<PAGE> 1
EXHIBIT 99.1
[EXECUTION COPY]
$1,000,000,000
CREDIT AGREEMENT,
dated as of October 10, 2000,
among
UST INC.,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO,
as the Lenders,
THE BANK OF NOVA SCOTIA,
as the Administrative Agent for the Lenders
and
GOLDMAN SACHS CREDIT PARTNERS L.P.
as the Syndication Agent for the Lenders
and
CREDIT LYONNAIS, NEW YORK BRANCH,
and
THE FUJI BANK, LIMITED
as Co-Documentation Agents for the Lenders
and
THE BANK OF NOVA SCOTIA and
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Co-Lead Arrangers and Joint Book Runners.
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TABLE OF CONTENTS
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Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms...............................................................................3
1.2. Use of Defined Terms.......................................................................35
1.3. Cross-References...........................................................................35
1.4. Accounting and Financial Determinations....................................................35
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES AND LETTER OF CREDIT
2.1. Commitments................................................................................35
2.1.1. 364 Day Revolving Loan Commitment and Extension Term Loans ................................35
2.1.2. Extension of 364 Day Revolving Loan Commitment.............................................36
2.1.3. Letter of Credit Commitment................................................................38
2.1.4. Term A Loan Commitment.....................................................................38
2.1.5. Term B Loan Commitment.....................................................................38
2.2. Reduction of the Commitment Amounts........................................................39
2.2.1. Optional...................................................................................39
2.2.2. Mandatory..................................................................................39
2.3. Borrowing Procedures.......................................................................40
2.4. Continuation and Conversion Elections......................................................40
2.5. Funding....................................................................................40
2.6. Letter of Credit Issuance Procedures.......................................................41
2.6.1. Other Lenders' Participation...............................................................41
2.6.2. Letter of Credit Disbursements.............................................................41
2.6.3. Letter of Credit Reimbursement.............................................................41
2.6.4. Deemed Disbursements.......................................................................42
2.6.5. Nature of Reimbursement Obligations........................................................42
2.7. Notes......................................................................................43
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ARTICLE III
REPAYMENTS, PREPAYMENTS, DEPOSITS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application....................................................44
3.1.1. Repayments and Prepayments and Deposits into the
Qualified Settlement Fund and the Collateral Account.......................................44
3.1.2. Application................................................................................47
3.2. Interest Provisions........................................................................49
3.2.1. Rates......................................................................................49
3.2.2. Post-Maturity Rates........................................................................49
3.2.3. Payment Dates..............................................................................49
3.3. Fees.......................................................................................50
3.3.1. Commitment Fee.............................................................................50
3.3.2. Fees.......................................................................................50
3.3.3. Letter of Credit Fee.......................................................................50
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful.................................................................51
4.2. Deposits Unavailable.......................................................................51
4.3. Increased LIBO Rate Loan Costs, etc........................................................51
4.4. Funding Losses.............................................................................52
4.5. Increased Capital Costs....................................................................52
4.6. Taxes......................................................................................53
4.7. Payments, Computations, etc................................................................55
4.8. Sharing of Payments........................................................................55
4.9. Setoff.....................................................................................56
4.10. Obligation to Mitigate.....................................................................56
4.11. Removal or Substitution of a Lender........................................................57
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extension...................................................................57
5.1.1. Resolutions, etc...........................................................................57
5.1.2. Closing Date Certificate...................................................................58
5.1.3. Consummation of Transaction, etc...........................................................58
5.1.4. Payment of Outstanding Indebtedness, etc...................................................58
5.1.5. Closing Fees, Expenses, etc................................................................58
5.1.6. Financial Information, etc.................................................................59
5.1.7. Compliance Certificate.....................................................................59
5.1.8. Opinions of Counsel........................................................................59
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5.1.9. Filing Agent, etc..........................................................................59
5.1.10. Subsidiary Guaranty........................................................................60
5.1.11. Solvency, etc..............................................................................60
5.1.12. Delivery of Notes..........................................................................60
5.1.13. Security Agreements........................................................................60
5.1.14. Collateral Account Agreement and Account Control Agreement.................................61
5.1.15. Perfection Certificate.....................................................................61
5.1.16. Required Consents and Approvals............................................................61
5.1.17. No Material Adverse Effect.................................................................61
5.1.18. Assets Owned by Significant Subsidiaries...................................................61
5.2. All Credit Extensions......................................................................61
5.2.1. Compliance with Warranties, No Default, etc................................................61
5.2.2. Credit Extension Request, etc..............................................................62
5.2.3. Satisfactory Legal Form....................................................................62
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc..........................................................................62
6.2. Due Authorization, Non-Contravention, etc..................................................63
6.3. Government Approval, Regulation, etc.......................................................63
6.4. Validity, etc..............................................................................63
6.5. Financial Information......................................................................63
6.6. No Material Adverse Effect.................................................................64
6.7. Litigation, Labor Controversies, etc.......................................................64
6.8. Subsidiaries...............................................................................64
6.9. Ownership of Properties....................................................................64
6.10. Taxes......................................................................................64
6.11. Pension and Welfare Plans..................................................................64
6.12. Environmental Warranties...................................................................65
6.13. Accuracy of Information....................................................................66
6.14. Compliance with Laws; Authorizations.......................................................66
6.15. Regulations U and X........................................................................66
6.16. No Contractual or Other Restrictions.......................................................67
6.17. Capitalization.............................................................................67
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants......................................................................67
7.1.1. Financial Information, Reports, Notices, etc...............................................67
7.1.2. Maintenance of Existence; Compliance with Laws, etc........................................69
7.1.3. Maintenance of Properties..................................................................69
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7.1.4. Insurance..................................................................................69
7.1.5. Books and Records..........................................................................70
7.1.6. Environmental Law Covenant.................................................................70
7.1.7. Use of Proceeds............................................................................70
7.1.8. Future Guarantors, Security, etc...........................................................71
7.1.9. Tax Benefit................................................................................71
7.1.10. Senior Unsecured Debt Rating...............................................................71
7.1.11. Assets Owned by Significant Subsidiaries...................................................72
7.2. Negative Covenants.........................................................................72
7.2.1. Business Activities........................................................................72
7.2.2. Indebtedness...............................................................................72
7.2.3. Liens......................................................................................73
7.2.4. Financial Condition and Operations.........................................................75
7.2.5. Investments................................................................................75
7.2.6. Restricted Payments, etc...................................................................77
7.2.7. Capital Expenditures, etc..................................................................77
7.2.8. No Prepayment of Certain Indebtedness......................................................77
7.2.10. Consolidation, Merger, etc.................................................................78
7.2.11. Permitted Dispositions.....................................................................78
7.2.12. Modification of Certain Agreements.........................................................79
7.2.13. Transactions with Affiliates...............................................................79
7.2.14. Restrictive Agreements, etc................................................................79
7.2.15. Preferred Stock............................................................................80
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default...............................................................80
8.1.1. Non-Payment of Obligations.................................................................80
8.1.2. Breach of Warranty.........................................................................80
8.1.3. Non-Performance of Certain Covenants and Obligations.......................................80
8.1.4. Non-Performance of Other Covenants and Obligations.........................................80
8.1.5. Default on Other Indebtedness..............................................................81
8.1.6. Judgments..................................................................................81
8.1.7. Pension Plans..............................................................................81
8.1.8. Change in Control..........................................................................81
8.1.9. Bankruptcy, Insolvency, etc................................................................81
8.1.10. Impairment of Security, etc................................................................82
8.1.11. Adverse Tax Determination..................................................................82
8.2. Action if Bankruptcy.......................................................................82
8.3. Action if Other Event of Default...........................................................83
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ARTICLE IX
THE AGENTS
9.1. Actions....................................................................................83
9.2. Funding Reliance, etc......................................................................84
9.3. Exculpation................................................................................84
9.4. Successor..................................................................................84
9.5. Loans by Scotiabank and GS.................................................................85
9.6. Credit Decisions...........................................................................85
9.7. Copies, etc................................................................................85
9.8. Reliance by Administrative Agent...........................................................85
9.9. Defaults...................................................................................86
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc...................................................................86
10.2. Notices; Time..............................................................................87
10.3. Payment of Costs and Expenses..............................................................88
10.4. Indemnification............................................................................88
10.5. Survival...................................................................................90
10.6. Severability...............................................................................90
10.7. Headings...................................................................................90
10.8. Execution in Counterparts, Effectiveness, etc..............................................90
10.9. Governing Law; Entire Agreement............................................................90
10.10. Successors and Assigns.....................................................................90
10.11. Sale and Transfer of Credit Extensions; Participations in Credit Extensions Notes..........91
10.11.1. Assignments................................................................................91
10.11.2. Participations.............................................................................93
10.12. Other Transactions.........................................................................94
10.13. Confidentiality............................................................................95
10.14. Forum Selection and Consent to Jurisdiction................................................95
10.15. Waiver of Jury Trial.......................................................................96
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SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages; LIBOR Office; Domestic Office
SCHEDULE III - Capitalization
EXHIBIT A-1 - Form of 364 Day Revolving Note
EXHIBIT A-2 - Form of Term A Note
EXHIBIT A-3 - Form of Term B Note
EXHIBIT A-4 - Form of Extension Term Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Letter of Credit Issuance Request
EXHIBIT B-3 - Form of Extension Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Borrower Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Subsidiary Guaranty
EXHIBIT G - Form of Letter of Credit
EXHIBIT H-1 - Form of Borrower Security Agreement
EXHIBIT H-2 - Form of Subsidiary Security Agreement
EXHIBIT I - Form of Interco Subordination Agreement
EXHIBIT J - Form of Lender Assignment Agreement
EXHIBIT K - Form of Collateral Account Agreement
EXHIBIT L - Form of Perfection Certificate
EXHIBIT M - Form of 364 Day Revolving Loan Commitment Acceptance
EXHIBIT N - Form of Account Control Agreement
EXHIBIT O - Form of Rating Notice
EXHIBIT P - Form of Officer's Solvency Certificate
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of October 10, 2000, is among UST
INC., a Delaware corporation (the "Borrower"), the various financial
institutions and other Persons from time to time parties hereto (the
"Lenders"), THE BANK OF NOVA SCOTIA ("Scotiabank"), as administrative agent for
the Lenders (in such capacity, the "Administrative Agent") and as a co-lead
arranger and joint book runner (in such capacity, a "Co-Lead Arranger"), and
GOLDMAN SACHS CREDIT PARTNERS L.P. ("GS"), as syndication agent for the Lenders
(in such capacity, the "Syndication Agent", and together with the
Administrative Agent, collectively referred to as the "Agents") and as a
co-lead arranger and joint book runner (in such capacity, a "Co-Lead Arranger",
and together with Scotiabank, collectively referred to as the "Arrangers") and
CREDIT LYONNAIS, NEW YORK BRANCH and THE FUJI BANK, LIMITED, as
Co-Documentation Agents for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower and its Subsidiaries are, in each case as
applicable (i) manufacturers and distributors of, among other things, smokeless
tobacco, and producers of premium wines and (ii) engaged in the business of
agricultural biotechnology (collectively, the "Permitted Business Activities");
WHEREAS, on April 22, 1998, Conwood, L.P. and Conwood Sales Company,
L.P. (collectively, "Conwood") commenced an action in the U.S. District Court
for the Western District of Kentucky at Paducah (the "District Court")
captioned Conwood L.P. et al. v. United States Tobacco Company, et al., No.
5:98 CV-108-R (the "Conwood Proceeding"), against United States Tobacco
Company, United States Tobacco Sales and Marketing Company Inc., United States
Tobacco Manufacturing Company Inc. and the Borrower (collectively, the "Conwood
Defendants");
WHEREAS, in connection with the Conwood Proceeding, Conwood has
asserted, among other things, claims for "antitrust monopolization" and
"attempted monopolization" under applicable sections of 15 U.S.C. Section 1 et.
seq.;
WHEREAS, on March 29, 2000, the District Court entered a judgment in
favor of Conwood in the amount of $1,050,000,000 after trebling of the original
damage award in the amount of $350,000,000 (as such judgment is in effect as of
the Closing Date and as the same may be reduced as a result of the Conwood
Appeal (as defined below), being the "Conwood Judgment");
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WHEREAS, on August 10, 2000, the District Court ordered the Conwood
Defendants (including the Borrower) to post a supersedeas bond with the
District Court in the amount of $500,000,000 by no later than October 11, 2000
and to remain posted for the duration of the appeal of the Conwood Judgment by
the Conwood Defendants (the "Conwood Appeal") except to the extent reduced by
the deposit of cash in the Qualified Settlement Fund (such capitalized term,
and other capitalized terms used in these recitals, to have the definitions set
forth in Section 1.1 below);
WHEREAS, the Letter of Credit Issuer will issue the Letter of Credit
in favor of the District Court and the Borrower will deposit cash (including
the proceeds of the Term B Loans) into the Qualified Settlement Fund to satisfy
such bonding requirement;
WHEREAS, in order to issue the Letter of Credit and to provide
financing for the other purposes set forth in Section 7.1.7, the Borrower has
requested that the Lenders and the Letter of Credit Issuer provide the
following Commitments:
(a) a 364 Day Revolving Loan Commitment pursuant to which
Borrowings of 364 Day Revolving Loans may be made in an aggregate
outstanding principal amount not to exceed $300,000,000, to the
Borrower in Borrowings from time to time occurring from and after the
Closing Date but prior to the applicable 364 Day Revolving Loan
Commitment Termination Date (as such 364 Day Revolving Loan Commitment
may be extended pursuant to Section 2.1.2 or any outstanding 364 Day
Revolving Loans may be converted into the Extension Term Loans);
(b) a Three Year Loan Commitment pursuant to which Credit
Extensions may be made in an aggregate principal amount not to exceed
$370,000,000 consisting of the following:
(i) a Letter of Credit Commitment, pursuant to which
the Letter of Credit Issuer may issue the Letter of Credit in
a maximum stated amount not to exceed $170,000,000 for the
account of the Borrower on the Closing Date; and
(ii) a Term A Loan Commitment pursuant to which
Borrowings of Term A Loans may be made, in an aggregate
amount not to exceed $370,000,000, to the Borrower in a
single Borrowing only on the Letter of Credit Draw Date;
(c) a Term B Loan Commitment pursuant to which Borrowings of
Term B Loan may be made, in a maximum aggregate amount not to exceed
$330,000,000, to the Borrower in a single Borrowing only on the
Closing Date;
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WHEREAS, the Lenders and the Letter of Credit Issuer are willing, on
the terms and subject to the conditions hereinafter set forth, to extend the
Commitments and make Loans to the Borrower and issue (or participate in) the
Letter of Credit;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"364 Day Revolving Loan Commitment" means, relative to any 364 Day
Revolving Loan Lender, such 364 Day Revolving Loan Lender's obligation (if any)
to make 364 Day Revolving Loans pursuant to Section 2.1.1, as such obligation
(if any) to make 364 Day Revolving Loans may be extended pursuant to Section
2.1.2.
"364 Day Revolving Loan Commitment Amount" means, on any date,
$300,000,000, as such amount may be reduced from time to time pursuant to
Section 2.2.
"364 Day Revolving Loan Commitment Termination Date" means the
earliest of
(a) October 10, 2000 (if the initial Credit Extension has not
occurred on or prior to such date);
(b) the First Extension Date (or, (i) in the event the 364
Day Revolving Loan Commitment is extended for the Extension Period on
the First Extension Date pursuant to the terms of Section 2.1, the
Second Extension Date, or (ii) in the event the 364 Day Revolving Loan
Commitment is extended for the Extension Period commencing on the
Second Extension Date pursuant to the terms of Section 2.1, October 7,
2003);
(c) the date on which the 364 Day Revolving Loan Commitment
Amount is terminated in full or reduced to zero pursuant to the terms
of this Agreement; and
(d) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in the preceding clauses (c) or (d),
the 364 Day Revolving Loan Commitment Amount shall terminate automatically and
without any further action.
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"364 Day Revolving Loan Lender" is defined in Section 2.1.1.
"364 Day Revolving Loans" is defined in Section 2.1.1.
"364 Day Revolving Note" means a (i) promissory note of the Borrower
payable to any 364 Day Revolving Loan Lender, in the form of Exhibit A-1 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrower to such
364 Day Revolving Loan Lender resulting from outstanding 364 Day Revolving
Loans, and (ii) all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"364 Day RL Percentage" means, relative to any Lender, the applicable
percentage relating to 364 Day Revolving Loans set forth opposite its name on
Schedule II hereto under the 364 Day Revolving Loan Commitment column or set
forth in a Lender Assignment Agreement under the 364 Day Revolving Loan
Commitment column, as such percentage may be adjusted from time to time
pursuant to Lender Assignment Agreements executed by such Lender and its
Assignee Lender and delivered pursuant to Section 10.11.1. A Lender shall not
have any 364 Day Revolving Loan Commitment if its percentage under the 364 Day
Revolving Loan Commitment column is zero.
"Account Control Agreement" means an Account Control Agreement,
executed and delivered duly executed and delivered by the Borrower and the
financial institution party thereto pursuant to the terms of this Agreement,
substantially in the form of Exhibit N hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Administrative Agent" is defined in the preamble and includes each
other Person appointed as the successor Administrative Agent pursuant to
Section 9.4.
"Administrative Agent's Fee Letter" means the confidential fee letter,
dated June 19, 2000, by and between Scotiabank and the Borrower.
"Affected Lender" is defined in Section 4.10.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person. "Control" of a Person means the power, directly or indirectly,
(a) to vote 10% or more of the Capital Securities (on a fully
diluted basis) of such Person having ordinary voting power for the
election of directors, managing members or general partners (as
applicable); or
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(b) to direct or cause the direction of the management and
policies of such Person (whether by contract or otherwise).
"Agents" is defined in the preamble.
"Agents' Fee Letter" means the confidential letter, dated June 19,
2000, by and among Scotiabank, GS and the Borrower (as amended and restated by
the confidential letter, dated October 10, 2000).
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified from time to time and
in effect on such date.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum (rounded upward, if
necessary, to the next highest 1/16 of 1%) equal to the higher of
(a) the Base Rate in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus 1/2 of
1%.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Borrower
and the Lenders of changes in the Alternate Base Rate; provided, that the
failure to give such notice shall not affect the Alternate Base Rate in effect
after such change.
"Applicable Commitment Fee Margin" means (i) in the case of the 364
Day Revolving Loan Commitment .5% and (ii) with respect to the Three Year Loan
Commitment, the applicable percentage set forth below corresponding to the
relevant required debt rating:
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Applicable Commitment
Required Debt Rating Fee Margin
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Tier I 0.8750%
Tier II 0.9375%
Tier III 1.1250%
Tier IV 1.2500%
Tier V 1.3750%
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The required debt rating used to compute the Applicable Commitment Fee Margin
shall be that set forth in the Rating Notice most recently delivered by the
Borrower to the Administrative Agent. Changes in the Applicable Commitment Fee
Margin resulting from a change in the required debt rating shall become
effective upon delivery by the Borrower to the Administrative Agent of a new
Rating Notice pursuant to clause (i) of Section 7.1.1. If the Borrower shall
fail to deliver (i) a Rating Notice within the required time period pursuant to
clause (i) of Section 7.1.7, or (ii) a Compliance Certificate within 45 days
after the end of any Fiscal Quarter (or within 90 days, in the case of the last
Fiscal Quarter of the Fiscal Year), the Applicable Commitment Fee Margin from
and including (i) in the case of a Rating Notice, the date after such Rating
Notice was required to have been delivered hereunder, or (ii) in the case of a
Compliance Certificate, the 46th (or 91st, as the case may be) day after the
end of such Fiscal Quarter to, but not including, the date the Borrower
delivers to the Administrative Agent a Compliance Certificate, shall in each
case conclusively equal the highest Applicable Commitment Fee Margin set forth
above.
"Applicable Margin" means with respect to any Loan, the applicable
percentage set forth below corresponding to the relevant required debt rating:
(a) 364 Day Revolving Loans and Extension Term Loans:
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Applicable Margin For Base Applicable Margin For
Required Debt Rating Rate Loans LIBO Rate Loans
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Tier I 0.750% 1.750%
Tier II 0.875% 1.875%
Tier III 1.250% 2.250%
Tier IV 1.500% 2.500%
Tier V 1.750% 2.750%
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(b) Term A Loans:
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Applicable Margin For Base Applicable Margin For
Required Debt Rating Rate Loans LIBO Rate Loans
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Tier I 1.00% 2.00%
Tier II 1.125% 2.125%
Tier III 1.50% 2.50%
Tier IV 1.75% 2.75%
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Tier V 2.00% 3.00%
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(c) Term B Loans:
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Required Debt Applicable Margin For Base Applicable Margin
Rating Rate Loans For LIBO Rate Loans
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Tier I 1.500% 2.500%
Tier II 1.625% 2.625%
Tier III 2.000% 3.000%
Tier IV 2.250% 3.250%
Tier V 2.500% 3.500%
</TABLE>
Notwithstanding anything to the contrary set forth in this Agreement, the
Applicable Margin for (i) Term B Loans, 364 Day Revolving Loans and Extension
Term Loans shall increase by 0.25% on the Credit Date and (ii) all 364 Day
Revolving Loans, Term A Loans and Term B Loans shall (A) on or after the 91st
day following the Credit Date, increase by 0.25%, and (B) on the last day of
each full Fiscal Quarter ending thereafter, increase by an additional 0.50% for
each such Fiscal Quarter. The required debt rating used to compute the
Applicable Margin shall be the required debt rating set forth in the Rating
Notice most recently delivered by the Borrower to the Administrative Agent.
Changes in the Applicable Margin resulting from a change in the required debt
rating shall become effective upon delivery by the Borrower to the
Administrative Agent of a new Rating Notice pursuant to clause (i) of Section
7.1.1. If the Borrower shall fail to deliver (i) a Rating Notice within the
required time period pursuant to clause (i) of Section 7.1.1, or (ii) a
Compliance Certificate within 45 days after the end of any Fiscal Quarter (or
within 90 days, in the case of the last Fiscal Quarter of the Fiscal Year), the
Applicable Margin from and including (i) in the case of a Rating Notice, the
date such Rating Notice was required to have been delivered or (ii) in the case
of a Compliance Certificate, the 46th (or 91st, as the case may be) day after
the end of such Fiscal Quarter to but not including the date the Borrower
delivers to the Administrative Agent a Compliance Certificate, shall in each
case conclusively equal the highest Applicable Margin set forth above.
"Arranger" is defined in the preamble.
"Arrangers" is defined in the preamble.
"Assignee Lender" is defined in Section 10.11.1.
"Assignor Lender" is defined in Section 10.11.1.
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"Authorized Officer" means, relative to any Obligor, those of its
officers, general partners or managing members (as applicable) whose signatures
and incumbency shall have been certified to the Administrative Agent, the
Lenders and the Letter of Credit Issuer pursuant to Section 5.1.1.
"Base Rate" means, at any time, the rate of interest then most
recently established by the Administrative Agent in New York as its base rate
for U.S. dollars loaned in the United States. The Base Rate is not necessarily
intended to be the lowest rate of interest determined by the Administrative
Agent in connection with extensions of credit.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Borrower" is defined in the preamble.
"Borrower Closing Date Certificate" means the closing date certificate
executed and delivered by an Authorized Officer of the Borrower substantially
in the form of Exhibit D hereto.
"Borrower Security Agreement" means the Security Agreement executed
and delivered by an Authorized Officer of the Borrower substantially in the
form of Exhibit H-1 hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Borrowing" means the Loans of the same type and, in the case of LIBO
Rate Loans, having the same Interest Period made by all Lenders required to
make such Loans on the same Business Day and pursuant to the same Borrowing
Request in accordance with Section 2.1.
"Borrowing Request" means a Loan request and certificate duly executed
by an Authorized Officer of the Borrower substantially in the form of Exhibit
B-1 hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York, New York; and
(b) relative to the making, continuing, prepaying or repaying
of any LIBO Rate Loans, any day which is a Business Day described in
clause (a) above and which is also a day on which dealings in Dollars
are carried on in the London interbank eurodollar market.
"Capital Expenditures" means, for any period, the aggregate amount of
(a) all expenditures of the Borrower and its Subsidiaries for fixed or capital
assets made during such period which, in accordance with GAAP, would be
classified as capital expenditures and (b) Capitalized Lease Liabilities
incurred by the Borrower and its Subsidiaries during such
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<PAGE> 16
period. Capital Expenditures shall not include (a) any such expenditures funded
from the proceeds of casualty insurance received in respect of a capital asset
of the Borrower or any Subsidiary or (b) any expenditures made to acquire any
asset (including Capital Securities) in connection with a Permitted
Acquisition.
"Capital Securities" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital, whether now outstanding
or issued after the Effective Date or any right to acquire the same.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Subsidiaries under any leasing or similar arrangement
which have been (or, in accordance with GAAP, should be) classified as
capitalized leases, and for purposes of each Loan Document the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP, and the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
premium or a penalty.
"Cash Collateralize" means, with respect to the Letter of Credit, the
deposit of immediately available funds into a cash collateral account
maintained with (or on behalf of) the Administrative Agent on terms
satisfactory to the Administrative Agent in an amount equal to the Letter of
Credit Stated Amount.
"Cash Equivalent Investment" means, at any time:
(a) any direct obligation of (or unconditionally guaranteed
by) the United States or a State thereof (or any agency or political
subdivision thereof, to the extent such obligations are supported by
the full faith and credit of the United States or a State thereof)
maturing not more than one year after such time;
(b) commercial paper maturing not more than 270 days from the
date of issue, which is issued by
(i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any State of the United
States or of the District of Columbia and rated A-1 or higher
by S&P or P-1 or higher by Moody's, or
(ii) any Lender or any of its Affiliates (or its
holding company);
(c) commercial paper maturing not more than 30 days from the
date of issue which is issued by
(i) a corporation (other than an Affiliate of any
Obligor) organized under
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<PAGE> 17
the laws of any State of the United States or of the District
of Columbia and rated A-2 or higher by S&P or P-2 by Moody's,
or
(ii) any Lender or any of its Affiliates (or its
holding company);
(d) any certificate of deposit, time deposit or bankers
acceptance, maturing not more than one year after its date of
issuance, which is issued by either
(i) any bank organized under the laws of the United
States (or any State thereof) and which has (x) a credit
rating of A2 or higher from Moody's or A or higher from S&P
and (y) a combined capital and surplus greater than
$500,000,000, or
(ii) any Lender; or
(e) any repurchase agreement having a term of 30 days or less
entered into with any Lender or any commercial banking institution
satisfying the criteria set forth in clause (c)(i) which
(i) is secured by a fully perfected security
interest in any obligation of the type described in clause
(a), and
(ii) has a market value at the time such repurchase
agreement is entered into of not less than 100% of the
repurchase obligation of such commercial banking institution
thereunder.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) any "person" or "group" (as such terms are used in Rule
13d-5 of the Exchange Act, and Sections 13(d) and 14(d) of the
Exchange Act) of persons becomes, directly or indirectly, in a single
transaction or in a related series of transactions by way of merger,
consolidation, or other business combination or otherwise, the
"beneficial owner" (as such term is used in Rule 13d-3 of the Exchange
Act) of more than 25% of the total voting power in the aggregate of
all classes of Capital Securities of the Borrower then outstanding
entitled to vote generally in elections of directors of the Borrower;
or
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(b) during any period of 24 consecutive months, individuals
who at the beginning of such period constituted the Board of Directors
of the Borrower (together with any new directors whose election to
such Board or whose nomination for election by the stockholders of the
Borrower was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board
of Directors of the Borrower then in office.
"Closing Date" means the date of the initial Credit Extensions
hereunder, but in no event shall such date be later than October 10, 2000.
"Code" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time
to time.
"Co-Lead Arranger" is defined in the preamble.
"Collateral Account" means an account established pursuant to and
governed by the Collateral Account Agreement and maintained with the
Administrative Agent pursuant to the terms of the Collateral Account Agreement.
"Collateral Account Agreement" means the Collateral Account Agreement,
executed and delivered by the Borrower pursuant to the terms of this Agreement,
substantially in the form of Exhibit K hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Collateral Account Amount" means any amounts deposited in the
Collateral Account, including, (i) any amounts deposited into the Collateral
Account pursuant to clauses (b) of Section 2.2.1 and clauses (a), (c), (e),
(f), (g) and (h) of Section 3.1.1, (ii) any accrued interest on such amounts
(less any Taxes payable thereon), and (iii) any other amount set aside,
accreted in interest or deposited in the Collateral Account.
"Commitment" means, as the context may require, the 364 Day Revolving
Loan Commitment, the Three Year Loan Commitment, the Term A Loan Commitment,
the Term B Loan Commitment or the Letter of Credit Commitment.
"Commitment Amount" means, as the context may require, the 364 Day
Revolving Loan Commitment Amount, the Three Year Loan Commitment Amount, the
Term A Loan Commitment Amount, the Term B Loan Commitment Amount or the Letter
of Credit Commitment Amount.
"Commitment Termination Date" means, as the context may require, the
364 Day Revolving Loan Commitment Termination Date, the Three Year Loan
Commitment Termination
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Date, the Term A Loan Commitment Termination Date, the Term B Loan Commitment
Termination Date or the Letter of Credit Commitment Termination Date.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default with respect to
the Borrower described in clauses (a) through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of all or any portion of the
Loans to be due and payable pursuant to Section 8.3, or
(ii) the giving of notice by the Administrative
Agent, acting at the direction of the Required Lenders, to
the Borrower that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit E hereto, together with such changes thereto as the Administrative
Agent may from time to time request for the purpose of monitoring the
Borrower's compliance with the financial covenants contained herein.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the
Indebtedness of any other Person (other than by endorsements of instruments in
the course of collection), or guarantees the payment of dividends or other
distributions upon the Capital Securities of any other Person. The amount of
any Person's obligation under any Contingent Liability shall (subject to any
limitation set forth therein) be deemed to be the outstanding principal amount
of the debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of
the Code or Section 4001 of ERISA.
"Conwood" is defined in the second recital.
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"Conwood Appeal" is defined in the fifth recital.
"Conwood Defendants" is defined in the second recital.
"Conwood Judgment" is defined in the fourth recital.
"Conwood Judgment Amount" means, unless the Conwood Judgment has been
paid and/or discharged in full, at any time of determination thereof, the
excess of (a) the greater of (i) $1,300,000,000 (as such amount may be reduced
by order of the District Court), or (ii) the actual amount of the Conwood
Judgment together with accrued and unpaid interest, penalties, fees and
attorney's fees thereon over (b) the aggregate amount of cash on deposit in the
Qualified Settlement Fund and the Collateral Account.
"Conwood Judgment Order Date" means the date of entry of a final
non-appealable order in the Conwood Proceeding requiring payment of the Conwood
Judgment.
"Conwood Proceeding" is defined in the second recital.
"Conwood Related Proceeding" means any litigation or proceeding
relating to or arising out of the same cause of action as the Conwood
Proceeding (or any cause of action substantially similar to the Conwood
Proceeding or arising out of conduct substantially similar to that alleged in
the Conwood Proceeding), including any class action or shareholder lawsuits.
"Credit Date" means the earlier to occur of (i) the Letter of Credit
Draw Date and (ii) the date of the funding of the Term A Loans.
"Credit Extension" means as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of the Letter of Credit by the Letter of
Credit Issuer.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event
of Default.
"Defaulting Lender" is defined in Section 4.11.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented, amended and restated or
otherwise modified from time to time by the Borrower with the written consent
of the Required Lenders (other than as a result of an update to Section 6.8 of
the Disclosure Schedule pursuant to clause (j) of Section 7.1.1).
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<PAGE> 21
"Disposition" (or similar words such as "Dispose") means any sale,
transfer, lease, contribution or other conveyance (including by way of merger)
of, or the granting of options, warrants or other rights to, any of the
Borrower's or its Subsidiaries' assets (including accounts receivables and
Capital Securities of Subsidiaries but excluding Cash Equivalent Investments)
to any other Person (other than to another Obligor) in a single transaction or
series of transactions.
"District Court" is defined in the second recital.
"Dividend Shares" means any class of Capital Securities of the
Borrower designated to receive dividends under the Borrower's Organic
Documents.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means the office of a Lender designated as its
"Domestic Office" on Schedule II hereto or in a Lender Assignment Agreement, or
such other office within the United States as may be designated from time to
time by notice from such Lender to the Administrative Agent and the Borrower.
"EBITDA" means, for any applicable period, the sum of
(a) Net Income (excluding any equity income (or loss) from
Affiliates (other than Subsidiaries) of the Borrower to the extent the
income was not received by the Borrower in cash), plus
(b) to the extent deducted (or included) in determining Net
Income, the sum of (i) amounts attributable to amortization, (ii)
income tax expense, (iii) Interest Expense, (iv) depreciation of
assets, (v) the amount, if any, paid or accrued during such period in
respect of the Conwood Judgment, and (vi) non-cash non-recurring
losses or non-cash extraordinary losses (or, minus, non-cash
non-recurring gains or non-cash extraordinary gains);
provided, that, for purposes of calculating EBITDA of the Borrower and its
Subsidiaries for any period hereunder, the EBITDA of any Person or assets (x)
acquired by the Borrower and its Subsidiaries in connection with Permitted
Acquisitions or (y) Disposed of by the Borrower and its Subsidiaries in
connection with Permitted Dispositions, shall be included on a pro forma basis
for such period as if such Permitted Acquisitions or Permitted Dispositions had
occurred on the first day of such period.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 10.8.
"Eligible Assignees" means (a) each Lender, (b) any Affiliate of a
Lender, (c) any commercial bank or other financial institution, (d) any fund
that invests in loans (and any Related
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Fund) and (e) any other Person approved in writing by the Administrative Agent,
the Required Lenders and (except during the existence or the continuation of a
Default) the Borrower, which approvals shall not be unreasonably withheld or
delayed.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to Sections of ERISA also refer to any successor Sections thereto.
"Event of Default" is defined in Section 8.1.
"Excess Amount" is defined in Section 3.1.2.
"Exemption Certificate" is defined in clause (e) of Section 4.6.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Credit Facility" means the Credit Agreement, dated as of
November 8, 1996, as amended, by and among the Borrower, the various financial
institutions party thereto as lenders, and Bank of Boston Connecticut, as
administrative agent.
"Existing Indenture" means the Indenture, dated as of May 27, 1999 by
and between the Borrower and State Street Bank and Trust Company, as trustee,
amended, supplemented, amended and restated or otherwise modified in accordance
with the terms of Section 7.2.12.
"Extended 364 Day Revolving Loan Commitment Acceptance" is defined in
clause (c) of Section 2.1.2.
"Extending 364 Day Revolving Loan Lender" is defined in clause (b) of
Section 2.1.2.
"Extension Consent Date" is defined in clause (b) of Section 2.1.2.
"Extension Date" means, as the context may require, the First
Extension Date or the Second Extension Date.
"Extension Period" means an extension of the 364 Day Revolving Loan
Commitment pursuant to Section 2.1.2 for the period commencing on the First
Extension Date or Second Extension Date, as the case may be, and ending on the
364th day following such Extension Date.
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"Extension Request" means an Extension Request, substantially in the
form of Exhibit B-3 hereto, duly executed and delivered by an Authorized
Officer of the Borrower pursuant to the terms of this Agreement.
"Extension Term Loans" is defined in Section 2.1.1.
"Extension Term Note" means a promissory note of the Borrower payable
to any Lender, in the form of Exhibit A-4 hereto (as such promissory note may
be amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Extension Term Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Fee Letters" means the Agents' Fee Letter and the Administrative
Agent's Fee Letter.
"Filing Agent" is defined in Section 5.1.9.
"Filing Statements" is defined in Section 5.1.9.
"First Extension Date" means October 9, 2001.
"Fiscal Quarter" means a quarter ending on the last day of March,
June, September or December.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g., the "2000 Fiscal Year") refer to the Fiscal Year
ending on December 31 of such calendar year.
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<PAGE> 24
"Fixed Charge Coverage Ratio" means, as of the close of any Fiscal
Quarter, the ratio computed for the period consisting of such Fiscal Quarter
and each of the three immediately preceding Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters) minus Capital
Expenditures made during such Fiscal Quarters;
to
(b) the sum (for all such Fiscal Quarters) of (i) cash
Interest Expense (net of cash interest income), (ii) dividends on the
Capital Securities of the Borrower calculated based on dividends
actually declared whether or not paid, (iii) scheduled principal
repayments of Indebtedness made during such period (including
repayments of the Term Loans pursuant to clauses (c) and (d) of
Section 3.1.1) after giving effect to any reductions in such scheduled
principal repayments attributable to any optional or mandatory
prepayments of the Term Loans and (iv) payments required to be made
under clause(c)(i) of Section 3.1.1(c) (i) into the Qualified
Settlement Fund and/or Collateral Account.
"Foreign Subsidiary" means any Subsidiary that is not a U.S.
Subsidiary.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"GS" is defined in the preamble.
"Governmental Authority" means the government of the United States,
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.
"Group" means the Borrower or any member of its affiliated group
within the meaning of Section 1504 of the Internal Revenue Code of 1986, as
amended.
"Guarantors" means each U.S. Subsidiary that has executed and
delivered to the Administrative Agent a Subsidiary Guaranty.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
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<PAGE> 25
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended; or
(c) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance (including any petroleum
product) within the meaning of any other applicable federal, state or
local law, regulation, ordinance or requirement (including consent
decrees and administrative orders) relating to or imposing liability
or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, all as amended.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under currency exchange agreements, interest rate
swap agreements, interest rate cap agreements and interest rate collar
agreements, and all other agreements or arrangements designed to protect such
Person against fluctuations in interest rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in any Loan Document refer to such Loan Document as a whole and not to any
particular Section, paragraph or provision of such Loan Document.
"Impermissible Qualification" means any qualification or exception to
the opinion or certification of any independent public accountant as to any
financial statement of the Borrower
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause the Borrower to be in Default.
"including" and "include" means including without limiting the
generality of any description preceding such term, and, for purposes of each
Loan Document, the parties hereto agree that the rule of ejusdem generis shall
not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Increased Cost Lender" is defined in Section 4.11.
"Indebtedness" of any Person means:
(a) all obligations of such Person for borrowed money or
advances and all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments;
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(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities of such Person;
(d) for purposes of Section 8.1.5 only, all other items
which, in accordance with GAAP, would be included as liabilities on
the balance sheet of such Person as of the date at which Indebtedness
is to be determined;
(e) net Hedging Obligations of such Person;
(f) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services (excluding trade accounts payable in the
ordinary course of business which are not overdue for a period of more
than 90 days or, if overdue for more than 90 days, as to which a
dispute exists and adequate reserves in conformity with GAAP have been
established on the books of such Person), and indebtedness secured by
(or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) a Lien on property owned or
being acquired by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited
in recourse;
(g) obligations arising under Synthetic Leases; and
(h) all Contingent Liabilities of such Person in respect of
any of the foregoing; and
(i) the Conwood Judgment Amount.
The Indebtedness of any Person shall include the Indebtedness of any other
Person (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 Person, except to the
extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Interco Subordination Agreement" means the Subordination Agreement,
substantially in the form of Exhibit I hereto, executed and delivered by two or
more Obligors pursuant to the
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terms of this Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Interest Expense" means, for any Fiscal Quarter, the aggregate
interest expense (both accrued and paid) of the Borrower and its Subsidiaries
for such Fiscal Quarter, including the portion of any payments made in respect
of Capitalized Lease Liabilities allocable to interest expense (net of interest
income paid during such period to the Borrower, its Subsidiaries and the
Qualified Settlement Fund).
"Interest Period" means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or
2.4 and shall end on (but exclude) the day which numerically corresponds to
such date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), as the
Borrower may select in its relevant notice pursuant to Section 2.3 or 2.4;
provided, however, that
(a) the Borrower shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration dates
occurring on more than ten different dates;
(b) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the
next following Business Day (unless such next following Business Day
is the first Business Day of a calendar month, in which case such
Interest Period shall end on the Business Day next preceding such
numerically corresponding day); and
(c) no Interest Period for any Loan may end later than the
Stated Maturity Date for such Loan.
"Investment" means, relative to any Person,
(a) any loan, advance or extension of credit made by such
Person to any other Person, including the purchase by such Person of
any bonds, notes, debentures or other debt securities of any other
Person;
(b) Contingent Liabilities in favor of any other Person; and
(c) any Capital Securities held by such Person in any other
Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such Investment.
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"ISP Rules" is defined in Section 10.9.
"Lender Assignment Agreement" means an assignment agreement
substantially in the form of Exhibit J hereto.
"Lenders" is defined in the preamble.
"Lender's Environmental Liability" means any and all losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
costs, judgments, suits, proceedings, damages (including consequential
damages), disbursements or expenses of any kind or nature whatsoever (including
reasonable attorneys' fees at trial and appellate levels and experts' fees and
disbursements and expenses incurred in investigating, defending against or
prosecuting any litigation, claim or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against the Administrative
Agent, any Co-Lead Arranger, the Syndication Agent, any joint book runner, any
Lender, the Letter of Credit Issuer or any of such Person's Affiliates,
shareholders, directors, officers, employees, and agents in connection with or
arising from:
(a) any Hazardous Material on, in, under or affecting all or
any portion of any property of the Borrower or any of its
Subsidiaries, the groundwater thereunder, or any surrounding areas
thereof to the extent caused by Releases from the Borrower's or any of
its Subsidiaries' or any of their respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any
warranty, contained or referred to in Section 6.12;
(c) any violation or claim of violation by the Borrower or
any of its Subsidiaries of any Environmental Laws; or
(d) the imposition of any lien for damages caused by or the
recovery of any costs for the cleanup, release or threatened release
of Hazardous Material by the Borrower or any of its Subsidiaries, or
in connection with any property owned or formerly owned by the
Borrower or any of its Subsidiaries.
"Letter of Credit" means a stand-by letter of credit not to exceed the
Letter of Credit Stated Amount and issued by the Letter of Credit Issuer to the
District Court substantially in the form of Exhibit G hereto.
"Letter of Credit Commitment" means the obligation of the Letter of
Credit Issuer to issue the Letter of Credit pursuant to Section 2.1.3.
"Letter of Credit Commitment Amount" means, on the Closing Date, an
amount equal to $170,000,000.
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"Letter of Credit Commitment Termination Date" means the earliest of
(a) October 10, 2000 (if the Letter of Credit has not been
issued on such date);
(b) the Closing Date (immediately after the issuance of the
Letter of Credit on such date); and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in the preceding clause
(c), the Letter of Credit Commitment shall terminate.
"Letter of Credit Disbursement" is defined in Section 2.6.2.
"Letter of Credit Disbursement Date" means the date of the Letter of
Credit Disbursement.
"Letter of Credit Draw Date" means the first date on which both of the
following circumstances exist: (i) the Conwood Judgment Order Date and (ii) the
District Court has drawn the Letter of Credit.
"Letter of Credit Draw Request" means a request to draw on the Letter
of Credit in accordance with its terms and conditions and delivered by the
District Court to the Letter of Credit Issuer three Business Days prior to the
date of such requested draw.
"Letter of Credit Initial Reduction Calculation Amount" means the
difference between (a) $500,000,000 and (b) the Letter of Credit Stated Amount
in effect on the Closing Date.
"Letter of Credit Issuance Request" means a request for issuance of
the Letter of Credit, duly executed by an Authorized Officer of the Borrower,
substantially in the form of Exhibit B-2 hereto.
"Letter of Credit Issuer" means Scotiabank, in its capacity as issuer
of the Letter of Credit, any other Lender that is a commercial bank reasonably
acceptable to the Borrower and the Administrative Agent or such other Lender as
may be required by order of the District Court.
"Letter of Credit Reduction Amount" means, as of any Letter of Credit
Reduction Date, the excess, if any, of (a) the amount on deposit in or credited
to the Qualified Settlement Fund (less any reserve for taxes payable by the
Qualified Settlement Fund) on the last day of the Fiscal Quarter just ended
over (b) the amount on deposit in or credited to the Qualified Settlement Fund
(less any reserve for taxes payable by the Qualified Settlement Fund) on the
last day of the previous Fiscal Quarter; provided, however, that for purposes
of this clause (b), the amount on
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deposit in or credited to the Qualified Settlement Fund for the first such
calculation following the Closing Date shall be the Letter of Credit Initial
Reduction Calculation Amount.
"Letter of Credit Reduction Date" means the date on which an
authorized officer of the District Court has delivered to the Administrative
Agent a Certificate of Reduction substantially in the form attached as Annex II
to the Letter of Credit.
"Letter of Credit Reimbursement Obligation" is defined in Section
2.6.3.
"Letter of Credit Stated Amount" means, on or after the issuance of
the Letter of Credit, an amount equal to $170,000,000, as such Letter of Credit
Stated Amount may be permanently reduced from time to time pursuant to Section
2.2.
"Letter of Credit Stated Expiry Date" means the earliest to occur of:
(a) the Letter of Credit Draw Date; or
(b) the date on which the Letter of Credit is reduced to zero
pursuant to Section 2.2.
"Leverage Ratio" means, as of the last day of any Fiscal Quarter, the
ratio of
(a) Total Debt outstanding on the last day of such Fiscal
Quarter
to
(b) EBITDA computed for the period consisting of such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate
Loans, the rate of interest per annum determined on the basis of the rate for
deposits in Dollars for a period equal to the applicable Interest Period which
appears on the Telerate Page 3750 at approximately 11:00 a.m. (London time) two
(2) Business Days prior to the first day of the applicable Interest Period
(rounded upward, if necessary, to the nearest one-sixteenth of one percent
(1/16%)). If, for any reason, such rate does not appear on the Telerate Page
3750, then "LIBO Rate" shall be determined by the Administrative Agent's LIBOR
Office to be the arithmetic average (rounded upwards, if necessary, to the
nearest one-sixteenth of one percent (1/16%)) of the rate per annum at which
deposits in Dollars would be offered by first class banks in the London
interbank market to the Administrative Agent's LIBOR Office at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period and in an
amount substantially equal to the amount of the applicable LIBO Rate Loan.
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"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a rate of interest determined by
reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any
Interest Period, a rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) determined pursuant to the following formula:
<TABLE>
<S> <C>
LIBO Rate = LIBO Rate
---------------------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
</TABLE>
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans
will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect two Business Days before the first day of such
Interest Period.
"LIBOR Office" means the office of a Lender designated as its "LIBOR
Office" on Schedule II hereto or in a Lender Assignment Agreement, or such
other office designated from time to time by notice from such Lender to the
Borrower and the Administrative Agent, whether or not outside the United
States, which shall be making or maintaining the LIBO Rate Loans of such
Lender.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of or including
"Eurocurrency Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or other priority or preferential
arrangement of any kind or nature whatsoever, to secure payment of a debt or
performance of an obligation. Notwithstanding anything to the contrary
contained herein, financing statements solely constituting precautionary
filings to protect the interest of a lessor shall not be deemed Liens for the
purposes hereof.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Letter of Credit, each Rate Protection Agreement, the Fee Letters, each
Subsidiary Guaranty, each Security Agreement, each other agreement pursuant to
which the Administrative Agent is granted a Lien to secure the Obligations, the
Collateral Account Agreement, the Account Control Agreement
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and each other agreement, certificate, document or instrument delivered in
connection with any Loan Document, whether or not specifically mentioned herein
or therein.
"Loans" means, as the context may require, a 364 Day Revolving Loan or
a Term Loan of any type.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, financial condition, operations or prospects of the Borrower
and its Subsidiaries taken as a whole, (b) the rights and remedies of any
Secured Party under any Loan Document or (c) the ability of any Obligor to
perform its Obligations under any Loan Document. The Conwood Judgment shall not
constitute a Material Adverse Effect.
"Moody's" means Moody's Investors Service, Inc.
"Net Debt Proceeds" means, with respect to the sale or issuance by the
Borrower or any U.S. Subsidiary to any Person (other than the Borrower or any
such Subsidiary) of any Indebtedness permitted under clause (h) of Section
7.2.2, the excess of:
(a) the gross cash proceeds received by the Borrower or such
Subsidiary from such sale or issuance;
over
(b) all reasonable and customary underwriting and other
commissions and legal, investment banking, underwriting, brokerage and
accounting and other professional fees, sales commissions and
disbursements and all other reasonable fees, expenses and charges, in
each case actually incurred in connection with such sale or issuance
and, in each case which have not been paid to an Affiliate of the
Borrower.
"Net Disposition Proceeds" means the gross cash proceeds received by
the Borrower or any U.S. Subsidiary from (i) any Sale and Leaseback Transaction
pursuant to Section 7.2.9 or (ii) any Disposition pursuant to clause (c) of
Section 7.2.11, and in each case any cash payment received in respect of
promissory notes or other non-cash consideration delivered to the Borrower or
such U.S. Subsidiary in respect thereof, minus the sum of (i) all reasonable
and customary legal, investment banking, brokerage, accounting and other fees
and expenses incurred in connection with such Disposition, in each case which
have not been paid to an Affiliate of the Borrower, (ii) all taxes actually
paid or estimated by the Borrower to be payable in cash or for which reserves
have been established in conformity with GAAP within the next 12 months in
connection with such Disposition, and (iii) payments made by the Borrower or
its U.S. Subsidiaries to retire Indebtedness (other than the Credit Extensions
and the Conwood Judgment) where payment of such Indebtedness is required in
connection with such Disposition; provided, however, that if the amount of (x)
any estimated taxes pursuant to clause (ii) exceed the amount of taxes actually
required to be paid in cash in respect of such Disposition, or (y) any
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reserves established pursuant to clause (ii) exceed the actual amount expended
for the item for which such reserve has been established, the aggregate amount
of such excess once determined shall in each case constitute Net Disposition
Proceeds.
"Net Equity Proceeds" means with respect to the sale or issuance by
the Borrower or any U.S. Subsidiary to any Person (other than the Borrower's or
such U.S. Subsidiary's officers, directors or employees in connection with the
exercise of options in respect of employee stock option plans or other employee
benefit plans) of any of its Capital Securities, warrants or options or the
exercise of any such warrants or options, the excess of:
(a) the gross cash proceeds received by the Borrower or such
Subsidiary from such sale, exercise or issuance, over
(b) all reasonable and customary underwriting and other
commissions and legal, investment banking, brokerage and accounting
and other professional fees, sales commissions and disbursements
actually incurred in connection with such sale or issuance which have
not been paid to Affiliates of the Borrower in connection therewith.
"Net Income" means, for any period, the aggregate of all amounts which
would be included as net income on the consolidated financial statements of the
Borrower and its Subsidiaries for such period.
"New 364 Day Revolving Loan Lender" is defined in clause (c) of
Section 2.1.2.
"Non-Excluded Taxes" means any Taxes other than net income and
franchise taxes imposed with respect to any Secured Party by any Governmental
Authority under the laws of which such Secured Party is organized or in which
it maintains its applicable lending office.
"Non-Extending 364 Day Revolving Loan Lender" is defined in clause (b)
of Section 2.1.2.
"Non-U.S. Lender" means any Lender that is not a "United States
person", as defined under Section 7701(a)(30) of the Code.
"Note" means, as the context may require, a 364 Day Revolving Note, an
Extension Term Note, a Term A Note or a Term B Note.
"Obligations" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured) of the Borrower and each other
Obligor arising under or in connection with a Loan Document, including Letter
of Credit Reimbursement Obligations and the principal of and premium, if any,
and interest (including interest accruing during the pendency of any proceeding
of the type described in Section 8.1.9, whether or not allowed in such
proceeding) on the Loans.
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"Obligor" means, as the context may require, the Borrower and each
other Person (other than a Secured Party) obligated under any Loan Document.
"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement and all
shareholder agreements, voting trusts and similar arrangements applicable to
any of such Obligor's partnership interests, limited liability company
interests or authorized shares of Capital Securities.
"Other Taxes" means any and all stamp, documentary or similar Taxes,
or any other excise or property Taxes or similar levies that arise on account
of any payment made or required to be made under any Loan Document or from the
execution, delivery, registration, recording or enforcement of any Loan
Document.
"Participant" is defined in Section 10.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the
Borrower, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under Section 4069 of ERISA.
"Percentage" means, as the context may require, any Lender's 364 Day
RL Percentage, Three Year RL Percentage or Term B Percentage.
"Perfection Certificate" means the Perfection Certificate executed and
delivered by an Authorized Officer of each Obligor that is a party to a
Security Agreement pursuant to the terms of this Agreement, substantially in
the form of Exhibit L hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Permitted Acquisition" means an acquisition (whether pursuant to an
acquisition of Capital Securities, assets or otherwise) by the Borrower or any
U.S. Subsidiary from any Person of a business in which the following conditions
are satisfied:
(a) immediately before and after giving effect to such
acquisition no Default shall have occurred and be continuing or would
result therefrom; and
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(b) the Borrower shall have delivered to the Administrative
Agent a Compliance Certificate for the period of four full Fiscal
Quarters immediately preceding such acquisition (prepared in good
faith and in a manner and using such methodology which is consistent
with the most recent financial statements delivered pursuant to
Section 7.1.1) giving pro forma effect to the consummation of such
acquisition and evidencing compliance with the covenants set forth in
Section 7.2.4.
"Permitted Business Activities" is defined the first recital.
"Permitted Disposition" means any Disposition permitted pursuant to
Section 7.2.11.
"Permitted Indebtedness Provisions" means, Indebtedness incurred or
issued as permitted under clause (h) of Section 7.2.2 which has a final
maturity not earlier than October 1, 2005.
"Permitted Per Share Dividend Amount" means (a) during the 2000 Fiscal
Year, dividends of $1.76 per Dividend Share, and (b) thereafter, dividends
increased by an amount equal to 5% per Dividend Share over the dividends paid
on such class of Dividend Shares during the previous Fiscal Year, in each case
adjusted for stock splits or dividends paid in Capital Securities.
"Person" means any natural person, corporation, limited liability
company, partnership, joint venture, association, trust or unincorporated
organization, Governmental Authority or any other legal entity, whether acting
in an individual, fiduciary or other capacity.
"Qualified Settlement Fund" means an account maintained at the
direction of the District Court with the Court Registered Investment System or
any other deposit account maintained with or at the direction of the District
Court, in each case established no later than the Closing Date in connection
with the Conwood Proceeding.
"Qualified Settlement Fund Amount" means, as of any date of
determination, the aggregate amounts then on deposit in the Qualified
Settlement Fund, including, (i) any amounts deposited into the Qualified
Settlement Fund constituting proceeds of Term B Loans or pursuant to clause (b)
of Section 2.2.1 and clauses (a), (c), (e), (f), (g) and (h) of Section 3.1.1,
(ii) any accrued interest on such amounts (less any Taxes payable thereon), and
(iii) any other amount set aside, accreted in interest or deposited in the
Qualified Settlement Fund.
"Quarterly Payment Date" means the last Business Day of March, June,
September and December.
"Rate Protection Agreement" means, collectively, any interest rate
swap, cap, collar or similar agreement entered into by the Borrower or any of
its Subsidiaries under which the counterparty of such agreement is (or at the
time such agreement was entered into, was) a Lender or an Affiliate of a
Lender.
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"Rating Notice" is defined in clause (i) of Section 7.1.1.
"Register" is defined in clause (b) of Section 2.7.
"Registered" means , with respect to any Person, a registration of
Capital Securities effected by preparing and filing a registration statement in
compliance with the Securities Act.
"Registered Capital Securities" means, with respect to any Disposition
of the Wine Assets, Capital Securities which are (i) freely tradeable and (ii)
Registered, in each case, on or prior to the first anniversary of Disposition
of the Wine Assets .
"Related Fund" means, with respect to any Lender which is a fund that
invests in loans, any other fund that invests in loans and is controlled by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in clause (f) of Section 10.11.1.
"Replacement Revolving Facility" means, on or after the 364 Day
Revolving Loan Commitment Termination Date, a revolving credit facility entered
into by and between the Borrower and another lender (or lenders) in which the
following conditions are satisfied:
(a) immediately before and after giving effect to the
Replacement Revolving Facility, no Default shall have occurred and be
continuing or would result therefrom;
(b) the loans made under the Replacement Revolving Facility
shall consist only of (i) revolving loans (and commitments to make
such revolving loans to the Borrower) or (ii) unsecured extendable
credit notes, in each case in an aggregate amount not in excess of the
364 Day Revolving Loan Commitment Amount as in effect on the date of
termination thereof;
(c) the Borrower shall have delivered to the Administrative
Agent true and complete copies of drafts and executed copies, as the
case may be, of all agreements, instruments and other documents
relating to or otherwise evidencing the Replacement Revolving Facility
promptly after such agreements, instruments and other documents have
become available;
(d) any amounts due and owing under the 364 Day Revolving
Loan Commitment and the Extension Term Loans shall have been repaid in
full on or before the closing date for such revolving credit facility
and such Commitment shall have been terminated; and
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(e) the documentation relating to or evidencing the
Replacement Revolving Facility shall not contain any representations,
warranties, covenants, events of default or other terms that are more
burdensome on any Obligor than the representations, warranties,
covenants, events of default or other terms contained in this
Agreement and the other Loan Documents (as determined by the Agents in
their reasonable discretion) unless this Agreement shall have been
amended pursuant to Section 10.1 hereof in a manner effective on or
before the closing date for the Replacement Revolving Facility so that
the agreements, instruments and other documents relating to or
otherwise evidencing the Replacement Revolving Facility shall not
contain any covenants (including, without limitation, financial
covenants) which are more restrictive than those contained in this
Agreement, as so amended.
"Required Lenders" means, at any time, Lenders holding at least 51% of
the Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.
"Restricted Payment" means the declaration or payment of any dividend
(other than dividends payable solely in Capital Securities of the Borrower or
any Subsidiary) on, or the making of any payment or distribution on account of,
or setting apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of any class
of Capital Securities of the Borrower or any Subsidiary or any warrants or
options to purchase any such Capital Securities, whether now or hereafter
outstanding, or the making of any other distribution in respect thereof, either
directly or indirectly, whether in cash or property, obligations of the
Borrower or any Subsidiary or otherwise.
"S&P" means Standard & Poor's Rating Services, a division of
McGraw-Hill, Inc.
"Sale and Leaseback Transaction" is defined in Section 7.2.9.
"Scotiabank" is defined in the preamble.
"SEC" means the Securities and Exchange Commission.
"Second Extension Date" means October 8, 2002.
"Secured Parties" means, collectively, the Lenders, the Letter of
Credit Issuer, the Administrative Agent, each counterparty to a Rate Protection
Agreement that is (or at the time such Rate Protection Agreement was entered
into, was) a Lender or an Affiliate thereof and (in each case), each of their
respective successors, transferees and assigns.
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"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act thereunder, all as
the same shall be in effect at the relevant time.
"Security Agreement" means, as the context may require, the Borrower
Security Agreement and the Subsidiary Security Agreement, in each case, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Senior Notes" means the Senior Notes of the Borrower issued under the
Existing Indenture, as amended, supplemented, amended and restated or otherwise
modified in accordance with the terms of Section 7.2.12.
"Senior Unsecured Debt Rating" means the long-term unsecured debt
rating ascribed to such Indebtedness of the Borrower by S&P or Moody's, as the
case may be, announced by S&P or Moody's, as the case may be, from time to
time.
"Significant Subsidiary" means each U.S. Subsidiary now existing or
hereafter acquired or formed, and each successor thereto, which at any time of
determination accounts for more than two (2%) percent of (a) the consolidated
revenues of the Borrower and its Subsidiaries , or (b) the consolidated
tangible net worth (valued at the lesser of (i) fair market value or (ii) book
value) of the Borrower and its Subsidiaries taken as a whole.
"Stated Maturity Date" means
(a) with respect to the 364 Day Revolving Loans, October 9,
2001 (as such Stated Maturity Date may be extended pursuant to Section
2.1.2);
(b) with respect to all Term A Loans, October 10, 2003;
(c) with respect to all Term B Loans, February 16, 2005; and
(d) with respect to Extension Term Loans, October 7, 2003.
"Subsidiary" means, with respect to any Person, any other Person of
which more than 50% of the outstanding Voting Securities of such other Person
(irrespective of whether at the time Capital Securities of any other class or
classes of such other Person shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more other Subsidiaries of
such Person, or by one or more other Subsidiaries of such Person. Unless the
context otherwise specifically requires, the term "Subsidiary" shall be a
reference to a Subsidiary of the Borrower.
"Subsidiary Guaranty" means the subsidiary guaranty executed and
delivered by each U.S. Subsidiary pursuant to the terms of this Agreement,
substantially in the form of Exhibit F
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hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Subsidiary Security Agreement" means, collectively, the Security
Agreement executed and delivered by each U.S. Subsidiary in favor of the
Administrative Agent for the benefit of the Secured Parties pursuant to the
terms of this Agreement, in substantially the form of Exhibit H-2, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Substitute Lender" is defined in Section 4.11.
"Syndication Agent" is defined in the preamble.
"Synthetic Lease" means, as applied to any Person, any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) (a) that is not a capital lease in
accordance with GAAP and (b) in respect of which the lessee retains or obtains
ownership of the property so leased for federal income tax purposes, other than
any such lease under which that Person is the lessor.
"Taxes" means all income, stamp or other taxes, duties, levies,
imposts, charges, assessments, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, and all interest, penalties or similar liabilities with respect
thereto.
"Tax Benefit" means with respect to any quarter in which any member of
the Group calculates its estimated quarterly income taxes, which calculation
incorporates a claim for a deduction attributable to amounts paid or incurred
as damages, settlement proceeds or deposits in a fund or escrow account that is
a "qualified settlement fund" within the meaning of Treasury Regulation section
1.468(B)-1 during the immediately preceding quarter, the excess, if any, of the
amount of Taxes that would have been paid by the Group for such period if such
calculation had not incorporated a claim for such a deduction over the amount
of Taxes actually paid by the Group.
"Term A Loan" is defined in Section 2.1.4.
"Term A Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Term A Loans pursuant to Section 2.1.4.
"Term A Loan Commitment Amount" means $370,000,000 as such amount may
be reduced pursuant to Section 2.2.2.
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"Term A Loan Commitment Termination Date" means the earliest of
(a) the Credit Date (immediately after the making of the Term
A Loans on such date);
(b) the date on which the Three Year Loan Commitment Amount
is terminated in full or reduced to zero pursuant to the terms of this
Agreement; and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) and (c), the Term A
Loan Commitments shall terminate automatically and without any further action.
"Term A Note" means a promissory note of the Borrower payable to any
Lender, in the form of Exhibit A-2 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Term A Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Term B Loan" is defined in Section 2.1.5.
"Term B Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Term B Loans pursuant to of Section 2.1.5.
"Term B Loan Commitment Amount" means $330,000,000.
"Term B Loan Commitment Termination Date" means the earliest of
(a) October 10, 2000 (if the Term B Loans have not been made
on or prior to such date);
(b) the Closing Date (immediately after the making of the
Term B Loans on such date); and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) or (c), the Term B
Loan Commitments shall terminate automatically and without any further action.
"Term B Note" means a promissory note of the Borrower payable to any
Lender, in the form of Exhibit A-3 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such
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Lender resulting from outstanding Term B Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Term B Percentage" means, relative to any Lender, the applicable
percentage relating to Term B Loans set forth opposite its name on Schedule II
hereto under the Term B Loan Commitment column or set forth in a Lender
Assignment Agreement under the Term B Loan Commitment column, as such percentage
may be adjusted from time to time pursuant to Lender Assignment Agreements
executed by such Lender and its Assignee Lender and delivered pursuant to
Section 10.11.1. A Lender shall not have any Term B Loan Commitment if its
percentage under the Term B Loan Commitment column is zero.
"Term Loans" means, collectively, the Extension Term Loans, the Term A
Loans and the Term B Loans.
"Terminated Lender" is defined in Section 4.11.
"Termination Date" means the date on which all Obligations have been
paid in full in cash, the Letter of Credit has been terminated or expired (or
has been Cash Collateralized) and all Commitments shall have terminated.
"Three Year Loan Commitment" means the Letter of Credit Commitment and
the Term A Loan Commitment.
"Three Year Loan Commitment Amount" means on any date during the period
prior to the Letter of Credit Draw Date, $370,000,000 as such amount may be
reduced pursuant to Section 2.2.2.
"Three Year Loan Commitment Termination Date" means the earliest of
(a) October 10, 2000 (if the Letter of Credit has not been
issued on or prior to such date);
(b) the Credit Date (after the making of Term A Loans, if any,
on such date);
(c) the date on which the Three Year Loan Commitment Amount is
terminated in full or reduced to zero pursuant to the terms of this
Agreement; and
(d) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in the preceding clause (c) or (d),
the Three Year Loan Commitment Amount shall terminate automatically and without
any further action.
"Three Year Loan Lender" means each Lender that has a Three Year Loan
Commitment.
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"Three Year RL Percentage" means, relative to any Lender, the
applicable percentage set forth opposite its name on Schedule II hereto under
the Three Year Loan Commitment column or set forth in a Lender Assignment
Agreement under the Three Year Loan Commitment column, as such percentage may be
adjusted from time to time pursuant to Lender Assignment Agreements executed by
such Lender and its Assignee Lender and delivered pursuant to Section 10.11.1. A
Lender shall not have any Three Year Loan Commitment if its percentage under the
Three Year Loan Commitment column is zero.
"Tier I" means that the senior unsecured debt of the Borrower is rated
at least either (i) BBB by S&P (and at least Baa3 by Moody's) or (ii) Baa2 by
Moody's (and at least BBB- by S&P).
"Tier II" means that the senior unsecured debt of the Borrower is rated
both (i) BBB- by S&P and (ii) Baa3 by Moody's.
"Tier III" means that the senior unsecured debt of the Borrower is
rated (i) both (x) at least BBB- by S&P and (y) Ba1 by Moody's or (ii) both (y)
BB+ by S&P and (z) at least Baa3 by Moody's.
"Tier IV" means that the senior unsecured debt of the Borrower is rated
both (i) BB+ by S&P and (ii) Ba1 by Moody's.
"Tier V" means that the senior unsecured debt of the Borrower is rated
lower than either (i) BB+ by S&P or (ii) Ba1 by Moody's.
"Total Debt" means, on any date, the sum of the outstanding principal
amount of all Indebtedness of the Borrower and its Subsidiaries of the type
referred to in clause (a), clause (b) (other than the Letter of Credit), clause
(c), clause (g), clause (h), clause (i), and without duplication, the amount of
any bond issued or cash deposit made in connection with any litigation or
proceeding, in each case of the definition of "Indebtedness" (exclusive of
intercompany Indebtedness between the Borrower and its Subsidiaries).
"Total Exposure Amount" means, on any date of determination (and
without duplication), the outstanding principal amount of all Loans, the Letter
of Credit Stated Amount and the unfunded amount of the Commitments.
"Trigger Date" means the first date on which the sum of amounts on
deposit in the Collateral Account and the Qualified Settlement Fund equals or
exceeds $730,000,000.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
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"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York; provided, that if, with respect to any Filing
Statement or by reason of any provisions of law, the perfection or the effect of
perfection or non-perfection of the security interests granted to the
Administrative Agent pursuant to the applicable Loan Document is governed by the
Uniform Commercial Code as in effect in a jurisdiction of the United States
other than New York, then "UCC" means the Uniform Commercial Code as in effect
from time to time in such other jurisdiction for purposes of the provisions of
each Loan Document and any Filing Statement relating to such perfection or
effect of perfection or non-perfection.
"Uncommitted 364 Day Revolving Loan Commitments" is defined in clause
(c) of Section 2.1.2.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"U.S. Subsidiary" means any Subsidiary that is incorporated or
organized under the laws of the United States or a state thereof.
"Voting Securities" means, with respect to any Person, Capital
Securities of any class or kind ordinarily having the power to vote for the
election of directors, managers or other voting members of the governing body of
such Person.
"Welfare Plan" means a "welfare plan", as such term is defined in
Section 3(1) of ERISA.
"wholly owned Subsidiary" means any Subsidiary all of the outstanding
Capital Securities of which (other than any director's qualifying shares or
investments by foreign nationals mandated by applicable laws) is owned directly
or indirectly by the Borrower.
"Wine Assets" means assets used to produce and market premium varietal
and blended wines under various trademarks, including "Chateau Ste. Michelle",
"Columbia Crest", "Domaine Ste. Michelle" and "Villa Mt. Eden".
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each other Loan Document and the
Disclosure Schedule.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in a Loan Document to any Article or Section are references to such Article or
Section of such Loan Document, and references in any Article, Section or
definition to any clause are references to such clause of such Article, Section
or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used in each Loan Document shall be interpreted,
and all accounting
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determinations and computations thereunder (including under Section 7.2.4 and
the definitions used in such calculations) shall be made, in accordance with
those generally accepted accounting principles ("GAAP") applied in the
preparation of the financial statements referred to in Section 5.1.6. Unless
otherwise expressly provided, all financial covenants and defined financial
terms shall be computed on a consolidated basis for the Borrower and its
Subsidiaries, in each case without duplication.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES AND LETTER OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement, the Lenders and the Letter of Credit Issuer severally agree to
make Credit Extensions as set forth below.
SECTION 2.1.1. 364 Day Revolving Loan Commitment and Extension Term
Loans .
(a) From time to time on any Business Day occurring from and
after the Effective Date but prior to the applicable 364 Day Revolving
Loan Commitment Termination Date, each Lender that has a 364 Day
Revolving Loan Commitment (referred to as a "364 Day Revolving Loan
Lender"), agrees that it will make loans (relative to such Lender, its
"364 Day Revolving Loans") to the Borrower equal to such Lender's 364
RL Percentage of the aggregate amount of each Borrowing of the 364 Day
Revolving Loans requested by the Borrower to be made on such day. On
the terms and subject to the conditions hereof, the Borrower may from
time to time borrow, prepay and reborrow 364 Day Revolving Loans until
the applicable 364 Day Revolving Commitment Termination Date. No 364
Day Revolving Loan Lender shall be permitted or required to make any
364 Day Revolving Loan if, after giving effect thereto, the aggregate
outstanding principal amount of all 364 Day Revolving Loans of such 364
Day Revolving Loan Lender would exceed such Lender's 364 Day RL
Percentage of the then existing 364 Day Loan Commitment Amount.
(b) On the 364 Day Revolving Loan Commitment Termination Date
which ends immediately prior to the First Extension Date or the Second
Extension Date, as the case may be, the Borrower may convert the amount
of each Lender's 364 RL Percentage of the 364 Day Revolving Loans
outstanding on the 364 Day Revolving Loan Commitment Termination Date
into term loans due and payable on the Stated Maturity Date for
Extension Term Loans (the "Extension Term Loans"). On or prior to the
making of the Extension Term Loans, the Borrower shall have delivered
to the Administrative Agent no more than 30 days and not less than 15
days prior to the applicable Extension Date a written notice (which
shall be irrevocable) to convert the aggregate principal amount of 364
Day Revolving Loans into Extension Term Loans. So long as (a) no
Default or
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Event of Default shall have occurred and be continuing, (b) the 364 Day
Revolving Loan Commitment shall not have been extended pursuant to
Section 2.1.2, and (c) the Borrower has not entered into the
Replacement Revolving Facility (or executed a binding commitment to
enter into the Replacement Revolving Facility) then the principal
amount of 364 Day Revolving Loans set forth in such notice shall be
converted into an equal principal amount of Extension Term Loans).
SECTION 2.1.2. Extension of 364 Day Revolving Loan Commitment.
(a) On or before sixty (60) days prior to the First Extension
Date or, in the event such 364 Day Revolving Loan Commitment was
previously extended on the First Extension Date, on or before sixty
(60) days prior to the Second Extension Date, the Borrower may request
an extension of the 364 Day Revolving Loan Commitment for the
applicable Extension Period by delivering an Extension Request to the
Administrative Agent. Upon receipt of each such Extension Request, the
Administrative Agent shall promptly forward such Extension Request to
each 364 Day Revolving Loan Lender, and each such existing 364 Day
Revolving Loan Lender shall have the right (but not the obligation) to
commit to all or a specified portion of the proposed extension.
(b) Each existing 364 Day Revolving Loan Lender, acting in its
sole discretion, shall by notice to the Administrative Agent given no
later than the date (the "Extension Consent Date") that is five
Business Days after the date that the Administrative Agent delivers
such Extension Request to such 364 Day Revolving Lender, advise the
Administrative Agent whether or not such 364 Day Revolving Loan Lender
agrees to extend its 364 Day Revolving Loan Commitment (such existing
364 Day Revolving Loan Lender agreeing to any extension being referred
to as an "Extending 364 Day Revolving Loan Lender"); provided, that
each 364 Day Revolving Loan Lender that determines not to extend its
364 Day Revolving Loan Commitment (a "Non-Extending 364 Day Revolving
Loan Lender") shall notify the Administrative Agent of such fact
promptly after such determination (but in any event no later than the
Extension Consent Date) and any 364 Day Revolving Loan Lender that does
not advise the Administrative Agent on or before the Extension Consent
Date shall be deemed to be a Non-Extending 364 Day Revolving Loan
Lender. The Administrative Agent shall promptly notify the Borrower of
the names of the Extending 364 Day Revolving Loan Lenders and the
Non-Extending 364 Day Revolving Loan Lenders and the amount of each
Extending 364 Day Revolving Loan Lender's proposed 364 Day Revolving
Loan Commitment upon receipt of each notice from such 364 Day Revolving
Loan Lender. The election of any 364 Day Revolving Loan Lender to agree
to such extension (as each proposed 364 Day Revolving Loan Commitment
may be increased during the allocation process set forth in clause (d)
of this Section 2.1.2. below) shall be irrevocable but shall not
obligate any other 364 Day Revolving Loan Lender to so agree.
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(c) If the aggregate amount of the proposed extension of the
364 Day Revolving Loan Commitments of the Extending 364 Day Revolving
Loan Lenders pursuant to clause (b) above is less than the 364 Day
Revolving Loan Commitment Amount, then commitments in such remaining
364 Day Revolving Loan Commitment (the "Uncommitted 364 Day Revolving
Loan Commitments") may be offered to prospective lenders and any
Extending 364 Day Revolving Loan Lender. Each such prospective lender
(each such lender, a "New 364 Day Revolving Loan Lender"), or Extending
364 Day Revolving Loan Lender shall, by notice to the Borrower and the
Administrative Agent given no later than fifteen days after the
Extension Consent Date, advise the Borrower and the Administrative
Agent of the amount, or in the case of the Extending 364 Day Revolving
Loan Lender, such additional amount, of the 364 Day Revolving Loan
Commitments to which such New 364 Day Revolving Loan Lender or
Extending 364 Day Revolving Loan Lender is willing to commit.
(d) The Agents and the Borrower shall allocate the Uncommitted
364 Day Revolving Loan Commitments among the New 364 Day Revolving Loan
Lenders (if any) and the Extending 364 Day Revolving Loan Lenders as
they may agree; provided, that, the resulting 364 Day Revolving Loan
Commitment of (i) each New 364 Day Revolving Loan Lender which is not a
Lender shall be at least $5,000,000 and (ii) each other New 364 Day
Revolving Loan Lender and each Extending 364 Day Revolving Loan Lender
shall be at least $1,000,000. Following such allocation the
Administrative Agent shall promptly notify each Extending 364 Day
Revolving Loan Lender and each New 364 Day Revolving Loan Lender of the
extended 364 Day Revolving Loan Commitments.
(e) Each Extending 364 Day Revolving Loan Lender and New 364
Day Revolving Loan Lender shall, within fifteen days following the
Extension Consent Date, execute and deliver an acceptance of the 364
Day Revolving Loan Commitment in the form of Exhibit M hereto, a "364
Day Revolving Loan Commitment Acceptance") and, in the case of a New
364 Day Revolving Loan Lender, such New 364 Day Revolving Loan Lender
shall thereupon become a "Lender" for all purposes under this Agreement
and the other Loan Documents.
(f) On the applicable Extension Date, subject to compliance
with Section 5.2, (i) each Extending 364 Day Revolving Loan Lender's
existing 364 Day Revolving Loan Commitment and outstanding 364 Day
Revolving Loans, shall automatically, without any other action by any
Person, be extended by the Extension Period, (ii) each New 364 Day
Revolving Loan Lenders shall make 364 Day Revolving Loans equal to its
364 Day RL Percentage of the aggregate amount of outstanding 364 Day
Revolving Loans and (iii) each Extending 364 Day Revolving Loan Lender
which has increased its 364 Day Revolving Loan Commitment shall make
364 Day Revolving Loans in an amount equal to the increase in its 364
Day RL Percentage of the outstanding 364 Day Revolving Loans. The
Administrative Agent shall use the proceeds of the Loans made under
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clause (ii) and (iii) of the immediately preceding sentence to pay in
full the 364 Day Revolving Loans of the Non-Extending 364 Day Revolving
Loan Lenders.
Notwithstanding the foregoing, the minimum 364 Day Revolving Loan
Commitment Amount that may be extended shall be at least $275,000,000.
SECTION 2.1.3. Letter of Credit Commitment. On the Closing Date, the
Letter of Credit Issuer agrees that it will issue the Letter of Credit for the
account of the Borrower in an amount not to exceed the Letter of Credit
Commitment Amount. The Letter of Credit shall expire on the Letter of Credit
Stated Expiry Date.
SECTION 2.1.4. Term A Loan Commitment. On the terms and subject to the
conditions hereof, in a single Borrowing (which shall be a Business Day)
occurring on or prior to the Term A Loan Commitment Termination Date, each Three
Year Loan Lender agrees that it will make loans (relative to such Lender, its
"Term A Loans") to the Borrower equal to such Lender's Three Year RL Percentage
of the aggregate amount of the Borrowing of Term A Loans requested by the
Borrower to be made on such day; provided, that, no Default or Event of Default
shall have occurred and be continuing on the date the Term A Loans are requested
by the Borrower. No amounts paid or prepaid with respect to Term A Loans may be
reborrowed.
SECTION 2.1.5. Term B Loan Commitment. On the terms and subject to the
conditions hereof, in a single Borrowing (which shall be a Business Day)
occurring on or prior to the Term B Loan Commitment Termination Date, each
Lender that has a Term B Loan Commitment, as applicable, agrees that it will
make loans (relative to such Lender, its "Term B Loans") to the Borrower to be
deposited in the Qualified Settlement Fund equal to such Lender's Term B
Percentage of the aggregate amount of the Borrowing of Term B Loans requested by
the Borrower to be made on such day. No amounts paid or prepaid with respect to
Term B Loans may be reborrowed. All Borrowings of Term B Loans shall be
deposited in the Qualified Settlement Fund.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment
Amounts or the Letter of Credit Stated Amount are subject to reduction from time
to time as set forth below.
SECTION 2.2.1. Optional.
(a) The Borrower may, from time to time on any Business Day occurring
after the Effective Date, voluntarily reduce the amount of the 364 Day Revolving
Loan Commitment Amount on the Business Day so specified by the Borrower in an
aggregate amount not to exceed $25,000,000; provided, however, that all such
reductions shall require at least one Business Day's prior notice to the
Administrative Agent and be permanent, and any partial reduction of any
Commitment Amount shall be in a minimum amount of $5,000,000 and in an integral
multiple of $1,000,000.
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(b) After the Trigger Date and prior to the Credit Date, the Borrower
may, at its discretion, deposit additional amounts into the Qualified Settlement
Fund or the Collateral Account and both the Three Year Loan Commitment and Term
A Loan Commitment will be automatically reduced by an amount equal to such
deposit.
SECTION 2.2.2. Mandatory.
(a) Following the (i) making of the Term B Loans, the Term B Loan
Commitment shall be reduced to zero and (ii) the making of the Term A Loans, the
Three Year Loan Commitment Amount and the Term A Loan Commitment Amount each
will be automatically reduced to zero.
(b) The Letter of Credit Stated Amount will be reduced automatically
(and without any further action on the part of the Letter of Credit Issuer) on
each Letter of Credit Reduction Date by an amount equal to the then applicable
Letter of Credit Reduction Amount, provided, that, (x) in the event the District
Court has issued any order or made any determination which prohibits or
otherwise restricts the reduction of the Letter of Credit Stated Amount required
hereunder, the Letter of Credit Amount shall be reduced in a manner permitted by
the District Court and otherwise satisfactory to the Agents, and (y) to the
extent required or deemed necessary by the Agents, a release in form and
substance satisfactory to the Agents shall have been delivered to each Agent by
the District Court prior to any reduction of the Letter of Credit Stated Amount.
(c) The Three Year Loan Commitment Amount and the Term A Loan
Commitment Amount each shall be reduced on and after the Trigger Date, (A) in an
amount equal to amounts deposited into the Qualified Settlement Fund and the
Collateral Account pursuant to clause (b) of Section 2.2.1 and clauses (a), (c),
(e), (f), (g) and (h) of Section 3.1.1 in respect of the Term A Loan Commitment
Amount effective as of such date of deposit.
SECTION 2.3. Borrowing Procedures. By delivering a Borrowing Request to
the Administrative Agent on or before noon on a Business Day, the Borrower may
from time to time irrevocably request, on not less than one Business Day's
notice in the case of Base Rate Loans, or three Business Days' notice in the
case of LIBO Rate Loans, and in either case not more than five Business Days'
notice, that a Borrowing be made, in the case of LIBO Rate Loans, in a minimum
amount of $5,000,000 and an integral multiple of $1,000,000, in the case of Base
Rate Loans, in a minimum amount of $5,000,000 and an integral multiple of
$1,000,000 or, in either case, in the unused amount of the applicable
Commitment; provided, however, that all Loans made on the Closing Date shall be
made as Base Rate Loans. On the terms and subject to the conditions of this
Agreement, each Borrowing shall be comprised of the type of Loans and shall be
made on the Business Day, specified in such Borrowing Request. On or before
11:00 a.m. on such Business Day each Lender that has a Commitment to make such
Loans being requested shall deposit with the Administrative Agent same day funds
in an amount equal to such Lender's Percentage of the requested Borrowing of
Loans. Such deposit will be made to an account which the Administrative Agent
shall specify from time to time by notice to the Lenders. To the extent
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funds are received from the Lenders, the Administrative Agent shall make such
funds available to the Borrower by wire transfer to the accounts the Borrower
shall have specified in its Borrowing Request. No Lender's obligation to make
any Loan shall be affected by any other Lender's failure to make any Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/ Conversion Notice to the Administrative Agent on or before noon on
a Business Day, the Borrower may from time to time irrevocably elect, on not
less than one Business Day's notice in the case of Base Rate Loans, or three
Business Days' notice in the case of LIBO Rate Loans, and in either case not
more than five Business Days' notice, that all, or any portion in an aggregate
minimum amount of $5,000,000 and an integral multiple of $1,000,000 be, in the
case of Base Rate Loans, converted into LIBO Rate Loans or be, in the case of
LIBO Rate Loans, converted into Base Rate Loans or continued as LIBO Rate Loans
(in the absence of delivery of a Continuation/Conversion Notice with respect to
any LIBO Rate Loan at least three Business Days (but not more than five Business
Days) before the last day of the then current Interest Period with respect
thereto, such LIBO Rate Loan shall, on such last day, automatically convert to a
Base Rate Loan); provided, however, that (x) each such conversion or
continuation shall be pro rated among the applicable outstanding Loans of all
Lenders that have made such Loans, and (y) no portion of the outstanding
principal amount of any Loans may be continued as, or be converted into, LIBO
Rate Loans when any Default has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank eurodollar market.
SECTION 2.6. Letter of Credit Issuance Procedures. The Borrower may
request the issuance of a Letter of Credit by delivering a Letter of Credit
Issuance Request to the Administrative Agent prior to the Letter of Credit
Commitment Termination Date. The Letter of Credit shall by its terms be stated
to expire on the Letter of Credit Stated Expiry Date.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of the
Letter of Credit, and without further action, each Three Year Loan Lender (other
than the Letter of Credit Issuer) shall be deemed to have irrevocably purchased,
to the extent of its Three Year RL Percentage, a participation interest in the
Letter of Credit (including the Contingent Liability and any Letter of Credit
Reimbursement Obligation with respect thereto), and such Three Year Loan Lender
shall, to the extent of its Three Year RL Percentage, be responsible for
reimbursing on the Letter of
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Credit Draw Date the Letter of Credit Issuer for the Letter of Credit
Reimbursement Obligations which have not been reimbursed by the Borrower in
accordance with Section 2.6.3. In addition, such Three Year Loan Lender shall,
to the extent of its Three Year RL Percentage, be entitled to receive a ratable
portion of the Letter of Credit fees payable pursuant to Section 3.3.3 with
respect to the Letter of Credit and of interest payable pursuant to Section 3.2
with respect to any Letter of Credit Reimbursement Obligation. To the extent
that any Three Year Loan Lender has reimbursed any Letter of Credit Issuer for a
Letter of Credit Disbursement, such Lender shall be entitled to receive its
ratable portion of any amounts subsequently received (from the Borrower or
otherwise) in respect of such Letter of Credit Disbursement.
SECTION 2.6.2. Letter of Credit Disbursements. The Letter of Credit
Issuer will notify the Borrower and the Agents promptly of the presentment of a
Letter of Credit Draw Request. Subject to the terms and provisions of the Letter
of Credit and this Agreement, the Letter of Credit Issuer shall pay the stated
amount of the Letter of Credit to the District Court after receipt of the Letter
of Credit Draw Request (each such payment, a "Letter of Credit Disbursement").
The Borrower will reimburse the Administrative Agent, for the account of the
Letter of Credit Issuer, prior to 5:00 p.m. on the Letter of Credit Disbursement
Date for all amounts which the Letter of Credit Issuer has disbursed under the
Letter of Credit, together with interest thereon at a rate per annum equal to
the rate per annum then in effect for Base Rate Loans (with the then Applicable
Margin for Term A Loans accruing on such amount) pursuant to Section 3.2 for the
period from the Letter of Credit Disbursement Date through the date of such
reimbursement. Subject to the availability of Term A Loans, the Borrower may
make such reimbursement from the proceeds of Term A Loans. Without limiting in
any way the foregoing and notwithstanding anything to the contrary contained
herein, the Borrower hereby acknowledges and agrees that it shall be deemed to
be the obligor for purposes of the Letter of Credit issued hereunder.
SECTION 2.6.3. Letter of Credit Reimbursement. The obligation (a
"Letter of Credit Reimbursement Obligation") of the Borrower under Section 2.6.2
to reimburse the Letter of Credit Issuer with respect to each Letter of Credit
Disbursement (including interest thereon), and, upon the failure of the Borrower
to reimburse the Letter of Credit Issuer, each Three Year Loan Lender's
obligation under Section 2.6.1 to reimburse the Letter of Credit Issuer, shall
be absolute and unconditional under any and all circumstances and irrespective
of any setoff, counterclaim or defense to payment which the Borrower or such
Three Year Loan Lender, as the case may be, may have or have had against the
Letter of Credit Issuer or any Lender, including any defense based upon the
failure of any Letter of Credit Disbursement to conform to the terms of the
applicable Letter of Credit (if, in the Letter of Credit Issuer's good faith
opinion, such Letter of Credit Disbursement is determined to be appropriate) or
any non-application or misapplication by the District Court of the proceeds of
the Letter of Credit; provided, however, that after paying in full its Letter of
Credit Reimbursement Obligation hereunder, nothing herein shall adversely affect
the right of the Borrower or such Lender, as the case may be, to commence any
proceeding against the Letter of Credit Issuer for any wrongful Letter of Credit
Disbursement made by the Letter of Credit Issuer under the Letter of Credit as a
result of acts or omissions constituting gross negligence or wilful misconduct
on the part of the Letter of Credit Issuer.
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SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default under Section 8.1.9 or upon notification by
the Administrative Agent (acting at the direction of the Required Lenders) to
the Borrower of its obligations under this Section, following the occurrence and
during the continuation of any other Event of Default,
(a) the Letter of Credit Stated Amount shall, without demand
upon or notice to the Borrower or any other Person, be deemed to have
been paid or disbursed by the Letter of Issuer (notwithstanding that
such amount may not in fact have been paid or disbursed); and
(b) the Borrower shall be immediately obligated to reimburse
the Letter of Credit Issuer for the amount deemed to have been so paid
or disbursed by the Letter of Credit Issuer.
Amounts payable by the Borrower pursuant to this Section shall be deposited in
immediately available funds with the Administrative Agent and held as collateral
security for the Letter of Credit Reimbursement Obligations. When all Defaults
giving rise to the deemed disbursements under this Section have been cured or
waived the Administrative Agent shall return to the Borrower all amounts then on
deposit with the Administrative Agent pursuant to this Section which have not
been applied to the satisfaction of the Letter of Credit Reimbursement
Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower, each
other Obligor and, to the extent set forth in Section 2.6.1, each Three Year
Loan Lender shall assume all risks of the acts, omissions or misuse of the
Letter of Credit by the beneficiary thereof. The Letter of Credit Issuer (except
to the extent of its own gross negligence or wilful misconduct) shall not be
responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of the Letter of Credit or any document submitted by any
party in connection with the application for and issuance of the Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign the Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove
to be invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under the Letter of Credit;
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(d) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Letter of Credit
Disbursement under the Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Letter of Credit Issuer or any Three Year Loan
Lender hereunder. In furtherance and not in limitation or derogation of any of
the foregoing, any action taken or omitted to be taken by the Letter of Credit
Issuer in good faith (and not constituting gross negligence or wilful
misconduct) shall be binding upon each Obligor and each such Secured Party, and
shall not put the Letter of Credit Issuer under any resulting liability to any
Obligor or any Secured Party, as the case may be. In any event, except to the
extent of the Letter of Credit Issuer's gross negligence or wilful misconduct,
if the Borrower fails to object with specificity in writing to a draw under the
Letter of Credit at least one hour prior to the time the Letter of Credit Issuer
is required to make payment of such draw, the Borrower shall be deemed to have
waived any objection to the making of such payment.
SECTION 2.7. Notes.
(a) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a Note
evidencing the Loans made by, and payable to the order of, such Lender in a
maximum principal amount equal to such Lender's Percentage of the original
applicable Commitment Amount. The Borrower hereby irrevocably authorizes each
Lender to make (or cause to be made) appropriate notations on the grid attached
to such Lender's Note (or on any continuation of such grid), which notations, if
made, shall evidence, inter alia, the date of, the outstanding principal amount
of, and the interest rate and Interest Period applicable to the Loans evidenced
thereby. Such notations shall, to the extent not inconsistent with notations
made by the Administrative Agent in the Register, be conclusive and binding on
each Obligor absent manifest error; provided, however, that the failure of any
Lender to make any such notations, or any error in any such notation, shall not
limit or otherwise affect any Obligations of any Obligor.
(b) The Borrower hereby designates the Administrative Agent to serve as
the Borrower's agent, solely for the purpose of this clause, to maintain a
register (the "Register") on which the Administrative Agent will record each
Lender's Commitment, the Loans made by each Lender and each repayment in respect
of the principal amount of the Loans, annexed to which the Administrative Agent
shall retain a copy of each Lender Assignment Agreement delivered to the
Administrative Agent pursuant to Section 10.11.1. Failure to make any
recordation, or any error in such recordation, shall not affect any Obligor's
Obligations. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders shall
treat each Person in whose name a Loan is registered (or, if applicable, to
which a Note has been issued) as the owner thereof for the purposes of all Loan
Documents,
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notwithstanding notice or any provision herein to the contrary. Any assignment
or transfer of a Commitment or the Loans made pursuant hereto shall be
registered in the Register only upon delivery to the Administrative Agent of a
Lender Assignment Agreement that has been executed by the requisite parties
pursuant to Section 10.11.1. No assignment or transfer of a Lender's Commitment
or Loans shall be effective unless such assignment or transfer shall have been
recorded in the Register by the Administrative Agent as provided in this
Section.
ARTICLE III
REPAYMENTS, PREPAYMENTS, DEPOSITS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application. The Borrower
agrees that (i) the Loans shall be repaid and prepaid and (ii) certain deposits
be made into the Qualified Settlement Fund and/or Collateral Account, in each
case, pursuant to the following terms.
SECTION 3.1.1. Repayments and Prepayments and Deposits into the
Qualified Settlement Fund and the Collateral Account. The Borrower shall repay
in full the unpaid principal amount of each Loan upon the applicable Stated
Maturity Date therefor. Prior thereto, payments and prepayments of the Loans and
deposits into the Qualified Settlement Fund and/or Collateral Account shall or
may be made as set forth below.
(a) From time to time on any Business Day, the Borrower may
make a voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Loans; provided, that (x) any prepayment of the
Term Loans shall be made pro rata among Term A Loans (or if no Term A
Loans are outstanding to a deposit into the Qualified Settlement Fund
and/or Collateral Account) and Term B Loans, and pro rata among Term A
Loans and Term B Loans of the same type and, if applicable, having the
same Interest Period of all Lenders that have made such Term A Loans or
Term B Loans (applied to the remaining amortization payments for the
Term A Loans and the Term B Loans, as the case may be, in such amounts
as the Borrower shall determine) and any such prepayment of 364 Day
Revolving Loans shall be made pro rata among the 364 Day Revolving
Loans of the same type and, if applicable, having the same Interest
Period of all Lenders that have made such 364 Day Revolving Loans; (y)
all such voluntary prepayments shall require at least one but no more
than five Business Days' prior notice to the Administrative Agent; and
(z) all such voluntary partial prepayments shall be, in an aggregate
minimum amount of $5,000,000 and an integral multiple $1,000,000.
(b) Each prepayment of any Loans made pursuant to this Section
shall be without premium or penalty, except as may be required by
Section 4.4; provided, however, any prepayments of the Term B Loans
made pursuant to this Section 3.1.1 (other than a prepayment pursuant
to clauses (h) of this Section 3.1.1) or upon a Change of Control shall
(w) at any time prior to April 10, 2001, be accompanied by a prepayment
premium equal to two (2%) percent of the aggregate principal amount of
such Term B Loans being
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prepaid, (x) at any time thereafter but prior to October 10, 2001, be
accompanied by a prepayment premium equal to one and one-half (1 1/2%)
percent of the aggregate principal amount of such Term B Loans being
prepaid, (y) at any time thereafter but prior to April 10, 2002, be
accompanied by a prepayment premium equal to one (1%) percent of the
aggregate principal amount of such Term B Loans being prepaid, and (z)
at any time thereafter but prior to October 10, 2002, be accompanied by
a prepayment premium equal to one-half (1/2%) percent of the aggregate
principal amount of such Term B Loans being prepaid.
(c) (i) On or before each Quarterly Payment Date occurring
during any period set forth below prior to the Credit Date, the
Borrower shall make a scheduled deposit into the Qualified Settlement
Fund or the Collateral Account in the manner described in clause (c) of
Section 3.1.2, and (ii) on each Quarterly Payment Date thereafter
occurring during any period set forth below and on the Stated Maturity
Date, the Borrower shall make a scheduled repayment of the aggregate
outstanding principal amount, if any, of all Term A Loans, in each case
in an amount equal to the amount set forth below opposite the Stated
Maturity Date or such Quarterly Payment Date, as applicable:
<TABLE>
<CAPTION>
Amount of Required Deposit
Period or Principal Repayment
----------------------------------------------------------- -----------------------------
<S> <C>
Effective Date through (and
including) December 31, 2000 $45,000,000
01/01/2001 through (and $20,000,000
including) 06/30/2001
07/01/2001 through (and $30,000,000
including) 12/31/2001
01/01/2002 through (and $20,000,000
including) 06/30/2002
07/01/2002 through (and $30,000,000
including) 12/31/2002
01/01/2003 through (and $25,000,000
including) 06/30/2003
Stated Maturity Date for The then outstanding principal
Term A Loans amount of all Term A Loans.
</TABLE>
(d) On the Stated Maturity Date and on each Quarterly Payment
Date occurring during any period set forth below, the Borrower shall
make a scheduled repayment of the
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<PAGE> 55
aggregate outstanding principal amount, if any, of all Term B Loans in
an amount equal to the amount set forth below opposite the Stated
Maturity Date or such Quarterly Payment Date, as applicable:
<TABLE>
<CAPTION>
Amount of Required Principal
Period Repayment
----------------------------------------------------------- -------------------------------
<S> <C>
Effective Date through (and
including) December 31, 2004 $825,000
Stated Maturity Date for
Term B Loans $315,975,000 or the then
outstanding principal amount
of all Term B Loans, if
different.
</TABLE>
(e) Concurrently with the receipt by the Borrower or any
Subsidiary of any Net Equity Proceeds, the Borrower shall make (i) on
or prior to the earlier to occur of the Trigger Date and the Credit
Date a mandatory deposit into the Qualified Settlement Fund or the
Collateral Account and (ii) after the occurrence of the Trigger Date or
Credit Date, as the case may be, a mandatory prepayment of the Loans
and/or a reduction of the Term A Loan Commitment Amount and the Three
Year Commitment Amount, in the case of clause (i) and (ii), in an
amount equal to 50% of such Net Equity Proceeds, to be applied as set
forth in Section 3.1.2.
(f) Concurrently with the receipt by the Borrower or any
Subsidiary of any Net Debt Proceeds, the Borrower shall make (i) on or
prior to the earlier to occur of the Trigger Date and the Credit Date a
mandatory deposit into the Qualified Settlement Fund or the Collateral
Account and (ii) after the occurrence of the Trigger Date or Credit
Date, as the case may be, a mandatory prepayment of the Loans and/or a
reduction of the Term A Loan Commitment Amount and the Three Year
Commitment Amount, in the case of clause (i) and (ii), in an amount
equal to 100% of such Net Debt Proceeds, to be applied as set forth in
Section 3.1.2.
(g) Concurrently with the receipt of any Net Disposition
Proceeds by the Borrower or any Subsidiary, the Borrower shall make (i)
on or prior to the earlier to occur of the Trigger Date and the Credit
Date a mandatory deposit into the Qualified Settlement Fund or the
Collateral Account and (ii) after the occurrence of the Trigger Date or
Credit Date, as the case may be, a mandatory prepayment of the Loans
and/or a reduction of the Term A Loan Commitment Amount and the Three
Year Commitment Amount, in the case of clause (i) and (ii) in an amount
equal to 100% of such Net Disposition Proceeds, to be applied as set
forth in Section 3.1.2.
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<PAGE> 56
(h) Within three Business Days of the recognition of a Tax
Benefit by the Borrower (to the extent not previously recognized),
whether by refund to the Borrower or reduction in the Borrower's
estimated tax payments, the Borrower shall make (i) if the recognition
occurs on or prior to the earlier to occur of the Trigger Date and the
Credit Date, a mandatory deposit into the Qualified Settlement Fund or
the Collateral Account and (ii) if the recognition occurs after the
occurrence of the Trigger Date or Credit Date, as the case may be, a
mandatory prepayment of the Loans and/or reduction of the Term A Loan
Commitment Amount and the Three Year Loan Commitment Amount. The amount
of the deposit or prepayment, as applicable, shall be an amount equal
to 100% of such Tax Benefit, to be applied as set forth in Section
3.1.2.
(i) Within three Business Days of the receipt by the Borrower
of any distribution from the Qualified Settlement Fund other than in
respect of the payment of the Conwood Judgment Amount the Borrower
shall make (i) if the recognition occurs on or prior to the earlier to
occur of the Trigger Date and the Credit Date a mandatory deposit into
the Collateral Account and (ii) if the recognition occurs after the
occurrence of the Trigger Date or Credit Date, as the case may be, a
mandatory prepayment of the Loans and/or reduction of the Term A Loan
Commitment Amount and the Three Year Loan Commitment Amount, in the
case of clauses (i) and (ii) in an amount equal to 100% of such
distribution together with an amount equal to any federal income tax
paid (or reserve taken against such tax) in respect of such
distribution, to be applied as set forth in Section 3.1.2.
(j) Immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 8.2 or Section 8.3, the Borrower
shall repay all the Loans, unless, pursuant to Section 8.3, only a
portion of all the Loans is so accelerated (in which case the portion
so accelerated shall be so repaid).
SECTION 3.1.2. Application. Amounts required to be deposited or prepaid
pursuant to Section 3.1.1 shall be applied as set forth in this Section.
(a) Subject to clause (b), each prepayment or repayment of the
principal of the Loans shall be applied, to the extent of such
prepayment or repayment, first, to the principal amount thereof being
maintained as Base Rate Loans, and second, subject to the terms of
Section 4.4, to the principal amount thereof being maintained as LIBO
Rate Loans.
(b) Each deposit into the Qualified Settlement Fund and
Collateral Account pursuant to clauses (e)(i), (f)(i), (g)(i), (h)(i)
and (i)(i) of Section 3.1.1 shall be applied (i) first, until such time
as the Qualified Settlement Fund Amount is equal to $500,000,000, to a
deposit in the Qualified Settlement Fund, and (ii) second, on the date
the Qualified Settlement Fund Amount is greater than $500,000,000 and
until such time as the sum of (A) the Qualified Settlement Fund Amount,
plus, (B) the Collateral
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<PAGE> 57
Account Amount, is equal to $730,000,000, to a deposit in the Qualified
Settlement Fund or the Collateral Account (as determined by the
Borrower). Any prepayment of the Loans or reduction of Commitments
required pursuant to clauses (e)(ii), (f)(ii), (g)(ii), (h)(ii) and
(i)(ii) of Section 3.1.1 shall be applied (i), pro rata, to a mandatory
prepayment of (x) the outstanding principal amount of all Term A Loans
(or, prior to the Credit Date, to a deposit in the Qualified Settlement
Fund or the Collateral Account (as determined by the Borrower) and (y)
Term B Loans (with the amount of such prepayment of the Term A Loans
and the Term B Loans being applied on a pro rata basis to the remaining
Term A Loan or Term B Loan, as the case may be, amortization payments
in accordance with the amount of each such remaining Term Loan
amortization payment) and (ii) once all Term Loans have been repaid in
full, pro rata, to the repayment of any outstanding 364 Day Revolving
Loans (but not a reduction of the 364 Day Revolving Loan Commitment
Amount) or the Extension Term Loans, as the case may be, in accordance
with Section 2.2.2; provided, however, that in the case of each
prepayment of Loans required pursuant to Section 3.1.1 (other than
clause (d) of Section 3.1.1) and, provided any of the Term A Loans
remain outstanding, or, prior to the Credit Date, the Letter of Credit
Stated Amount or the Three Year Loan Commitment Amount has each not
been reduced to zero pursuant to Section 2.2.2., the Borrower shall
deliver a notice to the Administrative Agent at least four Business
Days prior to the date that such prepayment is proposed to be made (or
such lesser time period as to which the Borrower has actual knowledge
of such impending prepayment), and, thereupon, any Lender that has Term
B Loans outstanding may, by delivering a notice to the Administrative
Agent at least two Business Days prior to the date that such prepayment
is proposed to be made, elect not to have its pro rata share of Term B
Loans prepaid, and upon any such election, the Administrative Agent
shall apply the amount that otherwise would have prepaid such Lender's
Term B Loans (the "Excess Amount") to, first, a reduction in each of
the Term A Loan Commitment Amount and the Three Year Loan Commitment
Amount (in each case until reduced to zero), or, in the alternative,
subsequent to the Credit Date, a mandatory prepayment of the Term A
Loans (until repaid in full), and, then, in each case, pro rata, to the
repayment of any outstanding 364 Day Revolving Loans or the Extension
Term Loans, as the case may be, in each case in accordance with Section
2.2.2.
(c) Each deposit scheduled to be made into the Qualified
Settlement Fund or the Collateral Account pursuant to clause (c) of
Section 3.1.1 shall be (i) deposited (A) first, into the Qualified
Settlement Fund until such time as the Qualified Settlement Amount is
equal to $500,000,000, (B) second, into the Qualified Settlement Fund
or the Collateral Account (as determined by the Borrower in
consultation with the Agents) on the date the Qualified Settlement
Amount is greater than $500,000,000 and thereafter, and (ii) applied
(A) prior to the Credit Date, to reduce each of the Term A Loan
Commitment Amount and the Three Year Loan Commitment Amount in the
manner described in Section 2.2.2, or (B) on and after the Credit Date,
to repay the aggregate outstanding principal amount of all Term A
Loans.
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<PAGE> 58
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with the terms set
forth below.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to
time in effect plus the Applicable Margin; and
(b) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the LIBO
Rate (Reserve Adjusted) for such Interest Period plus the Applicable
Margin.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan or Reimbursement Obligation is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise), or after any other
monetary Obligation of the Borrower shall have become due and payable, the
Borrower shall pay, but only to the extent permitted by law, interest (after as
well as before judgment) on such amounts at a rate per annum equal to (a) in the
case of overdue principal on any Loan, the rate of interest that otherwise would
be applicable to such Loan plus 2% per annum; and (b) in the case of overdue
interest, fees, and other monetary Obligations, the Alternate Base Rate, plus,
the Applicable Margin for Term A Loans maintained as Base Rate Loans, plus, 2%
per annum.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment, prepayment, in each case in
whole or in part, of principal outstanding on such Loan on the
principal amount so paid, prepaid;
(c) with respect to Base Rate Loans, in arrears on each
Quarterly Payment Date occurring after the Effective Date;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on the date occurring on each three-month interval
occurring after the first day of such Interest Period);
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<PAGE> 59
(e) with respect to any Base Rate Loans converted into LIBO
Rate Loans on a day when interest would not otherwise have been payable
pursuant to clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations after the date such
amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth below.
All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each 364 Day Revolving Loan Lender and
each Three Year Loan Lender, for the period (including any portion thereof when
any of the 364 Day Revolving Loan Commitments or the Three Year Loan Commitments
are suspended by reason of the Borrower's inability to satisfy any condition of
Article V) commencing on the Effective Date and continuing through the
applicable Commitment Termination Date, a commitment fee in an amount equal to
the Applicable Commitment Fee Margin, in each case on such Lender's applicable
Percentage of the sum of the average daily unused portion of the applicable
Commitment Amount (net, in the case of Three Year Loan Commitment Amount, of the
Letter of Credit Stated Amount). All commitment fees payable pursuant to this
Section shall be payable by the Borrower in arrears on each Quarterly Payment
Date following the Effective Date, and on the applicable Commitment Termination
Date.
SECTION 3.3.2. Fees. The Borrower agrees to pay (a) to the
Administrative Agent, for its own account, the fees in the amounts and on the
dates set forth in the Administrative Agent's Fee Letter, and (b) to each of the
Agents, for their respective account, the fees in the amounts and on the dates
set forth in the Agents' Fee Letter.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of the Letter of Credit Issuer
and each Three Year Loan Lender, for the period commencing on the date of
issuance of the Letter of Credit and ending on the earlier to occur of the
Letter of Credit Draw Date and the Letter of Credit Stated Expiration Date a
Letter of Credit fee in an amount equal to the then effective Applicable Margin
for 364 Day Revolving Loans maintained as LIBO Rate Loans, multiplied, by the
average daily Letter of Credit Stated Amount. Such fees shall be payable by the
Borrower in arrears on each Quarterly Payment Date following the Closing Date
and on the Letter of Credit Draw Date. The Borrower further agrees to pay to the
Letter of Credit Issuer for its own account an issuance fee as specified in the
Administrative Agent's Fee Letter.
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ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the
Administrative Agent, be conclusive and binding on the Borrower) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any Governmental Authority asserts that it is unlawful, for such
Lender to make or continue any Loan as, or to convert any Loan into, a LIBO Rate
Loan, the obligations of such Lender to make, continue or convert any such LIBO
Rate Loan shall, upon such determination, forthwith be suspended until such
Lender shall notify the Administrative Agent that the circumstances causing such
suspension no longer exist, and all outstanding LIBO Rate Loans payable to such
Lender shall automatically convert into Base Rate Loans at the end of the then
current Interest Periods with respect thereto or sooner, if required by such law
or assertion.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall
have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to it in its relevant
market; or
(b) by reason of circumstances affecting it's relevant market,
adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans;
then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees
to reimburse each Lender and the Letter of Credit Issuer for any increase in the
cost to such Lender or the Letter of Credit Issuer of, or any reduction in the
amount of any sum receivable by such Secured Party in respect of, such Secured
Party's Commitments and the making of Credit Extensions hereunder (including the
making, continuing or maintaining (or of its obligation to make or continue) any
Loans as, or of converting (or of its obligation to convert) any Loans into,
LIBO Rate Loans) that arise in connection with any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in after the Closing Date of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of any Governmental
Authority, except for such changes with respect to increased capital costs and
Taxes which are governed by Sections 4.5 and 4.6, respectively. Each affected
Secured Party shall promptly notify the Administrative Agent and the Borrower in
writing of the occurrence of any such event, stating the reasons therefor and
setting forth in reasonable detail the basis for
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<PAGE> 61
requesting the additional amount required fully to compensate such Secured Party
for such increased cost or reduced amount. Such additional amounts shall be
payable by the Borrower directly to such Secured Party within five days of its
receipt of such notice, and such notice shall, in the absence of manifest error,
be conclusive and binding on the Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make or continue any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a LIBO Rate Loan
but excluding loss of anticipated profits) as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loan on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
Article III or otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/Conversion Notice
therefor;
then, upon the written notice of such Lender setting forth in reasonable detail
the basis for requesting such amount to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority affects
or would affect the amount of capital required or expected to be maintained by
any Secured Party or any Person controlling such Secured Party (including as a
result of a determination by such Governmental Authority that the 364 Day
Revolving Loan Commitment (and any 364 Day Revolving Loans made in connection
therewith) shall not receive the capital treatment accorded to revolving loan
facilities with commitment termination dates of less than one year under
applicable law, regulations, directives, guidelines, or decisions), and such
Secured Party determines (in good faith but in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of the Commitments or the Credit Extensions made, or the Letter of
Credit participated in, by such Secured Party is reduced to a level below that
which such Secured Party or such controlling Person could have achieved but for
the occurrence of any such circumstance, then upon notice from time to time by
such Secured Party to the Borrower setting forth in reasonable detail the basis
for requesting such amount, the
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Borrower shall within five days following receipt of such notice pay directly to
such Secured Party additional amounts sufficient to compensate such Secured
Party or such controlling Person for such reduction in rate of return. A
statement of such Secured Party as to any such additional amount or amounts
shall, in the absence of manifest error, be conclusive and binding on the
Borrower. In determining such amount, such Secured Party may use any method of
averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable.
SECTION 4.6. Taxes. The Borrower covenants and agrees as follows with
respect to Taxes.
(a) Any and all payments by the Borrower under each Loan
Document shall be made without setoff, counterclaim or other defense,
and free and clear of, and without deduction or withholding for or on
account of, any Taxes. In the event that any Taxes are required to be
deducted or withheld from any payment required to be made by any
Obligor to or on behalf of any Secured Party under any Loan Document,
then:
(i) subject to clause (f), if such Taxes are
Non-Excluded Taxes, the amount of such payment shall be
increased as may be necessary so that such payment is made,
after withholding or deduction for or on account of such
Taxes, in an amount that is not less than the amount provided
for in such Loan Document; and
(ii) the Borrower shall withhold the full amount of
such Taxes from such payment (as increased pursuant to clause
(a)(i)) and shall pay such amount to the Governmental
Authority imposing such Taxes in accordance with applicable
law.
(b) In addition, the Borrower shall pay all Other Taxes
imposed to the relevant Governmental Authority imposing such Other
Taxes in accordance with applicable law.
(c) As promptly as practicable after the payment of any Taxes
or Other Taxes, and in any event within 45 days of any such payment
being due, the Borrower shall furnish to the Administrative Agent a
copy of an official receipt (or a certified copy thereof) evidencing
the payment of such Taxes or Other Taxes. The Administrative Agent
shall make copies thereof available to any Lender upon request
therefor.
(d) Subject to clause (f), the Borrower shall indemnify each
Secured Party for any Non-Excluded Taxes and Other Taxes levied,
imposed or assessed on (and whether or not paid directly by) such
Secured Party whether or not such Non-Excluded Taxes or Other Taxes are
correctly or legally asserted by the relevant Governmental Authority.
Promptly upon having knowledge that any such Non-Excluded Taxes or
Other Taxes have been levied, imposed or assessed, and promptly upon
notice thereof by any Secured Party, the Borrower shall pay such
Non-Excluded Taxes or Other Taxes directly to the relevant Governmental
Authority (provided, however, that no Secured Party shall be under any
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obligation to provide any such notice to the Borrower). In addition,
the Borrower shall indemnify each Secured Party for any incremental
Taxes that may become payable by such Secured Party as a result of any
failure of the Borrower to pay any Taxes when due to the appropriate
Governmental Authority or to deliver to the Administrative Agent,
pursuant to clause (c), documentation evidencing the payment of Taxes
or Other Taxes. With respect to indemnification for Non-Excluded Taxes
and Other Taxes actually paid by any Secured Party or the
indemnification provided in the immediately preceding sentence, such
indemnification shall be made within 30 days after the date such
Secured Party makes written demand therefor. The Borrower acknowledges
that any payment made to any Secured Party or to any Governmental
Authority in respect of the indemnification obligations of the Borrower
provided in this clause shall constitute a payment in respect of which
the provisions of clause (a) and this clause shall apply.
(e) Each Non-U.S. Lender, on or prior to the date on which
such non-U.S. Lender becomes a Lender hereunder (and from time to time
thereafter upon the request of the Borrower or the Administrative
Agent, but only for so long as such non-U.S. Lender is legally entitled
to do so), shall deliver to the Borrower and the Administrative Agent
either (i) two duly completed copies of either (x) Internal Revenue
Service Form W-8BEN or (y) Internal Revenue Service Form W-8ECI, or in
either case an applicable successor form; or (ii) in the case of a
Non-U.S. Lender that is not legally entitled to deliver either form
listed in clause (e)(i), (x) a certificate to the effect that such
Non-U.S. Lender is not (A) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C)
a controlled foreign corporation receiving interest from a related
person within the meaning of Section 881(c)(3)(C) of the Code (referred
to as an "Exemption Certificate") and (y) two duly completed copies of
Internal Revenue Service Form W-8BEN or applicable successor form.
(f) The Borrower shall not be obligated to gross up any
payments to any Lender pursuant to clause (a)(i), or to indemnify any
Lender pursuant to clause (d), in respect of United States federal
withholding taxes to the extent imposed as a result of (i) the failure
of such Lender to deliver to the Borrower the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to clause
(e), (ii) such form or forms and/or Exemption Certificate not
establishing a complete exemption from U.S. federal withholding tax or
the information or certifications made therein by the Lender being
untrue or inaccurate on the date delivered in any material respect, or
(iii) the Lender designating a successor lending office at which it
maintains its Loans which has the effect of causing such Lender to
become obligated for tax payments in excess of those in effect
immediately prior to such designation; provided, however, that the
Borrower shall be obligated to gross up any payments to any such Lender
pursuant to clause (a)(i), and to indemnify any such Lender pursuant to
clause (d), in respect of United States federal withholding taxes if
(i) any such failure to deliver a form or forms or an Exemption
Certificate or the failure of such form or forms or Exemption
Certificate to establish a
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complete exemption from U.S. federal withholding tax or inaccuracy or
untruth contained therein resulted from a change in any applicable
statute, treaty, regulation or other applicable law or any
interpretation of any of the foregoing occurring after the Closing
Date, which change rendered such Lender no longer legally entitled to
deliver such form or forms or Exemption Certificate or otherwise
ineligible for a complete exemption from U.S. federal withholding tax,
or rendered the information or certifications made in such form or
forms or Exemption Certificate untrue or inaccurate in a material
respect, (ii) the redesignation of the Lender's lending office was made
at the request of the Borrower or (iii) the obligation to gross up
payments to any such Lender pursuant to clause (a)(i) or to indemnify
any such Lender pursuant to clause (d) is with respect to an Assignee
Lender that becomes an Assignee Lender as a result of an assignment
made at the request of the Borrower.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided in a Loan Document, all payments by the Borrower pursuant to each Loan
Document shall be made by the Borrower to the Administrative Agent for the pro
rata account of the Secured Parties entitled to receive such payment. All
payments shall be made without setoff, deduction or counterclaim not later than
11:00 a.m. on the date due in same day or immediately available funds to such
account as the Administrative Agent shall specify from time to time by notice to
the Borrower. Funds received after that time shall be deemed to have been
received by the Administrative Agent on the next succeeding Business Day. The
Administrative Agent shall promptly remit in same day funds to each Secured
Party its share, if any, of such payments received by the Administrative Agent
for the account of such Secured Party. All interest (including interest on LIBO
Rate Loans) and fees shall be computed on the basis of the actual number of days
(including the first day but excluding the last day) occurring during the period
for which such interest or fee is payable over a year comprised of 360 days (or,
in the case of interest on a Base Rate Loan (calculated at other than the
Federal Funds Rate), 365 days or, if appropriate, 366 days). Payments due on
other than a Business Day shall (except as otherwise required by clause (c) of
the definition of "Interest Period") be made on the next succeeding Business Day
and such extension of time shall be included in computing interest and fees in
connection with that payment.
SECTION 4.8. Sharing of Payments. If any Secured Party shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Credit Extension or Reimbursement
Obligation (other than pursuant to the terms of Section 4.3, 4.4, 4.5, 4.6, 10.3
or 10.4) in excess of its pro rata share of payments obtained by all Secured
Parties, such Secured Party shall purchase from the other Secured Parties such
participations in Credit Extensions made by them as shall be necessary to cause
such purchasing Secured Party to share the excess payment or other recovery
ratably (to the extent such other Secured Parties were entitled to receive a
portion of such payment or recovery) with each of them; provided, however, that
if all or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing Secured Party, the purchase shall be rescinded
and each Secured Party which has sold a participation to the purchasing Secured
Party shall repay to
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the purchasing Secured Party the purchase price to the ratable extent of such
recovery together with an amount equal to such selling Secured Party's ratable
share (according to the proportion of (a) the amount of such selling Secured
Party's required repayment to the purchasing Secured Party to (b) total amount
so recovered from the purchasing Secured Party) of any interest or other amount
paid or payable by the purchasing Secured Party in respect of the total amount
so recovered. The Borrower agrees that any Secured Party purchasing a
participation from another Secured Party pursuant to this Section may, to the
fullest extent permitted by law, exercise all its rights of payment (including
pursuant to Section 4.9) with respect to such participation as fully as if such
Secured Party were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law any Secured Party receives a secured claim in lieu of a setoff to which this
Section applies, such Secured Party shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Secured Parties entitled under this Section to share in the
benefits of any recovery on such secured claim.
SECTION 4.9. Setoff. Each Secured Party shall, upon the occurrence and
during the continuance of any Event of Default described in clauses (a) through
(d) of Section 8.1.9 or, with the consent of the Required Lenders, upon the
occurrence and during the continuance of any other Event of Default, have the
right to appropriate and apply to the payment of the Obligations owing to it
(whether or not then due), and (as security for such Obligations) the Borrower
hereby grants to each Secured Party a continuing security interest in, any and
all balances, credits, deposits, accounts or moneys of the Borrower then or
thereafter maintained with such Secured Party; provided, however, that any such
appropriation and application shall be subject to the provisions of Section 4.8.
Each Secured Party agrees promptly to notify the Borrower and the Administrative
Agent after any such setoff and application made by such Secured Party;
provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Secured Party under
this Section are in addition to other rights and remedies (including other
rights of setoff under applicable law or otherwise) which such Secured Party may
have.
SECTION 4.10. Obligation to Mitigate. Each Lender agrees that, as
promptly as practicable after the officer of such Lender responsible for
administering its Loans has actual knowledge of the occurrence of an event or
the existence of a condition that would cause such Lender to become entitled to
receive payments (an "Affected Lender") under Sections 4.3, 4.4, 4.5 or 4.6, it
will, to the extent not inconsistent with the internal policies of such Lender
and any applicable legal or regulatory restrictions, use reasonable efforts (a)
to make, issue, fund or maintain its Credit Extensions, including any affected
Loans, through another office of such Lender, or (b) take such other measures as
such Lender may elect in its sole discretion, if as a result thereof the
circumstances which would cause such Lender to be an Affected Lender would cease
to exist or the additional amounts which would otherwise be required to be paid
to such Lender pursuant to Section 4.3, 4.4, 4.5 or 4.6 would be materially
reduced and if, as determined by such Lender in its sole discretion, the making,
issuing, funding or maintaining of such Commitments or Loans through such other
office or in accordance with such other measures, as
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the case may be, would not otherwise adversely affect such Commitments or Loans
or the interests of such Lender; provided, that such Lender will not be
obligated to utilize such other office pursuant to this Section 4.10 unless the
Borrower agrees to pay all incremental expenses incurred by such Lender as a
result of utilizing such other office as above. A certificate as to the amount
of any such expenses payable by the Borrower pursuant to this Section 4.10
(setting forth in reasonable detail the basis for requesting such amount)
submitted by such Lender to the Borrower (with a copy to Administrative Agent)
shall be conclusive absent manifest error.
SECTION 4.11. Removal or Substitution of a Lender. Anything contained
herein to the contrary notwithstanding, in the event that (a) any Lender (each,
an "Increased Cost Lender") shall give notice to the Borrower that such Lender
is an Affected Lender or that such Lender is entitled to receive payments under
Section 4.3, 4.4, 4.5 or 4.6 the circumstances of which have caused such Lender
to be an Affected Lender or which entitle such Lender to receive such payments
shall remain in effect, and such Lender shall fail to withdraw such notice
within five Business Days after the Borrower's request for such withdrawal, or
(b) any Lender, at the direction or request of any Governmental Authority,
defaults (each, a "Defaulting Lender") in its obligation to fund, the default
period for such Defaulting Lender shall remain in effect, and such Defaulting
Lender shall fail to cure the default as a result of which it has become a
Defaulting Lender within five Business Days after Borrower's request that it
cure such default, then, with respect to each such Increased Cost Lender or
Defaulting Lender (each, a "Terminated Lender"), Borrower may, by giving written
notice to the Administrative Agent and any Terminated Lender of its election to
do so, elect to cause such Terminated Lender (and such Terminated Lender hereby
irrevocably agrees) to assign its outstanding Loans and its Commitments, if any,
in full to one or more Eligible Assignees (each, a "Substitute Lender") in
accordance with the provisions of Section 10.11.1 and the Borrower shall pay any
fees payable thereunder in connection with such assignment; provided, (x) on the
date of such assignment, the Substitute Lender shall pay to the Terminated
Lender an amount equal to the sum of (i) an amount equal to the principal of,
and all accrued interest on, all outstanding Loans of the Terminated Lender,
plus, (ii) an amount equal to all accrued but theretofore unpaid fees owing to
such Terminated Lender and (y) on the date of such assignment, the Borrower
shall pay any amounts payable to such Terminated Lender pursuant to Section 4.3,
4.4, 4.5 or 4.6 or otherwise as if it were a prepayment. Upon the payment of all
amounts owing to any Terminated Lender and the termination of such Terminated
Lender's Commitments, if any, such Terminated Lender shall no longer constitute
a "Lender" for purposes hereof; provided, that any rights of such Terminated
Lender to indemnification hereunder shall survive as to such Terminated Lender.
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ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders
and the Letter of Credit Issuer to make the initial Credit Extensions shall be
subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Article.
SECTION 5.1.1. Resolutions, etc. The Agents shall have received from
each Obligor, as applicable, (i) a copy of a good standing certificate, dated a
date reasonably close to the Closing Date, for each such Person and (ii) a
certificate, dated the Closing Date with counterparts for each Lender, duly
executed and delivered by such Person's Secretary or Assistant Secretary,
managing member or general partner, as applicable, as to
(a) resolutions of each such Person's Board of Directors (or
other managing body, in the case of other than a corporation) then in
full force and effect authorizing, to the extent relevant, all aspects
of the transactions contemplated hereby applicable to such Person and
the execution, delivery and performance of each Loan Document to be
executed by such Person;
(b) the incumbency and signatures of those of its officers,
managing member or general partner, as applicable, authorized to act
with respect to each Loan Document to be executed by such Person; and
(c) the full force and validity of each Organic Document of
such Person and copies thereof;
upon which certificates each Secured Party may conclusively rely until it shall
have received a further certificate of the Secretary, Assistant Secretary,
managing member or general partner, as applicable, of any such Person canceling
or amending the prior certificate of such Person.
SECTION 5.1.2. Closing Date Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, the Borrower Closing Date
Certificate, dated the Closing Date and duly executed and delivered by an
Authorized Officer of the Borrower, in which certificate the Borrower shall
agree and acknowledge that the statements made therein shall be deemed to be
true and correct representations and warranties of the Borrower as of such date,
and, at the time each such certificate is delivered, such statements shall in
fact be true and correct. All documents and agreements required to be appended
to the Borrower Closing Date Certificate shall be in form and substance
reasonably satisfactory to the Agents.
SECTION 5.1.3. Consummation of Transaction, etc. The Agents shall have
received evidence reasonably satisfactory to it that all actions necessary to
consummate the transactions contemplated hereby shall have been taken in
accordance with all applicable law and in all
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material respects in accordance with the terms of the Loan Documents, and other
applicable document, without amendment or waiver of any material provision
thereof.
SECTION 5.1.4. Payment of Outstanding Indebtedness, etc. All
Indebtedness (including any Indebtedness evidenced by the Existing Credit
Facilities) identified in Item 7.2.2(b) of the Disclosure Schedule, together
with all interest, all prepayment premiums and other amounts due and payable
with respect thereto, shall have been paid in full from the proceeds of the
initial Credit Extension and the commitments in respect of such Indebtedness
shall have been terminated, and all Liens securing payment of any such
Indebtedness have been released and the Administrative Agent shall have received
all Uniform Commercial Code Form UCC-3 termination statements or other
instruments as may be suitable or appropriate in connection therewith.
SECTION 5.1.5. Closing Fees, Expenses, etc. The Administrative Agent
shall have received for its own account, or for the account of each Lender, as
the case may be, all fees, costs and expenses due and payable pursuant to
Section 3.3 and, if then invoiced, 10.3.
SECTION 5.1.6. Financial Information, etc. The Administrative Agent
shall have received, with counterparts for each Lender, audited consolidated
financial statements of the Borrower and its Subsidiaries as at December 31,
1999.
SECTION 5.1.7. Compliance Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, an initial Compliance
Certificate on a pro forma basis as if the initial Credit Extension had been
made as of June 30, 2000 and as to such items therein as the Administrative
Agent reasonably requests, dated the date of the initial Credit Extension, duly
executed (and with all schedules thereto duly completed) and delivered by the
chief financial or accounting Authorized Officer of the Borrower.
SECTION 5.1.8. Opinions of Counsel. The Administrative Agent shall have
received opinions, dated the Closing Date and addressed to the Administrative
Agent and all Lenders, from
(a) Skadden, Arps, Slate, Meagher & Flom LLP, New York counsel
to the Obligors, in form, scope and substance satisfactory to the
Agents;
(b) Skadden, Arps, Slate, Meagher & Flom LLP, special federal
tax counsel to the Borrower, in form, scope and substance satisfactory
to the Agents; and
(c) local counsel to the Obligors in the following
jurisdictions, in form, scope and substance, and from counsel,
satisfactory to the Agents:
(i) Kentucky
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(ii) Connecticut
(iii) California
(iv) Washington
(v) Illinois
(vi) Tennessee;
(vii) Pennsylvania
(viii) Georgia; and
(ix) Florida
SECTION 5.1.9. Filing Agent, etc. All Uniform Commercial Code financing
statements or other similar financing statements and Uniform Commercial Code
(Form UCC-3) termination statements required pursuant to the Loan Documents
(collectively, the "Filing Statements") shall have been delivered to CT
Corporation System or another similar filing service company acceptable to the
Administrative Agent (the "Filing Agent"). The Filing Agent shall have
acknowledged in a writing satisfactory to the Administrative Agent and its
counsel (i) the Filing Agent's receipt of all Filing Statements, (ii) that the
Filing Statements have been submitted for filing in the appropriate filing
offices and (iii) that the Filing Agent has notified the Administrative Agent
and its counsel of the results of such submissions.
SECTION 5.1.10. Subsidiary Guaranty. The Administrative Agent shall
have received, with counterparts for each Lender, the Subsidiary Guaranty, dated
as of the date hereof, duly executed and delivered by an Authorized Officer of
each U.S. Subsidiary.
SECTION 5.1.11. Solvency, etc. The Administrative Agent shall have
received, with counterparts for each Lender, a certificate duly executed and
delivered by the chief financial or accounting Authorized Officer of the
Borrower, dated as of the Closing Date, in form and substance reasonably
satisfactory to the Agents, substantially in the form of Exhibit P attached
hereto.
SECTION 5.1.12. Delivery of Notes. The Administrative Agent shall have
received, for the account of each Lender that has requested a Note, such
Lender's Notes duly executed and delivered by an Authorized Officer of the
Borrower.
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SECTION 5.1.13. Security Agreements.
(a) The Administrative Agent shall have received, with counterparts for
each Lender, executed counterparts of the Borrower Security Agreement and the
Subsidiary Security Agreement, each dated as of the date hereof, duly executed
by the Borrower and each U.S. Subsidiary, respectively, together with
(i) executed copies of Filing Statements naming the Borrower
and each U.S. Subsidiary as a debtor and the Administrative Agent as
the secured party, or other similar instruments or documents to be
filed under the UCC of all jurisdictions as may be necessary or, in the
opinion of the Administrative Agent, desirable to perfect the security
interests of the Administrative Agent pursuant to such Security
Agreement;
(ii) executed copies of proper UCC Form UCC-3 termination
statements, if any, necessary to release all Liens and other rights of
any Person (i) in any collateral described in any Security Agreement
previously granted by any Person, and (ii) securing any of the
Indebtedness identified in Item 7.2.2(b) of the Disclosure Schedule,
together with such other UCC Form UCC-3 termination statements as the
Administrative Agent may reasonably request from such Obligors; and
(iii) certified copies of UCC Requests for Information or
Copies (Form UCC-11), or a similar search report certified by a party
acceptable to the Administrative Agent, dated a date reasonably near to
the Closing Date, listing all effective financing statements which name
the Borrower or any U.S. Subsidiary (under its present name and any
previous names) as the debtor, together with copies of such financing
statements (none of which shall cover any collateral described in any
Loan Document).
(b) The Agent and their counsel shall be reasonably satisfied that (i)
the Liens granted to the Administrative Agent in the collateral described in the
documents described above are first priority (or local equivalent thereof)
security interests and (ii) no Liens exist on any of the collateral described
above other than the Liens created in favor of the Administrative Agent pursuant
to a Loan Document or otherwise permitted hereunder.
SECTION 5.1.14. Collateral Account Agreement and Account Control
Agreement. The Administrative Agent shall have received, with counterparts for
each Lender, executed counterparts of (a) the Collateral Account Agreement,
dated as of the date hereof and duly executed and delivered by the Borrower, and
(b) each Account Control Agreement, dated as of the date hereof and duly
executed and delivered by the Borrower and the financial institution party
thereto.
SECTION 5.1.15. Perfection Certificate. The Administrative Agent shall
have received the Perfection Certificate, dated as of the Closing Date, duly
executed and delivered by an Authorized Officer of the Borrower.
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SECTION 5.1.16. Required Consents and Approvals. All required material
consents and approvals shall have been duly obtained and be in full force and
effect with respect to the transactions contemplated hereby and the continuing
operations of the Borrower from (a) all relevant Governmental Authorities and
(b) any other Person whose consent or approval is so required to effect the
transactions and all applicable waiting periods shall have expired without any
action being taken by any competent authority that could restrain, prevent or
otherwise impose any adverse conditions on the transactions and related
financing contemplated hereby.
SECTION 5.1.17. No Material Adverse Effect. There has been no material
adverse effect on the business, assets, debt service capacity, tax position
(other than any adverse change in the status of the Tax Benefit), environmental
liability, financial condition, operations or prospects of the Borrower since
December 31, 1999. It is understood that the Conwood Judgment shall not be
construed to be such a material adverse effect.
SECTION 5.1.18. Assets Owned by Significant Subsidiaries. On the
Closing Date, the Borrower and the Significant Subsidiaries shall account for no
less than 95% of the consolidated revenues and the consolidated tangible net
worth (valued at the lesser of (a) fair market value or (b) book value) of the
Borrower and its Subsidiaries taken as a whole.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and
the Letter of Credit Issuer to make any Credit Extension shall be subject to the
satisfaction of each of the conditions precedent set forth below.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension (but, if any Default of the
nature referred to in Section 8.1.5 shall have occurred with respect to any
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds thereof) other than a funding of 364 Day Revolving
Loans to repay maturing commercial paper of the Borrower the following
statements shall be true and correct:
(a) the representations and warranties set forth in each Loan
Document shall, in each case, be true and correct with the same effect
as if then made (unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be true and
correct in all material respects as of such earlier date); and
(b) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request, etc. The Administrative Agent
shall have received a Borrowing Request if Loans are being requested. Each of
the delivery of a Borrowing Request and the acceptance by the Borrower of the
proceeds of such Credit Extension shall constitute a representation and warranty
by the Borrower that on the date of such Credit Extension (both immediately
before and after giving effect to such Credit Extension and the
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application of the proceeds thereof) the statements made in Section 5.2.1 are
true and correct in all material respects.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of any Obligor shall be reasonably
satisfactory in form and substance to the Agents and its counsel, and the Agents
and their counsel shall have received all information, approvals, opinions,
documents or instruments as the Agents or its counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Secured Parties to enter into this Agreement and
to make Credit Extensions hereunder, the Borrower represents and warrants to
each Secured Party as set forth in this Article.
SECTION 6.1. Organization, etc. Each Obligor is validly organized and
existing and in good standing under the laws of the state or jurisdiction of its
incorporation or organization, is duly qualified to do business and is in good
standing as a foreign entity in each jurisdiction where the nature of its
business requires such qualification, except to the extent that the failure to
so qualify could not reasonably be expected to have a Material Adverse Effect,
and has full power and authority and holds all requisite governmental licenses,
permits and other approvals to enter into and perform its Obligations under each
Loan Document to which it is a party, to own and hold under lease its property
and to conduct its business substantially as currently conducted by it, except
where the failure to have such power and authority or hold such licenses,
permits or other approvals could not reasonably be expected to have a Material
Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each Obligor of each Loan Document executed or to be
executed by it, each Obligor's participation in the consummation of all aspects
of the transactions contemplated hereby, and the execution, delivery and
performance by the Borrower or (if applicable) any Obligor of the agreements
executed and delivered by it in connection with the transactions contemplated
hereby are in each case within such Person's powers, have been duly authorized
by all necessary action, and do not
(a) contravene any (i) Obligor's Organic Documents, (ii) or
result in a default under any material contractual restriction binding
on or affecting any Obligor (including under the Existing Indentures
and the Senior Notes), (iii) court decree or order binding on or
affecting any Obligor or (iv) law or governmental regulation binding on
or affecting any Obligor in a material manner; or
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(b) result in, or require the creation or imposition of, any
Lien on any Obligor's properties (except as permitted by this
Agreement).
SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any Governmental
Authority or other Person (other than those that have been, or on the Effective
Date will be, duly obtained or made and which are, or on the Effective Date will
be, in full force and effect) is required for the consummation of the
transactions contemplated hereby and the due execution, delivery or performance
by any Obligor of any Loan Document, in each case by the parties thereto.
Neither the Borrower nor any of its Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 6.4. Validity, etc. Each Loan Document to which any Obligor is
a party constitutes the legal, valid and binding obligations of such Obligor,
enforceable against such Obligor in accordance with their respective terms
(except, in any case, as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and by principles of equity).
SECTION 6.5. Financial Information. The financial statements of the
Borrower and its Subsidiaries furnished to the Administrative Agent and each
Lender pursuant to Section 5.1.6 have been prepared in accordance with GAAP
consistently applied, and present fairly the consolidated financial condition of
the Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended. All balance sheets, all statements of
income and of cash flow and all other financial information of each of the
Borrower and its Subsidiaries furnished pursuant to Section 7.1.1 have been and
will for periods following the Effective Date be prepared in accordance with
GAAP consistently applied with the financial statements delivered pursuant to
Section 5.1.6, and do or will present fairly the consolidated financial
condition of the Persons covered thereby as at the dates thereof and the results
of their operations for the periods then ended.
SECTION 6.6. No Material Adverse Effect. There has been no Material
Adverse Effect since December 31, 1999.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of the Borrower or any of its Subsidiaries, threatened
litigation, action, proceeding or labor controversy:
(a) except as disclosed in Item 6.7 of the Disclosure
Schedule, affecting the Borrower, any of its Subsidiaries or any other
Obligor, which could reasonably be expected to have a Material Adverse
Effect, and no adverse development has occurred in
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any labor controversy, litigation, arbitration or governmental
investigation or proceeding disclosed in Item 6.7; or
(b) which purports to affect the legality, validity or
enforceability of any Loan Document or the transactions contemplated
hereby.
SECTION 6.8. Subsidiaries. The Borrower has (a) no Subsidiaries, except
those Subsidiaries which are identified in Item 6.8(a) of the Disclosure
Schedule, or which are permitted to have been organized or acquired in
accordance with Section 7.2.5 or 7.2.10, or (b) no Significant Subsidiaries,
except those Significant Subsidiaries which are identified in Item 6.8(b) of the
Disclosure Schedule.
SECTION 6.9. Ownership of Properties. The Borrower and each of its
Subsidiaries owns (i) in the case of owned real property, good and marketable
fee title to, and (ii) in the case of owned personal property, good and valid
title to, or, in the case of leased real or personal property, valid and
enforceable leasehold interests (as the case may be) in, all of its material
properties and assets, real and personal, tangible and intangible, of any nature
whatsoever, free and clear in each case of all Liens or claims, except for Liens
permitted hereunder.
SECTION 6.10. Taxes. The Borrower and each of its Subsidiaries has
filed all material tax returns and reports required by law to have been filed by
it and has paid all Taxes thereby shown to be due and owing, except any such
Taxes which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books.
SECTION 6.11. Pension and Welfare Plans. During the one-year period
prior to the Effective Date and prior to the date of any Credit Extension
hereunder, no steps have been taken to terminate any Pension Plan, and no
contribution failure has occurred with respect to any Pension Plan sufficient to
give rise to a Lien under Section 302(f) of ERISA. No condition exists or event
or transaction has occurred with respect to any Pension Plan which might result
in the incurrence by the Borrower or any member of the Controlled Group of any
material liability, fine or penalty. Except as disclosed in Item 6.11 of the
Disclosure Schedule, neither the Borrower nor any member of the Controlled Group
has any contingent liability with respect to any post- retirement benefit under
a Welfare Plan, other than liability for continuation coverage described in Part
6 of Title I of ERISA.
SECTION 6.12. Environmental Warranties. Except as set forth in Item
6.12 of the Disclosure Schedule:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any of its Subsidiaries
have been, and continue to be, owned or leased by the Borrower and its
Subsidiaries in compliance with all Environmental Laws, except
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where failure to comply could not reasonably be expected to have a
Material Adverse Effect;
(b) there have been no past, and there are no pending or
threatened (i) claims, complaints, notices or requests for information
received by the Borrower or any of its Subsidiaries with respect to any
alleged violation of any Environmental Law, or (ii) complaints, notices
or inquiries to the Borrower or any of its Subsidiaries regarding
potential liability under any Environmental Law, in each case, which
could reasonably be expected to have a Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials at, on
or under any property now or previously owned or leased by the Borrower
or any of its Subsidiaries that have, or could reasonably be expected
to have, a Material Adverse Effect;
(d) the Borrower and its Subsidiaries have been issued and are
in material compliance with all permits, certificates, approvals,
licenses and other authorizations relating to environmental matters;
(e) no property now or previously owned or leased by the
Borrower or any of its Subsidiaries is listed or proposed for listing
(with respect to owned property only) on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state list of
sites requiring investigation or clean-up;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned or leased by the Borrower or any of its
Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect;
(g) neither the Borrower nor any Subsidiary has directly
transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list or which is the subject of
federal, state or local enforcement actions or other investigations
which may lead to material claims against the Borrower or such
Subsidiary for any remedial work, damage to natural resources or
personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the
Borrower or any Subsidiary that, singly or in the aggregate, have, or
could reasonably be expected to have, a Material Adverse Effect; and
(i) to the best of the Borrower's knowledge, no conditions
exist at, on or under any property now or previously owned or leased by
the Borrower which with the passage
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of time, or the giving of notice or both, would give rise to material
liability under any Environmental Law or which condition could
reasonably be expected to result in a Material Adverse Effect.
SECTION 6.13. Accuracy of Information. None of the factual information
heretofore or contemporaneously furnished in writing to any Secured Party by or
on behalf of any Obligor in connection with any Loan Document or any transaction
contemplated hereby (including any factual information relating to the Conwood
Proceeding, the Conwood Judgment or the Conwood Appeal), when taken as a whole,
contains any untrue statement of a material fact, or omits to state any material
fact necessary to make any information not misleading, and no other factual
information hereafter furnished in connection with any Loan Document by or on
behalf of any Obligor to any Secured Party, when taken as a whole, will contain
any untrue statement of a material fact or will omit to state any material fact
necessary to make any information not misleading on the date as of which such
information is dated or certified.
SECTION 6.14. Compliance with Laws; Authorizations. Except as disclosed
in Item 6.14 of the Disclosure Schedule, the Borrower and its Subsidiaries have
complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any Governmental Authority having
jurisdiction over the conduct of its businesses or the ownership of its
properties, including Environmental Laws except to the extent such compliance
could not reasonably be expected to have a Material Adverse Effect. Neither the
Borrower nor any of its Subsidiaries has received any notice to the effect that
its operations are not in material compliance with any of the requirements of
applicable federal, state and local environmental, health and safety statutes
and regulations or are the subject of any federal or state investigation
evaluating whether any remedial action is needed to respond to a release of any
toxic or hazardous waste or substance into the environment, which non-compliance
or remedial action could be reasonably expected to have a Material Adverse
Effect. The Borrower and its Subsidiaries have obtained all authorizations
necessary and appropriate to own and operate their businesses and all such
authorizations are in full force and effect, except where the failure to so
obtain such authorizations or to so keep such authorizations in full force and
effect could not be reasonably expected to have a Material Adverse Effect.
SECTION 6.15. Regulations U and X. No Obligor is engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Credit Extensions will be used to purchase or
carry margin stock or otherwise for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation U or Regulation X. Terms for which
meanings are provided in F.R.S. Board Regulation U or Regulation X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 6.16. No Contractual or Other Restrictions. No Subsidiary is a
party to any agreement or other contractual arrangement that limits its ability
to (a) pay dividends to, or otherwise make Investments in or other payments to,
the Borrower or (b) grant Liens solely in
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favor of the Administrative Agent other than non-material agreements and
contractual arrangements which impose limitations on a Subsidiary's ability to
grant Liens thereon in favor of the Administrative Agent.
SECTION 6.17. Capitalization. Attached as Schedule III hereto is a
true, complete and accurate description as of the Closing Date of the equity
capital structure of the Borrower and its Subsidiaries showing accurate
ownership percentages of the Borrower in such Subsidiaries. Except as set forth
on Schedule III hereto, there are no (a) preemptive rights, outstanding
subscriptions, warrants or options to purchase any Capital Securities of any
such Subsidiaries, (b) obligations of any Person to redeem or repurchase any of
its securities and (c) other agreements, arrangements or plans to which any
Person is a party or of which the Borrower has knowledge that could directly or
indirectly affect the capital structure of such Subsidiaries. All such Capital
Securities (i) are validly issued and fully paid and non-assessable and (ii) are
owned of record and beneficially as set forth on Schedule III hereto or as
otherwise disclosed in writing to the Administrative Agent, free of any Lien,
except for Liens otherwise permitted under this Agreement.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with each
Lender, the Letter of Credit Issuer and the Agents that until the Termination
Date has occurred, the Borrower will, and will cause its Subsidiaries to,
perform or cause to be performed the obligations set forth below.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Borrower will furnish or cause to be furnished to the Administrative Agent (with
sufficient copies for each Lender) copies of the following financial statements,
reports, notices and information:
(a) as soon as available and in any event within 45 days (or
if such 45th day is not a Business Day, the immediately succeeding
Business Day) after the end of each of the first three Fiscal Quarters
of each Fiscal Year, an unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such Fiscal Quarter and
consolidated statements of income and cash flow of the Borrower and its
Subsidiaries for such Fiscal Quarter and for the period commencing at
the end of the previous Fiscal Year and ending with the end of such
Fiscal Quarter, and including (in each case), in comparative form the
figures for the corresponding Fiscal Quarter in, and year to date
portion of the immediately preceding Fiscal Year, certified as complete
and correct by the chief financial or accounting Authorized Officer of
the Borrower;
(b) as soon as available and in any event within 90 days (or
if such 90th Day is not a Business Day, the immediately succeeding
Business Day) after the end of each Fiscal
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Year, a copy of the consolidated balance sheet of the Borrower and its
Subsidiaries, and the related consolidated statements of income and
cash flow of the Borrower and its Subsidiaries for such Fiscal Year,
setting forth in comparative form the figures for the immediately
preceding Fiscal Year, audited (without any Impermissible
Qualification) by independent public accountants acceptable to the
Agents, which shall include a calculation of the financial covenants
set forth in Section 7.2.4 and stating that, in performing the
examination necessary to deliver the audited financial statements of
the Borrower, no knowledge was obtained of any Event of Default;
(c) concurrently with the delivery of the financial
information pursuant to clauses (a) and (b), a Compliance Certificate,
executed by the chief financial or accounting Authorized Officer of the
Borrower, showing compliance with the financial covenants set forth in
Section 7.2.4 and stating that no Default has occurred and is
continuing (or, if a Default has occurred, specifying the details of
such Default and the action that the Borrower or an Obligor has taken
or proposes to take with respect thereto);
(d) as soon as possible and in any event within three days
after the Borrower or any other Obligor obtains knowledge of the
occurrence of a Default, a statement of an Authorized Officer of the
Borrower setting forth details of such Default and the action which the
Borrower or such Obligor has taken and proposes to take with respect
thereto;
(e) as soon as possible and in any event within three days
after the Borrower or any other Obligor obtains knowledge of (i) the
occurrence of any material adverse development with respect to any
litigation, action, proceeding or labor controversy described in Item
6.7 of the Disclosure Schedule or (ii) the commencement of any
litigation, action, proceeding or labor controversy of the type and
materiality described in Section 6.7, notice thereof and, to the extent
the Administrative Agent requests, copies of all documentation relating
thereto;
(f) promptly after the sending or filing thereof, copies of
all reports, notices, prospectuses and registration statements which
any Obligor files with the SEC or any national securities exchange;
(g) immediately upon becoming aware of (i) the institution of
any steps by any Person to terminate any Pension Plan, (ii) the failure
to make a required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under Section 302(f) of ERISA, (iii)
the taking of any action with respect to a Pension Plan which could
result in the requirement that any Obligor furnish a bond or other
security to the PBGC or such Pension Plan, or (iv) the occurrence of
any event with respect to any Pension Plan which could result in the
incurrence by any Obligor of any material liability, fine or penalty,
notice thereof and copies of all documentation relating thereto;
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(h) promptly following the mailing or receipt of any notice or
report delivered under the terms of the Existing Indenture, copies of
such notice or report;
(i) promptly and in any event within three Business Days
following receipt of any notice from S&P or Moody's of a negative
change in the Senior Unsecured Debt Rating, a copy of such notice
substantially in the form attached hereto as Exhibit O (such notice, a
"Rating Notice");
(j) immediately upon becoming aware of such circumstance, the
name and any other information reasonably requested by the
Administrative Agent in respect of any Subsidiary which has become a
Significant Subsidiary; and
(k) such other financial and other information as any Lender
or the Letter of Credit Issuer through the Agents may from time to time
reasonably request (including information and reports in such detail as
the Administrative Agent may request with respect to the terms of and
information provided pursuant to the Compliance Certificate).
SECTION 7.1.2. Maintenance of Existence; Compliance with Laws, etc. The
Borrower will, and will cause each of its Significant Subsidiaries to, preserve
and maintain its legal existence (except as otherwise permitted by Section
7.2.10), and comply in all material respects with all applicable laws, rules,
regulations and orders, including the payment (before the same become
delinquent), of all Taxes, imposed upon the Borrower or its Significant
Subsidiaries or upon their property except to the extent being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP have been set aside on the books of the
Borrower or its Significant Subsidiaries, as applicable.
SECTION 7.1.3. Maintenance of Properties. The Borrower will, and will
cause each of its Significant Subsidiaries to, maintain, preserve, protect and
keep its and their respective properties in good repair, working order and
condition (ordinary wear and tear excepted), and make necessary repairs,
renewals and replacements so that the business carried on by the Borrower and
its Significant Subsidiaries may be properly conducted at all times, unless the
Borrower or such Significant Subsidiary determines in good faith that the
continued maintenance of such property is no longer economically desirable.
SECTION 7.1.4. Insurance. The Borrower will, and will cause each of its
Significant Subsidiaries to:
(a) maintain insurance on its property with financially sound
and reputable insurance companies against loss and damage in at least
the amounts (and with only those deductibles) customarily maintained,
and against such risks as are typically insured against in the same
general area, by Persons of comparable size engaged in the same or
similar business as the Borrower and its Significant Subsidiaries; and
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(b) all worker's compensation, employer's liability insurance
or similar insurance as may be required under the laws of any state or
jurisdiction in which it may be engaged in business.
SECTION 7.1.5. Books and Records. The Borrower will, and will cause
each of its Subsidiaries to, keep books and records in accordance with GAAP
which accurately reflect all of its business affairs and transactions and permit
each Secured Party or any of their respective representatives, at reasonable
times and intervals upon reasonable notice to the Borrower, to visit each
Obligor's offices, to discuss such Obligor's financial matters with its officers
and employees, and its independent public accountants (and the Borrower hereby
authorizes such independent public accountant to discuss each Obligor's
financial matters, upon the reasonable request of such Secured Party and in the
presence of the Borrower, with each Secured Party or their representatives
whether or not any representative of such Obligor is present) and to examine
(and photocopy extracts from) any of its books and records. The Borrower shall
pay any fees of such independent public accountant incurred in connection with
any Secured Party's exercise of its rights pursuant to this Section.
SECTION 7.1.6. Environmental Law Covenant. The Borrower will, and will
cause each of its Subsidiaries to,
(a) use and operate all of its and their facilities and
properties in material compliance with all Environmental Laws, keep all
necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain
in material compliance therewith, and handle all Hazardous Materials in
compliance with all applicable Environmental Laws, except where failure
to comply could not reasonably result in a Material Adverse Effect; and
(b) promptly notify the Administrative Agent and provide
copies upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and properties in
respect of, or as to compliance with, Environmental Laws, and shall
promptly resolve any non-compliance with Environmental Laws and keep
its property free of any Lien imposed by any Environmental Law, except
where failure to comply could not reasonably result in a Material
Adverse Effect.
SECTION 7.1.7. Use of Proceeds. The Borrower will apply the proceeds of
the Credit Extensions as follows:
(a) in the case of the 364 Day Revolving Loans, (i) to repay
the Indebtedness identified in Item 7.2.2(b) of the Disclosure Schedule, (ii) to
pay fees and expenses associated with the transactions contemplated hereby,
(iii) for working capital and general corporate purposes of the Borrower and its
U.S. Subsidiaries (including, to "back-stop" unsecured commercial paper), and
(iv) to pay a portion of the amount due and payable in connection with the
Conwood Judgment that remains unsatisfied after application in full of the sum
of (A) the
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proceeds of the Letter of Credit Disbursement, (B) the Term A Loans, (C) amounts
on deposit in the Qualified Settlement Fund and (D) amounts on deposit in the
Collateral Account;
(b) for the issuance of the Letter of Credit in favor of the
District Court in connection with the Conwood Appeal;
(c) in the case of the Term A Loans, to (i) repay the Letter
of Credit Disbursement and (ii) pay a portion of the amount due and payable in
connection with the Conwood Judgment that remains unsatisfied after application
in full of the sum of (A) amounts on deposit in the Qualified Settlement Fund
and (B) amounts on deposit in the Collateral Account; and
(d) in the case of the Term B Loans, for deposit on the
Closing Date in the Qualified Settlement Fund in connection with the Conwood
Appeal.
SECTION 7.1.8. Future Guarantors, Security, etc. The Borrower will, and
will cause each U.S. Subsidiary to, execute any documents, Filing Statements,
agreements and instruments, and take all further action that may be required
under applicable law, or that the Administrative Agent may reasonably request,
in order to effectuate the transactions contemplated by the Loan Documents and
in order to grant, preserve, protect and perfect the validity and first priority
(subject to Liens permitted by Section 7.2.3) of the Liens created or intended
to be created by the Loan Documents. The Borrower will cause any subsequently
acquired or organized U.S. Subsidiary to execute a Subsidiary Guaranty (or a
supplement thereto) and each applicable Loan Document in favor of the Secured
Parties. In addition, from time to time, the Borrower will, at its cost and
expense, promptly secure the Obligations by pledging or creating, or causing to
be pledged or created, perfected Liens with respect to such of its assets which
constitutes collateral (as such term is defined in any Loan Document) as the
Administrative Agent or the Required Lenders shall designate and which are
consistent with the security interest granted by the Borrower and its
Subsidiaries in each Security Agreement. Such Liens will be created under the
Loan Documents in form and substance reasonably satisfactory to the Agents, and
the Borrower shall deliver or cause to be delivered to the Agents all such
instruments and documents (including legal opinions and lien searches) as the
Agents shall reasonably request to evidence compliance with this Section.
SECTION 7.1.9. Tax Benefit. The Borrower will (a) submit to the
applicable Governmental Authority all necessary forms or other documents
required to be filed, and pay all fees required to be paid, in each case for the
purpose of receiving the Tax Benefit, and (b) otherwise use commercially
reasonable efforts to utilize such Tax Benefit from the applicable Governmental
Authority. On or prior to December 31, 2000 the Borrower shall make a deposit
into the Qualified Settlement Fund in an amount of at least $70,000,000
representing Tax Benefits applied against the Borrower's September 15, 2000
estimated federal income tax payment.
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SECTION 7.1.10. Senior Unsecured Debt Rating. The Borrower will take
all reasonable actions to cause S&P and Moody's to rate the Borrower's long term
senior, unsecured debt at all times.
SECTION 7.1.11. Assets Owned by Significant Subsidiaries. The Borrower
and the Significant Subsidiaries will at all times account for no less than 95%
of the consolidated revenues and the consolidated tangible net worth (valued at
the lesser of (a) fair market value or (b) book value) of the Borrower and its
Subsidiaries taken as a whole.
SECTION 7.2. Negative Covenants. The Borrower covenants and agrees with
each Lender, the Letter of Credit Issuer and the Agents that until the
Termination Date has occurred, the Borrower will, and will cause its
Subsidiaries to, perform or cause to be performed the obligations set forth
below.
SECTION 7.2.1. Business Activities. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any business activity except those
business activities engaged in on the date of this Agreement (including the
Permitted Business Activities) and activities reasonably incidental thereto.
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, other than:
(a) Indebtedness in respect of the Obligations;
(b) until the Closing Date, Indebtedness that is to be repaid
in full as further identified in Item 7.2.2(b) of the Disclosure
Schedule;
(c) Indebtedness existing as of the Effective Date which is
identified in Item 7.2.2(c) of the Disclosure Schedule, and refinancing
of such Indebtedness (including the existing Senior Notes), provided,
that, (x) the principal amount (as such amount may have been reduced
following the Effective Date) thereof is not increased, (y) the
maturity date thereof is not shortened (or, in the case of a
refinancing of the existing Senior Notes maturing March 1, 2005 the
maturity shall not be earlier than October 1, 2005), and (z) the
material terms thereof are not materially more onerous on the Borrower
than the terms contained in the Indebtedness being refinanced (other
than, in the case of a refinancing of the existing Senior Notes, terms
relating to interest rates and call protection);
(d) unsecured Indebtedness (i) incurred in the ordinary course
of business of the Borrower and its Subsidiaries (including open
accounts extended by suppliers on normal trade terms in connection with
purchases of goods and services which are not overdue for a period of
more than 90 days or, if overdue for more than 90 days, as to which a
dispute exists and adequate reserves in conformity with GAAP have been
established on the books of the Borrower or such Subsidiary) and (ii)
in respect of performance, surety or
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appeal bonds provided in the ordinary course of business, but excluding
(in each case), Indebtedness incurred through the borrowing of money or
Contingent Liabilities in respect thereof;
(e) Indebtedness (i) in respect of industrial revenue bonds or
other similar governmental or municipal bonds, (ii) evidencing the
deferred purchase price of newly acquired property or incurred to
finance the acquisition of equipment of the Borrower and its
Subsidiaries (pursuant to purchase money mortgages or otherwise,
whether owed to the seller or a third party) used in the ordinary
course of business of the Borrower and its Subsidiaries (provided, that
such Indebtedness is incurred within 60 days of the acquisition of such
property) and (iii) Capitalized Lease Liabilities;
(f) Indebtedness of any U.S. Subsidiary owing to the Borrower
or any other Subsidiary;
(g) unsecured Indebtedness (not evidenced by a note or other
instrument) of the Borrower owing to a Subsidiary that has previously
executed and delivered to the Administrative Agent the Interco
Subordination Agreement;
(h) unsecured Indebtedness of the Borrower incurred under the
Existing Indenture having Permitted Indebtedness Provisions in an
aggregate principal amount not to exceed $300,000,000 to the extent
that the proceeds thereof are applied as set forth in Section 3.1.1(f);
(i) Indebtedness of the Borrower and its Subsidiaries in
respect of the Replacement Revolving Facility;
(j) Indebtedness of the Borrower in respect of unsecured
short-term commercial paper with maturity dates not in excess of 270 days and in
an aggregate principal amount not to exceed $300,000,000; and
(k) unsecured Indebtedness of the Borrower or its Subsidiaries
in a principal amount not to exceed $20,000,000 in the aggregate at any
one time outstanding;
provided, however, that no Indebtedness otherwise permitted by clauses (c), (e),
(h), (i) and (k) shall be assumed, created or otherwise incurred if an Event of
Default has occurred and is then continuing or would result therefrom.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or permit to exist any Lien upon any
of its property (including Capital Securities of any Person), revenues or
assets, whether now owned or hereafter acquired, except:
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(a) Liens securing payment of the Obligations;
(b) until the Closing Date, Liens securing payment of
Indebtedness of the type described in clause (b) of Section 7.2.2;
(c)(i) Liens existing as of the Effective Date and disclosed
in Item 7.2.3(c) of the Disclosure Schedule securing Indebtedness
described in clause (c) of Section 7.2.2 and (ii) Liens securing any
extension, renewal or replacement of any obligations secured by any
such Lien, provided, that, (x) in respect of Liens permitted pursuant
to clause (c)(i) of this Section 7.2.3, no such Lien shall encumber any
additional property and the amount of Indebtedness secured by such Lien
is not increased from that existing on the Effective Date (as such
Indebtedness may have been permanently reduced subsequent to the
Effective Date), and (y) in respect of Liens permitted pursuant to
clause (c)(ii) of this Section 7.2.3, such Lien shall only cover the
same assets which originally secured the obligations being extended,
renewed or replaced;
(d) Liens securing Indebtedness of the type permitted under
clause (e) of Section 7.2.2; provided, that (i) such Lien is granted
within 60 days after such Indebtedness is incurred, (ii) the
Indebtedness secured thereby does not exceed the lesser of the cost or
the fair market value of the applicable property, improvements or
equipment at the time of such acquisition (or construction) and (iii)
such Lien secures only the assets that are the subject of the
Indebtedness referred to in such clause;
(e) Liens securing Indebtedness permitted by clause (i) of
Section 7.2.2; provided, that, such Liens shall be equally and ratably
secured with the Liens securing payment of the Obligations, on such
terms and conditions as are reasonably satisfactory to the
Administrative Agent.
(f) Liens in favor of carriers, warehousemen, mechanics,
materialmen and landlords granted in the ordinary course of business
for amounts not overdue or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;
(g) Liens incurred or deposits made in the ordinary course of
business in connection with worker's compensation, unemployment
insurance or other forms of governmental insurance or benefits, or to
secure performance of tenders, statutory obligations, bids, leases or
other similar obligations (other than for borrowed money) entered into
in the ordinary course of business or to secure obligations on surety
and appeal bonds or performance bonds;
(h) judgment Liens in existence for less than 30 days after
the entry thereof or with respect to which execution has been stayed or
the payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible
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insurance companies and which do not otherwise result in an Event of
Default under Section 8.1.6;
(i) easements, rights-of-way, zoning restrictions, minor
defects or irregularities in title and other similar encumbrances not
interfering in any material respect with the value or use of the
property to which such Lien is attached;
(j) Liens for Taxes not at the time delinquent or thereafter
payable without penalty or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books; and
(k) so long as no Event of Default has occurred and is
continuing at the date of incurrence thereof, other Liens securing
obligations not exceeding $10,000,000 in the aggregate at any one time
outstanding.
SECTION 7.2.4. Financial Condition and Operations. The Borrower will
not permit any of the events set forth below to occur.
(a) The Borrower will not permit the Leverage Ratio as of the
last day of any Fiscal Quarter occurring during any period set forth
below to be greater than the ratio set forth opposite such period:
<TABLE>
<CAPTION>
Leverage
Period Ratio
------ ---------
<S> <C>
10/01/00 - 12/30/01 2.50:1.00
12/31/01 - 12/30/02 2.25:1.00
12/31/02 - 12/30/03 2.00:1.00
12/31/03 - 12/30/04 1.50:1.00
12/31/04 and thereafter 1.25:1.00
</TABLE>
The Leverage Ratio shall be reduced by increments of 0.25 effective as
of the first day of each Fiscal Quarter for each reduction of the
Conwood Judgment Amount on the Conwood Judgment Order Date by
increments of $325,000,000 during the preceding Fiscal Quarter;
provided, that, notwithstanding the foregoing, the Leverage Ratio shall
not be reduced to less than 1.50:1.00 for any Fiscal Quarter ending
prior to December 30, 2004 and to not less then 1.25:1.00 for any
Fiscal Quarter ending thereafter.
(b) The Borrower will not permit the Fixed Charge Coverage
Ratio as of the last day of any Fiscal Quarter occurring during any period to be
less than 1.40:1.00.
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SECTION 7.2.5. Investments. The Borrower will not, and will not permit
any of its Subsidiaries to, purchase, make, incur, assume or permit to exist any
Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified
in Item 7.2.5(a) of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(d) Investments permitted as Capital Expenditures pursuant to
Section 7.2.7;
(e) Investments by way of contributions to capital or
purchases of Capital Securities (i) by the Borrower in any Subsidiaries
or by any Subsidiary in other Subsidiaries; provided, that the
aggregate amount of Investments under this clause made by the Borrower
and Guarantors in Subsidiaries that are not Guarantors shall not exceed
$25,000,000 at any time, or (ii) by any Subsidiary in the Borrower;
(f) Investments constituting (i) accounts receivable arising,
(ii) trade debt granted, or (iii) deposits made in connection with the
purchase price of goods or services, in each case in the ordinary
course of business;
(g) Investments constituting Permitted Acquisitions in an
aggregate amount not to exceed $150,000,000 over the term of this
Agreement; provided, that (i) such Investments shall result in the
acquisition of a wholly owned U.S. Subsidiary and (ii) upon making such
Investments, the provisions of Section 7.1.8 are complied with;
(h) Investments consisting of any deferred portion of the
sales price received by the Borrower or any Subsidiary in connection
with any Disposition permitted under Section 7.2.11;
(i) without duplication, Investments permitted as Indebtedness
pursuant to clauses (f), and (g), of Section 7.2.2;
(j) other Investments in an amount not to exceed $50,000,000
over the term of this Agreement;
provided, however, that
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(k) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment"
may continue to be held notwithstanding that such Investment if made
thereafter would not comply with such requirements;
(l) Investments made in the ordinary course of the Borrower's
business consisting of loans to officers, directors or employees of the
Borrower or any U.S. Subsidiary in connection with the exercise of
options in respect of employee stock option plans or other employee
benefit plans shall be permitted hereunder; and
(m) no Investment otherwise permitted by clause (d), (e), (i),
(g) or (j) shall be permitted to be made if any Default has occurred
and is continuing or would result therefrom.
SECTION 7.2.6. Restricted Payments, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, declare or make a Restricted
Payment, or make any deposit for any Restricted Payment, other than Restricted
Payments made by Subsidiaries to the Borrower or wholly owned Subsidiaries;
provided, however, this Section shall not prohibit the declaration or payment of
dividends by the Borrower on its Capital Securities in each Fiscal Year at the
Permitted Per Share Dividend Amount.
SECTION 7.2.7. Capital Expenditures, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, make or commit to make Capital
Expenditures in any Fiscal Year which aggregate in excess of the amount set
forth below opposite such Fiscal Year:
<TABLE>
<CAPTION>
Capital
Fiscal Year Expenditure Amount
--------------- ------------------
<S> <C>
2000 $75,000,000
2001 $75,000,000
2002 $75,000,000
2003 $75,000,000
2004 $75,000,000
</TABLE>
Notwithstanding anything to the contrary contained in the foregoing, to the
extent that Capital Expenditures made by the Borrower and its Subsidiaries
during any Fiscal Year are less than the maximum amount permitted to be made for
such Fiscal Year, such unused amount may be carried forward to any succeeding
Fiscal Year and utilized to make Capital Expenditures in any such succeeding
Fiscal Year.
SECTION 7.2.8. No Prepayment of Certain Indebtedness. The Borrower will
not, and will not permit any of its Subsidiaries to,
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(a) except as provided in clause (c) of Section 7.2.2, make
any payment or prepayment of principal of, or premium or interest on,
any Senior Note or any Indebtedness issued or incurred pursuant to
clause (h) of Section 7.2.2 (i) other than the stated, scheduled date
for payment of interest set forth in the Existing Indenture, or (ii)
which would violate the terms of this Agreement or the Existing
Indenture;
(b) except as provided in clause (c) of Section 7.2.2, redeem,
retire, purchase, defease or otherwise acquire any Senior Note; or
(c) make any deposit (including the payment of amounts into a
sinking fund or other similar fund) for any of the foregoing purposes.
Furthermore, the Borrower or any Subsidiary will, to the extent relevant,
designate the Obligations as "Designated Senior Debt" (or any analogous term) in
any document or agreement related to the foregoing.
SECTION 7.2.9. Sale and Leaseback. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly enter into any
agreement or arrangement providing for the sale or transfer by it of any
property (now owned or hereafter acquired) to a Person and the subsequent lease
or rental of such property or other similar property from such Person (each, a
"Sale and Leaseback Transaction"), unless (x) the aggregate value of all
property sold or transferred in respect of all Sale and Leaseback Transactions
since the Closing Date does not exceed $10,000,000 over the term of this
Agreement, and (y) each such Sale and Leaseback Transaction is valued at the
greater of (A) fair market value or (B) book value.
SECTION 7.2.10. Consolidation, Merger, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other Person, or purchase or otherwise acquire
all or substantially all of the assets of any Person (or any division thereof),
except
(a) any Subsidiary may liquidate or dissolve voluntarily into,
and may merge with and into, the Borrower or any other Subsidiary
(provided, however, that a Guarantor may only liquidate or dissolve
into, or merge with and into, the Borrower or another Guarantor), and
the assets or Capital Securities of any Subsidiary may be purchased or
otherwise acquired by the Borrower or any other Subsidiary (provided,
however, that the assets or Capital Securities of any Guarantor may
only be purchased or otherwise acquired by the Borrower or another
Guarantor); and
(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the Borrower or any of its
Subsidiaries may (to the extent permitted by clause (g) of Section
7.2.5) purchase all or substantially all of the assets or Capital
Securities of any Person (or any division thereof), or acquire such
Person by merger.
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SECTION 7.2.11. Permitted Dispositions. The Borrower will not, and will
not permit any of its Subsidiaries to, Dispose of any of the Borrower's or such
Subsidiaries' assets (including accounts receivable and Capital Securities of
Subsidiaries) to any Person in one transaction or series of transactions unless:
(a) such Disposition is in the ordinary course of its business
and constitutes inventory, or is, in the reasonable determination of
the Borrower, obsolete, discontinued or worn-out property or otherwise
property no longer used in its business;
(b) such Disposition is permitted by Section 7.2.10; or
(c)(i)(A) in the case of any Disposition other than a
Disposition of the Wine Assets, such Disposition is for fair market
value and the consideration received consists of no less than 75% in
cash, and (B) in the case of a Disposition of the Wine Assets, such
Disposition is for fair market value and the consideration received
consists of cash and/or Registered Capital Securities (for the
remaining portion of such consideration) subject to the provisions of
Section 7.1.8, so long as on or prior to the first anniversary of the
date of Disposition of the Wine Assets the Borrower shall make a
mandatory deposit of $100,000,000 into the Qualified Settlement Fund
and/or Collateral Account or make a prepayment of Loans in an aggregate
principal amount of $100,000,000 pursuant to clause (g) of Section
3.1.1, and (ii) all assets or properties Disposed of pursuant to this
clause (c) for the term of this Agreement, generated, produced,
contributed to or accounted for, directly or indirectly, in the
aggregate to the EBITDA of the Borrower (calculated on the basis of the
four Fiscal Quarter period immediately preceding such date of
Disposition), no more than an amount equal to 10% of the EBITDA of the
Borrower and its Subsidiaries for Fiscal Year 2000 and (iii) the Net
Disposition Proceeds from such Disposition are applied pursuant to
Sections 3.1.1 and 3.1.2.
SECTION 7.2.12. Modification of Certain Agreements. The Borrower will
not, and will not permit any of its Subsidiaries to, consent to any amendment,
supplement, waiver or other modification of, or enter into any forbearance from
exercising any rights with respect to the terms or provisions contained in, the
Existing Indenture (together with the Senior Notes)
SECTION 7.2.13. Transactions with Affiliates. The Borrower will not,
and will not permit any of its Subsidiaries to, enter into or cause or permit to
exist any arrangement, transaction or contract (including for the purchase,
lease or exchange of property or the rendering of services) with any of its
other Affiliates (other than the Borrower or its Significant Subsidiaries),
unless such arrangement, transaction or contract (i) is on fair and reasonable
terms no less favorable to the Borrower or such Subsidiary than it could obtain
in an arm's-length transaction with a Person that is not an Affiliate and (ii)
is of the kind which would be entered into by a prudent Person in the position
of the Borrower or such Subsidiary with a Person that is not one of its
Affiliates.
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SECTION 7.2.14. Restrictive Agreements, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any agreement prohibiting
(a) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired;
(b) the ability of any Obligor to amend or otherwise modify
any Loan Document; or
(c) the ability of any Subsidiary to make any payments,
directly or indirectly, to the Borrower, including by way of dividends,
advances, repayments of loans, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments.
The foregoing prohibitions shall not apply to (i) restrictions contained in any
Loan Document or (ii) in the case of clause (a), any agreement governing any
Indebtedness permitted by clause (e) of Section 7.2.2 as to the assets financed
with the proceeds of such Indebtedness, (iii) the incurrence of Indebtedness
permitted pursuant to clauses (e) and (h) of Section 7.2.2, (iv) Liens permitted
pursuant to clause (i) of Section 7.2.3, and (v) any covenant contained under
the terms and conditions of the Replacement Revolving Facility in form and
substance substantially identical to Section 7.2.3.
SECTION 7.2.15. Preferred Stock. The Borrower shall not issue any
Capital Securities which are subject to mandatory redemption, sinking fund
requirement or mandatory purchase on or prior to October 1, 2005.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events
or occurrences described in this Article shall constitute an "Event of Default".
SECTION 8.1.1. Non-Payment of Obligations.
(a) The Borrower shall default in the payment or prepayment when due of
(i) any principal of any Loan, or any Letter of Credit
Reimbursement Obligation or any deposit of cash for collateral purposes
pursuant to Section 2.6.4; or
(ii) any interest on any Loan, any fee described in Article
III or any other monetary Obligation, and such default shall continue
unremedied for a period of three Business Days after such amount was
due.
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(b) The Borrower shall default in any obligation under this Agreement
to deposit any amounts into the Qualified Settlement Fund or the Collateral
Account.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
any Obligor made or deemed to be made in any Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when made
or deemed to have been made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance or observance of any of its
obligations under clauses (d) and (e) of Section 7.1.1, Section 7.1.7 or Section
7.2 or any Obligor shall default in the due performance or observance of its
obligations under (i) Articles III and IV of the Subsidiary Guaranty, (ii)
Articles III and IV of a Security Agreement, (iii) Articles IV and V of the
Collateral Account Agreement, or (iv) Articles IV and V of the Account Control
Agreement.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained in any Loan Document executed by it, and such default shall
continue unremedied for a period of 30 days after notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in
the payment of any amount when due (subject to any applicable grace period),
whether by acceleration or otherwise, of any principal or stated amount of, or
interest or fees on, any Indebtedness (other than Indebtedness described in
Section 8.1.1) of the Borrower or any of its Significant Subsidiaries having a
principal or stated amount, individually or in the aggregate, in excess of
$25,000,000, or a default shall occur in the performance or observance of any
obligation or condition with respect to such Indebtedness if the effect of such
default is to accelerate the maturity of any such Indebtedness or such default
shall continue unremedied for any applicable period of time sufficient to permit
the holder or holders of such Indebtedness, or any trustee or agent for such
holders, to cause or declare such Indebtedness to become due and payable or to
require such Indebtedness to be prepaid, redeemed, purchased or defeased, or
require an offer to purchase or defease such Indebtedness to be made, prior to
its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of
money individually or in the aggregate in excess of $25,000,000 (exclusive of
any amounts fully covered by insurance (less any applicable deductible) and as
to which the insurer has acknowledged its responsibility to cover such judgment
or order) shall be rendered against the Borrower or any of its Significant
Subsidiaries and such judgment shall not have been vacated or discharged or
stayed or bonded pending appeal within 30 days after the entry thereof or
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order.
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SECTION 8.1.7. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan
(a) the institution of any steps by the Borrower, any member
of its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, the Borrower or any such member
could be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension
Plan, in excess of $25,000,000 in the aggregate for all Pension Plans;
or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or any of its
Significant Subsidiaries shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness generally to pay, debts as they
become due;
(b) apply for, consent to, or acquiesce in the appointment of
a trustee, receiver, sequestrator or other custodian for any
substantial part of the property of any thereof, or make a general
assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence in or permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for a substantial
part of the property of any thereof, and such trustee, receiver,
sequestrator or other custodian shall not be discharged within 60 days;
provided, that the Borrower and each Significant Subsidiary hereby
expressly authorizes each Secured Party to appear in any court
conducting any relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law or any dissolution,
winding up or liquidation proceeding, in respect thereof, and, if any
such case or proceeding is not commenced by the Borrower or any
Significant Subsidiary, such case or proceeding shall be consented to
or acquiesced in by the Borrower or such Significant Subsidiary, as the
case may be, or shall result in the entry of an order for relief or
shall remain for 60 days undismissed; provided, that the Borrower and
each Significant Subsidiary hereby expressly authorizes each Secured
Party to appear in any court conducting any such case or proceeding
during such 60-day period to preserve, protect and defend their rights
under the Loan Documents; or
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(e) take any action authorizing, or in furtherance of, any of
the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document shall
(except in accordance with its terms), in whole or in part, terminate, cease to
be effective or cease to be the legally valid, binding and enforceable
obligation of any Obligor party thereto or any Lien granted thereunder and
secured by collateral in excess of $10,000,000 shall (except in accordance with
its terms), in whole or in part, terminate, cease to be effective or cease to be
the legally valid, binding and enforceable obligation of any Obligor party
thereto; any Obligor or any other party shall, directly or indirectly, contest
in any manner such effectiveness, validity, binding nature or enforceability;
or, except as permitted under any Loan Document, any Lien securing any
Obligation shall, in whole or in part, cease to be a perfected first priority
Lien.
SECTION 8.1.11. Adverse Tax Determination. A final non-appealable
determination by a court that amounts paid or to be paid in respect of the
Conwood Judgment are not deductible by the Borrower for federal income tax
purposes (or the filing by the Borrower of a federal tax return in which no
deduction is claimed for amounts paid by the Borrower in respect of the Conwood
Judgement during the period covered by such return (unless a deduction had been
previously claimed by Borrower in respect of such amounts).
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 with respect to the Borrower shall
occur, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations (including Letter of Credit Reimbursement Obligations) shall
automatically be and become immediately due and payable, without notice or
demand to any Person and each Obligor shall automatically and immediately be
obligated to Cash Collateralize the Letter of Credit.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9 with respect to the Borrower) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of the Required Lenders, shall by notice to the Borrower declare all
or any portion of the outstanding principal amount of the Loans and other
Obligations (including Letter of Credit Reimbursement Obligations) to be due and
payable and/or the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate and the Borrower shall automatically and immediately
be obligated to Cash Collateralize the Letter of Credit.
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ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints Scotiabank as its
Administrative Agent and GS as the Syndication Agent under and for purposes of
each Loan Document. Each Lender authorizes the Administrative Agent and the
Syndication Agent to act on behalf of such Lender under each Loan Document and,
in the absence of other written instructions from the Required Lenders received
from time to time by such Agent (with respect to which such Agent agrees that it
will comply, except as otherwise provided in this Section or as otherwise
advised by counsel in order to avoid contravention of applicable law), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of such Agent by the terms hereof and thereof, together with such
powers as may be incidental thereto. Each Lender hereby indemnifies (which
indemnity shall survive any termination of this Agreement) each Agent, pro rata
according to such Lender's proportionate Total Exposure Amount, from and against
any and all liabilities, obligations, losses, damages, claims, costs or expenses
of any kind or nature whatsoever which may at any time be imposed on, incurred
by, or asserted against, such Agent in any way relating to or arising out of any
Loan Document (including attorneys' fees), and as to which such Agent is not
reimbursed by the Borrower; provided, however, that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted from such Agent's gross
negligence or wilful misconduct. No Agent shall be required to take any action
under any Loan Document, or to prosecute or defend any suit in respect of any
Loan Document, unless it is indemnified hereunder to its satisfaction. If any
indemnity in favor of an Agent shall be or become, in such Agent's
determination, inadequate, such Agent may call for additional indemnification
from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified in writing by any Lender by 3:00 p.m. on the Business
Day prior to a Borrowing that such Lender will not make available the amount
which would constitute its Percentage of such Borrowing on the date specified
therefor, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent and, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If and to the
extent that such Lender shall not have made such amount available to the
Administrative Agent, such Lender and the Borrower severally agree to repay the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date the Administrative Agent made such
amount available to the Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to Loans
comprising such Borrowing (in the case of the Borrower) and (in the case of a
Lender), at the Federal Funds Rate (for the first two Business Days after which
such amount has not been repaid), and thereafter at the interest rate applicable
to Loans comprising such Borrowing.
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SECTION 9.3. Exculpation. Neither Agent nor any of its directors,
officers, employees or agents shall be liable to any Secured Party for any
action taken or omitted to be taken by it under any Loan Document, or in
connection therewith, except for its own wilful misconduct or gross negligence,
nor responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of any Loan Document,
nor for the creation, perfection or priority of any Liens purported to be
created by any of the Loan Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral security, nor
to make any inquiry respecting the performance by any Obligor of its
Obligations. Any such inquiry which may be made by an Agent shall not obligate
it to make any further inquiry or to take any action. Each Agent shall be
entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which such Agent believes to
be genuine and to have been presented by a proper Person.
SECTION 9.4. Successor. The Administrative Agent may resign as such at
any time upon at least 30 days' prior notice to the Borrower and all Lenders. If
the Administrative Agent at any time shall resign, the Required Lenders may
appoint another Lender as a successor Administrative Agent which, other than in
the case of the appointment of a 364 Day Revolving Loan Lender or a Lender with
outstanding Term A Loans, shall be reasonably acceptable to the Borrower and
shall thereupon become the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the United States (or any State thereof)
or a United States branch or agency of a commercial banking institution, and
having a combined capital and surplus of at least $250,000,000; provided,
however, that if such retiring Administrative Agent is unable to find a
commercial banking institution which is willing to accept such appointment and
which meets the qualifications set forth in above, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
as provided for above. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall be entitled to receive from the retiring
Administrative Agent such documents of transfer and assignment as such successor
Administrative Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents. After any retiring
Administrative Agent's resignation hereunder as the Administrative Agent, the
provisions of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Administrative Agent under the Loan
Documents, and Section 10.3 and Section 10.4 shall continue to inure to its
benefit.
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SECTION 9.5. Loans by Scotiabank and GS. Each of Scotiabank and GS
shall have the same rights and powers with respect to (x) the Credit Extensions
made by it or any of its Affiliates, and (y) the Notes held by it or any of its
Affiliates as any other Lender and may exercise the same as if it were not the
Administrative Agent. Each of Scotiabank and GS 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 Affiliate of the Borrower as if Scotiabank or
GS, as the case may be, were not an Agent hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of the Agents and each other Lender, and based on such Lender's
review of the financial information of the Borrower, the Loan Documents (the
terms and provisions of which being satisfactory to such Lender) and such other
documents, information and investigations as such Lender has deemed appropriate,
made its own credit decision to extend its Commitments. Each Lender also
acknowledges that it will, independently of the Agents and each other Lender,
and based on such other documents, information and investigations as it shall
deem appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under the Loan Documents.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of the
Loan Documents (unless concurrently delivered to the Lenders by the Borrower).
The Administrative Agent will distribute to each Lender each document or
instrument received for its account and copies of all other communications
received by the Administrative Agent from the Borrower for distribution to the
Lenders by the Administrative Agent in accordance with the terms of the Loan
Documents.
SECTION 9.8. Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telecopy, telegram or cable) believed by it
to be genuine and correct and to have been signed or sent by or on behalf of the
proper Person, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative Agent. As to any
matters not expressly provided for by the Loan Documents, the Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, thereunder in accordance with instructions given by the Required Lenders
or all of the Lenders as is required in such circumstance, and such instructions
of such Lenders and any action taken or failure to act pursuant thereto shall be
binding on all Secured Parties. For purposes of applying amounts in accordance
with this Section, the Administrative Agent shall be entitled to rely upon any
Secured Party that has entered into a Rate Protection Agreement with any Obligor
for a determination (which such Secured Party agrees to provide or cause to be
provided upon request of the Administrative Agent) of the outstanding
Obligations owed to such Secured Party under any Rate Protection Agreement.
Unless it has actual knowledge evidenced by way of written notice from any such
Secured Party and the Borrower to the contrary, the Administrative Agent, in
acting in such capacity under the Loan Documents, shall be entitled to assume
that no Rate
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Protection Agreements or Obligations in respect thereof are in existence or
outstanding between any Secured Party and any Obligor.
SECTION 9.9. Defaults. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received a written notice from a Lender or the Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall (subject to Section 10.1)
take such action with respect to such Default as shall be directed by the
Required Lenders; provided, that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Secured
Parties except to the extent that this Agreement expressly requires that such
action be taken, or not be taken, only with the consent or upon the
authorization of the Required Lenders or all Lenders.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of each Loan
Document may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by the Borrower
and the Required Lenders; provided, however, that no such amendment,
modification or waiver shall:
(a) modify this Section without the consent of all Lenders;
(b) increase the aggregate amount of any Credit Extensions
required to be made by a Lender pursuant to its Commitments, extend the
final Commitment Termination Date of Credit Extensions made (or
participated in) by a Lender or extend the final Stated Maturity Date
for any Lender's Loan, in each case without the consent of such Lender
(it being agreed, however, that any vote to rescind any acceleration
made pursuant to Section 8.2 and Section 8.3 of amounts owing with
respect to the Loans and other Obligations shall only require the vote
of the Required Lenders);
(c) reduce the principal amount of or rate of interest on any
Lender's Loan, reduce any fees described in Article III payable to any
Lender or extend the date on which interest or fees are payable in
respect of such Lender's Loans, in each case without the consent of
such Lender;
(d) reduce the percentage set forth in the definition of
"Required Lenders" or modify any requirement hereunder that any
particular action be taken by all Lenders without the consent of all
Lenders;
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(e) increase the stated amount of the Letter of Credit unless
consented to by the Letter of Credit Issuer;
(f) except as otherwise expressly provided in a Loan Document,
release (i) the Borrower from its Obligations under the Loan Documents
or any Guarantor from its obligations under a Guaranty or (ii) all or
substantially all of the collateral under the Loan Documents, in each
case without the consent of all Lenders;
(g) affect adversely the interests, rights or obligations of
an Agent (in its capacity as an Agent) or the Letter of Credit Issuer
(in its capacity as Letter of Credit Issuer), unless consented to by
such Agent, and the Letter of Credit Issuer, as the case may be; or
(h) reduce the amount of prepayment premiums payable to
Lenders making Term B Loans pursuant to clause (b) of Section 3.1.1 (or
modify the dates with respect to which prepayments of Term B Loans
require such prepayment premiums), or amend, modify or waive the
application of deposits and prepayments described in clauses (b) and
(c) of Section 3.1.2, in each case without the consent of the majority
of the Lenders directly and adversely affected thereby.
No failure or delay on the part of any Secured Party in exercising any power or
right under any Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No notice
to or demand on any Obligor in any case shall entitle it to any notice or demand
in similar or other circumstances. No waiver or approval by any Secured Party
under any Loan Document shall, except as may be otherwise stated in such waiver
or approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 10.2. Notices; Time. All notices and other communications
provided under each Loan Document shall be in writing or by facsimile and
addressed, delivered or transmitted, if to the Borrower or the Administrative
Agent, at its address or facsimile number set forth below its signature in this
Agreement, and if to a Lender or the Letter of Credit Issuer to the applicable
Person at its address or facsimile number set forth on Schedule II hereto or set
forth in the Lender Assignment Agreement, or at such other address or facsimile
number as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed given when
the confirmation of transmission thereof is received by the transmitter. Unless
otherwise indicated, all references to the time of a day in a Loan Document
shall refer to New York time.
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay
on demand all reasonable expenses of the Agents (including the reasonable fees
and out-of-pocket
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expenses of Mayer, Brown & Platt, counsel to the Agents and of local counsel, if
any, who may be retained by or on behalf of the Agents) in connection with
(a) the negotiation, preparation, execution and delivery of
each Loan Document, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other modifications to
any Loan Document as may from time to time hereafter be required,
whether or not the transactions contemplated hereby are consummated;
and
(b) the filing or recording of any Loan Document (including
the Filing Statements) and all amendments, supplements, amendment and
restatements and other modifications to any thereof, searches made
following the Effective Date in jurisdictions where Filing Statements
(or other documents evidencing Liens in favor of the Secured Parties)
have been recorded and any and all other documents or instruments of
further assurance required to be filed or recorded by the terms of any
Loan Document; and
(c) the preparation and review of the form of any document or
instrument relevant to any Loan Document.
The Borrower further agrees to pay, and to save each Secured Party harmless from
all liability for, any stamp or other taxes which may be payable in connection
with the execution or delivery of each Loan Document, the Credit Extensions or
the issuance of the Notes. The Borrower also agrees to reimburse each Secured
Party upon demand for all reasonable out-of-pocket expenses (including
reasonable attorneys' fees and legal expenses of counsel to each Secured Party)
incurred by such Secured Party in connection with (x) the negotiation of any
restructuring or "work-out" with the Borrower, whether or not consummated, of
any Obligations and (y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Secured Party, the Borrower hereby
indemnifies, exonerates and holds each Secured Party, each Co-Lead Arranger,
each joint book runner, the Syndication Agent and each of their respective
officers, directors, employees, investment advisors, trustees and agents
(collectively, the "Indemnified Parties") free and harmless from and against any
and all actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses incurred in connection therewith (irrespective of whether
any such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and disbursements,
whether incurred in connection with actions between or among the parties hereto
or the parties hereto and third parties (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension, including all Indemnified Liabilities arising in connection
with the transaction contemplated hereby;
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(b) the entering into and performance of any Loan Document by
any of the Indemnified Parties (including any action brought by or on
behalf of the Borrower as the result of any determination by the
Required Lenders pursuant to Article V not to fund any Credit
Extension, provided that any such action is resolved in favor of such
Indemnified Party);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by any Obligor or any Subsidiary
thereof of all or any portion of the Capital Securities or assets of
any Person, whether or not an Indemnified Party is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the protection of the environment or the Release by any Obligor or any
Subsidiary thereof of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by any Obligor or any Subsidiary thereof of
any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the
control of, such Obligor or Subsidiary;
(f) each Lender's Environmental Liability (the indemnification
herein shall survive repayment of the Obligations and any transfer of
the property of any Obligor or its Subsidiaries by foreclosure or by a
deed in lieu of foreclosure for any Lender's Environmental Liability,
regardless of whether caused by, or within the control of, such Obligor
or such Subsidiary); or
(g) Replacement Revolving Credit Facility;
except for Indemnified Liabilities arising for the account of a particular
Indemnified Party by reason of the relevant Indemnified Party's gross negligence
or wilful misconduct. Each Obligor and its successors and assigns hereby waive,
release and agree not to make any claim or bring any cost recovery action
against, any Indemnified Party under CERCLA or any state equivalent, or any
similar law now existing or hereafter enacted. It is expressly understood and
agreed that to the extent that any Indemnified Party is strictly liable under
any Environmental Laws, each Obligor's obligation to such Indemnified Party
under this indemnity shall likewise be without regard to fault on the part of
any Obligor with respect to the violation or condition which results in
liability of an Indemnified Party. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, each Obligor agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
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SECTION 10.5. Survival. The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any assignment from one Lender to
another (in the case of Sections 10.3 and 10.4) and the occurrence of the
Termination Date. The representations and warranties made by each Obligor in
each Loan Document shall survive the execution and delivery of such Loan
Document.
SECTION 10.6. Severability. Any provision of any Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 10.7. Headings. The various headings of each Loan Document are
inserted for convenience only and shall not affect the meaning or interpretation
of such Loan Document or any provisions thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective when counterparts
hereof executed on behalf of the Borrower, the Agents and each Lender (or notice
thereof satisfactory to the Administrative Agent), shall have been received by
the Administrative Agent.
SECTION 10.9. Governing Law; Entire Agreement. EACH LOAN DOCUMENT
(OTHER THAN THE LETTER OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN A LOAN DOCUMENT) WILL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK). THE LETTER OF CREDIT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN
SUCH LETTER OF CREDIT, OR IF NO LAWS OR RULES ARE DESIGNATED, THE INTERNATIONAL
STANDBY PRACTICES (ISP98--INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NUMBER
590 (THE "ISP RULES")) AND, AS TO MATTERS NOT GOVERNED BY THE ISP RULES, THE
INTERNAL LAWS OF THE STATE OF NEW YORK. The Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter
thereof and supersede any prior agreements, written or oral, with respect
thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns;
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provided, however, that the Borrower may not assign or transfer its rights or
obligations hereunder without the consent of all Lenders.
SECTION 10.11. Sale and Transfer of Credit Extensions; Participations
in Credit Extensions Notes. Each Lender may assign, or sell participations in,
its Loans, the Letter of Credit and Commitments to one or more other Persons in
accordance with this the terms set forth below.
SECTION 10.11.1. Assignments. Any Lender, pursuant to a Lender
Assignment Agreement,
(a) with the consent of the Borrower and the Administrative
Agent (which consents shall not be unreasonably delayed or withheld
and, which consent, in the case of the Borrower, shall not be required
during the continuation of a Default; provided, however, that the
Administrative Agent and the Borrower may withhold such consent in
their sole discretion to an assignment to a Person not satisfying the
credit ratings set forth in clause (f)) may at any time assign and
delegate to one or more Eligible Assignees); and
(b) upon notice to the Borrower and the Administrative Agent,
and upon the Administrative Agent's consent (such consent not to be
unreasonably delayed or withheld), may assign and delegate to any of
its Affiliates, any Related Fund or to any other Lender;
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's Term Loans, 364
Day Revolving Loans, 364 Day Revolving Loan Commitment and Three Year Loan
Commitment in a minimum aggregate amount of $1,000,000 in the case of
assignments to Assignee Lender's other than such Lender's Affiliates, any
Related Fund or any other Lender (or, if less, the entire remaining amount of
such Lender's Term Loans, 364 Day Revolving Loans, 364 Day Revolving Loan
Commitment and Three Year Loan Commitment); provided, however, that with respect
to assignments solely of (i) 364 Day Revolving Loans and the 364 Day Revolving
Loan Commitment, the assigning Lender must assign a pro-rata portion of such
Loans and such Commitment and (ii) the Three Year Loan Commitment, assignments
must be made pro rata between the participation interest purchased by each Three
Year Loan Lender pursuant to Section 2.6.2 and the Three Year Loan Commitment);
provided, further, that, notwithstanding anything to the contrary contained in
this Section 10.11.1, with respect to assignments solely of the Three Year Loan
Commitment, the consent of the Administrative Agent (in consultation with GS)
and, on or prior to the Letter of Credit Draw Date, the Letter of Credit Issuer,
shall be required for all assignments permitted hereunder, including,
assignments to Affiliates, any Related Fund, or any other Lender (which consents
shall be at such Administrative Agent's and Letter of Credit Issuer's sole
discretion). Each Obligor and the Administrative Agent shall be entitled to
continue to deal solely and
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directly with a Lender in connection with the interests so assigned and
delegated to an Assignee Lender until
(c) notice of such assignment and delegation, together with
(i) payment instructions, (ii) the Internal Revenue Service forms or
other statements contemplated or required to be delivered pursuant to
Section 4.6, if applicable, and (iii) addresses and related information
with respect to such Assignee Lender, shall have been delivered to the
Borrower and the Administrative Agent by such Person by whom such
assignment and delegation is made (the "Assignor Lender") and such
Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to
the Borrower and the Administrative Agent a Lender Assignment
Agreement, accepted by the Administrative Agent; and
(e) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement and such assignment is registered with Register pursuant to
clause (b) of Section 2.7, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender under the Loan Documents, and (y) the Assignor Lender,
to the extent that rights and obligations hereunder have been assigned and
delegated by it in connection with such Lender Assignment Agreement, shall be
released from its obligations hereunder and under the other Loan Documents but
shall continue to be entitled to the benefits of the provisions of this
Agreement which by their terms survive the Termination Date. Within five
Business Days after its receipt of notice that the Administrative Agent has
received and accepted an executed Lender Assignment Agreement (and if requested
by the Assignee Lender), but subject to clause (c), the Borrower shall execute
and deliver to the Administrative Agent (for delivery to the relevant Assignee
Lender) a new Note evidencing such Assignee Lender's assigned Loans and
Commitments and, if the Assignor Lender has retained Loans and Commitments
hereunder (and if requested by such Lender), a replacement Note in the principal
amount of the Loans and Commitments retained by the Assignor Lender hereunder
(such Note to be in exchange for, but not in payment of, the Note then held by
such Assignor Lender). Each such Note shall be dated the date of the predecessor
Note. The Assignor Lender shall mark each predecessor Note "exchanged" and
deliver each of them to the Borrower. Accrued interest on that part of each
predecessor Note evidenced by a new Note, and accrued fees, shall be paid as
provided in the Lender Assignment Agreement. Accrued interest on that part of
each predecessor Note evidenced by a replacement Note shall be paid to the
Assignor Lender. Accrued interest and accrued fees shall be paid at the same
time or times provided in the predecessor Note and in this Agreement. Such
Assignor Lender or such Assignee Lender must also pay a processing fee in the
amount of $3,500 to the Administrative Agent upon delivery of any Lender
Assignment Agreement; provided, that no such processing fee shall be required in
connection with any such
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assignment and delegation (i) by a Lender to its Affiliate or to a Related Fund,
(ii) by a Lender to a Federal Reserve Bank (or, if such Lender is an investment
fund, to the trustee under the indenture to which such fund is a party in
support of its obligations to such trustee) or (iii) if the non-payment of the
processing fee is otherwise consented to in writing by the Administrative Agent.
Any attempted assignment and delegation not made in accordance with this Section
shall be null and void. Notwithstanding anything to the contrary set forth
above, any Lender may (without requesting the consent of the Borrower or the
Administrative Agent) pledge its Loans to (a) a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank, or (b) in the
case of any Lender which is a fund that invests in loans, any trustee or any
other representative of holders of obligations owed or securities issued by such
Lender as security for such obligations or securities; provided, that, no such
pledge or assignment shall (x) release any Lender from any of its obligations
hereunder or (y) substitute any such pledgee or assignee for such Lender as a
party hereto.
(f) In the event that S&P or Moody's, shall, after the date
that any Person becomes a Lender, downgrade the long-term certificate
of deposit ratings of such Lender, and the resulting ratings shall be
below BBB- or Baa3, respectively, or the equivalent, then the Borrower
and the Letter of Credit Issuer shall each have the right, but not the
obligation, upon notice to such Lender and the Administrative Agent, to
replace such Lender with a financial institution (a "Replacement
Lender") acceptable to the Borrower and the Administrative Agent and
the Letter of Credit Issuer (such consents not to be unreasonably
withheld or delayed; provided, that no such consent shall be required
if the Replacement Lender is an existing Lender), and upon any such
downgrading of any Lender's long-term certificate of deposit rating,
each such Lender hereby agrees to transfer and assign (in accordance
with Section 10.11.1) all of its Commitments and other rights and
obligations under the Loan Documents (including Letter of Credit
Reimbursement Obligations) to such Replacement Lender; provided,
however, that (i) such assignment shall be without recourse,
representation or warranty (other than that such Lender owns the
Commitments, Loans and Notes being assigned, free and clear of any
Liens) and (ii) the purchase price paid by the Replacement Lender shall
be in the amount of such Lender's Loans and its Percentage of
outstanding Letter of Credit Reimbursement Obligations, together with
all accrued and unpaid interest and fees in respect thereof, plus all
other amounts (other than the amounts (if any) demanded and
unreimbursed under Sections 4.2, 4.3, 4.5, 4.6, 10.3 and 10.4, which
shall be paid by the Borrower), owing to such Lender hereunder. Upon
any such termination or assignment, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of any
provisions of this Agreement which by their terms survive the
termination of this Agreement.
SECTION 10.11.2. Participations. Any Lender may sell to one or more
commercial banks or other Persons (each of such commercial banks and other
Persons being herein called a "Participant") participating interests in any of
the Loans, Commitments, or other interests of such Lender hereunder; provided,
however, that
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(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations under
any Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) each Obligor and the Administrative Agent shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under each Loan Document;
(d) no Participant, unless such Participant is an Affiliate or
Related Fund of such Lender or is itself a Lender, shall be entitled to
require such Lender to take or refrain from taking any action under any
Loan Document, except that such Lender may agree with any Participant
that such Lender will not, without such Participant's consent, take any
actions of the type described in clause (a), (b), (c) or (f) of Section
10.1 with respect to Obligations participated in by such Participant;
(e) the Borrower shall not be required to pay any amount under
this Agreement that is greater than the amount which it would have been
required to pay had no participating interest been sold; and
(f) such Lender shall, as agent of the Borrower solely for the
purpose of this Section, record in book entries maintained by such
Lender the name of its Participants and the amount such Participants
are entitled to receive in respect of any participating interests sold
pursuant to this Section.
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 7.1.1, 10.3 and 10.4, shall be considered
a Lender. Each Participant shall only be indemnified for increased costs
pursuant to Section 4.3, 4.5 or 4.6 if and to the extent that the Lender which
sold such participating interest to such Participant concurrently is entitled to
make, and does make, a claim on the Borrower for such increased costs. Any
Lender that sells a participating interest in any Loan, Commitment or other
interest to a Participant under this Section shall indemnify and hold harmless
the Borrower and the Administrative Agent from and against any taxes, penalties,
interest or other costs or losses (including reasonable attorneys' fees and
expenses) incurred or payable by the Borrower or the Administrative Agent as a
result of the failure of the Borrower or the Administrative Agent to comply with
its obligations to deduct or withhold any Taxes from any payments made pursuant
to this Agreement to such Lender or the Administrative Agent, as the case may
be, which Taxes would not have been incurred or payable if such Participant had
been a Non-U.S. Lender that was entitled to deliver to the Borrower, the
Administrative Agent or such Lender, and did in fact so deliver, a duly
completed and valid Form W-8BEN or W-8ECI (or applicable successor form)
entitling such Participant to receive payments under this Agreement without
deduction or withholding of any United States federal taxes.
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SECTION 10.12. Other Transactions. Nothing contained herein shall
preclude the Agents, the Letter of Credit Issuer or any other Lender from
engaging in any transaction, in addition to those contemplated by the Loan
Documents, with the Borrower or any of its Affiliates in which the Borrower or
such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.13. Confidentiality. In handling all information furnished
to, or obtained by, the Administrative Agent and the Lenders pursuant to this
Agreement, the Administrative Agent and each Lender shall exercise the same
degree of care that it exercises with respect to its own proprietary information
of the same types to maintain the confidentiality of any non-public information
received hereunder except that disclosure of such information may be made (i) to
the subsidiaries or Affiliates of the Administrative Agent in connection with
their present or prospective business relations with the Borrower, (ii) to
prospective transferees, assignees or purchasers of an interest in the Loans
and/or Commitments who have agreed in writing to be bound by the confidentiality
provisions hereof and to any direct or indirect contractual counterparties (or
the professional advisors thereto) in agreements or arrangements evidencing
Hedging Obligations; provided, that such counterparties and advisors are advised
of and agree to be bound by the provisions of this Section 10.13, (iii) as
required by law, regulation, rule or order, subpoena, judicial order or similar
order, provided that the Administrative Agent and each Lender shall, to the
extent it would not be unlawful, use reasonable efforts to afford the Borrower
the opportunity to contest any such rule, order or subpoena and (iv) as may be
required in connection with the examination, audit or similar investigation of
the Administrative Agent or any Lender.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS, THE LETTER OF CREDIT
ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND
MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR
NOTICES SPECIFIED IN SECTION 10.2. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT
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IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED
BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. THE AGENTS, EACH LENDER, THE
LETTER OF CREDIT ISSUER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE AGENTS, SUCH LENDER, THE LETTER OF CREDIT ISSUER OR THE BORROWER IN
CONNECTION THEREWITH. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION
OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENTS, EACH LENDER AND THE LETTER OF CREDIT ISSUER
ENTERING INTO THE LOAN DOCUMENTS.
-100-
<PAGE> 108
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers there unto duly authorized as of the day
and year first above written.
UST INC.
By:
-----------------------------------------
Title:
Address: 100 West Putnam Avenue
Greenwich, Connecticut 06830
Facsimile No.: (202) 863-7260
Attention:
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
-----------------------------------------
Title:
Address: One Liberty Plaza
New York, New York 10006
Facsimile No.: (212) 225-5090
Attention:
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Syndication Agent
By:
-----------------------------------------
Title:
Address: 85 Broad Street
New York, New York 10004
Facsimile No.: (212) 902-3000
<PAGE> 109
Attention:
CREDIT LYONNAIS, NEW YORK BRANCH
as Co-Documentation Agent
By:
-----------------------------------------
Title:
THE FUJI BANK, LIMITED
as Co-Documentation Agent
By:
-----------------------------------------
Title:
LENDERS:
THE BANK OF NOVA SCOTIA
By:
-----------------------------------------
Title:
GOLDMAN SACHS CREDIT PARTNERS L.P.
By:
-----------------------------------------
Title:
[NAME OF LENDER]
By:
-----------------------------------------
Title:
[NAME OF LENDER]
-102-
<PAGE> 110
By:
-----------------------------------------
Title:
[NAME OF LENDER]
By:
-----------------------------------------
Title:
[NAME OF LENDER]
By:
-----------------------------------------
Title:
-103-
