainder of the net proceeds used for general
corporate purposes. Interest on the Senior Subordinated Notes is payable
semiannually on March 1 and September 1 of each year, beginning September 1,
1999. The Senior Subordinated Notes are redeemable at the option of the Company,
in whole or in part, at any time on or after March 1, 2004. The Company may also
redeem up to $70.0 million of the Senior Subordinated Notes using the proceeds
of certain equity offerings completed before March 1, 2002. The Senior
Subordinated Notes are unsecured and subordinated to the prior payment in full
of all senior indebtedness of the Company, which includes the bank credit
agreement. The Senior Subordinated Notes are guaranteed, on a senior
subordinated basis, by certain of the Company's significant operating
subsidiaries.
<PAGE>
- 7 -
Senior Notes -
On August 4, 1999, the Company issued $200.0 million aggregate principal
amount of 8 5/8% Senior Notes due August 2006 ("Senior Notes"). The net proceeds
of the offering (approximately $196.0 million) were used to repay a portion of
the Company's borrowings under its bank credit agreement. Interest on the Senior
Notes is payable semiannually on February 1 and August 1 of each year, beginning
February 1, 2000. The Senior Notes are redeemable at the option of the Company,
in whole or in part, at any time. The Senior Notes are unsecured senior
obligations and rank equally in right of payment to all existing and future
unsecured senior indebtedness of the Company. The Senior Notes are guaranteed,
on a senior basis, by certain of the Company's significant operating
subsidiaries.
On November 17, 1999, the Company issued (pound)75.0 million (approximately
$121.7 million) aggregate principal amount of 8 1/2% Senior Notes due November
2009 ("Sterling Senior Notes"). The net proceeds of the offering ((pound)73.0
million, or approximately $118.3 million) were used to repay a portion of the
Company's borrowings under its bank credit agreement (see "2000 Credit
Agreement"). Interest on the Sterling Senior Notes is payable semiannually on
May 15 and November 15 of each year, beginning on May 15, 2000. The Sterling
Senior Notes are redeemable at the option of the Company, in whole or in part,
at any time. The Sterling Senior Notes are unsecured senior obligations and rank
equally in right of payment to all existing and future unsecured senior
indebtedness of the Company. The Sterling Senior Notes are guaranteed, on a
senior basis, by certain of the Company's significant operating subsidiaries.
2000 Credit Agreement -
On October 6, 1999, the Company, certain of its principal operating
subsidiaries and a syndicate of banks (the "Syndicate Banks"), for which The
Chase Manhattan Bank acts as administrative agent, entered into a new senior
credit agreement (the "2000 Credit Agreement"). The 2000 Credit Agreement
includes both U.S. dollar and British pound sterling commitments of the
Syndicate Banks of up to, in the aggregate, the equivalent of $1.0 billion
(subject to increase as therein provided to $1.2 billion). Proceeds of the 2000
Credit Agreement were used to repay all outstanding principal and accrued
interest on all loans under the Company's prior bank credit agreement, and are
available to fund permitted acquisitions and ongoing working capital needs of
the Company and its subsidiaries.
The 2000 Credit Agreement provides for a $380.0 million Tranche I Term Loan
facility due in December 2004, a $320.0 million Tranche II Term Loan facility
available for borrowing in British pound sterling due in December 2004, and a
$300.0 million Revolving Credit facility (including letters of credit up to a
maximum of $20.0 million) which expires in December 2004. The Tranche I Term
Loan facility ($380.0 million) and the Tranche II Term Loan facility
((pound)193.4 million, or approximately $320.0 million) were fully drawn at
closing. The Tranche I Term Loan facility requires quarterly repayments,
starting at $12.0 million in March 2000 and increasing thereafter annually with
final payments of $23.0 million in each quarter in 2004. On November 17, 1999,
proceeds from the Sterling Senior Notes were used to repay a portion of the
$320.0 million Tranche II Term Loan facility ((pound)73.0 million, or
approximately $118.3 million). After this repayment, the required quarterly
repayments of the Tranche II Term Loan facility were revised to (pound)0.6
million ($1.0 million) for each quarter in 2000, (pound)1.2 million ($1.9
million) for each quarter in 2001 and 2002, (pound)1.5 million ($2.4 million)
for each quarter in 2003 and (pound)25.6 million ($40.9 million) for each
quarter in 2004 (the foregoing U.S. dollar equivalents are as of November 30,
1999). There are certain mandatory term loan prepayments, including those based
on sale of assets and issuance of debt and equity, in each case subject to
baskets, exceptions and thresholds which are generally more favorable to the
Company than those contained in its prior bank credit agreement.
<PAGE>
- 8 -
The rate of interest payable, at the Company's option, is a function of the
London interbank offering rate (LIBOR) plus a margin, federal funds rate plus a
margin, or the prime rate plus a margin. The margin is adjustable based upon the
Company's Debt Ratio (as defined in the 2000 Credit Agreement) and, with respect
to LIBOR borrowings, ranges between 0.75% and 1.25% for Revolving Credit loans
and 1.00% and 1.75% for Term Loans. The initial margin for all loans was set at
the highest level at closing and is subject to reduction after November 30,
1999, depending on the Company's Debt Ratio. In addition to interest, the
Company pays a facility fee on the Revolving Credit commitments, initially at
0.50% per annum and subject to reduction after November 30, 1999, to 0.25%,
depending on the Company's Debt Ratio.
Certain of the Company's principal operating subsidiaries have guaranteed
the Company's obligations under the 2000 Credit Agreement. The 2000 Credit
Agreement is secured by (i) first priority pledges of 100% of the capital stock
of Canandaigua Limited and all of the Company's domestic operating subsidiaries
and (ii) first priority pledges of 65% of the capital stock of Matthew Clark and
certain other foreign subsidiaries.
The Company and its subsidiaries are subject to customary secured lending
covenants including those restricting additional liens, incurring additional
indebtedness, the sale of assets, the payment of dividends, transactions with
affiliates and the making of certain investments, in each case subject to
baskets, exceptions and thresholds which are generally more favorable to the
Company than those contained in its prior bank credit agreement. The primary
financial covenants require the maintenance of a debt coverage ratio, a senior
debt coverage ratio, a fixed charges ratio and an interest coverage ratio. Among
the most restrictive covenants contained in the 2000 Credit Agreement is the
requirement to maintain a fixed charges ratio of not less than 1.0 at the last
day of each fiscal quarter for the most recent four quarters.
7) EARNINGS PER COMMON SHARE:
Basic earnings per common share exclude the effect of common stock
equivalents and are 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 reflect 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 assume the exercise of stock options
using the treasury stock method and assume the conversion of convertible
securities, if any, using the "if converted" method.
The computation of basic and diluted earnings per common share is as
follows:
For the Nine For the Three
Months Months
Ended November 30, Ended November 30,
------------------- -------------------
1999 1998 1999 1998
-------- -------- -------- --------
(in thousands, except per share data)
Income applicable to common shares $ 61,847 $ 49,991 $ 29,900 $ 20,161
======== ======== ======== ========
Weighted average common shares
outstanding - basic 18,023 18,412 18,083 17,892
Stock options 479 469 568 433
-------- -------- -------- --------
Weighted average common shares
outstanding - diluted 18,502 18,881 18,651 18,325
======== ======== ======== ========
EARNINGS PER COMMON SHARE - BASIC $ 3.43 $ 2.72 $ 1.65 $ 1.13
======== ======== ======== ========
EARNINGS PER COMMON SHARE - DILUTED $ 3.34 $ 2.65 $ 1.60 $ 1.10
======== ======== ======== ========
<PAGE>
- 9 -
8) SUMMARIZED FINANCIAL INFORMATION - SUBSIDIARY GUARANTORS:
The following table presents summarized financial information for the
Company, the parent company, the combined subsidiaries of the Company which
guarantee the Company's senior subordinated notes and senior notes ("Subsidiary
Guarantors") and the combined subsidiaries of the Company which are not
Subsidiary Guarantors, primarily Matthew Clark ("Subsidiary Nonguarantors"). The
Subsidiary Guarantors are wholly owned and the guarantees are full,
unconditional, joint and several obligations of each of the Subsidiary
Guarantors. 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
Matthew Clark, the Company's Canadian subsidiary, and certain other 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, loans or advances.
<TABLE>
<CAPTION>
Parent Subsidiary Subsidiary
Company Guarantors Nonguarantors Eliminations Consolidated
----------- ------------ ------------- ------------ ------------
<S> <C> <C> <C> <C> <C>
(in thousands)
Balance Sheet Data:
November 30, 1999
- -----------------
Current assets $ 134,516 $ 677,250 $ 359,476 $ - $ 1,171,242
Noncurrent assets $ 925,739 $ 1,237,679 $ 479,165 $ (1,280,830) $ 1,361,753
Current liabilities $ 271,984 $ 107,038 $ 261,346 $ - $ 640,368
Noncurrent liabilities $ 1,246,277 $ 95,757 $ 53,298 $ - $ 1,395,332
February 28, 1999
- -----------------
Current assets $ 114,243 $ 532,028 $ 209,468 $ - $ 855,739
Noncurrent assets $ 646,133 $ 396,125 $ 421,867 $ (526,088) $ 938,037
Current liabilities $ 157,648 $ 126,803 $ 130,821 $ - $ 415,272
Noncurrent liabilities $ 815,421 $ 73,178 $ 54,633 $ - $ 943,232
Income Statement Data:
For the Nine Months
- -------------------
Ended November 30, 1999
- -----------------------
Net sales $ 476,108 $ 1,035,493 $ 574,351 $ (272,683) $ 1,813,269
Gross profit $ 130,394 $ 261,156 $ 163,387 $ - $ 554,937
(Loss) income before
income taxes $ (289) $ 66,034 $ 37,333 $ - $ 103,078
Net (loss) income $ (173) $ 39,620 $ 22,400 $ - $ 61,847
<PAGE>
- 10 -
<CAPTION>
Parent Subsidiary Subsidiary
Company Guarantors Nonguarantors Eliminations Consolidated
----------- ------------ ------------- ------------ ------------
<S> <C> <C> <C> <C> <C>
(in thousands)
For the Nine Months
- -------------------
Ended November 30, 1998
- -----------------------
Net sales $ 442,036 $ 847,103 $ 1,093 $ (252,332) $ 1,037,900
Gross profit $ 123,625 $ 186,973 $ 394 $ - $ 310,992
Income (loss) before
income taxes $ 7,056 $ 77,964 $ (289) $ - $ 84,731
Net income (loss) $ 4,163 $ 45,998 $ (170) $ - $ 49,991
For the Three Months
- --------------------
Ended November 30, 1999
- -----------------------
Net sales $ 200,055 $ 340,635 $ 217,883 $ (97,053) $ 661,520
Gross profit $ 41,066 $ 107,777 $ 60,844 $ - $ 209,687
(Loss) income before
income taxes $ (6,881) $ 39,410 $ 17,305 $ - $ 49,834
Net (loss) income $ (4,128) $ 23,646 $ 10,382 $ - $ 29,900
For the Three Months
- --------------------
Ended November 30, 1998
- -----------------------
Net sales $ 193,446 $ 294,751 $ - $ (112,611) $ 375,586
Gross profit $ 52,357 $ 63,338 $ - $ - $ 115,695
Income before
income taxes $ 7,567 $ 26,605 $ - $ - $ 34,172
Net income $ 4,465 $ 15,696 $ - $ - $ 20,161
</TABLE>
9) BUSINESS SEGMENT INFORMATION:
The Company reports its operating results in five segments: Canandaigua
Wine (branded popularly-priced wine and brandy, and other, primarily grape juice
concentrate); Barton (primarily beer and spirits); Matthew Clark (branded wine,
cider and bottled water, and wholesale wine, cider, spirits, beer and soft
drinks); Franciscan (primarily branded super-premium and ultra-premium wine) and
Corporate Operations and Other (primarily corporate related items). Segment
selection was based upon internal organizational structure, the way in which
these operations are managed and their performance evaluated by management and
the Company's Board of Directors, the availability of separate financial
results, and materiality considerations. The accounting policies of the segments
are the same as those described in the summary of significant accounting
policies. The Company evaluates performance based on operating profits of the
respective business units.
<PAGE>
- 11 -
Segment information is as follows:
<TABLE>
<CAPTION>
For the Nine Months For the Three Months
Ended November 30, Ended November 30,
--------------------------- ---------------------------
1999 1998 1999 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
(in thousands)
Canandaigua Wine:
- -----------------
Net sales:
Branded:
External customers $ 472,087 $ 449,036 $ 179,905 $ 181,693
Intersegment 5,274 - 2,285 -
----------- ----------- ----------- -----------
Total Branded 477,361 449,036 182,190 181,693
----------- ----------- ----------- -----------
Other:
External customers 63,081 54,081 24,502 14,731
Intersegment 460 - 423 -
----------- ----------- ----------- -----------
Total Other 63,541 54,081 24,925 14,731
----------- ----------- ----------- -----------
Net sales $ 540,902 $ 503,117 $ 207,115 $ 196,424
Operating profit $ 34,869 $ 36,094 $ 18,850 $ 18,433
Long-lived assets $ 194,199 $ 188,558 $ 194,199 $ 188,558
Total assets $ 698,209 $ 690,358 $ 698,209 $ 690,358
Capital expenditures $ 17,909 $ 17,472 $ 5,201 $ 6,054
Depreciation and amortization $ 16,681 $ 16,208 $ 5,032 $ 5,492
Barton:
- -------
Net sales:
Beer $ 457,961 $ 388,739 $ 134,155 $ 128,810
Spirits 207,697 143,426 80,548 48,827
----------- ----------- ----------- -----------
Net sales $ 665,658 $ 532,165 $ 214,703 $ 177,637
Operating profit $ 114,839 $ 82,287 $ 41,380 $ 27,667
Long-lived assets $ 77,022 $ 50,620 $ 77,022 $ 50,620
Total assets $ 699,954 $ 474,322 $ 699,954 $ 474,322
Capital expenditures $ 4,532 $ 2,502 $ 1,864 $ 814
Depreciation and amortization $ 10,573 $ 8,161 $ 4,175 $ 2,769
<PAGE>
- 12 -
<CAPTION>
For the Nine Months For the Three Months
Ended November 30, Ended November 30,
--------------------------- ---------------------------
1999 1998 1999 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
(in thousands)
Matthew Clark:
- --------------
Net sales:
Branded:
External customers $ 256,909 $ - $ 101,655 $ -
Intersegment 53 - 53 -
----------- ----------- ----------- -----------
Total Branded 256,962 - 101,708 -
Wholesale 306,802 - 112,049 -
----------- ----------- ----------- -----------
Net sales $ 563,764 $ - $ 213,757 $ -
Operating profit $ 34,503 $ - $ 15,193 $ -
Long-lived assets $ 171,537 $ - $ 171,537 $ -
Total assets $ 728,167 $ - $ 728,167 $ -
Capital expenditures $ 16,459 $ - $ 5,344 $ -
Depreciation and amortization $ 17,133 $ - $ 4,317 $ -
Franciscan:
- -----------
Net sales $ 44,610 $ - $ 27,473 $ -
Operating profit $ 7,562 $ - $ 5,991 $ -
Long-lived assets $ 101,143 $ - $ 101,143 $ -
Total assets $ 361,378 $ - $ 361,378 $ -
Capital expenditures $ 6,448 $ - $ 2,728 $ -
Depreciation and amortization $ 3,990 $ - $ 2,181 $ -
Corporate Operations and Other:
- -------------------------------
Net sales $ 4,122 $ 2,618 $ 1,233 $ 1,525
Operating loss $ (10,476) $ (9,950) $ (4,036) $ (4,180)
Long-lived assets $ 17,496 $ 8,321 $ 17,496 $ 8,321
Total assets $ 45,287 $ 21,566 $ 45,287 $ 21,566
Capital expenditures $ 1,309 $ 1,686 $ 761 $ 694
Depreciation and amortization $ 2,465 $ 1,320 $ 994 $ 461
Intersegment eliminations:
- --------------------------
Net sales $ (5,787) $ - $ (2,761) $ -
Consolidated:
- -------------
Net sales $ 1,813,269 $ 1,037,900 $ 661,520 $ 375,586
Operating profit $ 181,297 $ 108,431 $ 77,378 $ 41,920
Long-lived assets $ 561,397 $ 247,499 $ 561,397 $ 247,499
Total assets $ 2,532,995 $ 1,186,246 $ 2,532,995 $ 1,186,246
Capital expenditures $ 46,657 $ 21,660 $ 15,898 $ 7,562
Depreciation and amortization $ 50,842 $ 25,689 $ 16,699 $ 8,722
</TABLE>
<PAGE>
- 13 -
10) COMPREHENSIVE INCOME:
Comprehensive income consists of net income and foreign currency
translation adjustments for the nine month and three month periods ended
November 30, 1999. For the nine month and three month periods ended November 30,
1998, comprehensive income consisted of net income, exclusively. The
reconciliation of net income to comprehensive net income is as follows:
For the Nine Months For the Three Months
Ended November 30, Ended November 30,
--------------------- ----------------------
1999 1998 1999 1998
--------- --------- --------- ---------
(in thousands)
Net income $ 61,847 $ 49,991 $ 29,900 $ 20,161
Other comprehensive income:
Cumulative translation
adjustment (3,504) - (2,770) -
--------- --------- --------- ---------
Total comprehensive
income $ 58,343 $ 49,991 $ 27,130 $ 20,161
========= ========= ========= =========
11) ACCOUNTING PRONOUNCEMENTS:
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
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 and
measured at its fair value. SFAS No. 133 also requires that changes in the
derivative's fair value be recognized 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.
In June 1999, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 137 ("SFAS No. 137"), "Accounting for
Derivative Instruments and Hedging Activities--Deferral of the Effective Date of
FASB Statement No. 133." SFAS No. 137 delays the effective date of SFAS No. 133
for one year. With the issuance of SFAS No. 137, the Company is required to
adopt SFAS No. 133 on a prospective basis for interim periods and fiscal years
beginning March 1, 2001. The Company believes the effect of the adoption on its
financial statements will not be material based on the Company's current risk
management strategies.
<PAGE>
- 14 -
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
- ------- -----------------------------------------------------------------------
OF OPERATIONS
-------------
INTRODUCTION
- ------------
The following discussion and analysis summarizes the significant factors
affecting (i) consolidated results of operations of the Company for the three
months ended November 30, 1999 ("Third Quarter 2000"), compared to the three
months ended November 30, 1998 ("Third Quarter 1999"), and for the nine months
ended November 30, 1999 ("Nine Months 2000"), compared to the nine months ended
November 30, 1998 ("Nine Months 1999"), and (ii) financial liquidity and capital
resources for Nine Months 2000. This discussion and analysis should be read in
conjunction with the Company's consolidated financial statements and notes
thereto included herein and in the Company's Annual Report on Form 10-K for the
fiscal year ended February 28, 1999.
The Company operates primarily in the beverage alcohol industry in North
America and the United Kingdom. The Company reports its operating results in
five segments: Canandaigua Wine (branded popularly-priced wine and brandy, and
other, primarily grape juice concentrate); Barton (primarily beer and spirits);
Matthew Clark (branded wine, cider and bottled water, and wholesale wine, cider,
spirits, beer and soft drinks); Franciscan (primarily branded super-premium and
ultra-premium wine); and Corporate Operations and Other (primarily corporate
related items).
RECENT ACQUISITIONS
On December 1, 1998, the Company acquired control of Matthew Clark plc
("Matthew Clark") and has since acquired all of Matthew Clark's outstanding
shares (the "Matthew Clark Acquisition"). Prior to the Matthew Clark
Acquisition, the Company was principally a producer and supplier of wine and an
importer and producer of beer and distilled spirits in the United States. The
Matthew Clark Acquisition established the Company as a leading British producer
of cider, wine and bottled water and as a leading beverage alcohol wholesaler in
the United Kingdom. The results of operations of Matthew Clark have been
included in the consolidated results of operations of the Company since the date
of acquisition, December 1, 1998.
On April 9, 1999, in an asset acquisition, the Company acquired several
well-known Canadian whisky brands, including Black Velvet, production facilities
located in Alberta and Quebec, Canada, case goods and bulk whisky inventories
and other related assets from affiliates of Diageo plc (collectively, the "Black
Velvet Acquisition"). In connection with the transaction, the Company also
entered into multi-year agreements with Diageo to provide packaging and
distilling services for various brands retained by Diageo. The results of
operations from the Black Velvet Acquisition are reported in the Barton segment
and have been included in the consolidated results of operations of the Company
since the date of acquisition.
On June 4, 1999, the Company purchased all of the outstanding capital stock
of Franciscan Vineyards, Inc. and in related transactions purchased vineyards, a
winery, equipment and other vineyard related assets located in Northern
California (collectively, the "Franciscan Acquisition"). Also on June 4, 1999,
the Company purchased all of the outstanding capital stock of Simi Winery, Inc.
("Simi"). (The acquisition of the capital stock of Simi is hereafter referred to
as the "Simi Acquisition".) The Simi Acquisition includes the Simi winery,
equipment, vineyards and inventory. The results of operations from the
Franciscan and Simi Acquisitions (collectively, "Franciscan") are reported
together in the Franciscan segment and have been included in the consolidated
results of operations of the Company since the date of acquisition.
<PAGE>
- 15 -
The Matthew Clark, Black Velvet and Franciscan Acquisitions are significant
and the Company expects them to have a material impact on the Company's future
results of operations.
RESULTS OF OPERATIONS
- ---------------------
THIRD QUARTER 2000 COMPARED TO THIRD QUARTER 1999
NET SALES
The following table sets forth the net sales (in thousands of dollars) by
operating segment of the Company for Third Quarter 2000 and Third Quarter 1999.
Third Quarter 2000 Compared to Third Quarter 1999
-------------------------------------------------
Net Sales
-------------------------------------------------
%Increase/
2000 1999 (Decrease)
---------- ---------- ----------
Canandaigua Wine:
Branded:
External customers $ 179,905 $ 181,693 (1.0)%
Intersegment 2,285 - N/A
---------- ----------
Total Branded 182,190 181,693 0.3 %
---------- ----------
Other:
External customers 24,502 14,731 66.3 %
Intersegment 423 - N/A
---------- ----------
Total Other 24,925 14,731 69.2 %
---------- ----------
Canandaigua Wine net sales $ 207,115 $ 196,424 5.4 %
---------- ----------
Barton:
Beer $ 134,155 $ 128,810 4.1 %
Spirits 80,548 48,827 65.0 %
---------- ----------
Barton net sales $ 214,703 $ 177,637 20.9 %
---------- ----------
Matthew Clark:
Branded:
External customers $ 101,655 $ - N/A
Intersegment 53 - N/A
--------- ----------
Total Branded 101,708 - N/A
Wholesale 112,049 - N/A
--------- ----------
Matthew Clark net sales $ 213,757 $ - N/A
--------- ----------
Franciscan $ 27,473 $ - N/A
---------- ----------
Corporate Operations and Other $ 1,233 $ 1,525 (19.1)%
---------- ----------
Intersegment eliminations $ (2,761) $ - N/A
---------- ----------
Consolidated Net Sales $ 661,520 $ 375,586 76.1 %
========== ==========
Net sales for Third Quarter 2000 increased to $661.5 million from $375.6
million for Third Quarter 1999, an increase of $285.9 million, or 76.1%.
<PAGE>
- 16 -
Canandaigua Wine
----------------
Net sales for Canandaigua Wine for Third Quarter 2000 increased to $207.1
million from $196.4 million for Third Quarter 1999, an increase of $10.7
million, or 5.4%. This increase resulted primarily from (i) an increase in the
Company's bulk wine sales and (ii) an increase in sparkling wine as a result of
millennium sales. These increases were partially offset by declines in certain
other brands.
Barton
------
Net sales for Barton for Third Quarter 2000 increased to $214.7 million
from $177.6 million for Third Quarter 1999, an increase of $37.1 million, or
20.9%. This increase resulted primarily from $29.9 million of sales of products
and services acquired in the Black Velvet Acquisition, which was completed in
April 1999, as well as from an increase in sales of imported beer brands led by
Barton's Mexican portfolio. The Company believes that growth in the unit volume
of its Mexican portfolio was adversely impacted during the quarter by
wholesalers' and retailers' inventory build-up in prior quarters in advance of
recent price increases. While the longer-term impact of the price increases is
difficult to determine at this time, recent wholesaler depletion and retail
sales data reflect more robust growth than initially occurred following the
price increases.
Matthew Clark
-------------
Net sales for Matthew Clark for Third Quarter 2000 were $213.8 million.
Franciscan
----------
Net sales for Franciscan for Third Quarter 2000 were $27.5 million.
GROSS PROFIT
The Company's gross profit increased to $209.7 million for Third Quarter
2000 from $115.7 million for Third Quarter 1999, an increase of $94.0 million,
or 81.2%. The dollar increase in gross profit was primarily related to sales
from the Matthew Clark, Black Velvet, Franciscan and Simi Acquisitions, all
completed after Third Quarter 1999. As a percent of net sales, gross profit
increased to 31.7% for Third Quarter 2000 from 30.8% in Third Quarter 1999,
resulting primarily from sales of higher-margin spirits and super-premium and
ultra-premium wine acquired in the Black Velvet and Franciscan and Simi
Acquisitions, respectively, and from price increases taken in the Company's
imported beer business.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses increased to $132.3 million
for Third Quarter 2000 from $73.8 million for Third Quarter 1999, an increase of
$58.5 million, or 79.3%. The dollar increase in selling, general and
administrative expenses resulted primarily from the addition of the Matthew
Clark and Franciscan businesses and expenses related to the brands acquired in
the Black Velvet Acquisition. Selling, general and administrative expenses as a
percent of net sales increased to 20.0% for Third Quarter 2000 as compared to
19.6% for Third Quarter 1999. The increase in percent of net sales resulted
primarily from the Matthew Clark, Franciscan and Simi Acquisitions, as Matthew
Clark's and Franciscan's selling, general and administrative expenses as a
percent of net sales are typically at the high end of the range of the Company's
operating segments' percentages.
<PAGE>
- 17 -
OPERATING INCOME
The following table sets forth the operating profit/(loss) (in thousands of
dollars) by operating segment of the Company for Third Quarter 2000 and Third
Quarter 1999.
Third Quarter 2000 Compared to Third Quarter 1999
-------------------------------------------------
Operating Profit/(Loss)
-------------------------------------------------
%Increase/
2000 1999 (Decrease)
-------- -------- ----------
Canandaigua Wine $ 18,850 $ 18,433 2.3 %
Barton 41,380 27,667 49.6 %
Matthew Clark 15,193 - N/A
Franciscan 5,991 - N/A
Corporate Operations and Other (4,036) (4,180) (3.4)%
-------- --------
Consolidated Operating Profit $ 77,378 $ 41,920 84.6 %
======== ========
As a result of the above factors, consolidated operating income increased
to $77.4 million for Third Quarter 2000 from $41.9 million for Third Quarter
1999, an increase of $35.5 million, or 84.6%.
INTEREST EXPENSE, NET
Net interest expense increased to $27.5 million for Third Quarter 2000 from
$7.7 million for Third Quarter 1999, an increase of $19.8 million or 255.5%. The
increase resulted primarily from additional interest expense associated with the
borrowings related to the Matthew Clark, Black Velvet, Franciscan and Simi
Acquisitions.
NET INCOME
As a result of the above factors, net income increased to $29.9 million for
Third Quarter 2000 from $20.2 million for Third Quarter 1999, an increase of
$9.7 million, or 48.3%.
For financial analysis purposes only, the Company's earnings before
interest, taxes, depreciation and amortization ("EBITDA") for Third Quarter 2000
were $94.1 million, an increase of $43.4 million over EBITDA of $50.6 million
for Third Quarter 1999. EBITDA should not be construed as an alternative to
operating income or net cash flow from operating activities and should not be
construed as an indication of operating performance or as a measure of
liquidity.
<PAGE>
- 18 -
NINE MONTHS 2000 COMPARED TO NINE MONTHS 1999
NET SALES
The following table sets forth the net sales (in thousands of dollars) by
operating segment of the Company for Nine Months 2000 and Nine Months 1999.
Nine Months 2000 Compared to Nine Months 1999
---------------------------------------------
Net Sales
---------------------------------------------
%Increase/
2000 1999 (Decrease)
----------- ----------- ----------
Canandaigua Wine:
Branded:
External customers $ 472,087 $ 449,036 5.1%
Intersegment 5,274 - N/A
----------- -----------
Total Branded 477,361 449,036 6.3%
----------- -----------
Other:
External customers 63,081 54,081 16.6%
Intersegment 460 - N/A
----------- -----------
Total Other 63,541 54,081 17.5%
----------- -----------
Canandaigua Wine net sales $ 540,902 $ 503,117 7.5%
----------- -----------
Barton:
Beer $ 457,961 $ 388,739 17.8%
Spirits 207,697 143,426 44.8%
----------- -----------
Barton net sales $ 665,658 $ 532,165 25.1%
----------- -----------
Matthew Clark:
Branded:
External customers $ 256,909 $ - N/A
Intersegment 53 - N/A
----------- -----------
Total Branded 256,962 - N/A
Wholesale 306,802 - N/A
----------- -----------
Matthew Clark net sales $ 563,764 $ - N/A
----------- -----------
Franciscan $ 44,610 $ - N/A
----------- -----------
Corporate Operations and Other $ 4,122 $ 2,618 57.4%
----------- -----------
Intersegment eliminations $ (5,787) $ - N/A
----------- -----------
Consolidated Net Sales $ 1,813,269 $ 1,037,900 74.7%
=========== ===========
Net sales for Nine Months 2000 increased to $1,813.3 million from $1,037.9
million for Nine Months 1999, an increase of $775.4 million, or 74.7%.
Canandaigua Wine
----------------
Net sales for Canandaigua Wine for Nine Months 2000 increased to $540.9
million from $503.1 million for Nine Months 1999, an increase of $37.8 million,
or 7.5%. This increase resulted primarily from (i) an increase in sales of Arbor
Mist, which was introduced in the second quarter of fiscal 1999, (ii) an
increase in the Company's bulk wine sales, (iii) an increase in Almaden box wine
sales, and (iv) growth in the Company's international business. These increases
were partially offset by declines in certain other brands and in the Company's
grape juice concentrate business.
<PAGE>
- 19 -
Barton
------
Net sales for Barton for Nine Months 2000 increased to $665.7 million from
$532.2 million for Nine Months 1999, an increase of $133.5 million, or 25.1%.
This increase resulted primarily from an increase in sales of imported beer
brands led by Barton's Mexican portfolio as well as from $61.8 million of sales
of products and services acquired in the Black Velvet Acquisition, which was
completed in April 1999.
Matthew Clark
-------------
Net sales for Matthew Clark for Nine Months 2000 were $563.8 million.
Franciscan
----------
Net sales for Franciscan for Nine Months 2000 since the date of
acquisition, June 4, 1999, were $44.6 million.
GROSS PROFIT
The Company's gross profit increased to $554.9 million for Nine Months 2000
from $311.0 million for Nine Months 1999, an increase of $243.9 million, or
78.4%. The dollar increase in gross profit was primarily related to sales from
the Matthew Clark, Black Velvet, Franciscan and Simi Acquisitions, all completed
after Nine Months 1999, as well as increased Barton beer and Canandaigua Wine
branded wine sales. As a percent of net sales, gross profit increased to 30.6%
for Nine Months 2000 from 30.0% for Nine Months 1999, resulting primarily from
sales of higher-margin spirits and super-premium and ultra-premium wine acquired
in the Black Velvet and Franciscan and Simi Acquisitions, respectively.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses increased to $368.1 million
for Nine Months 2000 from $202.6 million for Nine Months 1999, an increase of
$165.6 million, or 81.7%. The dollar increase in selling, general and
administrative expenses resulted primarily from the addition of the Matthew
Clark and Franciscan businesses and expenses related to the brands acquired in
the Black Velvet Acquisition. The Company also increased its marketing and
promotional costs to generate additional sales volume, particularly of certain
Canandaigua Wine brands and Barton beer brands. Selling, general and
administrative expenses as a percent of net sales increased to 20.3% for Nine
Months 2000 as compared to 19.5% for Nine Months 1999. The increase in percent
of net sales resulted primarily from (i) Canandaigua Wine's investment in brand
building and efforts to increase market share and (ii) the Matthew Clark,
Franciscan and Simi Acquisitions, as Matthew Clark's and Franciscan's selling,
general and administrative expenses as a percent of net sales are typically at
the high end of the range of the Company's operating segments' percentages.
NONRECURRING CHARGES
The Company incurred nonrecurring charges of $5.5 million in Nine Months
2000 related to the closure of a production facility within the Matthew Clark
operating segment in the United Kingdom and to a management reorganization
within the Canandaigua Wine operating segment. No such charges were incurred in
Nine Months 1999.
<PAGE>
- 20 -
OPERATING INCOME
The following table sets forth the operating profit/(loss) (in thousands of
dollars) by operating segment of the Company for Nine Months 2000 and Nine
Months 1999.
Nine Months 2000 Compared to Nine Months 1999
---------------------------------------------
Operating Profit/(Loss)
---------------------------------------------
%Increase/
2000 1999 (Decrease)
--------- --------- ----------
Canandaigua Wine $ 34,869 $ 36,094 (3.4)%
Barton 114,839 82,287 39.6 %
Matthew Clark 34,503 - N/A
Franciscan 7,562 - N/A
Corporate Operations and Other (10,476) (9,950) 5.3 %
--------- ---------
Consolidated Operating Profit $ 181,297 $ 108,431 67.2 %
========= =========
As a result of the above factors, consolidated operating income increased
to $181.3 million for Nine Months 2000 from $108.4 million for Nine Months 1999,
an increase of $72.9 million, or 67.2%. Operating income for the Canandaigua
Wine operating segment was down $1.2 million, or 3.4%, due to the nonrecurring
charge of $2.6 million related to the segment's management reorganization, as
well as additional marketing expenses associated with new product introductions.
Exclusive of the nonrecurring charge, operating income increased by 3.7% to
$37.4 million in Nine Months 2000. Operating income for the Matthew Clark
operating segment, excluding nonrecurring charges of $2.9 million, was $37.4
million.
INTEREST EXPENSE, NET
Net interest expense increased to $78.2 million for Nine Months 2000 from
$23.7 million for Nine Months 1999, an increase of $54.5 million or 230.0%. The
increase resulted primarily from additional interest expense associated with the
borrowings related to the Matthew Clark, Black Velvet, Franciscan and Simi
Acquisitions.
NET INCOME
As a result of the above factors, net income increased to $61.8 million for
Nine Months 2000 from $50.0 million for Nine Months 1999, an increase of $11.9
million, or 23.7%.
For financial analysis purposes only, the Company's earnings before
interest, taxes, depreciation and amortization ("EBITDA") for Nine Months 2000
were $232.1 million, an increase of $98.0 million over EBITDA of $134.1 million
for Nine Months 1999. EBITDA should not be construed as an alternative to
operating income or net cash flow from operating activities and should not be
construed as an indication of operating performance or as a measure of
liquidity.
FINANCIAL LIQUIDITY AND CAPITAL RESOURCES
- -----------------------------------------
GENERAL
The Company's principal use of cash in its operating activities is for
purchasing and carrying inventories. The Company's primary source of liquidity
has historically been cash flow from operations,
<PAGE>
- 21 -
except during the annual fall grape harvests when the Company has relied on
short-term borrowings. The annual grape crush normally begins in August and runs
through October. The Company generally begins purchasing grapes in August with
payments for such grapes beginning to come due in September. The Company's
short-term borrowings to support such purchases generally reach their highest
levels in November or December. Historically, the Company has used cash flow
from operating activities to repay its short-term borrowings. The Company will
continue to use its short-term borrowings to support its working capital
requirements. The Company believes that cash provided by operating activities
and its financing activities, primarily short-term borrowings, will provide
adequate resources to satisfy its working capital, liquidity and anticipated
capital expenditure requirements for both its short-term and long-term capital
needs.
NINE MONTHS 2000 CASH FLOWS
OPERATING ACTIVITIES
Net cash provided by operating activities for Nine Months 2000 was $56.3
million, which resulted from $109.1 million in net income adjusted for noncash
items, less $52.9 million representing the net change in the Company's operating
assets and liabilities. The net change in operating assets and liabilities
resulted primarily from a seasonal increase in accounts receivable and
inventories, partially offset by increases in accounts payable, accrued
advertising and promotion expenses, accrued income taxes, accrued interest
expense and accrued grape purchases.
INVESTING ACTIVITIES AND FINANCING ACTIVITIES
Net cash used in investing activities for Nine Months 2000 was $497.9
million, which resulted primarily from net cash paid of $452.5 million for the
Black Velvet, Franciscan and Simi Acquisitions and $46.7 million of capital
expenditures, including $6.2 million for vineyards.
Net cash provided by financing activities for Nine Months 2000 was $441.3
million, which resulted primarily from proceeds of $1,486.2 million from
issuance of long-term debt, including $400.0 million incurred in connection with
the Black Velvet and Franciscan Acquisitions and $900.0 million incurred to
repay amounts outstanding under the bank credit agreement. This amount was
partially offset by principal payments of $1,059.4 million of long-term debt.
DEBT
Total debt outstanding as of November 30, 1999, amounted to $1,408.5
million, an increase of $483.1 million from February 28, 1999. The ratio of
total debt to total capitalization increased to 73.9% as of November 30, 1999,
from 68.0% as of February 28, 1999.
THE COMPANY'S CREDIT AGREEMENT
During June 1999, the Company financed the purchase price for the
Franciscan Acquisition through additional term loan borrowings under the bank
credit agreement. The Company financed the purchase price for the Simi
Acquisition with revolving loan borrowings under the bank credit agreement.
During August 1999, as discussed below, a portion of the Company's
borrowings under its bank credit agreement were repaid with the net proceeds of
its Senior Notes (as defined below) offering.
<PAGE>
- 22 -
On October 6, 1999, the Company, certain of its principal operating
subsidiaries, and a syndicate of banks (the "Syndicate Banks"), for which The
Chase Manhattan Bank acts as administrative agent, entered into a new senior
credit agreement (the "2000 Credit Agreement"). The 2000 Credit Agreement
includes both U.S. dollar and British pound sterling commitments of the
Syndicate Banks of up to, in the aggregate, the equivalent of $1.0 billion
(subject to increase as therein provided to $1.2 billion). Proceeds of the 2000
Credit Agreement were used to repay all outstanding principal and accrued
interest on all loans under the Company's prior bank credit agreement, and are
available to fund permitted acquisitions and ongoing working capital needs of
the Company and its subsidiaries.
The 2000 Credit Agreement provides for a $380.0 million Tranche I Term Loan
facility due in December 2004, a $320.0 million Tranche II Term Loan facility
available for borrowing in British pound sterling due in December 2004, and a
$300.0 million Revolving Credit facility (including letters of credit up to a
maximum of $20.0 million) which expires in December 2004. The Tranche I Term
Loan facility ($380.0 million) and the Tranche II Term Loan facility
((pound)193.4 million, or approximately $320.0 million) were fully drawn at
closing. The Tranche I Term Loan facility requires quarterly repayments,
starting at $12.0 million in March 2000 and increasing thereafter annually with
final payments of $23.0 million in each quarter in 2004. On November 17, 1999,
proceeds from the Sterling Senior Notes (as defined below) were used to repay a
portion of the $320.0 million Tranche II Term Loan facility ((pound)73.0
million, or approximately $118.3 million). After this repayment, the required
quarterly repayments of the Tranche II Term Loan facility were revised to
(pound)0.6 million ($1.0 million) for each quarter in 2000, (pound)1.2 million
($1.9 million) for each quarter in 2001 and 2002, (pound)1.5 million ($2.4
million) for each quarter in 2003 and (pound)25.6 million ($40.9 million) for
each quarter in 2004 (the foregoing U.S. dollar equivalents are as of November
30, 1999). There are certain mandatory term loan prepayments, including those
based on sale of assets and issuance of debt and equity, in each case subject to
baskets, exceptions and thresholds which are generally more favorable to the
Company than those contained in its prior bank credit agreement.
The rate of interest payable, at the Company's option, is a function of the
London interbank offering rate (LIBOR) plus a margin, federal funds rate plus a
margin, or the prime rate plus a margin. The margin is adjustable based upon the
Company's Debt Ratio (as defined in the 2000 Credit Agreement) and, with respect
to LIBOR borrowings, ranges between 0.75% and 1.25% for Revolving Credit loans
and 1.00% and 1.75% for Term Loans. The initial margin for all loans was set at
the highest level at closing and is subject to reduction after November 30,
1999, depending on the Company's Debt Ratio. In addition to interest, the
Company pays a facility fee on the Revolving Credit commitments, initially at
0.50% per annum and subject to reduction after November 30, 1999, to 0.25%,
depending on the Company's Debt Ratio.
Certain of the Company's principal operating subsidiaries have guaranteed
the Company's obligations under the 2000 Credit Agreement. The 2000 Credit
Agreement is secured by (i) first priority pledges of 100% of the capital stock
of Canandaigua Limited and all of the Company's domestic operating subsidiaries
and (ii) first priority pledges of 65% of the capital stock of Matthew Clark and
certain other foreign subsidiaries.
The Company and its subsidiaries are subject to customary secured lending
covenants including those restricting additional liens, incurring additional
indebtedness, the sale of assets, the payment of dividends, transactions with
affiliates and the making of certain investments, in each case subject to
baskets, exceptions and thresholds which are generally more favorable to the
Company than those contained in its prior bank credit agreement. The primary
financial covenants require the maintenance of a debt coverage ratio, a senior
debt coverage ratio, a fixed charges ratio and an interest coverage ratio. Among
the most restrictive covenants contained in the 2000 Credit Agreement is the
requirement to
<PAGE>
- 23 -
maintain a fixed charges ratio of not less than 1.0 at the last day of each
fiscal quarter for the most recent four quarters.
As of November 30, 1999, under the 2000 Credit Agreement, the Company had
outstanding term loans of $572.3 million bearing interest at 7.9%, $106.4
million of revolving loans bearing interest at 7.6%, undrawn revolving letters
of credit of $10.2 million, and $183.4 million in revolving loans available to
be drawn.
SENIOR NOTES
On August 4, 1999, the Company issued $200.0 million aggregate principal
amount of 8 5/8% Senior Notes due August 2006 (the "Senior Notes"). The net
proceeds of the offering (approximately $196.0 million) were used to repay a
portion of the Company's borrowings under its bank credit agreement. Interest on
the Senior Notes is payable semiannually on February 1 and August 1 of each
year, beginning February 1, 2000. The Senior Notes are redeemable at the option
of the Company, in whole or in part, at any time. The Senior Notes are unsecured
senior obligations and rank equally in right of payment to all existing and
future unsecured senior indebtedness of the Company. The Senior Notes are
guaranteed, on a senior basis, by certain of the Company's significant operating
subsidiaries.
On November 17, 1999, the Company issued (pound)75.0 million (approximately
$121.7 million) aggregate principal amount of 8 1/2% Senior Notes due November
2009 (the "Sterling Senior Notes"). The net proceeds of the offering
((pound)73.0 million, or approximately $118.3 million) were used to repay a
portion of the Company's borrowings under the 2000 Credit Agreement. Interest on
the Sterling Senior Notes is payable semiannually on May 15 and November 15 of
each year, beginning on May 15, 2000. The Sterling Senior Notes are redeemable
at the option of the Company, in whole or in part, at any time. The Sterling
Senior Notes are unsecured senior obligations and rank equally in right of
payment to all existing and future unsecured senior indebtedness of the Company.
The Sterling Senior Notes are guaranteed, on a senior basis, by certain of the
Company's significant operating subsidiaries.
SENIOR SUBORDINATED NOTES
As of November 30, 1999, the Company had outstanding $195.0 million
aggregate principal amount of 8 3/4% Senior Subordinated Notes due December 2003
(the "Notes"). The Notes are currently redeemable, in whole or in part, at the
option of the Company.
On March 4, 1999, the Company issued $200.0 million aggregate principal
amount of 8 1/2% Senior Subordinated Notes due March 2009 (the "Senior
Subordinated Notes"). The net proceeds of the offering (approximately $195.0
million) were used to fund the Black Velvet Acquisition and to pay the fees and
expenses related thereto with the remainder of the net proceeds used for general
corporate purposes. Interest on the Senior Subordinated Notes is payable
semiannually on March 1 and September 1 of each year, beginning September 1,
1999. The Senior Subordinated Notes are redeemable at the option of the Company,
in whole or in part, at any time on or after March 1, 2004. The Company may also
redeem up to $70.0 million of the Senior Subordinated Notes using the proceeds
of certain equity offerings completed before March 1, 2002. The Senior
Subordinated Notes are unsecured and subordinated to the prior payment in full
of all senior indebtedness of the Company, which includes the bank credit
agreement. The Senior Subordinated Notes are guaranteed, on a senior
subordinated basis, by certain of the Company's significant operating
subsidiaries.
<PAGE>
- 24 -
ACCOUNTING PRONOUNCEMENTS
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
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 and
measured at its fair value. SFAS No. 133 also requires that changes in the
derivative's fair value be recognized 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.
In June 1999, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 137 ("SFAS No. 137"), "Accounting for
Derivative Instruments and Hedging Activities--Deferral of the Effective Date of
FASB Statement No. 133." SFAS No. 137 delays the effective date of SFAS No. 133
for one year. With the issuance of SFAS No. 137, the Company is required to
adopt SFAS No. 133 on a prospective basis for interim periods and fiscal years
beginning March 1, 2001. The Company believes the effect of adoption on its
financial statements will not be material based on the Company's current risk
management strategies.
YEAR 2000 ISSUE
Prior to January 1, 2000, the Company put into place detailed programs to
address Year 2000 readiness in its internal systems and with its key customers
and suppliers. The Year 2000 issue is the result of computer logic that was
written using two digits rather than four to define the applicable year. Any
computer logic that processes date-sensitive information may recognize the date
using "00" as the year 1900 rather than the year 2000, which could result in
miscalculations or system failures.
Since January 1, 2000, the Company has not experienced any interruptions in
its business or operations. However, because all Year 2000 issues may not reveal
themselves until later in 2000, no assurances can be given that the Company will
not experience any interruptions in its business or operations due to Year 2000
issues.
Pursuant to the Company's readiness programs, all major categories of
information technology systems and non-information technology systems (i.e.,
equipment with embedded microprocessors) in use by the Company, including
manufacturing, sales, financial and human resources, were inventoried and
assessed. In addition, plans were developed for the required systems
modifications or replacements. Well before December 31, 1999, the Company
completed both the assessment and remediation phases for its information
technology and non-information technology systems. Final testing in selected
areas, both internal and external, confirmed the integrity of the Company's
remediation programs. The Company's internal mission-critical information
technology and non-information technology systems are Year 2000 compliant.
The Company communicated with its major customers, suppliers and financial
institutions to assess the potential impact on the Company's operations if those
third parties failed to become Year 2000 compliant in a timely manner. Based
upon responses received by the Company, many of those customers and suppliers
only indicated that they would have in place Year 2000 readiness programs,
without specifically confirming that they would be Year 2000 compliant in a
timely manner. Risk assessment, readiness evaluation, action plans and
contingency plans related to the Company's
<PAGE>
- 25 -
significant customers and suppliers were completed prior to January 1, 2000. The
Company's key financial institutions were surveyed and it is the Company's
understanding that they are Year 2000 compliant.
The costs incurred related to its Year 2000 activities and its readiness
programs have not been material to the Company, and, based upon current
conditions and estimates, the Company does not believe that the future costs
associated with Year 2000 issues will have a material adverse impact on the
Company's financial condition, results of operations or cash flows. However, no
assurances can be given that the Company will not incur material remediation or
other costs due to Year 2000 issues.
The Company's readiness programs also include contingency plans to protect
its business and operations from Year 2000-related interruptions. These plans
were completed by October 31, 1999, and, by way of examples, include back-up
procedures and identification of alternate suppliers, where possible. Based upon
the Company's assessment of its non-information technology systems, it was not
necessary to develop an extensive contingency plan for those systems. There can
be no assurances, however, that any of the Company's contingency plans will be
sufficient to handle all problems or issues which may arise.
The Company believes that it has taken reasonable steps to identify and
address those matters that could cause serious interruptions in its business and
operations due to Year 2000 issues. However, a failure to fully identify all
Year 2000 dependencies in the Company's systems and in the systems of its
suppliers, customers and financial institutions, a failure of such third parties
to adequately address their respective Year 2000 issues, or a failure of a
contingency plan could have a material adverse effect on the Company's business,
financial condition, results of operations or cash flows. For example, the
Company would experience a material adverse impact on its business if
significant suppliers of beer, glass or other raw materials, or utility systems
fail to timely provide the Company with necessary inventories or services due to
Year 2000 systems failures.
The statements set forth herein concerning Year 2000 issues which are not
historical facts are forward-looking statements that involve risks and
uncertainties that could cause actual results to differ materially from those in
the forward-looking statements.
EURO CONVERSION ISSUES
Effective January 1, 1999, eleven of the fifteen member countries of the
European Union (the "Participating Countries") established fixed conversion
rates between their existing sovereign currencies and the euro. For three years
after the introduction of the euro, the Participating Countries can perform
financial transactions in either the euro or their original local currencies.
This will result in a fixed exchange rate among the Participating Countries,
whereas the euro (and the Participating Countries' currency in tandem) will
continue to float freely against the U.S. dollar and other currencies of the
non-participating countries. The Company does not believe that the effects of
the conversion will have a material adverse effect on the Company's business and
operations.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
- ------- ----------------------------------------------------------
Information about market risks for the nine months ended November 30, 1999,
does not differ materially from that discussed under Item 7A in the Company's
Annual Report on Form 10-K for the fiscal year ended February 28, 1999.
<PAGE>
- 26 -
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
- ------- --------------------------------
(a) See Index to Exhibits located on Page 34 of this Report.
(b) The following Reports on Form 8-K were filed with the Securities and
Exchange Commission during the quarter ended November 30, 1999:
(i) Form 8-K/A, Amendment No. 2, dated April 9, 1999. This Form 8-K/A
reported information under Item 7 (Financial Statements and
Exhibits). The following financial statements were filed with this
Form 8-K/A:
The Diageo Inc. Statement of Assets and Liabilities Related to the
Product Lines Sold to Canandaigua Brands, Inc. as of April 9, 1999,
and the Statement of Identified Income and Expenses Related to the
Product Lines Sold to Canandaigua Brands, Inc. for the year ended
December 31, 1998, and the report of KPMG LLP, independent auditors,
thereon, together with the notes thereto.
The Diageo Inc. Statements of Identified Income and Expenses Related
to the Product Lines Sold to Canandaigua Brands, Inc. (unaudited)
for the three months ended March 31, 1999 and 1998, together with
the notes thereto.
The pro forma condensed combined balance sheet (unaudited) as of
February 28, 1999, the pro forma condensed combined statement of
income (unaudited) for the year ended February 28, 1999, and the pro
forma combined statement of income (unaudited) for the six months
ended August 31, 1999, and the notes thereto.
(ii) Form 8-K dated September 27, 1999. This Form 8-K reported
information under Item 5 (Other Events) and included (i) the
Company's Condensed Consolidated Balance Sheets as of August 31,
1999 (unaudited) and February 28, 1999 (audited); (ii) the Company's
Condensed Consolidated Statements of Income for the three months
ended August 31, 1999 (unaudited) and August 31, 1998 (unaudited);
and (iii) the Company's Condensed Consolidated Statements of Income
for the six months ended August 31, 1999 (unaudited) and August 31,
1998 (unaudited).
(iii) Form 8-K dated October 12, 1999. This Form 8-K reported information
under Item 5 (Other Events).
<PAGE>
- 27 -
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: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Vice President,
Corporate Reporting and Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Senior Vice
President and Chief Financial
Officer (Principal Financial
Officer and Principal Accounting
Officer)
SUBSIDIARIES
BATAVIA WINE CELLARS, INC.
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
CANANDAIGUA WINE COMPANY, INC.
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
<PAGE>
- 28 -
CANANDAIGUA EUROPE LIMITED
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
CANANDAIGUA LIMITED
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Authorized Officer
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Finance
Director (Principal Financial
Officer and Principal Accounting
Officer)
POLYPHENOLICS, INC.
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Vice President
and Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Vice President
and Treasurer (Principal
Financial Officer and Principal
Accounting Officer)
ROBERTS TRADING CORP.
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, President and
Treasurer (Principal Financial
Officer and Principal Accounting
Officer)
<PAGE>
- 29 -
CANANDAIGUA B.V.
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Authorized
Representative (Principal
Financial Officer and Principal
Accounting Officer)
SIMI WINERY, INC.
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Vice President
and Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, President and
Treasurer (Principal Financial
Officer and Principal Accounting
Officer)
FRANCISCAN VINEYARDS, INC.
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Vice President
and Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Vice President
and Treasurer (Principal
Financial Officer and Principal
Accounting Officer)
SCV-EPI VINEYARDS, INC.
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Vice President
and Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Vice President
and Treasurer (Principal
Financial Officer and Principal
Accounting Officer)
<PAGE>
- 30 -
ALLBERRY, INC.
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Vice President
and Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Vice President
and Treasurer (Principal
Financial Officer and Principal
Accounting Officer)
CLOUD PEAK CORPORATION
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Vice President
and Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Vice President
and Treasurer (Principal
Financial Officer and Principal
Accounting Officer)
M.J. LEWIS CORP.
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Vice President
and Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Vice President
and Treasurer (Principal
Financial Officer and Principal
Accounting Officer)
MT. VEEDER CORPORATION
Dated: January 14, 2000 By:/s/ Thomas F. Howe
----------------------------------
Thomas F. Howe, Vice President
and Controller
Dated: January 14, 2000 By:/s/ Thomas S. Summer
----------------------------------
Thomas S. Summer, Vice President
and Treasurer (Principal
Financial Officer and Principal
Accounting Officer)
<PAGE>
- 31 -
BARTON INCORPORATED
Dated: January 14, 2000 By:/s/ Alexander L. Berk
----------------------------------
Alexander L. Berk, President and
Chief Executive Officer
Dated: January 14, 2000 By:/s/ Raymond E. Powers
----------------------------------
Raymond E. Powers, Executive
Vice President, Treasurer and
Assistant Secretary (Principal
Financial Officer and Principal
Accounting Officer)
BARTON BRANDS, LTD.
Dated: January 14, 2000 By:/s/ Alexander L. Berk
----------------------------------
Alexander L. Berk, Executive Vice
President
Dated: January 14, 2000 By:/s/ Raymond E. Powers
----------------------------------
Raymond E. Powers, Executive Vice
President, Treasurer and
Assistant Secretary (Principal
Financial Officer and Principal
Accounting Officer)
BARTON BEERS, LTD.
Dated: January 14, 2000 By:/s/ Alexander L. Berk
----------------------------------
Alexander L. Berk, Executive Vice
President
Dated: January 14, 2000 By:/s/ Raymond E. Powers
----------------------------------
Raymond E. Powers, Executive Vice
President, Treasurer and
Assistant Secretary (Principal
Financial Officer and Principal
Accounting Officer)
BARTON BRANDS OF CALIFORNIA, INC.
Dated: January 14, 2000 By:/s/ Alexander L. Berk
----------------------------------
Alexander L. Berk, President
Dated: January 14, 2000 By:/s/ Raymond E. Powers
----------------------------------
Raymond E. Powers, Executive Vice
President, Treasurer and
Assistant Secretary (Principal
Financial Officer and Principal
Accounting Officer)
<PAGE>
- 32 -
BARTON BRANDS OF GEORGIA, INC.
Dated: January 14, 2000 By:/s/ Alexander L. Berk
----------------------------------
Alexander L. Berk, President
Dated: January 14, 2000 By:/s/ Raymond E. Powers
----------------------------------
Raymond E. Powers, Executive Vice
President, Treasurer and
Assistant Secretary (Principal
Financial Officer and Principal
Accounting Officer)
BARTON CANADA, LTD.
Dated: January 14, 2000 By:/s/ Alexander L. Berk
----------------------------------
Alexander L. Berk, President
Dated: January 14, 2000 By:/s/ Raymond E. Powers
----------------------------------
Raymond E. Powers, Executive Vice
President, Treasurer and
Assistant Secretary (Principal
Financial Officer and Principal
Accounting Officer)
BARTON DISTILLERS IMPORT CORP.
Dated: January 14, 2000 By:/s/ Alexander L. Berk
----------------------------------
Alexander L. Berk, President
Dated: January 14, 2000 By:/s/ Raymond E. Powers
----------------------------------
Raymond E. Powers, Executive Vice
President, Treasurer and
Assistant Secretary (Principal
Financial Officer and Principal
Accounting Officer)
BARTON FINANCIAL CORPORATION
Dated: January 14, 2000 By:/s/ Raymond E. Powers
----------------------------------
Raymond E. Powers, President and
Secretary
Dated: January 14, 2000 By:/s/ Charles T. Schlau
----------------------------------
Charles T. Schlau, Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
<PAGE>
- 33 -
STEVENS POINT BEVERAGE CO.
Dated: January 14, 2000 By:/s/ Alexander L. Berk
----------------------------------
Alexander L. Berk, Executive Vice
President
Dated: January 14, 2000 By:/s/ Raymond E. Powers
----------------------------------
Raymond E. Powers, Executive Vice
President, Treasurer and
Assistant Secretary (Principal
Financial Officer and Principal
Accounting Officer)
MONARCH IMPORT COMPANY
Dated: January 14, 2000 By:/s/ Alexander L. Berk
----------------------------------
Alexander L. Berk, President
Dated: January 14, 2000 By:/s/ Raymond E. Powers
----------------------------------
Raymond E. Powers, Executive Vice
President, Treasurer and
Assistant Secretary (Principal
Financial Officer and Principal
Accounting Officer)
THE VIKING DISTILLERY, INC.
Dated: January 14, 2000 By:/s/ Alexander L. Berk
----------------------------------
Alexander L. Berk, President
Dated: January 14, 2000 By:/s/ Raymond E. Powers
----------------------------------
Raymond E. Powers, Executive Vice
President, Treasurer and
Assistant Secretary (Principal
Financial Officer and Principal
Accounting Officer)
<PAGE>
- 34 -
INDEX TO EXHIBITS
(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 as Exhibit 2.1 to the Company's Current Report on Form 8-K dated
December 1, 1998 and incorporated herein by reference).
2.2 Asset Purchase Agreement dated as of February 21, 1999 by and among Diageo
Inc., UDV Canada Inc., United Distillers Canada Inc. and the Company
(filed as Exhibit 2 to the Company's Current Report on Form 8-K dated
April 9, 1999 and incorporated herein by reference).
2.3 Stock Purchase Agreement, dated April 21, 1999, between Franciscan
Vineyards, Inc., Agustin Huneeus, Agustin Francisco Huneeus, Jean-Michel
Valette, Heidrun Eckes-Chantre Und Kinder Beteiligungsverwaltung II, GbR,
Peter Eugen Eckes Und Kinder Beteiligungsverwaltung II, GbR, Harald
Eckes-Chantre, Christina Eckes-Chantre, Petra Eckes-Chantre and
Canandaigua Brands, Inc. (filed as Exhibit 2.1 on the Company's Current
Report on Form 8-K dated June 4, 1999 and incorporated herein by
reference).
2.4 Stock Purchase Agreement by and between Canandaigua Wine Company, Inc. (a
wholly-owned subsidiary of the Company) and Moet Hennessy, Inc. dated
April 1, 1999 (including a list briefly identifying the contents of all
omitted schedules thereto) (filed as Exhibit 2.3 to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended May 31, 1999
and incorporated herein by reference).
(3) ARTICLES OF INCORPORATION AND BY-LAWS.
3.1 Restated Certificate of Incorporation of the Company (filed as Exhibit 3.1
to the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended August 31, 1998 and incorporated herein by reference).
3.2 Amended and Restated By-Laws of the Company (filed as Exhibit 3.2 to the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
August 31, 1998 and incorporated herein by reference).
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING INDENTURES.
4.1 Credit Agreement, dated as of October 6, 1999, between the Company,
certain principal subsidiaries, and certain banks for which The Chase
Manhattan Bank acts as Administrative Agent, The Bank of Nova Scotia acts
as Syndication Agent, and Credit Suisse First Boston and Citicorp USA,
Inc. acts as Co-Documentation Agents (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.
4.2 Indenture with respect to 8 1/2% Senior Notes due 2009, dated as of
November 17, 1999, among the Company, as Issuer, certain principal
subsidiaries, as Guarantors, and Harris Trust and Savings Bank, as Trustee
(filed as Exhibit 4.1 to the Company's Registration Statement on Form S-4
(Registration No. 333-9436902) and incorporated herein by reference).
<PAGE>
- 35 -
4.3 Registration Rights Agreeement, dated as of November 17, 1999, among the
Company, the guarantors named therein, and J.P. Morgan Securities Ltd.
(filed as Exhibit 4.2 to the Company's Registration Statement on Form S-4
(Registration No. 333-9436902) and incorporated herein by reference).
(10) MATERIAL CONTRACTS.
Credit Agreement, dated as of October 6, 1999, between the Company,
certain principal subsidiaries, and certain banks for which The Chase
Manhattan Bank acts as Administrative Agent, The Bank of Nova Scotia acts
as Syndication Agent, and Credit Suisse First Boston and Citicorp USA,
Inc. acts as Co-Documentation Agents (filed herewith as Exhibit 4.17).
(11) STATEMENT RE COMPUTATION OF PER SHARE EARNINGS.
Computation of per share earnings (filed herewith).
(15) LETTER RE UNAUDITED INTERIM FINANCIAL INFORMATION.
Not applicable.
(18) LETTER RE CHANGE IN ACCOUNTING PRINCIPLES.
Not applicable.
(19) REPORT FURNISHED TO SECURITY HOLDERS.
Not applicable.
(22) PUBLISHED REPORT REGARDING MATTERS SUBMITTED TO A VOTE OF SECURITY
HOLDERS.
Not applicable.
(23) CONSENTS OF EXPERTS AND COUNSEL.
Not applicable.
(24) POWER OF ATTORNEY.
Not applicable.
(27) FINANCIAL DATA SCHEDULE.
Financial Data Schedule (filed herewith).
(99) ADDITIONAL EXHIBITS.
Not applicable.
EXHIBIT 4
---------
29455-00500
================================================================================
CREDIT AGREEMENT
dated as of
October 6, 1999
between
CANANDAIGUA BRANDS, INC.
The SUBSIDIARY GUARANTORS Party Hereto
The LENDERS Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
THE BANK OF NOVA SCOTIA
as Syndication Agent
and
CREDIT SUISSE FIRST BOSTON
and
CITICORP USA, INC.
as Co-Documentation Agents
$1,000,000,000
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms..................................................1
SECTION 1.02. Classification of Loans and Borrowings........................29
SECTION 1.03. Terms Generally...............................................29
SECTION 1.04. Accounting Terms; GAAP........................................29
SECTION 1.05. Currency Equivalents..........................................30
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments...............................................30
SECTION 2.02. Loans and Borrowings..........................................32
SECTION 2.03. Requests for Syndicated Borrowings............................33
SECTION 2.04. Competitive Bid Procedure.....................................34
SECTION 2.05. Swingline Loans...............................................36
SECTION 2.06. Letters of Credit.............................................38
SECTION 2.07. Funding of Borrowings.........................................43
SECTION 2.08. Interest Elections............................................43
SECTION 2.09. Termination and Reduction of the Commitments..................45
SECTION 2.10. Repayment of Loans; Evidence of Debt..........................46
SECTION 2.11. Prepayment of Loans...........................................49
SECTION 2.12. Fees .........................................................55
SECTION 2.13. Interest......................................................56
SECTION 2.14. Alternate Rate of Interest....................................58
SECTION 2.15. Increased Costs...............................................58
SECTION 2.16. Break Funding Payments........................................59
SECTION 2.17. Taxes ....................................................... 60
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...61
SECTION 2.19. Mitigation Obligations; Replacement of Lenders................63
-i-
<PAGE>
Page
ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee.................................................64
SECTION 3.02. Obligations Unconditional.....................................65
SECTION 3.03. Reinstatement.................................................70
SECTION 3.04. Subrogation...................................................70
SECTION 3.05. Remedies......................................................70
SECTION 3.06. Instrument for the Payment of Money...........................71
SECTION 3.07. Continuing Guarantee..........................................71
SECTION 3.08. Rights of Contribution........................................71
SECTION 3.09. General Limitation on Guarantee Obligations...................72
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Organization; Powers..........................................72
SECTION 4.02. Authorization; Enforceability.................................72
SECTION 4.03. Governmental Approvals; No Conflicts..........................73
SECTION 4.04. Financial Condition; No Material Adverse Change...............73
SECTION 4.05. Properties....................................................73
SECTION 4.06. Litigation....................................................74
SECTION 4.07. Environmental Matters.........................................74
SECTION 4.08. Compliance with Laws and Agreements...........................76
SECTION 4.09. Investment and Holding Company Status.........................76
SECTION 4.10. Taxes.........................................................76
SECTION 4.11. ERISA ........................................................76
SECTION 4.12. Disclosure....................................................77
SECTION 4.13. Use of Credit.................................................77
SECTION 4.14. Material Agreements and Liens.................................77
SECTION 4.15. Capitalization................................................77
SECTION 4.16. Subsidiaries and Investments..................................78
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date................................................79
SECTION 5.02. Each Credit Event.............................................81
-ii-
<PAGE>
Page
ARTICLE VI
AFFIRMATIVE COVENANTS
SECTION 6.01. Financial Statements and Other Information....................81
SECTION 6.02. Notices of Material Events....................................83
SECTION 6.03. Existence; Conduct of Business................................84
SECTION 6.04. Payment of Obligations........................................84
SECTION 6.05. Maintenance of Properties; Insurance..........................84
SECTION 6.06. Books and Records; Inspection Rights..........................84
SECTION 6.07. Compliance with Laws..........................................85
SECTION 6.08. Use of Proceeds and Letters of Credit.........................85
SECTION 6.09. Certain Obligations Respecting Subsidiaries...................85
SECTION 6.10. Release and Re-Pledge of Certain Collateral...................87
SECTION 6.11. Pledge of Certain Collateral of the Borrower..................88
ARTICLE VII
NEGATIVE COVENANTS
SECTION 7.01. Indebtedness..................................................89
SECTION 7.02. Liens ........................................................91
SECTION 7.03. Fundamental Changes...........................................92
SECTION 7.04. Disposition of Property.......................................95
SECTION 7.05. Acquisition of Property.......................................95
SECTION 7.06. Investments...................................................96
SECTION 7.07. Restricted Payments...........................................97
SECTION 7.08. Transactions with Affiliates..................................98
SECTION 7.09. Certain Restrictions..........................................98
SECTION 7.10. Certain Financial Covenants...................................99
SECTION 7.11. Subordinated Indebtedness....................................100
SECTION 7.12. Senior Unsecured Indebtedness................................102
SECTION 7.13. Modifications of Certificate of Incorporation................102
-iii-
<PAGE>
Page
ARTICLE VIII
EVENTS OF DEFAULT ..........................103
ARTICLE IX
THE ADMINISTRATIVE AGENT ........................106
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices.....................................................108
SECTION 10.02. Waivers; Amendments.........................................109
SECTION 10.03. Expenses; Indemnity; Damage Waiver..........................110
SECTION 10.04. Successors and Assigns......................................112
SECTION 10.05. Survival....................................................115
SECTION 10.06. Counterparts; Integration; Effectiveness....................115
SECTION 10.07. Severability................................................116
SECTION 10.08. Right of Setoff.............................................116
SECTION 10.09. Governing Law; Jurisdiction; Etc............................116
SECTION 10.10. WAIVER OF JURY TRIAL........................................117
SECTION 10.11. Headings....................................................117
SECTION 10.12. Treatment of Certain Information; Confidentiality...........117
SECTION 10.13. "Credit Agreement" under Indentures.........................118
SECTION 10.14. European Monetary Union.....................................119
SECTION 10.15. Judgment Currency...........................................121
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Disclosed Matters
SCHEDULE IV - Subsidiaries and Investments
SCHEDULE V - Stock Options and Stock Based Plans
SCHEDULE VI - Calculation of MCR Cost
SCHEDULE VII - Certain Adjustment Amounts
SCHEDULE VIII - Foreign Subsidiaries
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B-1 - Form of U.S. Equity Pledge Agreement
EXHIBIT B-2 - Form of U.K. Equity Pledge Agreement
EXHIBIT C - Form of Guarantee Assumption Agreement
EXHIBIT D-1 - Form of Opinion of U.S. Counsel to the Obligors
-iv-
<PAGE>
EXHIBIT D-2 - Form of Opinion of U.K. Counsel to the Obligors
EXHIBIT E - Form of Opinion of Special New York Counsel to Chase
-v-
<PAGE>
CREDIT AGREEMENT dated as of October 6, 1999, between
CANANDAIGUA BRANDS, INC., the SUBSIDIARY GUARANTORS party hereto, the LENDERS
party hereto, and THE CHASE MANHATTAN BANK, as Administrative Agent.
The Borrower (as hereinafter defined) has requested that the
Lenders (as so defined) extend credit to it, under the guarantee of the
Subsidiary Guarantors (as so defined), in an aggregate principal or face amount
not exceeding $1,000,000,000 (subject to increase as herein provided to
$1,200,000,000), to finance the operations of the Obligors (as so defined), to
refinance certain existing indebtedness of the Obligors and to enable certain
acquisitions and capital expenditures by the Obligors, and for other purposes.
The Lenders are prepared to extend such credit upon the terms and conditions
hereof, and, accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing
denominated in Dollars, refers to whether such Loan, or the Loans constituting
such Borrowing, are bearing interest at a rate determined by reference to the
Alternate Base Rate.
"Acceleration Date" has the meaning assigned to such term in
the penultimate paragraph of Article VIII.
"Acquisition" means an acquisition by the Borrower or any of
its Subsidiaries of a business 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).
"Adjusted Cash Flow" means, for any period (the "calculation
period"), the sum, for the Borrower and its Consolidated Subsidiaries
(determined on a consolidated basis without duplication in accordance with
GAAP), of the following: (a) Operating Cash Flow for the calculation period
minus (b) Capital Expenditures made during the calculation period (excluding
Capital Expenditures made from the proceeds of Indebtedness other than
Indebtedness hereunder).
"Adjusted LIBO Rate" means, for the Interest Period for any
Eurocurrency Borrowing, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate for such Interest Period.
<PAGE>
-2-
"Adjustment Amount" means, for any period, (i) the amount for
such period specified on Schedule VII hereto and (ii) in connection with any
Acquisition or Disposition after the date hereof, all non-cash non-recurring
charges for such period against net operating income of the Borrower, any
Subsidiary or the Person subject to an Acquisition which charges are reasonably
acceptable to the Administrative Agent.
"Administrative Agent" means Chase, in its capacity as
administrative agent for the Lenders hereunder, together with its successors and
assigns.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified
(provided that no Subsidiary will be deemed to be an Affiliate of the Borrower
or of any other Subsidiary).
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"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 Revolving Lender in respect of any indemnity claim under Section 10.03(c)
arising out of an action or omission of the Administrative Agent, the Swingline
Lender or 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 (d) with respect to any Lender in respect of any indemnity claim
under Section 10.03(c) arising out of an action or omission of the
Administrative Agent under this Agreement (other than one relating to Swingline
Loans or Letters of Credit), the percentage of the total Commitments or Loans of
all Classes hereunder represented by the aggregate amount of such Lender's
Commitments or Loans of all Classes hereunder. If the Tranche I Revolving
Commitments or Tranche II Revolving Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Tranche I Revolving
Commitments or Tranche II 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
<PAGE>
-3-
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:
<TABLE>
<CAPTION>
============== =============== ================= ============== =============== ==================
DEBT RATIO: REVOLVING AND REVOLVING AND
SWINGLINE SWINGLINE LOAN: TRANCHE I TRANCHE I AND FACILITY
LOAN: ABR RATE EURODOLLAR AND AND II TERM II TERM FEE RATE
SWINGLINE FFBR LOAN: ABR LOAN:
RATE RATE EURODOLLAR
RATE
-------------- --------------- ----------------- -------------- --------------- ------------------
<S> <C> <C> <C> <C> <C>
Category 1
>4.00x 0.250 1.250 0.750 1.750 0.500
-
-------------- --------------- ----------------- -------------- --------------- ------------------
Category 2
<4.00x and 0.125 1.125 0.625 1.625 0.500
>3.50x
-
-------------- --------------- ----------------- -------------- --------------- ------------------
Category 3
<3.50x and 0.00 1.000 0.500 1.500 0.500
>3.00x
-
-------------- --------------- ----------------- -------------- --------------- ------------------
Category 4
<3.00x and 0.00 1.000 0.375 1.375 0.375
>2.50x
-
-------------- --------------- ----------------- -------------- --------------- ------------------
Category 5
< 2.50x 0.00 0.750 0.000 1.000 0.250
============== =============== ================= ============== =============== ==================
</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) and (ii) subject to the foregoing provisions of this
definition, each change in the Applicable Rate resulting from a change in the
Debt Ratio shall be effective during the period commencing on and including the
date of delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately preceding
the effective date of the next such change; provided that the Debt Ratio shall
be deemed to be in Category 1 (A) prior to the first delivery after the date
hereof of financial statements pursuant to Section 6.01(a) or (b), (B) at any
time that an Event of Default has occurred and is continuing and (C) if the
Borrower fails to deliver the consolidated financial statements required to be
delivered by it pursuant to Section 6.01(a) or (b), during the period from the
expiration of the time for delivery thereof until such consolidated financial
statements are delivered. Notwithstanding the foregoing, the "Applicable Rate"
for any Tranche III Term Loan of any Series shall be the respective rates
specified in the Tranche III Term Loan Agreement for such Series.
"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.
<PAGE>
-4-
"Banc One" means Banc One, N.A.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Canandaigua Brands, Inc., a Delaware
corporation.
"Borrower Security Agreement" means a pledge agreement,
mortgage of shares or similar agreement in form and substance reasonably
satisfactory to the Administrative Agent, executed and delivered pursuant to
Section 6.11 by the Borrower in favor of the Administrative Agent creating in
favor of the Administrative Agent, for the benefit of the Lenders, a security
interest in the Collateral required to be pledged by the Borrower under said
Section 6.11.
"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.
"Canandaigua B.V." means Canandaigua B.V., a company organized
under the laws of The Netherlands and a Wholly-Owned Subsidiary of the Borrower.
"Canandaigua Limited" means Canandaigua Limited, a company
organized under the laws of England and Wales and a Wholly-Owned Subsidiary of
the Borrower.
"Capital Expenditures" means, for any period, expenditures
(including the aggregate amount of Capital Lease Obligations incurred during
such period) made by the Borrower or any of its Consolidated Subsidiaries to
acquire or construct fixed assets, plant and equipment (including renewals,
improvements and replacements, but excluding repairs) during such period
computed in accordance with GAAP. Notwithstanding the foregoing, no Acquisition
permitted pursuant to Section 7.05(b) shall be treated as a Capital Expenditure.
<PAGE>
-5-
"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 Control" means capital stock of the Borrower, which
in the aggregate represents voting power to elect a majority of the board of
directors of the Borrower, shall cease to be owned or otherwise controlled by
one or more Permitted Holders.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
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" means The Chase Manhattan Bank.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
Tranche I Revolving Loans, Tranche II 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 I Term Loan 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" means, collectively, the "Collateral" specified
in the U.S. Equity Pledge Agreement and all collateral pledged pursuant to the
Foreign Equity Pledge Agreements or a Borrower Security Agreement.
"Collateral Account" has the meaning assigned to such term in
Section 4.01 of the U.S. Equity Pledge Agreement.
<PAGE>
-6-
"Commitment" means a Tranche I Revolving Commitment, Tranche
II Revolving Commitment, Tranche I Term Loan 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", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans constituting such
Borrowing, are made pursuant to Section 2.04.
"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.
"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 (or should have been)
consolidated with the financial statements of such Person in accordance with
GAAP.
"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, 1999.
"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 a Foreign Subsidiary Debt Incurrence,
a Senior Debt Incurrence or a Subordinated Debt Incurrence, as applicable.
"Debt Ratio" means, as at the last day of any fiscal quarter
of the Borrower (the "day of determination"), the ratio of (a) the average of
the aggregate amounts of Indebtedness of
<PAGE>
-7-
the Borrower and its Consolidated Subsidiaries (determined on a consolidated
basis, without duplication, in accordance with GAAP) as at such day and as at
the last days of each of the three immediately preceding fiscal quarters to (b)
Operating Cash Flow for the period of four consecutive fiscal quarters ending on
such day of determination (provided that Indebtedness as at the last day of each
fiscal quarter included in the determination of average Indebtedness pursuant to
clause (a) above shall be determined under the assumption that any prepayment of
Term Loans hereunder from the proceeds of any Equity Issuance at any time during
any such fiscal quarter included in the calculation thereof shall have been made
in the first such fiscal quarter).
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits 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, 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 lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 5.01 are satisfied (or waived in accordance with Section
10.02).
"Environmental Claim" means, with respect to any Person, (a)
any written 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 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
<PAGE>
-8-
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, (y) any capital contribution by any Person
other than the Borrower or any Subsidiary to any Joint Venture Entity or (z) 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 (including any shareholders' or voting trust agreements) to which
such Person is a party for the issuance, sale, registration or voting of, or
securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
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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 constituting 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.
"Excluded Entities" means, collectively, Inactive
Subsidiaries, Joint Venture Entities, Foreign Subsidiaries and, for so long as
it shall conduct no business other than holding Indebtedness of Canandaigua
Limited and having Indebtedness outstanding to the Borrower, Canandaigua B.V.
"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 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" means the Second Amended and
Restated Credit Agreement dated as of May 12, 1999 between the Borrower, the
Subsidiary Guarantors party
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thereto, the Lenders party thereto, and Chase, as Administrative Agent, as in
effect on the date 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 such day for
the immediately preceding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for such preceding Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer, assistant treasurer or controller of
the Borrower.
"Fixed Charges" means, for any period, the sum, for the
Borrower and its Consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) all payments
of principal of Indebtedness scheduled to be made during such period plus (b)
all Interest Expense for such period plus (c) the aggregate amount of federal,
state and foreign taxes paid during such period to the extent that net operating
income for such period pursuant to clause (a) of the definition of "Operating
Cash Flow" in this Section has been calculated before giving effect to such
taxes plus (d) the aggregate amount of cash dividends made by the Borrower
pursuant to Section 7.07 during such period.
"Fixed Charges Ratio" means, as at any date, the ratio of (a)
Adjusted Cash Flow for the period of four consecutive fiscal quarters ending on
or most recently ended prior to such date to (b) Fixed Charges for such period
(it being understood that, as specified in the definitions of "Interest Expense"
and "Operating Cash Flow", neither Adjusted Cash Flow nor Fixed Charges will be
adjusted on a pro forma basis with respect to any Acquisition or Disposition).
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Competitive Eurocurrency Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at
a Fixed Rate.
"Foreign Equity Pledge Agreement" means (i) with respect to
the capital stock of Canandaigua Limited and Matthew Clark, a U.K. Equity Pledge
Agreement in substantially the
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form of Exhibit B-2 and (ii) with respect to the capital stock of any other
applicable Subsidiary of the Borrower organized under the laws of any country
other than the United States of America or a State thereof, a pledge agreement,
mortgage of shares or similar agreement in form and substance reasonably
satisfactory to the Administrative Agent, executed and delivered by the Borrower
or any other Subsidiary (to the extent required under Section 6.09) in favor of
the Administrative Agent creating in favor of the Administrative Agent, for the
benefit of the Lenders, a security interest in the shares of stock of other
equity interests of such first Subsidiary.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiaries" means any Subsidiary organized under
the laws of any country other than the United States of America, or a State
thereof, which (if such Subsidiary were to become a Subsidiary Guarantor
hereunder) the Borrower and the Administrative Agent have determined would
either result in adverse tax consequences under Section 956 of the Code or would
contravene any applicable law, rule or regulation. For purposes hereof, it is
agreed that as of the date hereof each of the Subsidiaries specified on Schedule
VIII hereto is a "Foreign Subsidiary".
"Foreign Subsidiary Debt Incurrence" means the incurrence by
any Subsidiary after the Effective Date of any Foreign Subsidiary Indebtedness.
"Foreign Subsidiary Indebtedness" means Indebtedness incurred
in compliance with Section 7.01(f), (g) and/or (h).
"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.
"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
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letter of guaranty issued to support such Indebtedness or obligation; provided,
that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.
"Guarantee Assumption Agreement" means a Guarantee Assumption
Agreement substantially in the form of Exhibit C by an entity that, pursuant to
Section 6.09(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 (and, for avoidance of doubt, excluding any type of hedging
arrangement other than in respect of interest rate protection, foreign currency
exchange or commodity price protection).
"Inactive Subsidiary" means, as at any date, any Subsidiary of
the Borrower that as at the end of and for the fiscal quarter ending on or most
recently ended prior to such date, shall have assets with a fair market value of
less than $1,000,000 and gross revenues of less than $100,000, as so certified
in the certificate of a Financial Officer of the Borrower delivered with respect
to such fiscal quarter pursuant to Section 6.01(c). For purposes hereof, the
fair market value of any Trademarks held by any Subsidiary shall be determined
without giving effect to any licenses or user agreements granted by such
Subsidiary to any other Person. The only Inactive Subsidiaries on the date
hereof which are organized under the laws of the United States of America are
Richard's Wine Cellars Incorporated and M.J. Lewis Corp.
"Incremental Commitments" means, collectively, the Tranche II
Revolving Commitments and the Tranche III Term Loan Commitments.
"Incremental Loan Agreements" means collectively, the Tranche
II Revolving Loan Agreements and the Tranche III Term Loan Agreements.
"Incremental Loans" means, collectively, the Tranche II
Revolving Loans and the Tranche III Term Loans.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other 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
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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.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Borrower that is not guaranteed by any Person (other
than any Subsidiary) or subject to any other credit enhancement.
"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 for aggregate consideration of $10,000,000 or more
then, for all purposes of this Agreement (other than for purposes of the
definition of Fixed Charges), Interest Expense shall be determined on a pro
forma basis as if such Acquisition or Disposition (and any Indebtedness incurred
by the Borrower or any of its Subsidiaries in connection with such Acquisition
or repaid as a result of such Disposition) had been made or consummated (and
such Indebtedness incurred or repaid) on the first day of such period (and
interest on any such Indebtedness shall be deemed to be calculated for such
period at a rate per annum equal to the actual rate of interest in effect in
respect of Indebtedness under this Agreement outstanding during such period).
"Interest Payment Date" means (a) with respect to any
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
<PAGE>
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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.
"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
<PAGE>
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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) Banc One, 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 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.
"LIBO Rate" means, for the Interest Period for any
Eurocurrency Borrowing in either Currency, the applicable rate appearing on Page
3750 of the Telerate Service of Bridge Information Services (or on any successor
or substitute page of such Service or any successor to or substitute for such
Service (in each case as determined by the Administrative Agent) providing rate
quotations comparable to those currently provided on such page of such Service
from time to time for purposes of providing quotations of interest rates
applicable to deposits in such Currency in interbank market in London (in the
case of Dollar deposits) or Paris (in the case of Sterling deposits)) at
approximately 11:00 a.m., London time, two Business Days prior to the
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commencement of such Interest Period, as the rate for the offering of deposits
in such Currency 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.
"Loan Documents" means, collectively, this Agreement, the
Letter of Credit Documents, the Security Documents (so long as no Rating Upgrade
Event shall have occurred and be continuing) and each Incremental Loan
Agreement, if applicable.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"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.
"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 of any Obligor, or the financial capacity of all of the Obligors
collectively, to perform any of its or their obligations under this Agreement or
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any of the other applicable Loan Documents or (c) the rights of or benefits
available to the Lenders under this Agreement or any of the other Loan
Documents.
"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 $10,000,000. 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.
"Matthew Clark" means Matthew Clark plc, a company organized
under the laws of England and Wales and a Wholly-Owned Subsidiary of the
Borrower.
"Maximum Receivable Exposure" means, for any Permitted
Receivable Financing, the maximum aggregate amount (expressed in Dollars) of
Receivable Assets that all Receivable Financiers in respect thereof are required
to purchase, fund or otherwise finance.
"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 VI.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Proceeds" means:
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount
of proceeds of insurance, condemnation awards and other compensation
received by the Borrower and its Subsidiaries in respect of such
Casualty Event net of (A) expenses incurred by the Borrower and its
Subsidiaries in connection therewith and (B) contractually required
repayments of Indebtedness (other than Indebtedness to the Lenders
hereunder) to the extent secured by a Lien on such Property and any
income and transfer taxes payable by the Borrower or any of its
Subsidiaries in respect of such Casualty Event;
(iii) in the case of any Equity Issuance, the aggregate amount
of all cash received by the Borrower and its Subsidiaries in respect of
such Equity Issuance (net of (x) expenses incurred by the Borrower and
its Subsidiaries in connection therewith and (y) cash proceeds so
received and applied to refinance Subordinated Indebtedness as
contemplated by Section 7.11); and
(iv) in the case of any Debt Incurrence, the aggregate amount
of all cash received by the Borrower and its Subsidiaries in respect
thereof (net of (x) expenses incurred by
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the Borrower and its Subsidiaries in connection therewith, (y) in the
case of any Subordinated Debt Incurrence, cash proceeds so received and
applied to refinance Subordinated Indebtedness as contemplated by
Section 7.11 and (z) in the case of any Foreign Subsidiary Debt
Incurrence, cash proceeds so received and applied or maintained for
working capital purposes of the applicable Subsidiary).
"Net Cash Payments" means, with respect to any Disposition,
the aggregate amount of all cash payments received by the Borrower and its
Subsidiaries directly or indirectly in connection with such Disposition;
provided that (a) Net Cash Payments shall be net of (i) the amount of any legal,
title and recording tax expenses, commissions and other fees and expenses paid
by the Borrower and its Subsidiaries in connection with such Disposition and
(ii) any Federal, state, local and foreign income or other taxes estimated to be
payable by the Borrower and its Subsidiaries as a result of such Disposition
(but only to the extent that such estimated taxes are in fact paid to the
relevant Federal, state, local or foreign governmental authority within three
months of the date of such Disposition) and (b) Net Cash Payments shall be net
of any repayments by the Borrower or any of its Subsidiaries of Indebtedness to
the extent that (i) such Indebtedness is secured by a Lien on the Property that
is the subject of such Disposition and (ii) the transferee of (or holder of a
Lien on) such Property requires that such Indebtedness be repaid as a condition
to the purchase of such Property.
"1999 Indenture" means the Indenture dated as of February 25,
1999 between the Borrower, certain Subsidiaries and Harris Trust and Savings
Bank, as trustee.
"Obligor" means the Borrower and each Subsidiary Guarantor.
"Operating Cash Flow" means, for any period, the sum, for the
Borrower and its Consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) net
operating income (calculated before income taxes, interest income, Interest
Expense, extraordinary and unusual items and income or loss attributable to
equity in Affiliates) for such period plus (b) depreciation and amortization (to
the extent deducted in determining net operating income) for such period plus
(c) the Adjustment Amount for such period.
Notwithstanding the foregoing, if during any period for which
Operating Cash Flow is being determined the Borrower or any of its Subsidiaries
shall have consummated any Acquisition or Disposition for aggregate
consideration of $10,000,000 or more then, for all purposes of this Agreement
(other than for purposes of the definition of Adjusted Cash Flow), Operating
Cash Flow shall be determined on a pro forma basis as if such Acquisition or
Disposition had been made or consummated on the first day of such period.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Overfunded Revolving Lenders" has the meaning assigned to
such term in the penultimate paragraph of Article VIII.
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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 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) cash 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 (i) standard custodial, bailee or
depositary arrangements (including deposit accounts with banks and
other financial institutions) and (ii) standard customer agreements in
respect of accounts for the purchase and sale of securities and other
Property with brokerage firms or other types of financial institutions,
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness, and "Permitted Encumbrances" of the type described in the
foregoing clause (g) shall not secure any obligations (including obligations
under Hedging Agreements), other than obligations incidental to the respective
custodial, bailee or depositary arrangements or customer agreements referred to
in said clause (g).
"Permitted Holders" means (i) the Estate of Marvin Sands,
Marilyn Sands, her children, her children's spouses, her grandchildren, or the
estate of any of the foregoing individuals, or the Mac and Sally Sands
Foundation, Incorporated, (ii) trusts which are for the benefit of Marilyn
Sands, her children, her children's spouses, or her grandchildren or Andrew
Stern, which trusts are under the control of Marilyn Sands, her children, her
children's spouses, or her grandchildren or Andrew Stern or (iii) partnerships
which are controlled by the Estate of
<PAGE>
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Marvin Sands, Marilyn Sands, her children, her children's spouses, her
grandchildren, the estate of any of the foregoing individuals, by a trust
referred to in the foregoing clause (ii) or by a partnership that satisfies the
conditions of this clause (iii).
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard &
Poor's or from Moody's;
(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.
"Permitted Receivable Financing" means any transaction
involving one or more sales, contributions or other conveyances by the Borrower
or any Subsidiary of any Receivable Assets to a special purpose entity (which
may be a Subsidiary or Affiliate of the Borrower), which special purpose entity
finances such sales, contributions or other conveyances by in turn conveying an
interest in such Receivable Assets to one or more Receivable Financiers,
provided that (a) such transaction shall not involve any recourse to the
Borrower or any Subsidiary (other than such special purpose entity) for any
reason other than (i) repurchases of non-eligible Receivable Assets, (ii)
indemnification for losses (including any adjustments for dilutions), other than
credit losses related to the Receivable Assets conveyed in such transaction, and
(iii) payment of costs, fees, expenses and indemnities relating to such
transaction, (b) the terms of such transaction, including the discount at which
Receivable Assets are conveyed to any such Receivable Financier and any
termination events, shall be reasonably consistent with those prevailing in the
market for similarly structured transactions involving Receivable Assets and
originators of similar credit quality and a pool Receivable Assets of similar
characteristics and (c) the terms of such transaction shall provide for a
specified Maximum Receivable Exposure for such Receivable Financiers.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
<PAGE>
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"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreements" means, collectively, the U.S. Equity
Pledge Agreement and the ForeignEquity Pledge Agreements.
"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 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 March 1, 2000 through and including the Term Loan Maturity Date
for the applicable Classes of Term Loans and, with respect to each Series of
Tranche III Term Loans, each Tranche III Principal Payment Date specified in the
Tranche III Term Loan Agreement for such Series.
"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 Banc One 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, $617,050.50, and (ii) as of the date of any modification or renewal or
reissuance of the Qingdao Letter of Credit, the amount specified by Banc One, 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.
"Rating Upgrade Event" has the meaning set forth in Section
6.10(c).
"Receivable Assets" means, collectively, any accounts
receivable and property relating thereto (including the rights to any
collections in respect thereof).
"Receivable Financier" means any Person (other than a
Subsidiary or Affiliate of the Borrower) that finances the acquisition by a
special purpose entity of Receivable Assets from the Borrower or any Subsidiary.
<PAGE>
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"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, subject to the last
paragraph of Section 10.02(b), Lenders having Revolving Exposures, outstanding
Term Loans and unused Commitments representing at least 51% of the sum of the
total Revolving Exposures, outstanding Term Loans and unused Commitments at such
time; 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 Lenders having Revolving
Exposures, outstanding Term Loans and unused Commitments of such Class
representing at least 51% of the total Revolving Exposures, outstanding Term
Loans and unused Commitments of such Class at such time.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other Property) with respect to any shares of
any class of capital stock of the Borrower or any of its Subsidiaries, or any
payment (whether in cash, securities or other Property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of capital stock of
the Borrower or such Subsidiary or any option, warrant or other right to acquire
any such shares of capital stock of the Borrower or such Subsidiary.
"Revolving 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 of termination of the Revolving
Commitments.
"Revolving Commitments" means, collectively, the Tranche I
Revolving Commitments and the Tranche II 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 and the Tranche II Revolving Exposure.
"Revolving Lenders" means, collectively, the Tranche I
Revolving Lenders and the Tranche II Revolving Lenders.
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"Revolving Loans" means, collectively, the Tranche I Revolving
Loans and the Tranche II 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 Documents" means, collectively, the Pledge
Agreements, any Borrower Security Agreement, any Uniform Commercial Code
financing statements required by the U.S. Equity Pledge Agreement or any
Borrower Security Agreement to be filed with respect to the security interests
in personal Property and fixtures created pursuant to the U.S. Equity Pledge
Agreement or such Borrower Security Agreement and any other collateral security
documents executed and delivered pursuant to Sections 6.09, 6.10 or 6.11.
"Senior Debt Incurrence" means the incurrence by the Borrower
or any of its Subsidiaries after the Effective Date of any Senior Unsecured
Indebtedness.
"Senior Debt Ratio" means, as at the last day of any fiscal
quarter of the Borrower (the "day of determination"), the ratio of (a) the
average of the aggregate amounts of Indebtedness (other than any Subordinated
Indebtedness) of the Borrower and its Consolidated Subsidiaries (determined on a
consolidated basis, without duplication, in accordance with GAAP) as at such day
and as at the last days of each of the three immediately preceding fiscal
quarters to (b) Operating Cash Flow for the period of four consecutive fiscal
quarters ending on such day of determination (provided that Indebtedness as at
the last day of each fiscal quarter included in the determination of average
Indebtedness pursuant to clause (a) above shall be determined under the
assumption that any prepayment of Term Loans hereunder 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).
"Senior Subordinated Notes" means Senior Subordinated Notes
issued pursuant to the Senior Subordinated Note Indentures and Supplement No. 1
to the 1999 Indenture.
"Senior Subordinated Note Indentures" means, collectively, (a)
the Indenture dated as of December 27, 1993 between the Borrower, certain
Subsidiaries and Chase (as successor by merger to Chemical Bank), as trustee,
and (b) the Indenture dated as of October 29, 1996 between the Borrower, certain
Subsidiaries and Harris Trust and Savings Bank, as trustee.
"Senior Unsecured Indebtedness" means Indebtedness outstanding
in respect of the Senior Unsecured Notes and other Indebtedness of the Borrower
incurred in compliance with Section 7.01(c)(ii).
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"Senior Unsecured Notes" means the Borrower's 8.625% Senior
Notes due 2006 in an original aggregate principal amount of $200,000,000 issued
pursuant to Supplement No. 2 to the 1999 Indenture.
"Series" has the meaning set forth in Section 2.01(d).
"Standard & Poor's" means Standard & Poor's Ratings Services,
a Division of The McGraw-Hill Companies, Inc.
"Statutory Reserve Rate" means, for any day (or 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 aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject on such day 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 lawful money 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 exchange rate(s) specified in the
definition of the term "Dollar Equivalent", as determined by the Administrative
Agent.
"Stock Based Plans " means, collectively, (i) the stock option
and other stock purchase plans specified on Schedule V hereto and (ii) all other
stock option, stock-based incentive compensation and stock purchase plans and
other stock-based plans of the Borrower or any Subsidiary adopted from time to
time hereafter in the ordinary course of business.
"Subordinated Debt Incurrence" means the incurrence by the
Borrower or any of its Subsidiaries after the Effective Date of any Subordinated
Indebtedness.
"Subordinated Indebtedness" means, collectively, (a)
Indebtedness of the Borrower in respect of the Senior Subordinated Notes and (b)
other Indebtedness incurred in accordance with the provisions of Section 7.11.
"Subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the
<PAGE>
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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 Revolving Loans
and the Term Loans.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan Commitments" means, collectively, the Tranche I
Term Loan Commitments, the Tranche II Term Loan Commitments and the Tranche III
Term Loan Commitments.
"Term Loan Maturity Date" means: (a) with respect to the
Tranche I Term Loans and Tranche II Term Loans, the Quarterly Date falling on or
nearest to December 1, 2004 and (b) with respect to the Tranche III Term Loans
of any Series, the date specified in the Tranche III Term Loan Agreement of such
Series as the final date upon which any payment of principal in respect of
Tranche III Term Loans of such Series is to be made.
"Term Loans" means, collectively, the Tranche I Term Loans,
the Tranche II Term Loans and the Tranche III Term Loans.
"Trademark" means any trade name, trademark or service mark,
logo, trade dress, trademark or service mark registration, or application for
trademark or service mark registration, including, without limitation, any
renewal of trademark or service mark registration, any right corresponding
thereto throughout the world, the right to recover for any past, present or
future infringement thereof, any other right of any kind whatsoever accruing
thereunder or pertaining thereto or any product line or goodwill of the business
connected with the use of, or symbolized by, any such trade name, trademark or
service mark.
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"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 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 $300,000,000.
"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 an ABR Loan and/or a Eurocurrency Loan and is
denominated in Dollars.
"Tranche I Term Loan" means a Loan made pursuant to Section
2.01(c), which may be an ABR Loan and/or a Eurocurrency Loan and is denominated
in Dollars.
"Tranche I Term Loan 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 on the Effective Date, 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 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 Commitment, as applicable. The initial aggregate amount of the
Lenders' Tranche I Term Loan Commitments is $380,000,000.
"Tranche I Term Loan Lender" means a Lender with a Tranche I
Term Loan Commitment or an outstanding Tranche I Term Loan denominated in
Dollars.
"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
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pursuant to Section 10.04. The initial amount of each Lender's Tranche II
Revolving Commitment shall be determined in accordance with the provisions of
Section 2.01(d).
"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 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 "Tranche II Revolving
Loan" provided for by Section 2.01(d), which may be an ABR Loan and/or a
Eurocurrency Loan and is denominated in Dollars.
"Tranche II Revolving Loan Agreement" means, with respect to
any Series of Tranche II 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 II Revolving Commitment of such Series
hereunder.
"Tranche II Term Loan" means a Loan made pursuant to Section
2.01(c), which may be an ABR Loan and/or a Eurocurrency Loan and is denominated
in Sterling (and is repayable in Sterling).
"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 in Sterling on the Effective Date, expressed as an amount
in Dollars representing the maximum aggregate principal amount of the Tranche II
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 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 $320,000,000.
"Tranche II Term Loan Lender" means a Lender with a Tranche II
Term Loan Commitment or an outstanding Tranche II Term Loan.
"Tranche III Principal Payment Dates" means, for any Series of
Tranche III Term Loans, the dates specified in the Tranche III Term Loan
Agreement for such Series as the dates upon which payments of principal in
respect of the Tranche III Term Loans of such Series are to be made.
"Tranche III Term Loan" means a "Tranche III Term Loan"
provided for by Section 2.01(d), which may be an ABR Loan and/or a Eurocurrency
Loan and is denominated in Dollars.
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"Tranche III Term Loan Agreement" means, with respect to any
Series of Tranche III Term Loans, an agreement between the Borrower and one or
more Lenders pursuant to which each such Lenders agrees to become obligated in
respect of a Tranche III Term Loan Commitment of such Series hereunder.
"Tranche III Term Loan Availability Date" means, December 1,
2002 or, if such day is not a Business Day, the next preceding Business Day.
"Tranche III Term Loan Availability Period" means the period
from and including the Effective Date to and including the Tranche III Term Loan
Availability Date.
"Tranche III Term Loan Commitment" of any Series means, with
respect to each Lender, the commitment, if any, of such Lender to make one or
more Tranche III Term Loans of such Series, 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 of any Series will be specified in the Tranche III Term Loan
Agreement for such Series, or will be set forth in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Tranche III Term Loan
Commitment of such Series, as applicable.
"Tranche III Term Loan Lender" means, in respect of any Series
of Tranche III Term Loans, a Lender with a Tranche III Term Loan Commitment of
such Series or, if the Tranche III Term Loan Commitments of such Series have
terminated or expired, a Lender with outstanding Tranche III Term Loans of such
Series.
"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 and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
constituting such Borrowing, is determined by reference to the Adjusted LIBO
Rate, the Alternate Base Rate or, in the case of a Competitive Loan or
Borrowing, the LIBO Rate or a Fixed Rate or (in the case of Swingline Loans) the
Alternate Base Rate or the Federal Funds Base Rate.
"U.K. Equity Pledge Agreement" means a Mortgage of Shares,
substantially in the forms of Exhibit B-2, executed and delivered by the
Borrower in favor of the Administrative Agent creating in favor of the
Administrative Agent, for the benefit of the Lenders, (a) a security interest in
the shares of Canandaigua Limited and (b) a security interest in the shares of
Matthew Clark (in the case of clause (b), up to but not exceeding such portion
thereof as does not represent more than 65% of the aggregate outstanding shares
issued by Matthew Clark).
"Underfunded Revolving Lenders" has the meaning assigned to
such term in the penultimate paragraph of Article VIII.
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"U.S. Equity Pledge Agreement" means a Pledge Agreement
substantially in the form of Exhibit B-1 between the Borrower, the Subsidiary
Guarantors and the Administrative Agent.
"Wholly-Owned Subsidiary" means, with respect to any Person,
any corporation, limited liability company, partnership, association or other
entity of which all of the equity securities or other ownership interests (other
than, in the case of a corporation, directors' qualifying shares) are directly
or indirectly owned or controlled by such Person or one or more Wholly-Owned
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person. 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"); each Series
of Tranche III Term Loans shall be deemed a separate Class of Loans hereunder.
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"); and each Series
of Tranche III Term Loan Borrowings and Tranche III Term Loan Commitments shall
be deemed a separate Borrowing and Commitment hereunder. Swingline ABR 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.
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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. 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).
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 I Term Loans. Subject to the terms and conditions
set forth herein, each Tranche I Term Loan Lender agrees to make one or more
Tranche I Term Loans to the Borrower on the Effective Date in Dollars in a
principal amount not exceeding its Tranche I Term Loan Commitment. Amounts
repaid in respect of Tranche I Term Loans may not be reborrowed hereunder.
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(c) 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 on the Effective Date in Sterling 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.
(d) Incremental Loans. In addition to borrowings of Tranche I
Revolving Loans, Tranche I Term Loans and Tranche II Term Loans specified in
Section 2.01(a), (b) and (c), respectively:
(i) 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 II Revolving Loans to the
Borrower; and
(ii) at any time and from time to time prior to the Tranche
III Term Loan Availability Date, the Borrower may request that the
Lenders offer to enter into commitments to make Tranche III Term Loans
to the Borrower in Dollars;
it being understood in each case that such offer may be made by any financial
institution that is to become a Lender hereunder in connection with the making
of such offer under this paragraph (e), 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 and (in the case of Tranche III Term Loans) amortization
relating thereto, the Borrower, the Administrative Agent and such Lenders shall
execute and deliver an Incremental Loan Agreement and such Lenders shall become
obligated to make Tranche II Revolving Loans or Tranche III Term Loans, as
applicable, under this Agreement in an amount equal to the amount of their
respective Tranche II Revolving Commitments or Tranche III Term Loan
Commitments, as applicable, as specified in such Incremental Loan Agreement. The
Incremental Loans to be made pursuant to any Incremental Loan Agreement in
response to any such request by the Borrower shall be deemed to be a separate
"Series" of Tranche II Revolving Loans or Tranche III Term Loans, as applicable,
for all purposes of this Agreement.
Anything herein to the contrary notwithstanding, (i) the
minimum aggregate principal amount of Incremental Commitments entered into
pursuant to any request specified above (and, accordingly, the minimum aggregate
principal amount of any Series of Incremental Loans) shall be $50,000,000, (ii)
the aggregate outstanding principal amount of Incremental Loans of all Series,
together with the aggregate unutilized Incremental Commitments of all Series,
shall not exceed $200,000,000 at any time, (iii) the Tranche III Term Loan
Commitments of any Series shall terminate on the earlier of the Tranche III Term
Loan Availability Date and the date 30 days after the date of the respective
Incremental Loan Agreement for such Series and (iv) in no event shall the
Tranche III Term Loan Agreement for any Series of Tranche III Term Loans provide
for the final maturity of the Tranche III Term Loans of such Series to be later
than December 1, 2004, nor shall such Tranche III Term Loan Agreement provide
for amortization of
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the Tranche III Term Loans of such Series at a rate faster (i.e. earlier) than
the rate of amortization of the Tranche I Term Loans (the determination of
whether or not such amortization is faster to be made by the Administrative
Agent).
Following agreement by the Borrower and one or more of the
Lenders as provided above, subject to the terms and conditions set forth herein,
(x) each Tranche II Revolving Lender of any Series agrees to
make Tranche II 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 II Revolving Commitment of such Series of such Tranche II
Revolving Lender (and 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 of any Series as the Borrower
shall from time to time select); and
(y) each Tranche III Term Loan Lender of any Series agrees to
make Tranche III Term Loans of such Series to the Borrower from time to
time during the period from and including the date of the respective
Tranche III Term Loan Agreement for such Series to and including the
earlier of the Tranche III Term Loan Availability Date and the date 30
days after the date of such Tranche III Term Loan Agreement, in an
aggregate principal amount up to but not exceeding the amount of the
Tranche III Term Loan Commitment of such Series of such Tranche III
Term Loan Lender.
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 constituted entirely of ABR Loans or Eurocurrency
Loans as the Borrower may request in accordance herewith, and (ii) each
Competitive Borrowing shall be constituted 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; Limitation on Number of Borrowings. At
the commencement of the Interest Period for any Syndicated Eurocurrency
Borrowing, such Borrowing shall be in an aggregate amount of $3,000,000 or a
larger multiple of $100,000. At the time that each Syndicated ABR Borrowing is
made, such Borrowing shall be in an aggregate
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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
Tranche III Term Loan Borrowing shall be in an aggregate amount equal to
$50,000,000 or a larger multiple of $100,000 (provided that a Tranche III Term
Loan Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Tranche III Term Loan Commitments). 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) Limitations on Lengths of Interest Periods.
Notwithstanding any other provision of this Agreement, the Borrower shall not be
entitled to request, or to elect to convert to or continue as a Syndicated
Eurocurrency Borrowing: (i) any Revolving Borrowing or Competitive Borrowing if
the Interest Period requested therefor would end after the Revolving Commitment
Termination Date; (ii) any Term Loan Borrowing if the Interest Period requested
therefor would end after the Term Loan Maturity Date for the relevant Class; or
(iii) unless the Borrower shall confirm to the Administrative Agent in
connection with such request or election that the Borrower intends to compensate
each Lender pursuant to Section 2.16 (to the extent required to do so
thereunder), any Term Loan Borrowing if the Interest Period requested therefor
would commence before and end after any Principal Payment Date unless, after
giving effect thereto, the aggregate principal amount of the Tranche I Term
Loans, Tranche II Term Loans or Tranche III Term Loans, as the case may be,
having Interest Periods that end after such Principal Payment Date shall be
equal to or less than the aggregate principal amount of the Tranche 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 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., New York City 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:
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(i) whether the requested Borrowing is to be a Tranche I
Revolving Borrowing, Tranche II Revolving Borrowing, Tranche I Term
Loan Borrowing, Tranche II Term Loan Borrowing or Tranche III Term Loan
Borrowing (including, if applicable, the respective Series of Tranche
III Term Loans to which such Borrowing relates);
(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 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; 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 and (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. 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 before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that the Borrower may submit up to (but not more than) three
Competitive Bid Requests on the same day, but a Competitive Bid Request shall
not be made within five Business Days after the date of any previous Competitive
Bid Request, unless any and all such previous Competitive Bid Requests shall
have been withdrawn or all Competitive Bids received in response thereto
rejected. Each such telephonic Competitive Bid
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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 for such Borrowing, which shall be a
period contemplated by the definition of the term "Interest Period";
and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
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 before the proposed date of such Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later than 9:30 a.m.,
New York City time, on the proposed date of such Competitive Borrowing.
Competitive Bids that do not conform substantially to the form approved by the
Administrative Agent may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the 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 for 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.
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(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 before the date of the proposed Competitive Borrowing,
and in the case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York
City time, on the proposed date of the Competitive Borrowing; provided, that (i)
the failure of the Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) the aggregate amount of the Competitive
Bids accepted by the Borrower shall not exceed the aggregate amount of the
requested Competitive Borrowing specified in the related Competitive Bid
Request, (iii) to the extent necessary to comply with clause (ii) 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 (iv) except pursuant to clause (iii) 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 (iii) 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 (iii) 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
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that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Swingline Loans.
(b) Interest Rates. Swingline Loans shall be ABR Loans or FFBR
Loans (with an Interest Period of two weeks), as selected by the Borrower,
except that the Swingline Lender and the Borrower may agree that the interest
rate in respect of a Swingline Loan made by the Swingline Lender, for a period
ending on the date that is not earlier than one day and not later than fifteen
days after such Swingline Loan is made, be at an alternative rate of interest
(and with such applicable margins and prepayment premiums) as may from time to
time be offered by the Swingline Lender to the Borrower in its sole discretion;
provided that upon any sale pursuant to Section 2.05(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 a deposit
account designated by the Borrower (or, in the case of a Swingline Loan made to
finance the reimbursement of an LC Disbursement as provided in Section 2.06(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 on the applicable Business Day as provided
above. 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 account of the Swingline Lender, such Lender's
Applicable Percentage of such Swingline Loan or Loans. 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
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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 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, Banc One 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
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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 renewal or reissuance by Banc
One, as an Issuing Lender, of the Qingdao Letter of Credit, Banc One 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
Banc One, 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 and
(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.
(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.
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In consideration and in furtherance of the foregoing, each
Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for account of the respective Issuing Lender, such
Lender's Applicable Percentage of each LC Disbursement made by an Issuing Lender
in respect of each Letter of Credit issued in respect of such Lender's 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
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provisions of this Section, constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
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 gross
negligence or willful misconduct when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that:
(i) an Issuing Lender may accept documents that appear on
their face to be in substantial compliance with the terms of a Letter
of Credit without responsibility for further investigation, regardless
of any notice or information to the contrary, and may make payment upon
presentation of documents that appear on their face to be in
substantial compliance with the terms of such Letter of Credit;
(ii) an Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such
payment if such documents are not in strict compliance with the terms
of such Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by an Issuing Lender when determining whether drafts and
other documents presented under a Letter of Credit comply with the
terms thereof (and the parties hereto hereby waive, to the extent
permitted by applicable law, any standard of care inconsistent with the
foregoing).
(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
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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 pursuant to paragraph (f) of this Section, then Section
2.13(e) shall apply. Interest accrued pursuant to this paragraph shall be for
account of such Issuing Lender, except that interest accrued on and after the
date of payment by any Lender pursuant to paragraph (f) of this Section to
reimburse such Issuing Lender shall be for 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 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(c), 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(c), the amount
required under Section 2.11(c); 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 U.S. Equity Pledge
Agreement, and for these purposes the Borrower hereby grants a security interest
to the Administrative Agent for the benefit of the Lenders in the Collateral
Account and in any financial assets (as defined in the Uniform Commercial Code)
or other Property held therein.
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(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 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 Banc One, 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 Existing Credit Agreement, Chase, as an "Issuing Lender" thereunder, has
issued various "Letters of Credit" under and as defined in the Existing Credit
Agreement and Banc One, as an "Issuing Lender" thereunder, has issued the
"Qingdao Letter of Credit". On the Effective Date, subject to the satisfaction
of the conditions to effectiveness of the obligations of the Lenders hereunder
set forth in Article V, each of such "Letters of Credit" and the "Qingdao Letter
of Credit" under the Existing 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 the 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
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such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
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 constituting such
Borrowing, and the Loans constituting each such portion shall be considered a
separate Borrowing. 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 (including, if applicable, the respective Series of Tranche III
Term Loans to which such Interest Election Request relates) and, if
different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) of this paragraph shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) 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 therefor after giving effect to such election,
which shall be a period contemplated by the definition of the term
"Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Notice by the 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) Failure to Elect; Events of Default. 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) if denominated in Sterling 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 Commitments and the Tranche II Term Loan Commitments
shall terminate at 5:00 p.m., New York City time, on the Effective Date, (ii)
the Tranche III Term Loan Commitments of each Series shall terminate on the
Tranche III Term Loan Availability Date and (iii) the Revolving Commitments of
each Class 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;
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 and (ii) except as provided in Section 2.09(d) (but subject to Section
2.10(a)(ii)), 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 principal amount
of outstanding Competitive Loans made by Lenders of such Class would exceed the
total Revolving Commitments of such Class.
(c) Notice of Voluntary Termination or Reduction. The Borrower
shall notify the Administrative Agent of any election to terminate or reduce the
Commitments of any Class under paragraph (b) of this Section at least three
Business Days prior to the effective date of such
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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) Mandatory Reduction of Tranche I Revolving Commitments. On
each Quarterly Date the Tranche I Revolving Commitments shall be reduced by an
amount equal to the excess of (a) the sum of the Maximum Receivable Exposures
under all Permitted Receivable Financings entered into during the period from
and including the next preceding Quarterly Date to but excluding such Quarterly
Date, or otherwise pursuant to which the Borrower or any Subsidiary conveyed any
Receivable Assets during such period, over (b) the aggregate amount by which the
Tranche I Revolving Commitments have been reduced pursuant to this Section
2.09(d) on any previous Quarterly Date (and, if on any Quarterly Date the amount
of such excess exceeds the amount of the Tranche I Revolving Commitments prior
to giving effect to such reduction, the Tranche I Revolving Commitments shall be
terminated). Upon any such reduction (or termination), the Borrower shall repay
the Tranche I Revolving Loans to the extent required by Section 2.10(a)(ii).
(e) 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 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 for account of the Tranche I
Revolving Lenders an outstanding principal amount of the Tranche I
Revolving Loans on each Quarterly Date equal to the amount by which (x)
the sum of the Tranche I Revolving Exposure on such Quarterly Date plus
the aggregate principal amount of outstanding Competitive Loans made by
Tranche I Lenders (after giving effect to any prepayment of the Tranche
I Revolving Loans on such Quarterly Date in accordance with Section
2.11) exceeds (y) the amount of the Tranche I Revolving Commitments on
such Quarterly Date (after giving effect to any reduction or
termination of Tranche I Revolving Commitments pursuant to Section
2.09(d) on such Quarterly Date),
(iii) to the Administrative Agent for account of the Tranche I
Term Loan Lenders the outstanding principal amount of the Tranche I
Term Loans on each Principal Payment
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Date set forth below in the aggregate principal amount set forth
opposite such Principal PaymentDate (subject to adjustment pursuant to
the second sentence of paragraph (b) of this Section):
Principal Payment Date Amount ($)
---------------------- ----------
March 1, 2000 12,000,000
June 1, 2000 12,000,000
September 1, 2000 12,000,000
December 1, 2000 12,000,000
March 1, 2001 17,500,000
June 1, 2001 17,500,000
September 1, 2001 17,500,000
December 1, 2001 17,500,000
March 1, 2002 20,000,000
June 1, 2002 20,000,000
September 1, 2002 20,000,000
December 1, 2002 20,000,000
March 1, 2003 22,500,000
June 1, 2003 22,500,000
September 1, 2003 22,500,000
December 1, 2003 22,500,000
March 1, 2004 23,000,000
June 1, 2004 23,000,000
September 1, 2004 23,000,000
December 1, 2004 23,000,000
(iv) to the Administrative Agent for account of the Tranche II
Term Loan Lenders the outstanding principal amount of the Tranche II
Term Loans, on each Principal Payment Date set forth below in an
aggregate principal amount equal to the percentage set forth below
opposite such Principal Payment Date of the aggregate principal amount
of Tranche II Term Loans outstanding at 5:00 p.m., New York City time,
on the Effective Date (subject to adjustment pursuant to the second
sentence of paragraph (b) of this Section):
Principal Payment Date Percentage (%)
---------------------- ---------------
March 1, 2000 0.50
June 1, 2000 0.50
September 1, 2000 0.50
December 1, 2000 0.50
<PAGE>
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March 1, 2001 1.00
June 1, 2001 1.00
September 1, 2001 1.00
December 1, 2001 1.00
March 1, 2002 1.00
June 1, 2002 1.00
September 1, 2002 1.00
December 1, 2002 1.00
March 1, 2003 1.25
June 1, 2003 1.25
September 1, 2003 1.25
December 1, 2003 1.25
March 1, 2004 21.25
June 1, 2004 21.25
September 1, 2004 21.25
December 1, 2004 21.25
(v) to the Administrative Agent for the account of each
Tranche III Term Loan Lender of any Series the outstanding principal
amount of each Tranche III Term Loan of such Lender of such Series on
the respective Tranche III Term Loan Principal Payments Dates for the
Tranche III Term Loans of such Series (subject to adjustment pursuant
to paragraph (b) of this Section),
(vi) 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 therefor, and
(vii) 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, 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 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) Adjustment of Amortization Schedule. If the initial
aggregate amount of the Tranche I Term Loan Commitments exceeds the aggregate
principal amount of Tranche I Term Loans that are made on the Effective Date,
then the scheduled repayments of Borrowings of such Class to be made pursuant to
clause (a)(iii) above shall be reduced ratably by an aggregate amount equal to
such excess. Any prepayment of a Term Loan Borrowing of any Class shall be
applied to reduce the subsequent scheduled repayments of the Term Loan
Borrowings of such Class to be made pursuant to this Section on a pro rata
basis. To the extent not previously paid,
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all Term Loans of each Class shall be due and payable on the Term Loan Maturity
Date for such Class.
(c) Manner of Payment. Prior to any repayment or prepayment of
any Borrowings of any Class hereunder, the Borrower shall select the Borrowing
or Borrowings of the applicable Class to be paid and shall notify the
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, unless otherwise specified by the Borrower, 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 selection of the Borrowing or Borrowings to be repaid
or prepaid within the applicable time period, such payment shall be applied,
first, to pay any outstanding ABR Borrowings of the applicable Class and,
second, to other Borrowings of 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.
(d) Maintenance of Loan Accounts by Lenders. Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts and Currency of principal and interest
payable and paid to such Lender from time to time hereunder.
(e) Maintenance of Loan Accounts by the 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
each Interest Period therefor, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for account of the Lenders and each Lender's share thereof.
(f) Effect of Entries. The entries made in the accounts
maintained pursuant to paragraph (d) or (e) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the 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.
(g) Promissory Notes. Any Lender may request that Loans of any
Class made by it be evidenced by a promissory note. In such event, the Borrower
shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and
its registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest 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).
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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 identified by the
Borrower 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, a Tranche II Term Loan Borrowing 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 270 days following the
receipt by the Borrower of the proceeds of insurance, condemnation
award or other compensation in respect of any Casualty Event affecting
any Property of the Borrower or any of its Subsidiaries (or upon such
earlier date as the Borrower or such Subsidiary, as the case may be,
shall have determined not to repair or replace the Property affected by
such Casualty Event), the Borrower shall prepay the Loans in an
aggregate amount, if any, equal to 100% of the Net Available Proceeds
of such Casualty Event not theretofore applied to the repair or
replacement of such Property, such prepayment to be effected in each
case in the manner and to the extent specified in clause (vii) below,
provided that, notwithstanding the foregoing, the Borrower shall not be
required to make a prepayment under this clause (i) to the extent that
(A) the Borrower advises the Administrative Agent at
the time of receipt thereof that it intends to reinvest such
Net Available Proceeds into the business of the Borrower and
its Subsidiaries,
(B) such Net Available Proceeds are held by the
Borrower in a segregated investment or other account (or,
alternatively, applied to the prepayment of Revolving Loans),
until so used to make such reinvestment as contemplated above,
and
(C) such Net Available Proceeds are in fact so
applied to such reinvestment within 270 days of receipt
thereof (it being understood that, in the event Net Available
Proceeds from more than one Casualty Event are held by the
Borrower, or have been applied to the prepayment of Revolving
Loans, such Net Available Proceeds shall be deemed to be
utilized in the same order in which such Dispositions occurred
and, accordingly, any such Net Available Proceeds so held or
applied to the prepayment of Revolving Loans for more than 270
days shall be forthwith applied to the prepayment of Loans as
provided above),
it being understood that, if the Borrower does not so advise the
Administrative Agent that it intends to use such Net Available Proceeds
to make such reinvestment as provided
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above, or does not in fact apply such Net Available Proceeds to
reinvestments within the time periods specified above, the Borrower
shall immediately prepay the Loans in an amount equal to the amount
specified above.
(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,
such prepayment to be effected in each case in the manner and to the
extent specified in clause (vii) below, provided that, notwithstanding
the foregoing, the Borrower shall not be required to make a prepayment
under this clause (ii) (x) from Net Available Proceeds received from
the issuance or sale of capital stock in connection with Stock Based
Plans in effect from time to time or (y) to the extent that
(A) the Borrower advises the Administrative Agent at
the time of the relevant Equity Issuance that it intends to
use such Net Available Proceeds to finance one or more
Acquisitions or other transaction permitted pursuant to
Section 7.05(b),
(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 other
transaction 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 as provided above, 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) Sale of Assets. Without limiting the obligation of the
Borrower to obtain the consent of the Required Lenders pursuant to
Section 7.03 or 7.04 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 $15,000,000 then, no later than 180 days after
the occurrence of the Current Disposition, the Borrower will deliver to
the Lenders a statement, certified by a Financial Officer of the
Borrower, in reasonable detail, of the amount of the Net Available
Proceeds of the Current Disposition and of all
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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 (vii)
below, provided that, notwithstanding the foregoing, the Borrower shall
not be required to make a prepayment under this clause (iii) to the
extent that
(A) the Borrower advises the Administrative Agent at
the time of the relevant Disposition that it intends to use
such Net Available Proceeds to finance one or more
Acquisitions pursuant to Section 7.05(b), or otherwise to
reinvest the proceeds thereof into the business of the
Borrower and its Subsidiaries,
(B) such Net Available Proceeds are held by the
Borrower in a segregated investment or other account (or,
alternatively, applied to the prepayment of Revolving Loans),
until so used to finance one or more Acquisitions or to make
such reinvestment as contemplated above, and
(C) such Net Available Proceeds are in fact so
applied to such Acquisition(s) or reinvestment within 270 days
of such Disposition (it being understood that, in the event
Net Available Proceeds from more than one Disposition are held
by the Borrower, or have been applied to the prepayment of
Revolving Loans, such Net Available Proceeds shall be deemed
to be utilized in the same order in which such Dispositions
occurred and, accordingly, any such Net Available Proceeds so
held or applied to the prepayment of Revolving Loans for more
than 270 days shall be forthwith applied to the prepayment of
Loans as provided above),
it being understood that, if the Borrower does not so advise the
Administrative Agent that it intends to use such Net Available Proceeds
to finance one or more Acquisitions or make such reinvestment as
provided above, or does not in fact apply such Net Available Proceeds
to one or more Acquisitions or reinvestments within the time periods
specified above, the Borrower shall immediately prepay the Loans in an
amount equal to the amount specified above.
Notwithstanding the foregoing, to the extent that the amount
of the required prepayment on any date is not greater than $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.
(iv) Senior Debt Incurrence. On or prior to the date 90 days
after the date of any Senior Debt Incurrence, the Borrower shall prepay
the Loans in an aggregate amount equal to the Net Available Proceeds
thereof, such prepayment to be effected in each case in the manner and
to the extent specified in clause (vii) below, provided that,
notwithstanding the foregoing, the Borrower shall not be required to
make a prepayment under this clause (iv) with respect to the Net
Available Proceeds of Senior Debt Incurrences after the date hereof to
the extent that
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(A) the Borrower advises the Administrative Agent at
the time of the relevant Senior Debt Incurrence that it
intends to use such Net Available Proceeds to finance one or
more Acquisitions pursuant to Section 7.05(b), to repay at
maturity the Borrower's Senior Subordinated Notes due 2003 or
a combination of such Acquisitions and repayment,
(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 repay
such Senior Subordinated Notes, as contemplated above, and
(C) such Net Available Proceeds are in fact so
applied to such Acquisition(s), or to the repayment of such
Senior Subordinated Notes, within 150 days of such Senior Debt
Incurrence (it being understood that, in the event Net
Available Proceeds from more than one Senior Debt Incurrence
are held by the Borrower, or have been applied to the
prepayment of Revolving Loans, such Net Available Proceeds
shall be deemed to be utilized in the same order in which
such Senior Debt Incurrences occurred and, accordingly, any
such Net Available Proceeds so held or applied to the
prepayment of Revolving Loans for more than 150 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 to repay such Senior
Subordinated Debt, or does not in fact apply such Net Available
Proceeds to one or more Acquisitions or to the repayment of such Senior
Subordinated Debt within the time periods specified above, the Borrower
shall immediately prepay the Loans in an amount equal to the amount
specified above.
(v) Subordinated Debt Incurrence. Without limiting the
obligation of the Borrower to obtain the consent of the Required
Lenders to any Subordinated Debt Incurrence not permitted hereunder, on
or prior to the date 90 days after the date of any Subordinated 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 Subordinated Debt Incurrences after the date
hereof) $100,000,000, such prepayment to be effected in each case in
the manner and to the extent specified in clause (vii) below, provided
that, notwithstanding the foregoing, the Borrower shall not be required
to make a prepayment under this clause (v) to the extent that
(A) the Borrower advises the Administrative Agent at
the time of the relevant Subordinated Debt Incurrence that it
intends to use such Net Available Proceeds to finance one or
more Acquisitions pursuant to Section 7.05(b),
(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
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(C) such Net Available Proceeds are in fact so
applied to such Acquisition(s) within 150 days of such Debt
Incurrence (it being understood that, in the event Net
Available Proceeds from more than one Subordinated Debt
Incurrence are held by the Borrower, or have been applied to
the prepayment of Revolving Loans, such Net Available Proceeds
shall be deemed to be utilized in the same order in which such
Subordinated Debt Incurrences occurred and, accordingly, any
such Net Available Proceeds so held or applied to the
prepayment of Revolving Loans for more than 150 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.
(vi) Foreign Subsidiary Debt Incurrence. On or prior to the
date 90 days after the date of any Foreign Subsidiary Debt Incurrence,
the Borrower shall prepay the Loans in an aggregate amount equal to the
Net Available Proceeds thereof (or, in the case of any Foreign
Subsidiary Debt Incurrence pursuant to Section 7.01(g), the portion of
the Net Available Proceeds thereof that exceeds (in the aggregate for
all Foreign Subsidiary Debt Incurrences arising under said Section
7.01(g) after the date hereof) $7,000,000), such prepayment to be
effected in each case in the manner and to the extent specified in
clause (vii) below.
(vii) Application.
(A) Prepayments pursuant to this paragraph (b) the
proceeds of which are denominated in Dollars or any other
currency other than Sterling shall be applied as follows:
first, such prepayment shall be applied to
any then outstanding Tranche I Term Loans and Tranche
III Term Loans (ratably in accordance with the
then-outstanding aggregate principal amounts
thereof);
second, after the payment in full of any
then outstanding Tranche I Term Loans and Tranche III
Term Loans, such prepayment shall be applied to any
then outstanding Tranche II Term Loans (ratably in
accordance with the then-outstanding aggregate
principal amounts thereof); and
third, after the payment in full of any then
outstanding Term Loans, such prepayment shall be
applied to any then outstanding Revolving Loans
(without reduction of Revolving Commitments).
(B) Prepayments pursuant to this paragraph (b) the
proceeds of which are denominated in Sterling shall be applied
as follows:
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first, such prepayment shall be applied to
any then outstanding Tranche II Term Loans (ratably
in accordance with the then-outstanding aggregate
principal amounts thereof);
second, after the payment in full of any
then outstanding Tranche II Term Loans, such
prepayment shall be applied to any then outstanding
Tranche I Term Loans and Tranche III Term Loans
(ratably in accordance with the then-outstanding
aggregate principal amounts thereof); and
third, after the payment in full of any then
outstanding Term Loans, such prepayment shall be
applied to any then outstanding Revolving Loans
(without reduction of Revolving Commitments).
Each such prepayment of the Term Loans of any Class pursuant to this
clause (b)(vii) shall be applied to the remaining installments thereof
on a pro rata basis.
(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 Senior Unsecured Indebtedness or any Subordinated
Indebtedness to redeem, or make an offer to redeem or repurchase, all or any
portion of such Senior Unsecured Indebtedness or Subordinated Indebtedness, as
the case may be, as a result of a change of control (however defined), 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) 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 and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.09(c),
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.09(c). 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 and shall be made in
the manner specified in Section 2.10(c).
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SECTION 2.12. Fees.
(a) Facility Fee. The Borrower agrees to pay to the Administrative
Agent for account of each Revolving Lender a facility fee, which shall accrue at
the Applicable Rate on the daily amount of the Revolving Commitment of such
Lender (whether used or unused) during the period from and including the date
hereof to but excluding the earlier of the date such Revolving Commitment
terminates and the Revolving Commitment Termination Date; provided that, if such
Lender continues to have any Revolving Exposure after its Revolving Commitment
terminates, then such facility fee shall continue to accrue on the daily amount
of such Lender's Revolving Exposure from and including the date on which its
Revolving Commitment terminates to but excluding the date on which such Lender
ceases to have any Revolving Exposure. Accrued facility fees shall be payable on
each Quarterly Date and on the earlier of the date the Revolving Commitments
terminate and the Revolving Commitment Termination Date, commencing on the first
such date to occur after the date hereof; provided that any facility fees
accruing after the date on which the Revolving Commitments terminate shall be
payable on demand. All facility fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to
the Administrative Agent for account of each 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 Effective 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
Effective Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any LC Exposure,
as well as such Issuing Lender's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through and
including each Quarterly Date shall be payable on the third Business Day
following such Quarterly Date, commencing on the first such date to occur after
the Effective Date; provided that all such fees shall be payable on the date on
which the 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).
(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.
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(d) Payment of Fees. All fees payable hereunder shall be paid
on the dates due, in Dollars and in immediately available funds, to the
Administrative Agent (or to the respective Issuing Lender, in the case of fees
payable to it) for distribution, in the case of 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 Loans. The Loans constituting 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 Loans. The Loans constituting 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 for such Borrowing plus (or minus, as
applicable) the Margin applicable to such Loan.
(c) Fixed Rate Loans. 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 0.50%. 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.
(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
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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 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 the 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 the continuance
of a Syndicated Eurocurrency Borrowing denominated in Sterling shall be
ineffective and (iv) any request by the Borrower for a Swingline Eurocurrency
Borrowing shall be deemed to be a request for a Swingline FFBR Borrowing;
provided that if the circumstances giving rise to 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.
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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 an
Issuing Lender setting forth the amount or amounts necessary to compensate such
Lender or such Issuing Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. 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.
(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
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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 therefor (including
as a result of an Event of Default), (b) the conversion of any Syndicated
Eurocurrency Loan other than on the last day of an Interest Period therefor, (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), (c) the Borrowing of any Term Loan the Interest Period for
which commences before and ends after any Principal Payment Date (unless, after
giving effect thereto, the aggregate principal amount of the Tranche I Term
Loans, Tranche II Term Loans or Tranche III Term Loans, as the case may be,
having Interest Periods that end after such Principal Payment Date shall be
equal to or less than the aggregate principal amount of the Tranche 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 Principal Payment Date), (e) the failure to borrow any
Competitive Loan after accepting the Competitive Bid to make such Loan, or (f)
the assignment of any Eurocurrency Loan or Fixed Rate Loan other than on the
last day of an Interest Period therefor as a result of a request by the Borrower
pursuant to Section 2.19, then, in any such event, the Borrower shall compensate
each Lender for the loss, cost and expense attributable to such event.
In the case of a Eurocurrency Loan, the loss to any Lender
attributable to any such event shall be deemed to include an amount determined
by such Lender to be equal to the excess, if any, of (i) the amount of interest
that such Lender would pay for a deposit equal to the principal amount of such
Loan for the period from the date of such payment, conversion, Borrowing,
failure or assignment to the last day of the then current Interest Period for
such Loan (or (x) in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation and (y) in the case of a Borrowing of any Term Loan,
the period from the date of such Borrowing to the applicable Principal Payment
Date) if the interest rate payable on such deposit were equal to the Adjusted
LIBO Rate for such Interest Period (or, in the case of any Borrowing of Term
Loans, such other period), over (ii) the amount of interest that such Lender
would earn on such principal amount for such period if such Lender were to
invest such principal amount for such period at the interest rate that would be
bid by such Lender (or an affiliate of such Lender) for deposits in the
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Currency of such Loan from other banks in the eurocurrency market at the
commencement of such period.
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) Evidence of 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 Generally; Pro Rata Treatment; Sharing
of Set-offs.
(a) Payments by the Obligors. Each Obligor shall make each
payment required to be made by it hereunder (whether of principal, interest,
fees or reimbursement of LC Disbursements, or under Section 2.15, 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; provided that if a
new Loan is to be made by any Lender on a date the Borrower is to repay any
principal of an outstanding Loan of such Lender, such Lender shall apply the
proceeds of such new Loan to the payment of the principal to be repaid and only
an amount equal to the difference between the principal to be borrowed and the
principal to be repaid shall be made available by such Lender to the
Administrative Agent as provided in Section 2.07 or paid by the Borrower to the
Administrative Agent pursuant to this paragraph, as the case may be. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at an office specified by it, except
as otherwise expressly provided in the relevant Loan Document, and except
payments to be made directly to an Issuing Lender or the Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.15,
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 payments hereunder or
under any other Loan Document (except for payments in respect of Loans
denominated in Sterling, which are payable in Sterling, and except to the extent
otherwise provided herein) shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, unreimbursed LC Disbursements, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Syndicated Borrowing of a particular Class shall be
made from the relevant Lenders, each
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payment of facility fee under Section 2.12 shall be made for account of the
relevant Revolving Lenders, and each termination or reduction of the amount of
the Commitments of a particular Class under Section 2.09 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, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Obligor rights of set-off and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of such Obligor in the amount of
such participation.
(e) Presumptions of Payment. Unless the Administrative Agent
shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for account of the Lenders or an
Issuing Lender hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or such Issuing Lender, as the case may be, the amount
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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 the 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.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a 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 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.
(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 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
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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 and all other
amounts from time to time owing to the Lenders or the Administrative Agent by
the Borrower under this Agreement and by any Obligor under any of the other Loan
Documents, and all obligations of the Borrower or any of its Subsidiaries to any
Lender (or any affiliate of any Lender) in respect of any Hedging Agreement, in
each case strictly in accordance with the terms hereof and thereof (such
obligations being herein collectively called the "Guaranteed Obligations"). The
Subsidiary Guarantors hereby further jointly and severally agree that if the
Borrower shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Guaranteed Obligations, the Subsidiary
Guarantors will promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal.
SECTION 3.02. Obligations Unconditional. The obligations of
the 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 that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section that the obligations of the
Subsidiary Guarantors hereunder shall be absolute and unconditional, joint and
several, under any and all circumstances. In full recognition and in furtherance
of the foregoing, each Subsidiary Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of
Section 3.01 in accordance with its terms and without affecting,
limiting, reducing, discharging or terminating the liability of such
Subsidiary Guarantor, or the rights, remedies, powers and privileges of
the Administrative Agent and the Lenders under this Agreement or any
other agreement or instrument referred to herein or therein, the
Administrative Agent and the Lenders may, at any time and from time to
time and without notice or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew, waive,
accelerate or otherwise change the time for payment or
performance of, or the terms of, all or
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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);
(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;
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(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 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;
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(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 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;
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(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;
(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;
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(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.
(c) Each Subsidiary Guarantor represents and warrants to the
Administrative Agent that it has established adequate means of
obtaining financial and other information pertaining to the business,
operations and condition (financial and otherwise) of the Borrower and
its properties on a continuing basis and that such Subsidiary Guarantor
is now and will in the future remain fully familiar with the business,
operations and condition (financial and otherwise) of the Borrower and
its properties. Each Subsidiary Guarantor further represents and
warrants that it has reviewed and approved this Agreement and the
related Loan Documents and is fully familiar with the transactions
contemplated by such Loan Documents and that it will in the future
remain fully familiar with such transaction and with any new Loan
Documents and the transaction contemplated by such Loan Documents. Each
Subsidiary Guarantor hereby expressly waives and relinquishes any duty
on the part of the Administrative Agent or the Lenders (should any such
duty exist) to disclose to such or any other Subsidiary Guarantor any
matter of fact or other information related to the business, operations
or condition (financial or otherwise) of the Borrower or its properties
or to any Loan Documents or the transactions undertaken pursuant to, or
contemplated by, such Loan Documents, whether now or in the future
known by the Administrative Agent or any Lender.
SECTION 3.03. Reinstatement. The obligations of the Subsidiary
Guarantors under this Article shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including fees of counsel) incurred by the Administrative Agent or
such Lender in connection with such rescission or
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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 any such right arising under the 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 circumstances provided in Article VIII) for
purposes of Section 3.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Subsidiary Guarantors
for purposes of Section 3.01.
SECTION 3.06. Instrument for the Payment of Money. Each
Subsidiary Guarantor hereby acknowledges that the guarantee in this Article
constitutes an instrument for the payment of money, and consents and agrees that
any Lender or the Administrative Agent, at its sole option, in the event of a
dispute by such Subsidiary Guarantor in the payment of any moneys due hereunder,
shall have the right to bring motion-action under New York CPLR Section 3213.
SECTION 3.07. Continuing Guarantee. The guarantee in this
Article is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
SECTION 3.08. Rights of Contribution. The Subsidiary
Guarantors hereby agree, as between themselves, that if any Subsidiary Guarantor
shall become an Excess Funding Guarantor (as defined below) by reason of the
payment by such Subsidiary Guarantor of any Guaranteed Obligations, each other
Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Subsidiary Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section shall be
subordinate and subject in right of payment to the prior payment in full of the
obligations of such Subsidiary Guarantor under the other provisions of this
Article and such
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Excess Funding Guarantor shall not exercise any right or remedy with respect to
such excess until payment and satisfaction in full of all of such obligations.
For purposes of this Section, (i) "Excess Funding Guarantor"
means, in respect of any Guaranteed Obligations, a Subsidiary Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(ii) "Excess Payment" means, in respect of any Guaranteed Obligations, the
amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of
such Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Subsidiary
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all properties of such Subsidiary
Guarantor (excluding any shares of stock of any other Subsidiary Guarantor)
exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any
obligations of any other Subsidiary Guarantor that have been Guaranteed by such
Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable
value of all properties of all of the Subsidiary Guarantors exceeds the amount
of all the debts and liabilities (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of the Borrower and
the Subsidiary Guarantors hereunder and under the other Loan Documents) of all
of the Subsidiary Guarantors, determined (A) with respect to any Subsidiary
Guarantor that is a party hereto on the Effective Date, as of the Effective
Date, and (B) with respect to any other Subsidiary Guarantor, as of the date
such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In
any action or proceeding involving any state corporate law, or any state,
Federal or foreign bankruptcy, insolvency, reorganization or other law affecting
the rights of creditors generally (including "financial assistance" rules under
the laws of England, including Sections 151 to and including 158 of the
Companies Act), if the obligations of any Subsidiary Guarantor under Section
3.01 would otherwise, taking into account the provisions of Section 3.08, be
held or determined to be void, invalid or unenforceable, or subordinated to the
claims of any other creditors, on account of the amount of its liability under
Section 3.01, then, notwithstanding any other provision hereof to the contrary,
the amount of such liability shall, without any further action by such
Subsidiary Guarantor, any Lender, the Administrative Agent or any other Person,
be automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding (or, in the case of Canandaigua Limited, be limited
so as not to guarantee the portion of the Loans that are not permitted to be
guaranteed under such "financial assistance" rules).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 4.01. Organization; Powers. Each of the Borrower and
its Subsidiaries (excluding Inactive Subsidiaries) is duly organized, validly
existing and in good
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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 Incremental Loans until such date as any such Borrowings are made)
have been duly authorized by all necessary corporate and, if required, by all
necessary shareholder action. This Agreement has been duly executed and
delivered by each Obligor and constitutes, and each of the other Loan Documents
to which it is a party when executed and delivered by such Obligor will
constitute, a legal, valid and binding obligation of such Obligor, enforceable
against each Obligor in accordance with its terms, except as such enforceability
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or
similar laws of general applicability affecting the enforcement of creditors'
rights and (b) the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
SECTION 4.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except for (i)
such as have been obtained or made and are in full force and effect 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) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon the Borrower or any of its Subsidiaries or assets, or give rise to a right
thereunder to require any payment to be made by any such Person, and (d) except
for the Liens created pursuant to the Security Documents, will not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries. The Borrower is not, on the date hereof, subject to any indenture,
agreement, instrument or other arrangement of the type described in the second
paragraph of Section 7.09 (and not permitted by clauses (i) through (iii) of
said paragraph).
SECTION 4.04. Financial Condition; No Material Adverse Change.
(a) Financial Condition. The Borrower has heretofore furnished
to the Lenders its consolidated balance sheet and statements of income,
stockholders' equity and cash flows (i) as of and for the fiscal year ended
February 28, 1999, reported on by Arthur Andersen LLP, independent public
accountants, and (ii) as of and for the fiscal quarter and the portion of the
fiscal year ended May 31, 1999, certified by the chief financial officer of the
Borrower. Such financial statements present fairly, in all material respects,
the financial position and results of operations and cash flows of the Borrower
and its Consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) of the first
sentence of this paragraph.
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(b) No Material Adverse Change. Since February 28, 1999, 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.
(c) 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) could not reasonably be
expected to result in a Material Adverse Effect.
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 have a Material Adverse Effect. Each
of
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such permits, licenses and authorizations is in full force and effect and
each of the Borrower and its Subsidiaries is in compliance with the terms and
conditions thereof, and is also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law or in any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, except as described
in Disclosed Matters and except to the extent failure to comply therewith 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;
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that, in the case of any of clauses (i) through (v) above, may
reasonably be expected to have a Material Adverse Effect.
(c) No Hazardous Material Transported to NPL Sites. Neither
the Borrower nor any of its Subsidiaries has transported or arranged
for the transportation of any Hazardous Material to any location that
is listed on the National Priorities List ("NPL") under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), listed for possible inclusion on the NPL
by the Environmental Protection Agency in the Comprehensive
Environmental Response and Liability Information System, as provided
for by 40 C.F.R. ss. 300.5 ("CERCLIS"), or on any similar state or
local list or that is the subject of Federal, state or local
enforcement actions or other investigations that may lead to
Environmental Claims against the Borrower or any of its Subsidiaries,
except to the extent any such action would not (either individually or
in the aggregate) have a Material Adverse Effect.
(d) No Notifications or Listings. No oral or written
notification of a Release of a Hazardous Material has been filed by or
on behalf of the Borrower or any of its Subsidiaries and no site or
facility now or previously owned, operated or leased by the Borrower or
any of its Subsidiaries is listed or proposed for listing on the NPL,
CERCLIS or any similar state list of sites requiring investigation or
clean-up that in any such case could reasonably be expected to result
in remediation costs and fines that in the aggregate would have a
Material Adverse Effect.
(e) No Liens or Restrictions. No Liens have arisen under or
pursuant to any Environmental Laws on any site or facility owned,
operated or leased by the Borrower or any of its Subsidiaries, and no
government action has been taken or is in process that could subject
any such site or facility to such Liens and neither the Borrower nor
any of its Subsidiaries would be required to place any notice or
restriction relating to the presence of Hazardous Materials at any site
or facility owned by it in any deed to the real Property on which such
site or facility is located, except to the extent any such event or
action would not (either individually or in the aggregate) have a
Material Adverse Effect.
(f) Full Disclosure. All environmental investigations,
studies, audits, tests, reviews or other analyses conducted by or that
are in the possession of the Borrower or 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. On the date
hereof, no Default has occurred and is continuing.
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SECTION 4.09. Investment and Holding Company Status. Neither
the Borrower nor any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 4.10. Taxes. Each of the Borrower and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Person has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to 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 (other than this Agreement), loan
agreement, indenture, purchase agreement, guarantee, letter of credit or other
arrangement providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or guarantee
by, the Borrower or any of its Subsidiaries outstanding on the date hereof the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed)
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$5,000,000, and the aggregate principal or face amount outstanding or that may
become outstanding under each such arrangement is correctly described in Part A
of Schedule II.
(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 the aggregate principal or face amount of which equals or exceeds (or may
equal or exceed) $2,500,000 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. On August 31, 1999, the
authorized capital stock of the Borrower consists 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 14,879,274 shares are duly and validly issued and
outstanding and 3,156,004 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 3,170,799 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. 12.58% of such issued and outstanding shares of Class A common
stock and 89.52% of such issued and outstanding shares of Class B common stock
are owned beneficially and of record by one or more Permitted Holders. 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 Permitted Holders 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
Permitted Holders. Except for conversion rights associated with the Class B
common stock, purchase rights and options associated with Stock Based Plans and
as disclosed in Schedule V, on the date hereof there are no outstanding Equity
Rights with respect to the Borrower. 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 (except under Stock Based Plans) nor
are there any outstanding obligations of the Borrower or any of its Subsidiaries
to make payments to any Person, such as "phantom stock" payments, where the
amount thereof is calculated with reference to the fair market value or equity
value of the Borrower or any Subsidiary. The Borrower has heretofore delivered
to the Administrative Agent a complete and correct copy of each Stock Based
Plans specified on Schedule V (as in effect on the date hereof).
SECTION 4.16. Subsidiaries and Investments.
(a) Subsidiaries. Set forth in Part A of Schedule IV (subject
to the footnotes therein) is a complete and correct list of all of the
Subsidiaries of the Borrower as of the date hereof, together with, for each such
Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each
Person holding ownership interests in such Subsidiary and (iii) the nature of
the ownership interests held by each such Person and the percentage of ownership
of such Subsidiary represented by such ownership interests. Except as disclosed
in Part A of Schedule 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 (except with respect to Joint Venture Entities) 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
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capital stock of each such Person organized as a corporation is validly issued,
fully paid and nonassessable and (z) there are no outstanding Equity Rights with
respect to such Person (other than Joint Venture Entities).
(b) Investments. Set forth in Part B of Schedule 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), (e) and (f) of Section 7.06) 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), all such Investments.
(c) Restrictions on Subsidiaries. None of the Subsidiaries of
the Borrower is, on the date hereof, subject to any indenture, agreement,
instrument or other arrangement of the type described in the first paragraph of
Section 7.09 (and not permitted by clauses (i) through (iv) of said paragraph).
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Lenders to issue Letters of Credit hereunder
shall not become effective until the date 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 to 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 Peabody LLP, U.S. counsel for
the Obligors, substantially in the form of Exhibit D-1, and covering
such other matters relating to the Borrower, this Agreement or the
Transactions as the Required Lenders shall reasonably request and (ii)
Clifford Chance, U.K. counsel for the Obligors, substantially in the
form of Exhibit D-2, and covering such other matters relating to the
Borrower, Canandaigua Limited and the U.K. Equity Pledge Agreement as
the Required Lenders shall reasonably request (and each Obligor hereby
instructs such counsel to deliver such opinions to the Lenders and the
Administrative Agent).
(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
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Chase, substantially in the form of Exhibit E (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 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 compliance with Section 5.02.
(f) Pledge Agreements. (i) The U.S. Equity Pledge Agreement,
duly executed and delivered by the Borrower, the Subsidiaries specified
therein and the Administrative Agent and the certificates identified
under the name of such Obligor in Annex 1 thereto (it being understood
that such Subsidiaries shall not include Joint Venture Entities,
Inactive Subsidiaries and, for so long as it shall conduct no business
other than holding Indebtedness of Canandaigua Limited and having
Indebtedness outstanding to the Borrower, Canandaigua B.V.),
accompanied by undated stock powers executed in blank and (ii) the U.K.
Equity Pledge Agreement, duly executed and delivered by the Borrower
and Canandaigua Limited, respectively, together with certificates
evidencing the applicable shares of Canandaigua Limited and Matthew
Clark. In addition, the Borrower shall have taken such other action as
the Administrative Agent shall have reasonably requested in order to
perfect the security interests created pursuant to the Pledge
Agreements.
(g) Insurance. (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.
(h) Repayment of Existing Indebtedness. Evidence that the
principal of and interest on, and all other amounts owing in respect
of, the Indebtedness (including any contingent or other amounts payable
in respect of letters of credit) indicated on Schedule II that is to be
repaid on the Effective Date shall have been (or shall be
simultaneously) paid in full, that any commitments to extend credit
under the agreements or instruments relating to such Indebtedness shall
have been canceled or terminated and that all Guarantees in respect of,
and all Liens securing, any such Indebtedness shall have been released
(or arrangements for such release reasonably satisfactory to the
Required Lenders shall have been made).
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(i) Other Documents. Such other documents as the
Administrative Agent or any Lender or special New York counsel to Chase
may reasonably request.
The obligation of any Lender to make its initial extension of
credit hereunder is also subject to the payment by the Borrower of such fees as
the Borrower shall have agreed to pay to any Lender or the Administrative Agent
in connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, 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
October 8, 1999 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 5.02. Each Credit Event. 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 (but as to such other Loan Documents,
in all material respects), shall be true and correct on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable (or, if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date); and
(b) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing 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
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of Credit shall have expired or terminated and all LC Disbursements shall have
been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 100 days after the end of each fiscal year of the
Borrower, 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
material respects the financial condition and results of operations of
the Borrower and its Consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied;
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, 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), 7.06(d), 7.06(h), 7.06(i) and 7.10, (iii) setting
forth a calculation of the Debt Ratio as at the end of the respective
fiscal period (and indicating which Category of Applicable Rate shall
become effective upon the delivery of such financial statements as
contemplated by the definition of the term "Applicable Rate" in Section
1.01), (iv) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements
referred to in Section 4.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate and (v) certifying that, except as
otherwise specified, no Subsidiaries that were Inactive Subsidiaries as
at the delivery of the immediately preceding certificate under this
paragraph (c) (or, in the case of the first such delivery, as at the
date hereof) has ceased to be an Inactive Subsidiary;
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(d) concurrently with any delivery of financial statements
under clause (a) of this Section, a certificate of the accounting firm
that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such
financial statements of any Default (which certificate may be limited
to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any of its Subsidiaries with the Securities
and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally or to holders of Senior Unsecured Indebtedness or
Subordinated Indebtedness generally, as the case may be;
(f) at any time after a Rating Upgrade Event shall have
occurred and Collateral shall have been released pursuant to Section
6.10(a), concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, each of (i) a certificate of a
Financial Officer of the Borrower (x) certifying as to the then-current
rating, if any, of the Index Debt by each of Moody's and Standard &
Poor's and (y) setting forth a calculation of the Debt Ratio for the
applicable fiscal quarter of the Borrower and (ii) the most recent
confirmation from each of Moody's and Standard & Poor's as to its
then-current rating, if any, of the Index Debt (such confirmation to be
in form reasonably satisfactory to the Administrative Agent);
(g) if at any time during the period commencing on the date
five Business Days prior to each Quarterly Date and ending on the date
five Business Days prior to the next succeeding Quarterly Date the
Borrower or any Subsidiary shall enter into any Permitted Receivable
Financing or shall increase the Maximum Receivable Exposure under any
Permitted Receivable Financing, five Business Days prior to such
succeeding Quarterly Date, a certificate of a Financial Officer of the
Borrower (x) describing the nature and scope of each such Permitted
Receivable Financing and (y) setting forth a calculation in reasonable
detail of the Maximum Receivable Exposure under each such Permitted
Receivable Financing and the amount, if any, by the which the Tranche I
Revolving Commitments are required to be reduced pursuant to Section
2.09(d) and the Tranche I Revolving Loans are required to be repaid
pursuant to Section 2.10(a)(ii) on such succeeding Quarterly Date; and
(h) 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;
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(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;
(e) at any time after a Rating Upgrade Event shall have
occurred and Collateral shall have been released pursuant to Section
6.10(a), to the extent the Borrower or any of its Subsidiaries receives
notice thereof (and without duplication of Section 6.01(f)), the
downgrading of the Index Debt by either Moody's or Standard & Poor's to
below "Baa3" or "BBB-", respectively; and
(f) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 6.03. Existence; Conduct of Business. Except as
otherwise expressly permitted hereunder, the Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence and the rights,
licenses, permits, privileges and franchises relating to the conduct of its
business (except where the failure to do so (in each case other than with
respect to the existence of the Borrower), individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect);
provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 7.03.
SECTION 6.04. Payment of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could 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 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.
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SECTION 6.05. Maintenance of Properties; Insurance. The
Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain
all Property relating to the conduct of its business in good working order and
condition, ordinary wear and tear excepted (except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect), 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 Term Loans and Tranche II Term Loans will be used
solely to repay on the Effective Date Indebtedness owing under the Existing
Credit Agreement. The proceeds of the Tranche I Revolving Loans, Tranche II
Revolving Loans, Tranche III Term Loans, Swingline Loans and Competitive Loans
will be used solely to (a) in the case of the Tranche I Revolving Loans only,
repay on the Effective Date Indebtedness owing under the Existing Credit
Agreement and make acquisitions permitted by Section 7.05(b) (provided that, as
provided in Section 7.05(b), the Borrower will not use more than $75,000,000 of
the proceeds of each Tranche I Revolving Loan Borrowing to fund each transaction
described therein and/or pay any related fees or expenses referred to in said
Section), (b) provide working capital for the Borrower and its Subsidiaries and
(c) provide funds for the other general corporate purposes (including Capital
Expenditures) of the Borrower and its Subsidiaries. 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.
SECTION 6.09. Certain Obligations Respecting Subsidiaries.
(a) Ownership of Subsidiaries. The Borrower will, and will
cause each of its Subsidiaries to, take such action from time to time as shall
be necessary to ensure that each of the Borrower's Subsidiaries (other than
Joint Venture Entities and Inactive Subsidiaries) is a Wholly-Owned Subsidiary.
(b) Subsidiary Guarantors. The Borrower will take such action,
and will cause each of its Subsidiaries to take such action, from time to time
as shall be necessary to ensure that
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all Subsidiaries of the Borrower that are not Excluded Entities are "Subsidiary
Guarantors" hereunder. In furtherance of the foregoing, in the event that (x)
the Borrower or any of its Subsidiaries shall acquire or form any new Subsidiary
after the date hereof that is not at such time an Excluded Entity or (y) any
Excluded Entity shall cease to be an Excluded Entity but shall continue to be a
Subsidiary of the Borrower, the Borrower will cause (or will cause its
Subsidiaries to cause) such new Subsidiary or previously Excluded Entity to (i)
become a "Subsidiary Guarantor" hereunder, and a "Subsidiary Guarantor" under
the U.S. Equity Pledge Agreement, by delivering to the Administrative Agent a
Guarantee Assumption Agreement; (ii) take the actions, if any, required to be
taken by such new Subsidiary or previously Excluded Entity under paragraph (c)
below and (iii) deliver such proof of corporate action, incumbency of officers,
opinions of counsel and other documents as is consistent with those delivered by
each Obligor pursuant to Section 5.01 on the Effective Date or as the
Administrative Agent shall have requested.
(c) Pledge Agreements. For so long as no Rating Upgrade Event
has occurred and is continuing, if after the date hereof (x) any Obligor,
including any Subsidiary (herein, a "Paragraph (b) Obligor") that becomes a
Subsidiary Guarantor and therefor an Obligor hereunder pursuant to paragraph (b)
above, shall acquire or form any new Subsidiary (it being understood that the
term "new Subsidiary" includes any entity that is a Subsidiary of any Paragraph
(b) Obligor at the time it becomes an Obligor hereunder), or (y) any Excluded
Entity shall cease to be an Excluded Entity but shall continue to be a
Subsidiary of the Borrower, then, in addition to any actions that may be
required to be taken as a result thereof pursuant to paragraph (b) above, each
Obligor (including any Paragraph (b) Obligor) will take the following actions
with respect to such new Subsidiary or previously Excluded Entity:
(i) if such new Subsidiary or previously Excluded Entity is
organized under the laws of the United States of America or a State
thereof, each Obligor that holds any of the shares of capital stock or
other ownership interests in such new Subsidiary or previously Excluded
Entity shall take such action (including delivering the certificates,
if any, evidencing such shares or other ownership interests,
accompanied by undated stock or other powers executed in blank) as
shall be necessary to create and perfect valid and enforceable first
priority Liens in such shares and other ownership interests under the
U.S. Equity Pledge Agreement (or, if necessary, a supplement thereto);
(ii) if such new Subsidiary or previously Excluded Entity is
organized under the laws of a jurisdiction other than the United States
of America or a State thereof, each Obligor that holds any of the
shares of capital stock or other ownership interests in such new
Subsidiary or previously Excluded Entity shall execute and deliver a
Foreign Equity Pledge Agreement (or, as applicable, supplement the U.K
Equity Pledge Agreement) with respect to such shares of capital stock
or other ownership interests and take such other action (including
delivering the certificates, if any, evidencing such shares or other
ownership interests, accompanied by undated stock or other powers
executed in blank) as shall be necessary to create and perfect valid
and enforceable first priority Liens in such shares and other ownership
interests under the law governing such Foreign Equity Pledge Agreement
(or, as applicable, U.K. Equity Pledge Agreement); and
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(iii) deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent with
those delivered by each Obligor pursuant to Section 5.01 on the
Effective Date or as the Administrative Agent shall have requested;
provided, however, that (A) the foregoing shall not require any action that the
Borrower and the Administrative Agent have determined would either result in
adverse tax consequences under Section 956 of the Code or would contravene any
applicable law, rule or regulation, (B) notwithstanding anything in this
Agreement or the Pledge Agreements to the contrary, subject to the foregoing
clause (A), none of the Borrower or any of its Subsidiaries shall be required to
pledge more than 65% of the outstanding shares of voting stock of any Foreign
Subsidiary and (C) the foregoing shall not require the Borrower or any of its
Subsidiaries to pledge any shares of stock or other ownership interests in
Inactive Subsidiaries, Joint Venture Entities and, for so long as it shall
conduct no business other than holding Indebtedness of Canandaigua Limited and
having Indebtedness outstanding to the Borrower, Canandaigua B.V.
(d) Shares of Subsidiary Stock. In the event that any
additional shares of stock shall be issued to any Obligor by any Subsidiary
while no Rating Upgrade Event shall have occurred and be continuing, such
Obligor agrees forthwith to deliver to the Administrative Agent pursuant to the
U.S. Equity Pledge Agreement and, if applicable, any Foreign Equity Pledge
Agreement, the certificates evidencing such shares of stock, accompanied by
undated stock powers executed in blank and to take such other action as the
Administrative Agent shall request to perfect the security interest created
therein pursuant to such Pledge Agreement, provided that notwithstanding
anything in this Agreement to the contrary, the Obligors shall not be required
to pledge more than 65% of the outstanding shares of voting stock of any Foreign
Subsidiary.
(e) Further Assurances. The Borrower will, and will cause each
of its Subsidiaries (other than Excluded Entities) to, take such action from
time to time while no Rating Upgrade Event shall have occurred and be continuing
(including executing and delivering such assignments, security agreements and
other instruments) as shall be reasonably requested by the Administrative Agent
to create, in favor of the Administrative Agent for the benefit of the Lenders,
perfected security interests and Liens in all Collateral required to be pledged
by such Subsidiary under the U.S. Equity Pledge Agreement and, if applicable,
any Foreign Equity Pledge Agreement.
SECTION 6.10. Release and Re-Pledge of Certain Collateral.
(a) If at any time after the Effective Date when no Default
shall have occurred and be continuing the Borrower shall provide the
Administrative Agent with confirmation (in form satisfactory to the
Administrative Agent) from each of Moody's and Standard & Poor's as to the
occurrence of a Rating Upgrade Event, the Pledge Agreements and any Borrower
Security Agreement shall terminate, and the Administrative Agent shall forthwith
(i) cause to be assigned, transferred and delivered, against receipt but without
any recourse, warranty or representation whatsoever, any Collateral and money
received in respect thereof, to or on the order of the respective Obligor and
(ii) execute and deliver to the respective Obligor upon such termination such
Uniform Commercial Code termination statements and such other documentation as
shall
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be reasonably requested by the such Obligor to effect the termination and
release of the Liens on the Collateral.
(b) If at any time after a Rating Upgrade Event shall have
occurred and Collateral shall have been released pursuant to paragraph (a)
above:
(i) if at such time the Debt Ratio shall be greater than or
equal to 2.50 to 1, the Index Debt shall be rated less than "BBB-" by
Standard & Poor's or less than "Baa3" by Moody's;
(ii) if at such time the Debt Ratio shall be less than 2.50 to
1, either (x) the Index Debt shall be rated less than "BBB-" by
Standard & Poor's or less than "Ba2" by Moody's or (y) the Index Debt
shall be rated less than "BB+" by Standard & Poor's or less than "Baa3"
by Moody's; or
(iii) at any time either Moody's or Standard & Poor's shall
not have in effect a rating for the Index Debt;
in each case as evidenced by a confirmation or notice delivered pursuant to
Section 6.01(f) or Section 6.02(e) or otherwise, (i) the Borrower and each of
its Subsidiaries (subject, in the case of Excluded Entities, to the limitations
set forth in Section 6.09(b), 6.09(c) and 6.09(d)) and the Administrative Agent
shall promptly execute and deliver a new U.S. Equity Pledge Agreement and, as
applicable, new Foreign Equity Pledge Agreements and (ii) concurrently with the
execution and delivery of such Pledge Agreements such Obligors shall (A) take
such action (including delivering such shares of stock) as shall be necessary to
create and perfect valid and enforceable first priority Liens on any Collateral
to be pledged thereunder (subject, in the case of Excluded Entities, to the
limitations set forth in Section 6.09(b), 6.09(c) and 6.09(d)) and (B) deliver
such proof of corporate action, incumbency of officers, opinions of counsel and
other documents as is consistent with those delivered by each Obligor pursuant
to Section 5.01 on the Effective Date or as the Administrative Agent shall have
requested.
(c) For purposes of this Section 6.10, a "Rating Upgrade
Event" shall be deemed to have occurred at any time when:
(i) if at such time the Debt Ratio shall be greater than or
equal to 2.50 to 1, the Index Debt shall be rated at least "BBB-" by
Standard & Poor's and at least "Baa3" by Moody's; or
(ii) if at such time the Debt Ratio shall be less than 2.50 to
1, either (x) the Index Debt shall be rated at least "BBB-" by Standard
& Poor's and at least "Ba2" by Moody's or (y) the Index Debt shall be
rated at least "BB+" by Standard & Poor's and at least "Baa3" by
Moody's.
SECTION 6.11. Pledge of Certain Collateral of the Borrower. If
at the end of any quarterly fiscal period of the Borrower while no Rating
Upgrade Event shall have occurred and be continuing (x) the aggregate net book
value of the Relevant Assets (as defined below) of the Borrower that would be
shown on an unconsolidated balance sheet of the Borrower (prepared
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in accordance with GAAP) exceeds (y) an amount equal to 15% of the aggregate net
book value of the Relevant Assets of the Borrower and its Consolidated
Subsidiaries that would be shown 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, then within 60 days after the end of such quarterly fiscal period
the Borrower shall pledge to the Administrative Agent for the benefit of the
Lenders Relevant Assets of the Borrower (as selected by the Borrower) having a
net book value at least equal to the amount of such excess and, in furtherance
of the foregoing, the Borrower shall execute and deliver a Borrower Security
Agreement (or, if a Borrower Security Agreement is already in effect and if
requested by the Administrative Agent, amend such Borrower Security Agreement)
and, concurrently with the execution and delivery (or amendment) thereof, (A)
take such action as shall be necessary to create and perfect valid and
enforceable first priority Liens on any Collateral to be pledged thereunder and
(B) deliver such proof of corporate action, incumbency of officers, opinions of
counsel and other documents as is consistent with those delivered by the
Borrower pursuant to Section 5.01 on the Effective Date or as the Administrative
Agent shall have requested.
For purposes hereof, "Relevant Assets" means, for any Person,
the property, plant and equipment of such Person, together with any inventory
and receivables of such Person, and shall exclude, in any event, any capital
stock or other ownership interests held by such Person in any Subsidiaries or
Joint Venture Entities.
ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 7.01. Indebtedness. The Borrower will not, nor will it
permit any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in
Part A of Schedule 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 $5,000,000), provided that
the principal of and interest on, and all other amounts owing in
respect of Indebtedness under the Existing 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 Effective Date);
(c) (i) Indebtedness outstanding in respect of the Senior
Unsecured Notes and (ii) other unsecured Indebtedness (other than
Subordinated Indebtedness), provided that the
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following conditions shall be satisfied with respect to such other
Indebtedness (each of which shall be fulfilled in form and substance
satisfactory to the Required Lenders):
(A) the aggregate principal amount of such other
Indebtedness incurred pursuant to this clause (c)(ii) shall
not exceed $300,000,000;
(B) the Net Available Proceeds of such Indebtedness
shall be applied to prepay Loans in the manner provided in
Section 2.11(b)(iv), to finance one or more Acquisitions
pursuant to Section 7.05(b) or to repay at maturity the
Borrower's Senior Subordinated Notes due 2003, provided that
the aggregate amount of such Net Available Proceeds that may
be applied by the Borrower to finance Acquisitions or to repay
such Senior Subordinated Notes shall not exceed, on any date,
the aggregate amount of Net Available Proceeds of Equity
Issuances applied by the Borrower to the prepayment of Loans
hereunder (accompanied, in the case of prepayment of Revolving
Loans, by reductions of Commitments in like amount), whether
pursuant to Section 2.11(b)(ii) or otherwise, during the
period from the date hereof through such date;
(C) the terms of such Indebtedness shall not provide
for payment of any portion of the principal thereof prior to
the date two years after the final maturity of the Loans
hereunder;
(D) terms in respect of financial and other
covenants, events of default and mandatory prepayments
applicable to such Indebtedness shall be no more restrictive
in any material respect on the Borrower or any of its
Subsidiaries than the terms of the Senior Unsecured Notes;
(E) at the time of issuance of such Indebtedness, and
after giving effect thereto, the Borrower shall be in
compliance with Section 7.10 (the determination of such ratios
to be calculated under the assumption that such Indebtedness
was issued at the beginning of the respective period and that
any other Indebtedness to be retired with the proceeds thereof
was in fact retired on such date of issuance), and the
Borrower shall have delivered to the Administrative Agent a
certificate of its chief financial officer to such effect
setting forth in reasonable detail the computations necessary
to determine such compliance; and
(F) 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;
(d) Subordinated Indebtedness;
(e) 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
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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);
(f) Indebtedness of any one or more Subsidiaries organized
under the laws of England and Wales or any political subdivision
thereof, provided that at the time of the creation, incurrence or
assumption thereof and at any time after giving effect thereto (x) the
aggregate principal amount of such Indebtedness shall not exceed
$100,000,000 (or the Sterling Equivalent thereof) and (y) the aggregate
principal amount of such Indebtedness, together with the aggregate
principal amount of Indebtedness outstanding pursuant to paragraphs (g)
and (h) below, shall not exceed $170,000,000 (or the Sterling
Equivalent thereof or, as applicable, the equivalent thereof in
Canadian Dollars or Chilean Pesos as determined by the Administrative
Agent in a manner consistent with the determination of Sterling
Equivalent hereunder);
(g) Indebtedness of any one or more Subsidiaries organized
under the laws of Canada or any political subdivision thereof, provided
that at the time of the creation, incurrence or assumption thereof and
at any time after giving effect thereto (x) the aggregate principal
amount of such Indebtedness shall not exceed $85,000,000 (or the
equivalent thereof in Canadian Dollars as determined by the
Administrative Agent in a manner consistent with the determination of
Sterling Equivalent hereunder) and (y) the aggregate principal amount
of such Indebtedness, together with the aggregate principal amount of
Indebtedness outstanding pursuant to paragraph (f) above and paragraph
(h) below, shall not exceed $170,000,000 (or the Sterling Equivalent
thereof or, as applicable, the equivalent thereof in Canadian Dollars
or Chilean Pesos as determined by the Administrative Agent in a manner
consistent with the determination of Sterling Equivalent hereunder);
(h) Indebtedness of any one or more Subsidiaries organized
under the laws of The Republic of Chile or any political subdivision
thereof, provided that at the time of the creation, incurrence or
assumption thereof and at any time after giving effect thereto (x) the
aggregate principal amount of such Indebtedness shall not exceed
$25,000,000 (or the equivalent thereof in Chilean Pesos as determined
by the Administrative Agent in a manner consistent with the
determination of Sterling Equivalent hereunder) and (y) the aggregate
principal amount of such Indebtedness, together with the aggregate
principal amount of Indebtedness outstanding pursuant to paragraphs (f)
and (g) above, shall not exceed $170,000,000 (or the Sterling
Equivalent thereof or, as applicable, the equivalent thereof in
Canadian Dollars or Chilean Pesos as determined by the Administrative
Agent in a manner consistent with the determination of Sterling
Equivalent hereunder);
(i) Guarantees by the Borrower of Indebtedness or other
obligations of any Subsidiary (subject to the terms of Section 7.06(d)
and 7.06(h)) and by any Subsidiary of Indebtedness or other obligations
of the Borrower or any other Subsidiary;
(j) 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
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principal amount of Indebtedness in respect of all such Guarantees
shall not exceed $40,000,000 at any time outstanding; and
(k) 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. The Borrower will not, nor will it permit
any of its Subsidiaries to, create, incur, assume or permit to exist any Lien on
any Property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Liens created pursuant to the Security Documents;
(b) Permitted Encumbrances;
(c) any Lien on any Property or asset of the Borrower or any
of its Subsidiaries existing on the date hereof and set forth in Part B
of Schedule 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 $5,000,000); provided that (i) no
such Lien shall extend to any other Property or asset of the Borrower
or any of its Subsidiaries and (ii) any such Lien shall secure only
those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(d) any Lien upon tangible Property acquired after the date
hereof by the Borrower or any of its Subsidiaries, which Lien either
(A) existed on such Property before the time of its acquisition and was
not created in anticipation thereof, or (B) was created solely for the
purpose of securing Indebtedness permitted under Section 7.01(k)
representing, or incurred to finance, refinance or refund, the cost of
such Property; provided that (i) such Lien shall not apply to any other
Property or assets of the Borrower or any Subsidiary and (ii) such Lien
shall secure only those obligations which it secures on the date of
such acquisition and extensions, renewals and replacements thereof
permitted under clause (g) below;
(e) any Lien on Property or assets of any Subsidiary specified
in Section 7.01(f), (g) or (h) securing Indebtedness of such Subsidiary
permitted thereunder, provided that such Lien shall not apply to any
Property or assets of the Borrower or any other Subsidiary;
(f) any Lien in favor of a special purpose company or
Receivable Financier created or deemed to exist pursuant to a Permitted
Receivable Financing, but only to the extent such Lien relates to the
applicable Receivable Assets conveyed by the Borrower or any
Subsidiary; and
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(g) any extension, renewal or replacement of the foregoing,
provided, however, that the Liens permitted hereunder shall not be
spread to cover any additional Indebtedness or Property (other than a
substitution of like Property).
SECTION 7.03. Fundamental Changes. The Borrower will not, nor
will it permit any of its Subsidiaries to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or any substantial part of its assets, or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether
now owned or hereafter acquired), or liquidate or dissolve, except that (x) the
Borrower or any Subsidiary may enter into transactions permitted by Section 7.05
and (y) if at the time thereof and immediately after giving effect thereto no
Default shall have occurred and be continuing:
(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, 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;
(d) the Borrower may, for the purpose of transferring its
jurisdiction of incorporation from Delaware to another state of
incorporation, merge with and into a Wholly-Owned Subsidiary in a
transaction constituting a tax-free reorganization under 368(a)(1)(F)
of the Code, so long as:
(x) the Borrower shall give the Lenders and the
Administrative Agent at least 15 days prior written notice of
the occurrence of such merger;
(y) such Subsidiary shall execute and deliver an
instrument in form and substance satisfactory to each Lender
and the Administrative Agent pursuant to which such Subsidiary
shall, effective upon such merger, assume all of the
obligations of the Borrower hereunder and under the Security
Documents (and execute and deliver such other instruments as
the Administrative Agent shall
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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
(e) 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:
(t) at the time thereof and after giving effect
thereto, no Default or Event of Default shall have occurred
and be continuing hereunder;
(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
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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;
provided, that (A) if any such merger shall be between a Subsidiary Guarantor
and a Subsidiary not a Subsidiary Guarantor, and such Subsidiary Guarantor is
not the continuing or surviving corporation, then the continuing or surviving
corporation shall have assumed all of the obligations of such Subsidiary
Guarantor hereunder and under the other Loan Documents and (B) if any such sale
is by a Subsidiary Guarantor to a Subsidiary of the Borrower not a Subsidiary
Guarantor, then such Subsidiary shall have assumed all of the obligations of
such Subsidiary Guarantor hereunder and under the other Loan Documents.
SECTION 7.04. Disposition of Property. The Borrower will not,
nor will it permit any of its Subsidiaries to, convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, any part
of its business or Property, whether now owned or hereafter acquired (including,
without limitation, receivables and leasehold interests), provided that the
Borrower or any Subsidiary may sell or dispose of (i) any inventory or other
Property sold or disposed of in the ordinary course of business and on ordinary
business terms, (ii) Receivable Assets pursuant to any Permitted Receivable
Financing, (iii) any Property to the extent permitted by Section 7.03(b) and
(iv) other Property so long as the amount of such other Property sold in any
single fiscal year by the Borrower and its Subsidiaries shall have a fair market
value not in excess of 3% of the Consolidated Tangible Assets as at the first
day of such fiscal year.
SECTION 7.05. Acquisition of Property. The Borrower will not,
nor will it permit any of its Subsidiaries to, acquire any business or Property
from, or capital stock of, or be a party to any acquisition of, any Person,
provided that:
(a) the Borrower or any such Subsidiary may (i) purchase
inventory and other Property to be sold or used in the ordinary course
of business, (ii) make Investments permitted under Section 7.06 and
(iii) make Capital Expenditures; and
(b) the Borrower may (either directly, or indirectly through
its Wholly-Owned Subsidiaries) acquire the business and related assets
from, or capital stock of, or enter into a joint venture with, or be a
party to an Acquisition of another Person, so long as at the time
thereof and after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing hereunder and the Borrower shall
have delivered to the Administrative Agent a certificate of a Financial
Officer to such effect; provided that (i)
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at the time of any such transaction, and after giving effect thereto,
the Borrower shall be in compliance with Section 7.10(a), (b) and (c)
(the determination of such ratios to be calculated under the assumption
that such transaction was consummated at the beginning of the
respective period) and, to the extent the aggregate consideration to be
delivered by the Borrower and its Subsidiaries in connection with such
transaction shall exceed $10,000,000, the Borrower shall have furnished
to the Administrative Agent a certificate of a Financial Officer to
such effect setting forth in reasonable detail the computations
necessary to determine such compliance and (ii) the Borrower will not
use more than $75,000,000 of the proceeds of one or more Tranche I
Revolving Loans to fund any single such transaction and/or pay any
related fees or expenses.
SECTION 7.06. Investments. The Borrower will not, nor will it
permit any of its Subsidiaries to, make or permit to remain outstanding any
Investments except:
(a) Investments outstanding on the date hereof and identified
in Part B of Schedule IV;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) additional Investments (including Guarantees permitted
under Section 7.01) by the Borrower and its Wholly-Owned Subsidiaries
in the Borrower and its Wholly-Owned Subsidiaries after the date
hereof, provided that the aggregate amount of such Investments in
Foreign Subsidiaries, together with the aggregate amount of Investments
in Joint Venture Entities under paragraph (h) below, shall not exceed
$200,000,000 at any one time;
(e) Hedging Agreements entered into in the ordinary course of
business and not for speculative purposes;
(f) Investments consisting of security deposits with
utilities, lessors and other like Persons made in the ordinary course
of business;
(g) any Guarantee by a Subsidiary of the Borrower of (i)
Senior Unsecured Indebtedness incurred in compliance with Section
7.01(c) and (ii) Subordinated Indebtedness incurred in compliance with
Section 7.11 (provided that such Guarantee of Subordinated Indebtedness
shall comply with the requirements Section 7.11(b));
(h) additional Investments (including Guarantees permitted
under Section 7.01) by the Borrower and its Subsidiaries in Joint
Venture Entities (and Investments by Joint Venture Entities in other
Persons) after the date hereof, provided that the aggregate amount of
such Investments in Joint Venture Entities, together with the aggregate
amount of Investments in Foreign Subsidiaries, under paragraph (d)
above, shall not exceed $200,000,000 at any one time; and
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(i) additional Investments by the Borrower (excluding,
however, Investments in Joint Venture Entities) up to but not exceeding
$50,000,000 at any one time outstanding.
The aggregate amount of an Investment at any one time outstanding for purposes
of clauses (d), (h) and (i) above shall be deemed to be equal to (A) the
aggregate amount of cash, together with the aggregate fair market value of
Property, loaned, advanced, contributed, transferred or otherwise invested that
gives rise to such Investment minus (B) the aggregate amount of dividends,
distributions or other payments received in cash in respect of such Investment;
the amount of an Investment shall not in any event be reduced by reason of any
write-off of such Investment nor increased by any increase in the amount of
earnings retained in the Person in which such Investment is made that have not
been dividended, distributed or otherwise paid out.
SECTION 7.07. Restricted Payments. (a) The Borrower will not,
nor will it permit any of its Subsidiaries (other than Joint Venture Entities)
to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except that the Borrower may (i) declare and pay dividends
with respect to its capital stock payable solely in additional shares of its
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 any Stock Based Plan) so long as no Default shall
have occurred and be continuing or would result therefrom, (iii) cancel or
terminate any warrants, options or any other rights to acquire any shares of
capital stock of the Borrower in exchange for the issuance of any other
warrants, options or rights to acquire shares of capital stock of the Borrower,
(iv) repurchase its capital stock to the extent provided in paragraph (b) below
and (v) declare and make Restricted Payments in cash, subject (in the case of
this clause (v)) to the satisfaction of each of the following conditions on the
date of such Restricted Payment and after giving effect thereto:
(w) no Default shall have occurred and be continuing;
(x) the aggregate amount of Restricted Payments made during
any fiscal year, including the fiscal year ending February 28, 1999,
shall not exceed an amount equal to 50% of consolidated net income of
the Borrower and its Consolidated Subsidiaries for such fiscal year;
(y) the Debt Ratio for the period of four consecutive fiscal
quarters most recently ended prior to the date of any such Restricted
Payment shall not exceed 2.00 to 1; and
(z) the Borrower shall have delivered to the Administrative
Agent, at least 10 Business Days (but not more than 20 Business Days)
prior to the date of declaration of any such Restricted Payment, a
certificate of a Financial Officer of the Borrower setting forth
computations in reasonable detail demonstrating satisfaction of the
foregoing conditions as at the date of such certificate and stating
that such Financial Officer believes in good faith that none of such
conditions will fail to be satisfied on the date of payment of such
Restricted Payment,
it being understood that to the extent the conditions specified in the foregoing
clauses (w) through (y) are satisfied on the date of declaration of such
Restricted Payment by the board of
<PAGE>
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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
7.11, 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
7.10 during the four quarter period most-recently ended under the
assumption that such Restricted Payment, and any related borrowing,
shall have been made or incurred at the beginning of such period (and,
to the extent requested by the Administrative Agent, the Borrower shall
have delivered a calculation demonstrating such pro forma compliance
satisfactory to the Administrative Agent); and
(iii) the Borrower will not make any Restricted Payment under
this paragraph (b) unless at the time thereof, and after giving effect
thereto, no Default shall have occurred and be continuing.
(c) Nothing in this Section shall be deemed to prohibit the
payment of dividends by any Subsidiary of the Borrower to the Borrower or to any
other Subsidiary of the Borrower.
SECTION 7.08. Transactions with Affiliates. The Borrower will
not, nor will it permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates; provided that (x) any Affiliate who is an individual may
serve as a director, officer or employee of the Borrower or any of its
Subsidiaries and receive reasonable compensation for his or her services in such
capacity and (y) the Borrower and its Subsidiaries may enter into transactions
with any Affiliate of the Borrower or any Subsidiary (other than extensions of
credit by the Borrower or any of its Subsidiaries to an Affiliate) providing for
the leasing of Property, the rendering or receipt of services or the purchase or
sale of inventory and other Property in the ordinary course of business if the
monetary or business consideration arising therefrom would be substantially as
advantageous to the Borrower and its Subsidiaries as the monetary or business
consideration which would obtain in a comparable transaction with a Person not
an Affiliate.
During any period that the Borrower is a public company
regulated by, and required to file regular periodic reports with, the Securities
and Exchange Commission, any compensation paid to an executive officer of the
Borrower or any Subsidiary (who is an Affiliate) which has been specifically
approved by the board of directors of the Borrower (or by the Human Resources
Committee of the board of directors of the Borrower or other committee
responsible for such approval) during such period will be deemed to be
reasonable for purposes of the foregoing. Notwithstanding the foregoing, the
Borrower and/or any Subsidiary may enter
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into so-called split-dollar life insurance agreements with Affiliates, so long
as the aggregate amount of premiums payable by the Borrower during any fiscal
year pursuant to such agreements shall not exceed $2,000,000 in the aggregate.
SECTION 7.09. Certain Restrictions. The Borrower will not
permit any of its Subsidiaries (other then Joint Venture Entities) to enter
into, after the date hereof, any indenture, agreement, instrument or other
arrangement that, directly or indirectly, prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially adverse conditions
upon, the incurrence or payment of Indebtedness, the granting of Liens, the
declaration or payment of dividends, the making of loans, advances, guarantees
or Investments or the sale, assignment, transfer or other disposition of
Property; provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law, by this Agreement or, in the case of any restrictions
or conditions other than in respect of the declaration or payment of dividends
by Subsidiaries, restrictions or conditions imposed by any evidence of Senior
Unsecured Indebtedness, Subordinated Indebtedness or Foreign Subsidiary
Indebtedness (so long as no such restriction or condition is materially more
restrictive on the Borrower or any Subsidiary than the corresponding provisions
of the 1999 Indenture or the Senior Subordinated Note Indentures as in effect on
the date hereof), (ii) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iii) as
applied to Liens, the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (iv) as applied to Liens, the foregoing shall
not apply to restrictions or conditions imposed by any agreement relating to
Indebtedness of Foreign Subsidiaries obligated in respect of such Indebtedness
and (v) as applied to Liens, the foregoing shall not apply to customary
provisions in leases and other contracts restricting the assignment thereof.
In addition, the Borrower will not enter into, after the date
hereof, any indenture, agreement, instrument or other arrangement that, directly
or indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon the granting of Liens
contemplated by Section 6.10 or 6.11; provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law, (ii) the foregoing shall
not apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness and
(iii) the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof.
<PAGE>
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SECTION 7.10. Certain Financial Covenants.
(a) Debt Ratio. The Borrower will not permit the Debt Ratio
to exceed the following respective ratios at any time during the following
respective periods:
Period Ratio
---------------------- ----------
From the date hereof
through August 31, 2000 4.75 to 1
From September 1, 2000
through August 31, 2001 4.50 to 1
From September 1, 2001
and at all times thereafter 4.00 to 1
(b) Senior Debt Ratio. The Borrower will not permit the Senior
Debt Ratio to exceed the following respective ratios at any time during the
following respective periods:
Period Ratio
---------------------- ----------
From the date hereof
through February 29, 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 2.25 to 1
From March 1, 2000
through February 28, 2001 2.50 to 1
From March 1, 2001
through February 28, 2002 2.75 to 1
From March 1, 2002
and at all times thereafter 3.00 to 1
<PAGE>
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(d) Fixed Charges Ratio. The Borrower will not permit the
Fixed Charges Ratio to be less than 1.00 to 1 as at the last day of any fiscal
quarter of each fiscal year.
SECTION 7.11. Subordinated Indebtedness. The Borrower may
after the date hereof incur additional Subordinated Indebtedness subject to the
following conditions (each of which shall have been fulfilled in form and
substance 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 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
7.10 (the determination of such ratios to be calculated under the
assumption that such Indebtedness was issued, at the beginning of the
respective period and that any other Indebtedness to be retired with
the proceeds thereof was in fact retired on such date of issuance), and
the Borrower shall have delivered to the Administrative Agent a
certificate of a 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.
<PAGE>
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Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire
or otherwise acquire for value, or set apart any money for a sinking, defeasance
or other analogous fund for, the purchase, redemption, retirement or other
acquisition of, or make any voluntary payment or prepayment of the principal of
or interest on, or any other amount owing in respect of, any Subordinated
Indebtedness, except that (i) the Borrower may make payments on the
regularly-scheduled payment dates with respect to the principal of and interest
on the Subordinated Indebtedness as in effect on the date hereof (or, as to any
Subordinated Indebtedness issued after the date hereof, as originally in
effect), (ii) so long as no Default shall have occurred and be continuing (or
will occur as a result of such payment), from the proceeds of Subordinated
Indebtedness issued in accordance with the first paragraph of this Section, the
Borrower may redeem Subordinated Indebtedness that is being refinanced with such
proceeds, (iii) the Borrower or any Subsidiary may acquire Subordinated
Indebtedness to the extent that the Borrower's investment therein is permitted
by Section 7.06(i), and (iv) 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 7.07(b), shall not exceed $100,000,000. Neither the Borrower
nor any of its Subsidiaries will consent to any modification, supplement or
waiver of any of the provisions of any Subordinated Indebtedness if such
amendment, supplement or waiver would (A) increase the amount of principal,
interest or other amounts payable by the Borrower or any Subsidiary in respect
thereof or change the date when any such amount is due, (B) amend any financial
or other covenant, term of subordination, event of default or mandatory
prepayment provision in respect thereof (in the case of any covenant, if such
covenant, as amended, would be materially more restrictive on the Borrower or
any Subsidiary) or (C) have a material adverse effect on (x) the legal ability
or financial capacity of any Obligor to perform any of its obligations under
this Agreement or any of the other Loan Documents to which it is a party or (y)
the rights of or benefits available to the Lenders under this Agreement or any
of the other Loan Documents.
SECTION 7.12. Senior Unsecured Indebtedness. Neither the
Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise
acquire for value, or set apart any money for a sinking, defeasance or other
analogous fund for the purchase, redemption, retirement or other acquisition of,
or make any voluntary payment or prepayment of the principal of or interest on,
or any other amount owing in respect of, Senior Unsecured Indebtedness, except
that the Borrower may (i) make payments on the regularly-scheduled payment dates
with respect to the principal of and interest on Senior Unsecured Indebtedness
and (ii) so long as no Default shall have occurred and be continuing (or will
occur as a result of such payment), from the proceeds of Senior Unsecured
Indebtedness incurred in accordance with Section 7.01(c) or the proceeds of
Subordinated Indebtedness issued in accordance with the first paragraph of
Section 7.11, redeem any Senior Unsecured Indebtedness being refinanced with
such proceeds. Neither the Borrower nor any of its Subsidiaries will consent to
any modification, supplement or waiver of any of the provisions of any Senior
Unsecured Indebtedness if such amendment, supplement or waiver would have a
Material Adverse Effect on (x) the legal ability or financial capacity of any
Obligor to perform any of its obligations under this Agreement or any of the
other Loan Documents to which it is a party or (y) the rights of or benefits
available to the Lenders under this Agreement or any of the other Loan
Documents.
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SECTION 7.13. Modifications of Certificate of Incorporation.
Notwithstanding the provisions of clause (d) or (e) of Section 7.03, the
Borrower will not modify or supplement its Certificate of Incorporation as in
effect on the date hereof in any manner materially adverse to the interests of
the Lenders without the prior consent of the Administrative Agent (with the
approval of the Required Lenders).
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or under any other
Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of five or more
Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any of its Subsidiaries in or in
connection with this Agreement or any other Loan Document or any
amendment or modification hereof or thereof, or in any report,
certificate, financial statement or other document furnished pursuant
to or in connection with this Agreement or any other Loan Document or
any amendment or modification hereof or thereof, shall prove to have
been incorrect when made or deemed made in any material respect;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 6.02(a) or (e),
6.03 (with respect to the Borrower's existence), 6.08, 6.10(b) or in
Article VII;
(e) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article) or any other Loan
Document and such failure shall continue unremedied for a period of 45
or more days after notice thereof from the Administrative Agent (given
at the request of any Lender) to the Borrower;
(f) the Borrower or any of its Subsidiaries shall fail to make
any payment (whether of principal or interest and regardless of amount)
in respect of any Material Indebtedness, when and as the same shall
become due and payable;
<PAGE>
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(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
Property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any of its
Subsidiaries or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
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 an
aggregate amount in excess of $15,000,000 (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;
(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;
<PAGE>
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(m) a reasonable basis shall exist for the assertion against
the Borrower or any of its Subsidiaries of (or there shall have been
asserted against the Borrower or any of its Subsidiaries) claims or
liabilities, whether accrued, absolute or contingent, based on or
arising from the generation, storage, transport, handling or disposal
of Hazardous Materials by the Borrower or any of its Subsidiaries or
Affiliates, or any predecessor in interest of the Borrower or any of
its Subsidiaries or Affiliates, or relating to any site or facility
owned, operated or leased by the Borrower or any of its Subsidiaries or
Affiliates, which claims or liabilities (insofar as they are payable by
the Borrower or any of its Subsidiaries but after deducting any portion
thereof which is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor), in the judgment of the
Required Lenders are reasonably likely to be determined adversely to
the Borrower or any of its Subsidiaries, and the amount thereof is
reasonably likely to have a Material Adverse Effect;
(n) a Change in Control shall occur; or
(o) any Lien created by the Security Documents shall at any
time (so long as no Rating Upgrade Event shall have occurred and be
continuing) not constitute a valid and perfected Lien on the collateral
intended to be covered thereby (to the extent perfection by filing,
registration, recordation or possession is required herein or therein)
in favor of the Administrative Agent for the benefit of the Lenders,
free and clear of all other Liens (other than Liens permitted under
Section 7.02 or under the respective Security Documents), or, except
for expiration in accordance with its terms, any of the Security
Documents shall for whatever reason be terminated or cease to be in
full force and effect, or the enforceability thereof shall be contested
by any Obligor;
then, and in every such event (other than an event with respect to any Obligor
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Obligors accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Obligor; and in case of any
event with respect to any Obligor described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Obligors accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Obligor.
<PAGE>
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ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Lenders hereby appoints
the Administrative Agent as its agent hereunder and under the other Loan
Documents and as its trustee in respect of the U.K. Equity Pledge Agreement and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto.
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
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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.
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.
The Administrative Agent may resign at any time by notifying
the Lenders, the Issuing Lenders and the Borrower, and the Administrative Agent
may be removed at any time with or without cause by the Required Lenders. Upon
any such resignation or removal, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation or the Required Lenders give notice to the Administrative
Agent of its removal, then the retiring Administrative Agent's resignation or
removal shall nonetheless become effective and (1) the retiring or removed
Administrative Agent shall be discharged from its duties and obligations
hereunder and (2) the Required Lenders shall perform the duties of the
Administrative Agent (and all payments and communications provided to be made
by, to or through the Administrative Agent shall instead be made by or to each
Lender directly) until such time as the Required Lenders appoint a successor
agent as provided for above in this paragraph. 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 (or retired) or removed Administrative Agent and the
retiring or removed Administrative Agent shall be discharged from its duties and
obligations hereunder (if not already discharged therefrom as provided above in
this paragraph). 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 or removal 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
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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 provided that it obtains
the consent of the Required Lenders thereto), 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 U.K. Equity Pledge Agreement:
(a) shall not be liable for any failure, omission, or defect
in perfecting the security constituted or created by the U.K. Equity
Pledge Agreement including, without limitation, any failure to (i)
register the same in accordance with the provisions of any of the
documents of title of the Chargor (as defined in the U.K. Equity Pledge
Agreement) to any of the assets thereby charged or (ii) effect or
procure registration of or otherwise protect the security created by
this deed under any registration laws in any jurisdiction;
(b) may accept without inquiry such title as the Chargor (as
defined in the U.K. Equity Pledge Agreement) 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 U.K. Equity Pledge
Agreement or to take any steps to protect or preserve the same. The
Administrative Agent may permit the Chargor (as defined in the U.K.
Equity Pledge Agreement) to retain all such title deeds and other
documents in its possession.
Except as otherwise provided in the U.K. Equity Pledge
Agreement, 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
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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 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 (or, in the case
of any such change by a Lender, by notice to the Borrower and the Administrative
Agent). 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
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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.
(b) Amendments. Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders or
by the Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall (i) increase any Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) alter the manner in which payments
or prepayments of principal, interest or other amounts hereunder shall be
applied as among the Lenders or Types or Classes of Loans, without the written
consent of each Lender, (v) change any of the provisions of this Section or the
definition of the term "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender, (vi) change any of the
provisions of this Agreement in respect of the Tranche II Term Loan Commitments
or the Tranche II Term Loans or the determination of amounts payable in Sterling
in respect thereof without the written consent of Tranche II Term Loan Lenders
representing at least 51% of the sum of the total Tranche II Term Loan
Commitments and the Tranche II Term Loans 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 Loan of any Class shall be effective
against the Lenders of such Class for purposes of the Commitments of such Class
unless the Required Lenders of such Class shall have concurred with such waiver
or modification, and no waiver or modification of any provision of this
Agreement
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or any other Loan Document that could reasonably be expected to adversely affect
the Lenders of any Class in a manner that does not affect all Classes equally
shall be effective against the Lenders of such Class unless the Required Lenders
of such Class shall have concurred with such waiver or modification.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all 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 either 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
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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 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 (unless in
connection with any transaction expressly permitted under Section 7.03) no
Obligor may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Obligor without such consent shall be null and
void). 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, 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),
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(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 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 this clause (iii) shall not apply
to rights in respect of outstanding Competitive Loans),
(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500, 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.
Notwithstanding anything to the contrary contained herein, any
lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC") of such Granting Lender, identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment to make any Loan
by any SPC and (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPC hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any payment under this
Agreement for which a Lender would otherwise be liable (all liability for which
shall
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remain with the Granting Lender). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper, or other senior
indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof based upon any claim arising out of this Agreement. In addition,
notwithstanding anything to the contrary contained in this Section 10.04(b), any
SPC may (i) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Borrower and
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Loans or to support
the securities, if any, issued by such SPC to fund such Loans, and (ii) disclose
on a confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC.
(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in New York City a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the 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.
(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
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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) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank, 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.
(h) No Assignments to the 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
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repayment of the Loans, the expiration or termination of the Letters of Credit
and the Commitments or the termination of this Agreement or any provision
hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 5.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of any Obligor against any of and all the
obligations of any Obligor now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby
irrevocably and unconditionally submits, for itself and its Property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or 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
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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 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
<PAGE>
-118-
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 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 Indentures.
(a) It is the intention of the parties hereto that this
Agreement constitutes one of the successive renewals, substitutions,
refinancings or replacements of the Credit Agreement dated as of June 29, 1993
between the Borrower, the Subsidiaries of the Borrower identified on the
signature pages thereof under the caption "Subsidiary Guarantors", the lenders
named therein and 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
<PAGE>
-119-
constitutes the "Credit Agreement" under and as defined in the Senior
Subordinated Notes Indentures.
(b) It is the intention of the parties hereto that this
Agreement constitutes one of the successive renewals, substitutions,
refinancings or replacements of the First Amended and Restated Credit Agreement
dated as of May 12, 1999 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 1.2 of the 1999
Indenture and that, accordingly, this Agreement constitutes the "Credit
Agreement" under and as defined in the 1999 Indenture.
SECTION 10.14. European Monetary Union.
(a) Definitions. In this Section 10.14 and in each other
provision of this Agreement to which reference is made in this Section 10.14
(whether expressly or impliedly), the following terms have the meanings given to
them in this Section 10.14:
"Commencement of the Third Stage of EMU" means January 1,
1999.
"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.
"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.
<PAGE>
-120-
(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 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
<PAGE>
-121-
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 10.15. 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 (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
<PAGE>
-122-
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.
<PAGE>
-123-
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
Name: Thomas S. Summer
Title: Senior Vice President and
Chief Financial Officer
<PAGE>
-124-
SUBSIDIARY GUARANTORS
ALLBERRY, INC.
BATAVIA WINE CELLARS, INC.
CANANDAIGUA EUROPE LIMITED
CANANDAIGUA WINE COMPANY, INC
CLOUD PEAK CORPORATION
FRANCISCAN VINEYARDS, INC.
MT. VEEDER CORPORATION
POLYPHENOLICS, INC.
ROBERTS TRADING CORP.
SCV-EPI VINEYARDS, INC.
SIMI WINERY, INC.
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 CANADA, LTD.
BARTON DISTILLERS IMPORT CORP.
BARTON FINANCIAL CORPORATION
MONARCH IMPORT COMPANY
STEVENS POINT BEVERAGE CO.
THE VIKING DISTILLERY, INC.
BARTON CANADA, LTD.
By /s/ Thomas S. Summer
Title: Vice President
CANANDAIGUA LIMITED
By /s/ Thomas S. Summer
Title: Director
<PAGE>
-125-
LENDERS
THE CHASE MANHATTAN BANK,
individually, as Swingline Lender
and as Administrative Agent
By /s/ Bruce 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/ Bill O'Daly
Title: Vice President
CITICORP USA, INC.
By /s/ Robert Chen
Title: Attorney-in-Fact
COBANK, ACB
By /s/ Brian J. Klatt
Title: Vice President
<PAGE>
-126-
BANK ONE, NA (MAIN OFFICE CHICAGO)
By /s/ Jeff Lubatkin
Title: Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY
By /s/ Philip M. Smith
Title: Regional Senior Vice President
SUNTRUST BANK, ATLANTA
By /s/ Kim S. Martin
Title: Vice President
By /s/ Hugh E. Brown
Title: Associate
WELLS FARGO BANK, NATIONAL ASSOCIATION
By /s/ Tracey Hanson
Title: Vice President
FLEET NATIONAL BANK
By /s/ Marty K. Birmingham
Title: Vice President
<PAGE>
-127-
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
By /s/ Adriaan Weststrate
Title: SVP/Manager
By /s/ J. W. den Baas
Title: Managing Director
BANK OF AMERICA, N.A.
By: /s/ Kathryn W. Robinson
Title: Managing Director
BARCLAYS BANK PLC
By: /s/ Terrance Bullock
Title: Vice President
CIBC INC
By: /s/ Gerald Girardi
Title: Executive Director
CIBC World Markets Corp.,
as Agent
CREDIT AGRICOLE INDOSUEZ
By /s/ Katherine L. Abbott
Title: First Vice President
Managing Director
By /s/ Alan I. Schmelzer
Title: Vice President
Senior Relationship Manager
<PAGE>
-128-
DEUTSCHE BANK, NEW YORK and/or
CAYMAN ISLANDS BRANCH
By: /s/ Alexander Karow
Title: Assistant Vice President
By: /s/ William W. McGinty
Title: Director
HARRIS TRUST AND SAVINGS BANK
By: /s/ Edwin A Adams Jr.
Title: Vice President
HSBC BANK USA
By /s/ Stephen V. Prostor
Title: Authorized Signatory
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ Patrick Rounds
Title: Vice President
By: /s/ Jack Bertges
Title: Senior Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Richard Pace
Title: Vice President
Corporate Banking Division
<PAGE>
-129-
By: /s/ Thomas George
Title: Vice President
Corporate Banking Division
DAI-ICHI KANGYO BANK LTD.
By /s/ Paresh Shah
Title: Assistant Vice President
FIRST UNION NATIONAL BANK
By /s/ Anthony D. Braxton
Title: Vice President
KEY BANK NATIONAL ASSOCIATION
By /s/ Francis Lutz
Title: Portfolio Officer and Manager
THE BANK OF NEW YORK
By /s/ Thomas McCrohan
Title: Vice President
COMPAGNIE FINANCIERE DE
CIC ET DE L'UNION EUROPEENE
By /s/ Anthony Rock
Title: Vice President
By /s/ Sean Mounier
Title: First Vice President
CITIZENS BANK OF MASSACHUSETTS
<PAGE>
-130-
By /s/ Chris Del Signore
Title: Vice President
USTRUST
By /s/ P. Jeffrey Huth
Title: 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 - LITIGATION AND ENVIRONMENTAL MATTERS
SCHEDULE IV - SUBSIDIARIES AND INVESTMENTS
SCHEDULE V - STOCK-BASED PLANS AND STOCK OPTIONS
SCHEDULE VI - CALCULATION OF THE MANDATORY COST RATE
SCHEDULE VII - CERTAIN ADJUSTMENT AMOUNTS
SCHEDULE VIII - FOREIGN SUBSIDIARIES
EXHIBIT A - FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT B-1 - FORM OF U.S. EQUITY PLEDGE AGREEMENT
EXHIBIT B-2 - FORM OF U.K. EQUITY PLEDGE AGREEMENT
EXHIBIT C - FORM OF GUARANTEE ASSUMPTION AGREEMENT
EXHIBIT D-1 - FORM OF OPINION OF U.S. COUNSEL TO THE OBLIGORS
EXHIBIT D-2 - FORM OF OPINION OF U.K. COUNSEL TO THE OBLIGORS
EXHIBIT E - FORM OF OPINION OF SPECIAL NEW YORK COUNSEL TO CHASE
EXHIBIT 11
----------
CANANDAIGUA BRANDS, INC. AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
(in thousands, except per share data)
For the Nine Months Ended November 30,
---------------------------------------
1999 1998
----------------- -----------------
Basic Diluted Basic Diluted
------- ------- ------- -------
Income applicable to common shares $61,847 $61,847 $49,991 $49,991
Adjustments - - - -
------- ------- ------- -------
Income applicable to common shares $61,847 $61,847 $49,991 $49,991
------- ------- ------- -------
Shares:
Weighted average common shares
outstanding 18,023 18,023 18,412 18,412
Adjustments:
Stock options - 479 - 469
------- ------- ------- -------
Adjusted weighted average common
shares outstanding 18,023 18,502 18,412 18,881
------- ------- ------- -------
Earnings per common share $ 3.43 $ 3.34 $ 2.72 $ 2.65
======= ======= ======= =======
For the Three Months Ended November 30,
---------------------------------------
1999 1998
----------------- -----------------
Basic Diluted Basic Diluted
------- ------- ------- -------
Income applicable to common shares $29,900 $29,900 $20,161 $20,161
Adjustments - - - -
------- ------- ------- -------
Income applicable to common shares $29,900 $29,900 $20,161 $20,161
------- ------- ------- -------
Shares:
Weighted average common shares
outstanding 18,083 18,083 17,892 17,892
Adjustments:
Stock options - 568 - 433
------- ------- ------- -------
Adjusted weighted average common
shares outstanding 18,083 18,651 17,892 18,325
------- ------- ------- -------
Earnings per common share $ 1.65 $ 1.60 $ 1.13 $ 1.10
======= ======= ======= =======
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Company's November 30, 1999 Form 10-Q and is qualified in its entirety by
reference to such financial statements.
</LEGEND>
<CIK> 0000016918
<NAME> CANANDAIGUA BRANDS, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> FEB-29-2000
<PERIOD-END> NOV-30-1999
<CASH> 24,667
<SECURITIES> 0
<RECEIVABLES> 402,128
<ALLOWANCES> 0
<INVENTORY> 677,363
<CURRENT-ASSETS> 1,171,242
<PP&E> 719,800
<DEPRECIATION> 158,403
<TOTAL-ASSETS> 2,532,995
<CURRENT-LIABILITIES> 640,368
<BONDS> 1,253,863
0
0
<COMMON> 219
<OTHER-SE> 497,076
<TOTAL-LIABILITY-AND-EQUITY> 2,532,995
<SALES> 2,383,909
<TOTAL-REVENUES> 2,383,909
<CGS> 1,258,332
<TOTAL-COSTS> 1,258,332
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 78,219
<INCOME-PRETAX> 103,078
<INCOME-TAX> 41,231
<INCOME-CONTINUING> 61,847
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 61,847
<EPS-BASIC> 3.43
<EPS-DILUTED> 3.34
</TABLE>
